Jagat Singh vs Nidhan Singh

Chopra, J.—This is Plaintiff''s second appeal against an appellate decree of the District Judge, Kapurthala, dismissing his suit, which had been decreed by the trial Sub-Judge. The facts that gave rise to the suit are the following:

Under Para. 9 Chap. 4 of Mustnind Judicial Hadayyat of the erstwhile Kapurthala. State a revenue officer was authorised to order compulsory exchange of land if in his opinion. such exchange was likely to consolidate the holdings of a proprietor so as to enable him; to sink a new well. To explain the intention of the legislation an illustration is added .to this para, which says that in case a proprietor has got a plot of five Ghamons of land at one place and another plot 5 Ghamons at some distance, a compulsory exchange of the latter plot with an equal area of land which belongs to a different person and adjoins the former plot, can be ordered provided the proprietor undertakes to construct a well to irrigate the consolidated holding of ten Ghamons. Clause (5) of this Para amongst other things also provides that the well should be completed within one year of the order of compulsory exchange.

On 1-7-1997 Nidhan Singh respondent presented an application under this Hadayat to the Tehsildar Kapurthala for an order of exchange of his Khasra No. 844 measuring 6 Kanals 12 marlas with Khasra Nos. 833, 810 and 841 belonging to Jagat Singh and others alleging that his Khasra No. 844 was situated at a long dis-tance from his already existing well while the three Khasra numbers belonging to the other party were close to the well and could be irrigated therefrom. On 14-3-2000 the Tehsildar accepted the application and made an ''ex parte'' order directing compulsory exchange of the two plots. A mutation on the basis of the above order was thereafter entered and also sanctioned. The party aggrieved Wont in appeal to Mashir-i-Mal, Kapurthala, who dismissed the appeal on the ground that an appeal should have been preferred against the order of the Tehsildar and the one against the mutation attested in compliance with that order was-not competent.

Kartar Singh and Jagat Singh against whom the order for exchange was made then instituted the present suit for a declaration that the order of the Tehsildar allowing compulsory exchange of their land was illegal, ultra vires and be yond his jurisdiction. One of the grounds taken in. the plaint was that the compulsory exchange could be ordered only if the Defendant intended to sink a new well and not to enable him to get a consolidated holding to be irrigated by a well that was already in existence. Nidhan Singh resisted the suit on the grounds that the civil Courts had no jurisdiction to try the suit, that it was barred by time and that the Plaintiffs were estopped from challenging the order of the Tehsildar. The trial Sub-Judge decided all the issues raised in favour of the Plaintiffs and consequently decreed the suit. The learned District Judge on defendant''s appeal was of the opinion that since the order of the Tehsildar was made under a special enactment, which even provided for a right of appeal to the aggrieved party, Civil Court had no jurisdiction to try the suit. He consequently accepted the appeal and dismissed the suit. The Plaintiffs have now come in second appeal to this Court.

Shri Ram Niwas, the learned Counsel for the Appellants, contends that there was no express provision in the Special law, which ousted the jurisdiction of the civil Courts to hear a suit questioning an order made under that law. in the alternative it urged that even if a suit questioning the merits of an order of a special tribunal could not be entertained by a civil Court, the jurisdiction of a civil Court to entertain a suit questioning the legality or intra vires nature of an order made by such Tribunal was not barred. Section 9, Civil P.C. provides that the civil Courts shall have jurisdiction to try all suits, of a civil nature excepting suits of which the cognizance is either expressly or impliedly oarred. It is correct that the special law under which the order was made does not expressly take away the jurisdiction of the civil Courts. But a suit would be said to be impliedly barred when it is barred by the general principles of law or on grounds of public policy. Where a special tribunal or a public body is created by or under the authority of an Act of the legislature for the purpose of determining the rights which are the creation of the Act, then the jurisdiction of that tribunal or of that body is, unless provided otherwise, exclusive, and the civil Courts cannot take cognizance of such matter. All the same the jurisdiction of a civil Court is not excluded where the order is made in the absence of the fact on the existence of which alone depends the jurisdiction of the officer or authority making the order, because the special jurisdiction of such officer or authority does not carry with it a power to act beyond and outside that jurisdiction. In other words, a suit in a civil Court for a declaration that the order made by any particular authority under any special law is illegal, ultra vires and beyond the jurisdiction of that authority would be competent. The contention of the learned Counsel for the Appellant that since the order of the Tehsildar in the present case was questioned on the ground that he had no jurisdiction to pass such an order under the special law the jurisdiction of the civil Court was not barred, must therefore, prevail.

Their Lordships of the Privy Council in - AIR 1940 105 (Privy Council) made the following instructive observations:

It is settled law that the exclusion of the jurisdiction of the civil Courts is not to be readily inferred but, such exclusion must either be explicitly expressed or clearly implied. Even if jurisdiction is so excluded, the civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.

A similar view was expressed by a Full Bench of the Lahore High Court in - ''Lachhman Singh v. Natha Singh'' AIR 1940 Lah 401 and it was observed that:

It is well settled that the powers of a tribunal of special jurisdiction are circumscribed by the statute under which it was constituted. Such tribunal must act within its powers, and so long as it does so, its orders-whether right or wrong-cannot be challenged except in the manner and to the extent prescribed in the statute, and Courts of ordinary jurisdiction cannot question them. But where, and in so far as, its actions are in excess or in contravention of the powers conferred on it they are ultra vires and of DO legal effect and obviously cannot have the same immunity.

I am, therefore, of opinion that an action which is ultra vires of the special jurisdiction gives cause of action for a suit in a civil Court. The mere fact that a right of appeal is provided by the special enactment would not take away the jurisdiction of a civil Court from deciding whether the provisions of the special law have been complied with and whether the special authority had acted within the jurisdiction granted by the law. I would, consequently, hold that the present suit in the form in which it was brought was competent,

As already observed the special law authorised the revenue officers to make an order of compulsory exchange only if the consolidation could enable a proprietor to sink a new well in his land. The law was not meant to provide a proprietor with more land to be irrigated by a well which was already in existence. This is exactly what the Tehsildar did in the present case. The order itself makes it clear, and the fact is not disputed, that the exchange was ordered to add to the land of the Defendant and for the irrigation of consolidated holding by an already existing well. It is a grave thing to deprive an owner, without his consent, of the enjoyment of his property and to force him to accept in its place another not of his own choice. It could only be allowed if the authority doing so had remained within its jurisdiction and strictly complied with the law creating that jurisdiction. The wrong use or misuse of the powers for the advantage of a particular individual and to the detriment to others cannot be permitted and gives cause of action to the persons wronged to approach the civil Courts. The learned Counsel for the respondent has frankly conceded that the Defendant did not sink any new well nor did he intend doing so, and that he only wanted to get more land because the one that he already had at the well fell short of the area which could be conveniently irrigated by that well. It is also significant that a similar and prior application by the defendants had already been rejected by the Tehsildar on 7-8-1988 on the ground that the applicants were not sinking a new well for which the compulsory exchange could be ordered. No notice of this previous order of the same authority was taken by the Tehsildar while making the order in question.

For all these reasons I have no hesitation to hold that the order of the Tehsildar was ultra vires the jurisdiction vested in him and was therefore, illegal. In the result this appeal is accepted, the decree of the District Judge set aside and that of the trial Court restored. No order as to costs.