Rishi Kumar Agrawal vs The State Of Madhya Pradesh
2023 Latest Caselaw 6018 MP

                          1                   F.A.No.537/2006



IN THE HIGH COURT OF MADHYA PRADESH
            AT JABALPUR
                        BEFORE
     HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
                ON THE 13th OF APRIL, 2023
                 FIRST APPEAL No. 537 of 2006

BETWEEN:-

1.    RISHI KUMAR AGRAWAL S/O LATE
      KISHAN LAL AGRAWAL, AGED ABOUT 58
      YEARS, 516 LORDGANJ SARAFA WARD
      JABALPUR (MADHYA PRADESH)
2.    MUKESH    KUMAR    S/O  LATE   SHRI
      SHANKARLAL AGRAWAL, AGED ABOUT 46
      YEARS, UPRANGANJ, JABALPUR (MADHYA
      PRADESH)
3.    YATISH   KUMAR    S/O  LATE  SHRI
      SHANKARLAL AGRAWAL, AGED ABOUT 42
      YEARS, 516,LORDGANJ, SARAFA WARD,
      JABALPUR (MADHYA PRADESH)
4.    SMT.     ASHARANIW/O   JAWAHARLAL
      AGRAWAL, AGED ABOUT 56 YEARS,
      373,NAPIER TOWN, JABALPUR (MADHYA
      PRADESH)
5.    HIMANSHU S/O JAWAHARLAL AGRAWAL,
      AGED ABOUT 44 YEARS, 373,NAPIER TOWN,
      JABALPUR (MADHYA PRADESH)
6.    AGRAWAL DHARMARTH DHARMIK TRUST
      JABALPURTH. MANAGING TRUSTEE SHRI
      JAWAHAR    LAL   373,NAPIER TOWN,
      JABALPUR (MADHYA PRADESH)
                                                .....APPELLANTS
(APPELLANT NO.1 BY SHRI HEMANT KUMAR CHOUHAN - ADVOCATE)
(APPELLANTS NO.2 TO 6 BY SHRI SURENDRA VERMA AND SHRI SANJAY
SINGHAI - ADVOCATES)
                                 2                      F.A.No.537/2006




AND

1.    THE STATE OF MADHYA PRADESH THR.
      COLLECTOR DISTT. JABALPUR (MADHYA
      PRADESH)

2.    THE      ADDITIONAL      COLLECTOR
      OCCUPATION: COMPETENT AUTHORITY
      UNDER      URBAN    CEILING    AND
      REG.ACT,1976,  JABALPUR    (MADHYA
      PRADESH)

3.    THE   TAHSILDAR     (ENCROACHMENT),
      NAZUL DEPT. RANJHI (MADHYA PRADESH)
                                                        .....RESPONDENTS
(RESPONDENTS/STATE BY SHRI NAVEEN DUBEY - GOVT. ADVOCATE)
(INTERVENOR BY SHRI SHIVENDRA PANDEY - ADVOCATE)

"Reserved on : 05.04.2023"
"Pronounced on : 13.04.2023".
      This appeal having been heard and reserved for judgment, coming
on for pronouncement this day, the court passed the following:
                             JUDGMENT

1. This First Appeal under Section 96 of CPC has been filed against the Judgment and Decree dated 8-2-2006, passed by 2nd Additional District Judge, Jabalpur in Civil Suit No. 81-A/2004.

2. The Facts of the case are that the plaintiff filed a civil suit for declaration that plaintiff no.1 Rishi Kumar Agrawal, plaintiff no.2 Mukesh Kumar Agrawal, Plaintiff no.3 Yateesh Kumar Agrawal, Plaintiff no.4 Smt. Asha Rani Agrawal, Plaintiff no. 5 Himanshu Agrawal and other are the owners and in actual cultivating possession of their portions in Kh. No. 135, 136 and 138 of mouza Jabalpur S.No.

264, Tahsil and Distt. Jabalpur and the same doesnot come within the purview of the Urban Land (Ceiling and Regulation) Act, 1976 and permanent injunction was claimed thereby restraining the defendants from interfering or disturbing the peaceful possession of the plaintiffs over their respective portions of Kh. No. 135, 136 and 138 and may not be allotted to anyone else, as well as Mandatory Injunction to correct the revenue records by recording the names of the plaintiff no. 6 Agrawal Dharmarth Dharmik Trust over Kh. Nos. 132, 133 and 134 as owner.

3. The controversy involved in the present appeal can be summarized in a narrow campus. The plaintiffs have in fact challenged the proceedings under Urban Land (Ceiling and Regulation) Act, 1976, by which the land in dispute was declared as surplus land.

4. The only question for consideration is that whether a civil suit against the order passed under Urban Land (Ceiling and Regulation) Act, 1997 is maintainable or not?

5. The Supreme Court in the case of State of W.B. v. David Mantosh, reported in (2020) 12 SCC 542 has held as under :

44. The Constitution Bench of this Court in Dhulabhai v. State of M.P. examined the question as to when the jurisdiction of the civil court can be held to have been expressly or impliedly excluded in trying a civil suit in the context of Section 9 of the Code of Civil Procedure, 1908.

45. Hidayatullah, J., the then learned Chief Justice, speaking for the Bench in his inimitable style, laid down 7 tests for examining the aforementioned question. These tests read as under: (Dhulabhai case, AIR pp. 89-90, para 32)

"(1) Where the statute gives a finality to the orders of the special tribunals the civil courts' jurisdiction must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.

(2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not. (3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals. (4) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit.

(5) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected, a suit lies.

(6) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and

a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case, the scheme of the particular Act must be examined because it is a relevant enquiry. (7) An exclusion of the jurisdiction of the civil court is not readily to be inferred unless the conditions above set down apply."

46. In the light of the tests laid down in Dhulabhai and further keeping in view the scheme of the Act, we have to examine the issue as to whether the jurisdiction of the civil court is expressly or impliedly excluded in trying the civil suit in relation to matters arising out of the Act in question and second, whether the civil court has the jurisdiction to declare the proceedings held under the Act, as being void.

47. Having examined the issue, we are clearly of the opinion that the present case falls under clause (1) of para 32 of Dhulabhai and satisfies the test laid down therein. Hence, the jurisdiction of the civil court is held to be excluded by implication to try the civil suit in question. This we say for the following reasons:

47.1. First, the Act in question gives finality to the orders passed by the appellate authority [refer to Section 33(3)]. 47.2. Second, the Act provides adequate remedies in the nature of appeals, such as first appeal to the Tribunal and second appeal to the High Court [refer to Sections 12(4), 13 and 33(1)].

47.3. Third, the Act is a complete code in itself and gives overriding powers on other laws (refer to Section 42). 47.4. Fourth, the Act expressly excludes the jurisdiction of the civil court in relation to the cases falling under Sections 30 and 40 [refer to Section 30(5) and Section 40]. 47.5. Fifth, as a result of dismissal of writ petition and SLP, it is held therein that the proceedings under the Act in question were done in conformity with the Act in question.

48. In light of the aforesaid five reasons -- a fortiori, the jurisdiction of the civil court in relation to all the issues

arising under the Act is held impliedly excluded thereby satisfying all the conditions set out in clause (1) of para 32 of Dhulabhai.

49. We are, therefore, of the considered view that the jurisdiction of the civil courts to try the civil suits with respect to the lands, which were subjected to ceiling proceedings under the Act, are held to be impliedly barred, since the Act excludes the jurisdiction of the civil court.

6. Thus, it is clear that against an order passed under Urban Land (Ceiling and Regulation) Act, the Civil Suit is not maintainable.

7. It is submitted by the Counsel for the Appellants that since, Agrawal Dharmarth Dharmik Trust is exempted under Section 19(5) of Urban Land (Ceiling and Regulation) Act, therefore, the declaration of land as surplus is bad.

8. Whether the Plaintiff No. 6 Agrawal Dharmarth Dharmik Trust, was exempted from the provisions of Urban Land (Ceiling and Regulation) Act or not was to be decided by the authorities. If the plaintiff no.6 Agrawal Dharmarth Dharmik Trust was aggrieved by any findings then it has the remedy under the Act including before the High Court, however, in the light of judgment passed in the case of David Mantosh (Supra), the Civil Suit was not maintainable.

9. Further more, in the previously instituted suit, a liberty was granted to approach the competent authorities. Thus, the Trial Court also rightly held that no relief of similar in nature can be granted in the present civil suit.

10. Therefore, this Court is of the considered opinion, that there is no substance in the present appeal as the suit itself was not maintainable.

11. Ex consequenti, the Judgment and Decree dated 8-2-2006, passed by 2nd Additional District Judge, Jabalpur in Civil Suit No. 81- A/2004 is hereby affirmed.

12. The appeal fails and is hereby Dismissed.

(G.S. AHLUWALIA) JUDGE HEMANT SARAF 2023.04.17 12:43:26 +05'30' HS