ash 1 cra-225.94.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION CIVIL REVISION APPLICATION NO. 225 OF 1994 ALONG WITH CIVIL APPLICATION NO. 31 OF 2007 AND CIVIL APPLICATION NO. 522 OF 2010 IN CIVIL REVISION APPLICATION NO. 225 OF 2010 Shri Ghansham R. Tolani & Another. .. Applicants. Vs Smt. Rambai Kishinchand Tolani & Others. .. Respondents -- Shri V.B. Naik i/by Shri J.S. Chandnani for the Applicants. Shri Mehul Shah i/by Shri Bharat Joshi for Respondent No.2. Shri A.R. Patil, AGP for State. -- CORAM: A.S. OKA, J DATE ON WHICH SUBMISSIONS WERE HEARD: 3RD MARCH, 2011 DATE ON WHICH JUDGMENT IS PRONOUNCED: 6TH MAY, 2011 JUDGMENT: 1. The Revision Applicants who are original the Defendant Nos.4 and 5 have challenged the judgment and order ash 2 cra-225.94.sxw dated 9th March, 1994 passed by the learned Joint Civil Judge, (Senior Division), Thane, in a suit filed by Respondent Nos.1 and 2. By the impugned order, the issue of jurisdiction of the Civil Court to entertain the suit has been decided in favour of the 1st and 2nd Respondents-Original Plaintiffs. 2. The dispute between the parties is as regards Plot Nos. 1A and 1B situated at Ulhasnagar in District- Thane, more particularly described in the plaint. The 2nd Respondent is the son of the 1st Respondent. The husband (Kishinchand) of the 1st Respondent and the father of the 1st Applicant were real brothers. The 2nd Applicant is the mother of the 1st Applicant. 3. According to the case of the 1st and 2nd Respondents, the suit plots were held by Kishinchand, the husband of the 1st Respondent. It is contended that as the said Kishinchand was holding the suit plots in the year 1954, in view of the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (hereinafter referred to as “the said Act”). It is contended that the said Kishinchand was entitled to conveyance deed of the suit plots. The said Kishinchand expired on 1st April, 1981. It is ash 3 cra-225.94.sxw contended that after his demise, a dispute arose between the Applicants and the 1st and 2nd Respondents. The Additional Tahsildar and the Managing Officer and Assistant Administrator of Ulhasnagar Township passed an order on 12th October, 1981 holding that Plot No.1B out of the suit plots was in joint possession of the said Kishinchand as well as the 1st Applicant and his father. An order was passed holding that the said parties were in joint possession of Plot No.1-B from the year 1952 and, therefore, both the parties will be entitled to alternate plot, if allotted, in equal shares. According to the case of the 1st and 2nd Respondents, the 1st Respondent preferred an appeal bearing Appeal/Case No.CSC/Appeal/10867-69 dated 3rd December, 1981 against the aforesaid order dated 12th October, 1981. It is alleged that the said appeal was filed in the office of the Settlement Commissioner for Compensation Pool properties cum Custodian of Evacuee properties, Mumbai. It is alleged that an order of status quo was passed in the said Appeal on 3rd December 1981. It is stated that the said order of status quo was communicated to the Applicants and a copy of the order was given to the Advocate appointed by the 1st and 2nd Respondents. It is stated that their Advocate also conveyed by letter dated 16th January, 1992 that he had filed an ash 4 cra-225.94.sxw appeal and obtained the order of stay. Thereafter, Revision Application/Appeal No.14 of 1991 was filed by the 1st Applicant in the office of the Authorized Chief Settlement Commissioner, State of Maharashtra, for challenging the said order dated 3rd December, 1981. It is contended by the 1st and 2nd Respondents that before the Chief Settlement Commissioner, the Settlement Commissioner did not produce papers of the appeal preferred by the 1st Respondent. By an order dated 28th August, 1991, the Chief Settlement Commissioner vacated the said order dated 3rd December, 1981 by holding that the Appeal under Section 22 of the said Act was maintainable before the Authorized Chief Settlement Commissioner. It was observed that no such appeal has been filed by the 1st Respondent and such appeal has not been registered in the Register of Appeals. It was observed in the judgment that a copy of the Memorandum of Appeal and stay order were not on record. It was held that the stay order signed by the Naib Tahsildar was illegal. Being aggrieved by the said order, a revision application was preferred by the 1st and 2nd Respondents before the State Government which was dismissed by the order dated 30th December, 1991. It was observed in the Judgment that the 1st and 2nd Respondents have committed a ash 5 cra-225.94.sxw fraud. In the suit, the 1st and 2nd Respondents contended that the papers of the Appeal preferred by them were not placed before the Authorized Chief Settlement Commissioner. It is contended that it was a duty of the officers to find out and produce the appeal and order passed thereon. It is contended that the copies of the appeal and stay order were in the custody of the Advocate for Respondent Nos.1 and 2. An apprehension was expressed that that the Applicants are likely to sell the suit plots. Therefore, the suit was filed against the Applicants and the Authorized Chief Settlement Commissioner, the Authorized Settlement Commissioner cum Resident Deputy Collector, as well as the Managing Officer, Ulhasnagar (the 1st to 3rd Defendants) incorporating following prayers: “(a) To declare that deft. No.1 to 3 are bound to trace and find out the appeal No.10867-69 dt. 3-12-1981 and orders on it and as papers of it and to declare that deft. Nos.1 to 3 are not entitled to allow or arrange change of name and issue of C.D. in favour of the deft. Nos. 4 & 5. (b) To declare that the deft nos.4 and 5 are not entitled to sale, transfer or dispose of the disputed property. (c) To declare that according to records, old enough father of the plaintiff was and ash 6 cra-225.94.sxw plaintiff is possessed or and owner of the disputed property. (d) That pass order of perpetual injunction by this Honourable Court against the deft. Nos.3 and 5 that they shall not trespass on disputed plot or to the sale and transfer or dispose off, sale or transfer the disputed property of the suit in their name or in name of any other person or persons restraining the deft., their agents, servants, employees, representatives, contractors, transferees from disturbing the suit property of the plaintiffs and his possession and from trespassing in the suit property.” 4. Written Statements were filed by the Authorized Chief Settlement Commissioner as well as by the 1st Applicant. A contention was raised that in view of Section 27 read with Section 36 of the said Act, the jurisdiction of the Civil Court was ousted. Accordingly, a preliminary issue was framed which has been answered by the Trial Court by the impugned order. The plea of bar of jurisdiction was rejected by the impugned order. 5. The learned counsel appearing for the Applicants invited attention of the Court to the provisions of Section 27 which confers finality on the orders passed by any officer or authority under the said Act and which provides that the said order cannot ash 7 cra-225.94.sxw be called in question in any Court. He pointed out that under Section 36 of the said Act, the jurisdiction of the Civil Court to entertain any suit in respect of any matter which an officer or authority appointed under the said Act is empowered to determine, has been ousted. He placed reliance on various decisions including a decision of the Apex Court in the case of Dhulabhai etc. v. State of M.P. And Another (AIR 1969 SC 78). He submitted that on plain reading of the averments made in the plaint, what was sought to be challenged was the orders passed by the Authorities under the said Act and, therefore, the Trial Court has committed a gross error. 6. None appears for Respondent No.1 though notice is served. Learned counsel appearing for Respondent No.2 (ii) supported the impugned order. He pointed out that whether an appeal was preferred by the 1st and 2nd Respondents before the Settlement Commissioner or not is a question of fact will have to be determined after the evidence is recorded. He submitted that the main prayer is for declaration that the 1st to 3rd Defendants are under obligation to trace and find out the papers of the appeal. He submitted that as the said Appeal has not been decided on ash 8 cra-225.94.sxw merits, consequential prayers have been made in the suit. He submitted that the Authorities under the said Act are not empowered to grant declaration which is prayed for in the substantive prayer (a) and the other prayers are the consequential prayers. He, therefore, submitted that no interference is called for with the impugned order. 7. I have given careful consideration to the submissions. The Additional Tahsildar and Managing Officer who was also Assistant Administrator of Ulhasnagar passed an order after holding an inquiry under the said Act that the husband of the 1st Respondent and the 1st Applicant along with his father were in joint possession of Plot No.1B and, therefore, the 1st Applicant and his father were entitled to have their names recorded as co- occupants. He held that the 1st Respondent being a legal representative of Kishinchand had ½ share in Plot No.1B and the 1st Applicant and his father were entitled to remaining ½ share. It is not disputed that the Managing Officer and the Assistant Administrator had jurisdiction to pass such order and in fact, under the provisions of the said Act, the adjudication could have been made only by the Authority under the said Act. ash 9 cra-225.94.sxw 8. The claim of the 1st and 2nd Respondents is that the 1st Respondent preferred an appeal against the said order which was presented to the office of the Settlement Commissioner for Compensation Pool properties cum Custodian of Evacuee properties, Mumbai and on 3rd December, 1981 interim order was passed in the said Appeal. The said interim order was challenged by the 1st Applicant by filing a revision application/appeal which was allowed by the Authorized Chief Settlement Commissioner by holding that no such appeal was found on record and the stay order communicated under the signature of Naib Tahsildar appears to be illegal. The said order was confirmed by the State Government in the revision preferred by 1st and 2nd Respondents. The State Government held that there was no record of such appeal being filed before the Settlement Commissioner and, the Naib Tahsildar had no power to sign the order of stay. 9. The 2nd part of prayer (a) seeks declaration that the 1st to 3rd Defendants namely the officers exercising powers under the said Act are not entitled to effect the change of name on record by incorporating the names of the Applicants. As far as entitlement of ash 10 cra-225.94.sxw the Applicants is concerned, only the Authorities under the said Act had jurisdiction to adjudicate upon the said entitlement and there was already an order passed by the Managing Officer upholding the said entitlement. Prayer (b) is for a declaration that the Applicants are not entitled to transfer the suit property. The said prayer is founded on the contention that the Applicants have no right, title or interest in respect of the suit plot. The right, title or interest of the Applicants could have been adjudicated upon only by the Authorities under the said Act. As far as prayer (c) is concerned, the same seeks declaration that the predecessor of the 1st and 2nd Respondents was the owner of the suit plot. Again this issue of title has to be determined only by the Authority under the said Act. Prayer (d) is for perpetual injunction against the Applicants. The said prayer is sought on the footing that the Applicants have no right, title or interest. Sections 27 and 36 of the said Act read thus:- “27. Finality of orders - Save as otherwise expressly provided in this Act, every order made by any officer or authority under this Act, including a managing corporation, shall be final and shall not be called in question in any Court by way of an appeal or revision or in any original suit, application or execution proceeding.” ash 11 cra-225.94.sxw “36. Bar of jurisdiction- Save as otherwise expressly provided in this Act, no Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the Central Government or any officer or authority appointed under this Act is empowered by or under this Act to determine, and no injunction shall be granted by any Court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act.” 10. It is thus obvious that 2nd part of prayer (a) which seeks declaration and prayers (b), (c) and (d) are certainly out of the purview of jurisdiction of the Civil Court and by virtue of Section 36 read with Section 27 of the said Act, the jurisdiction of the Civil Court to grant the said prayers has been expressly ousted. Moreover, the order passed by the Additional Tahsildar and Managing officer has been conferred finality by the Section 27 which provides that the said order cannot be called in question in any civil suit. There is no pleading that the said order or other orders passed by the higher Authorities are null and void or that the same are without jurisdiction. All these aspects have been completely brushed aside by the Trial Court. As far as the 1st part of the prayer (a) is concerned, it is for declaration that the 1st to 3rd ash 12 cra-225.94.sxw Defendants are bound to trace out and find out the papers of the Appeal allegedly preferred by the 1st and 2nd Respondents. Neither Section 27 nor Section 36 of the said Act will oust jurisdiction of the Civil Court to grant the said relief. The question whether the 1st and 2nd Respondents are entitled to the said relief or not is a matter of evidence. Hence, the impugned order will have to be quashed and set aside. 11. Hence, I pass the following order: (a) The impugned order is quashed and set aside. It is declared that the jurisdiction of the Civil Court to deal with prayers (a) to (d) except the following portion of prayer (a) “To declare that deft. Nos.1 to 3 are bound to trace and find out the appeal No.10867-69 dt. 3-12-1981 and orders on it and as papers of it.” stands excluded and barred by the provisions of the said Act and to that extent, the plaint stands rejected. ash 13 cra-225.94.sxw (b) The suit shall proceed in so far as the aforesaid first part of the prayer (a) and prayer (g) are concerned. All the contentions of the parties on merits are kept open. (c) Rule is made partly absolute on above terms with no orders as to costs. (d) Formal delay in filing the certified copy of the impugned order is condoned and Civil Application No.31 of 2007 is allowed. (e) Civil Application No.522 of 2010 is allowed in terms of prayer clause (a). ( A.S. OKA, J)