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2015 DIGILAW 197 (RAJ)

Rajasthan Housing Board v. Chunnilal

2015-01-21

VINEET KOTHARI

body2015
Hon'ble Dr. KOTHARI, J.—The appellant/defendant, Rajasthan Housing Board, has preferred this second appeal against the concurrent judgment and decree given in favour of respondents/plaintiffs injuncting the defendant Rajasthan Housing Board not to dispossess them from the suit land and have also declared the Notifications issued under Section 4 and 6 of the Land Acquisition Act, 1894 (Act of 1891) issued by the State Govt. for acquiring the land for Rajasthan Housing Board since the names of “Khatedar(s)” who were dead, their names were also shown in the said notification for acquisition of their land, whereas the land in question was purchased by the plaintiffs from these persons, when they were alive much prior to issuance of the notification under Section 4 of the Land Acquisition Act, 1894. 2. Mr. P.C. Sharma, learned counsel for the appellant, Rajasthan Housing Board, relying upon the decision of the Hon'ble Supreme Court in the case of State of Bihar vs. Dhirendra Kumar & Ors. reported in AIR 1995 SC 1955 submitted that jurisdiction of the civil court is barred and they cannot declare the notification under Sections 4 and 6 of the Act of 1894 bad and vitiated even though the names of dead persons were shown in the said notifications and the same is of no consequence and only the correct description of the land is to be given in the notifications under Sections 4 and 6 of the Act of 1894 and not of the persons and nor prior verification is required to be done as to whether they are dead or alive while issuing the notification under Section 4 of the Act of 1894. The relevant and extract portion of the judgment of the Hon'ble Apex Court relied upon by the learned counsel for the appellant, Rajasthan Housing Board, is quoted herein below for ready reference: - “....... Thereon, the State is entitled to issue notice to the parties under S.9 and on expiry of 15 days, the State is entitled to take immediate possession even before the award could be made. Otherwise, it would take possession after the award under S.12. Thus, it could be seen that the Act is a complete code in itself and is meant to serve public purpose. Otherwise, it would take possession after the award under S.12. Thus, it could be seen that the Act is a complete code in itself and is meant to serve public purpose. We are, therefore, inclined to think, as presently advised, that by necessary implication the power of the civil court to take cognizance of the case under S.9 of C.P.C. stands excluded, and a civil court has no jurisdiction to go into the question of the validity or legality of the notification under S.4 and declaration under S.6, except by the High Court in a proceeding under Art. 226 of the Constitution.” 3. Per contra, Mr. Mahesh Joshi, learned counsel for the respondent/ plaintiff (decree holder) relied upon the judgment of this Court in the case of Urban Improvement Trust, Bikaner vs. Gordhan Das & Ors. reported in 2010(1) DNJ (Raj.) 224 = 2010(2) RLW 1244 and submitted that notifications under Sections 4 and 6 of the Act of 1894 issued against a dead person were void qua them and in such circumstances the present transferees of the land in question who were in possession, were entitled to seek injunction against the appellant- Rajasthan Housing Board and the courts below have concurrently, on the basis of available evidence, have rightly granted such injunction in favour of plaintiffs while deciding the question of jurisdiction also in favour of plaintiff that civil court had the jurisdiction to decide the injunction suit in such cases. The relevant portion of the judgment in the case of UIT, Bikaner vs. Gordhan Das & Ors. (supra) which was passed while relying upon the judg-ment of Hon'ble Apex Court in the case of Union of India vs. Tarchand Gupta reported in (1971) 1 SCC 486 is quoted herein below for ready reference: “17. The relevant portion of the judgment in the case of UIT, Bikaner vs. Gordhan Das & Ors. (supra) which was passed while relying upon the judg-ment of Hon'ble Apex Court in the case of Union of India vs. Tarchand Gupta reported in (1971) 1 SCC 486 is quoted herein below for ready reference: “17. So far as jurisdiction of the Civil Court is concerned, indisputably, in the instant case, the owners of the land in dispute are plaintiff respondent Gordhan Dass and defendant respondents No.2 to 4 namely Narayan Dass, Kanhaiya Lal and Ganesh Ram as they have purchased the disputed land way back in the year 1970 i.e. on 2.3.1970 and 16.3.1970 by two separate sale deeds as referred herein above and without there being notice to the true owner the appellant defendant UIT proceeded under Section 52 of the Act of 1959 for acquisition of the land of two bighas and therefore, in absence of a notice of acquisition to the true owner of the land in question, such acquisition proceeding is void ab-initio and as such nullity and for protection of possession and interference of such land, the plaintiff respondent has remedy to approach the Civil Court and the Civil Court has ample jurisdiction to try such suit under Section 9 of the Code. 18. In Firm Seth Radha Kishan (deceased) represented by Hari Kishan and Others vs. Administrator Municipal Committee, Ludhiana, (supra), in para 7 of the Report, Hon'ble Supreme Court held that under S.9 of the Code of Civil Procedure the Court shall have jurisdiction to try all suits of civil nature excepting suits of which cognizance is either expressly or impliedly barred. A statute, therefore, expressly or by necessary implication, can bar the jurisdiction of civil Courts in respect of a particular matter. The mere conferment of special jurisdiction on a tribunal in respect of the said matter does not in itself exclude the jurisdiction of civil courts. The statute may specifically provide for ousting the jurisdiction of civil Courts; even if there was no such specific exclusion, if it creates a liability not existing before and gives a special and particular remedy for aggrieved party, the remedy provided by it must be followed. The same principle would apply if the statute had provided for the particular forum in which the remedy could be had. The same principle would apply if the statute had provided for the particular forum in which the remedy could be had. Even in such cases, the Civil Court's jurisdiction is not completely ousted. A suit in a civil Court will always lie to question the order of a tribunal created by a statute, even if its order is, expressly or by necessary implication, made final, if the said tribunal abuses its power or does not act under the Act but in violation of its provisions. 19. In Union of India vs. Tarachand Gupta (supra), Hon'ble Supreme Court in para 22 of the Report observed as under:- “22. The principle thus is that exclusion of the jurisdiction of the Civil Courts is not to be readily inferred. Such exclusion, however, is inferred where the statute gives finality to the order of the tribunal on which it confers jurisdiction and provides for adequate remedy to do what the courts would normally do in such a proceeding before it. Even where a statute gives finality, such a provision does not exclude cases where the provisions of the particular statute have not been complied with or the tribunal has not acted in conformity with the fundamental principles of judicial procedure. The word “jurisdiction” has both a narrow and a wider meaning. In the sense of the former, it means the authority to embark upon an enquiry; in the sense of the latter it is used in several aspects, one of such aspects being that the decision of the tribunal is in non-compliance with the provisions of the Act. Accordingly, a determination by a tribunal of a question other than the one which the statute directs it to decide would be a decision not under the provisions of the Act, and therefore, in excess of its jurisdiction.” 4. Having heard the learned counsel for the parties, and upon perusal of the judgments and decree of the courts below, this Court is of the opinion that against the concurrent injunction decree granted by the courts below no substantial question of law arises in the present second appeal filed by the appellants/defendants- Rajasthan Housing Board. Having heard the learned counsel for the parties, and upon perusal of the judgments and decree of the courts below, this Court is of the opinion that against the concurrent injunction decree granted by the courts below no substantial question of law arises in the present second appeal filed by the appellants/defendants- Rajasthan Housing Board. The question of jurisdiction decided by the Hon'ble Apex Court in the case of State of Bihar vs. Dhirendra Kumar (supra) does not specifically exclude the jurisdiction of the civil court under Section 9 of the Code of Civil Procedure, 1908, which is an umbrella provision for deciding the civil rights of the parties, irrespective of the validity of the notification under Section 4 and 6 of the Act of 1894 and the present respondents/plaintiffs could seek such injunction on the basis of their title and possession under a registered sale-deed in their favour, which was executed much prior to the issuance of the notification under Section 4 and 6 of the Act of 1894. The injunction has been granted based on relevant evidence and the same being findings of facts do not give rise any substantial of law arising in the present appeal. 5. Consequently, the present second appeal filed by the appellants/ defendants, Rajasthan Housing Board seeking to assail the concurrent judgment and decree of junction of the courts below, is found to be devoid of any merit, and the same is hereby dismissed. No costs. A copy of this judgment be sent to the concerned parties and the courts below forthwith.