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2009 DIGILAW 1078 (PAT)

Swami Narendra Brahmachari v. State of Bihar

2009-08-12

body2009
ORDER Heard learned counsel for the petitioner and learned counsel for the State. 2. Petitioner wants quashing of the proceedings and the order which have been passed by the civil court in Execution Case No. 1 of 2000 after 22.5.2008 after section 43 of the Bihar Hindu Religious Trust Act as amended by the Bihar Act No. 1 of 2007 came into effect. 3. Looking at the submission which has been made on the questions of law on behalf of the petitioner by learned Senior counsel, the details of the facts may not be noted in this order. Primarily, however it is apparent that a long dispute over a trust property is going on between the parties concerned which was initiated by way of a Title Suit No. 22/1966/73 initially filed by one Chandramani Das. The suit in question finally came to be decreed and for execution of the said decree Execution Case No.1 of 2000 came to be filed before the court. Execution court finally ousted the petitioner from the property in question on the basis of decree. 4. The main contention of learned Senior counsel is that when the petitioner was ousted by the civil court the law had undergone a change. A new provision, section 43 came to be incorporated in the Bihar Hindu Religious Trust Act, 1950. By virtue of this amendment a Tribunal came to be constituted for decision of disputes with regard to trust property. Section 43 of the Act is reproduced hereinafter for ready reference. "43(1) Constitution of a Tribunal its powers and functions.- The State Government shall, by notification in the official Gazette, constitute a Tribunal for deciding property disputes under section 43B and for taking decisions under section 43C and removal of encroachment on the trust property alienated in violation of Section 44 of the Act and to appoint a receiver under Section 72. (2) The tribunal shall consist of a retired High Court Judge or a retired District Judge. The terms of the Tribunal Judge shall be for a period of five years or till the age of 67 years whichever s earlier. (3) Service condition of the Tribunal Judge and other staff members shall be such as may be prescribed by the State Government. The terms of the Tribunal Judge shall be for a period of five years or till the age of 67 years whichever s earlier. (3) Service condition of the Tribunal Judge and other staff members shall be such as may be prescribed by the State Government. (4) The Tribunal Shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (Central Act 5 of 1908), while trying a suit or executing a decree or order. (5) No suit, prosecution or other legal proceeding shall lie against the Tribunal Judge for any damage caused or likely to be caused by anything, in good faith done or intended to be done in pursuance of the provisions of this Act. Learned Senior counsel contends that once a mechanism (Tribunal) has been put into place by the legislature, the jurisdiction of the Civil Court stands ousted. In this regard he relies on two decisions rendered by the Hon'ble Supreme Court in the case of Venkataraman & Co Vs. State of Madras AIR 1966 SC 1089 and in the case of Dhulabhai Vs. State of M.P. AIR 1969 SC 78 . 5. It is also contended that since the Board has approached the Tribunal on 22.5.2008 therefore the forum will now adjudicate and decide the issue. The Civil Court's order will have no effect so far as the property in question is concerned. 6. Learned counsel representing the Board however submits that the amended provision under the Act does not have the effect of ousting the jurisdiction of the Civil Court from a retrospective date. The law as amended will come into effect from the date when it is notified, more so when the section does not say that all the pending matters before the Civil Court will stand automatically transferred to the Tribunal or all such cases will be vested in the Tribunal. It is also argued that Section 9 of the Code of Civil Procedure vests jurisdiction in a Civil Court to try all suits unless their cognizance is either expressly or impliedly barred. There is an underlying presumption in favour of jurisdiction of the Civil Court. That being so, Civil Courts' decision is very much in order. It is also argued that Section 9 of the Code of Civil Procedure vests jurisdiction in a Civil Court to try all suits unless their cognizance is either expressly or impliedly barred. There is an underlying presumption in favour of jurisdiction of the Civil Court. That being so, Civil Courts' decision is very much in order. The remedy for petitioner lies within the ambit of the Code of Civil Procedure and the provision which may be invoked by him is Order 21 Rules 99 or 100 of the Code. 7. Taking the rival contentions and submissions which have been made on the question of law, a plain reading of the provision of section 43 of the Act would show that the said provision is prospective in nature because there is no transitory or ouster clause in the section or sub sections of section 43. The rule of interpretation therefore would compel this Court to record that section 43 of the Act will be prospective. All such matters which were pending before the Civil Courts prior to the said amendment would continue to be decided by the Civil Courts and Tribunal is not the forum for those matters. The Tribunal will exercise power only in cases which arise after the provisions were put into effect. It will not replace the Civil Courts in disputes pending before them. 8. The Court fails to understand as to how the two decisions relied by petitioner supports the petitioner. A reading of para 32 of the decision in the case of Dhulabhai (supra) is a complete answer to the contentions raised. A plain reading of the para shows that the ouster of the Civil Courts' jurisdiction is not to be easily inferred unless the requirements are met, which is not so in the present case. 9. Another contention which has been made by learned Senior counsel based on the reading of section 43(4) of the Act is that the Tribunal has been vested with the same power as the Civil Court while trying a suit or executing a decree or an order. This according to Senior Counsel means that even execution can be effected by the Tribunal in exercise of its power and in the present case the said decree ought to have been executed by due process of the Tribunal. 10. This according to Senior Counsel means that even execution can be effected by the Tribunal in exercise of its power and in the present case the said decree ought to have been executed by due process of the Tribunal. 10. The above submission is fit to be rejected in the light of the observation of this Court that the power vested in the Tribunal akin to a Civil Court under Code of Civil Procedure, will govern the issues which are heard and decided by the Tribunal. It has not been vested authority to execute decrees passed by Civil Courts. 11. This writ application therefore has no merit and it is dismissed accordingly.