IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA Nos. 379 of 2000 and 179 of 2001. Date of decision: 28.9.2010. 1.RSA No. 379 of 2000. State of H.P. ….. Appellant. Vs. Yashwant Singh & ors. …. Respondents. For the Appellants : Ms. Ruma Kaushik, Addl. Advocate General. For the Respondents : Mr. Sanjeev Bhushan, Advocate, for respondent No.1. M/s M.S.Thakur & Inderjeet Narwal, Advocates, for respondent No. 2 2.RSA No. 179 of 2001. Jaisi Ram …… Appellant. Vs. Yashwant Singh & ors. ….. Respondents. For the Appellants : M/s M.S.Thakur & Inderjeet Narwal, Advocates. For the Respondents : Mr. Sanjeev Bhushan, Advocate, for respondent No.1. Ms. Ruma Kaushik, Addl. A.G. for respondent No. 2. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes. Kuldip Singh, Judge (Oral). This judgement shall dispose of RSA No. 379 of 2000 and RSA No. 179 of 2001, as common question of law is involved in both the appeals. Both the appeals have been directed against Whether the reporters of the local papers may be allowed to see the Judgment? …2… common judgement and decree dated 5.5.2000 passed by learned District Judge, Bilaspur in Civil Appeal No. 4 of 1992 and Civil Appeal No. 85 of 1991 affirming the judgement and decree dated 30.9.1991 passed by learned Senior Sub Judge, Bilaspur in Civil Suit No. 58/1 of 1987/85. The facts in this judgement are given from RSA No. 379 of 2000. 2. The facts in brief are that respondent No.1 had filed a suit for declaration and permanent prohibitory injunction that he is owner in possession of land measuring 6-17 bighas, comprised in khasra No. 29/17, village Panyali, Tehsil Ghumarwin, District Bilaspur. He had sought declaration that order of Deputy Commissioner, Bilaspur dated 25.8.1974 and order of Divisional Commissioner dated 14.9.1984 are illegal and without jurisdiction. He had prayed declaration that if order of Deputy Commissioner and Divisional Commissioner are held to be legal, in that event, he cannot be ejected from the suit land without payment of compensation of house, which he has constructed over the suit land. A prayer for permanent prohibitory injunction has also been made. In the alternative, he has prayed for regularization of his possession. 3. The further case of respondent No. 1 is that he had applied for Nautor. The application for Nautor was sent to Forest Department, Revenue Department and for the report of Gram Panchayat Panyali. The application of respondent No.1 was processed by different agencies and the case came up before Sub Divisional Officer (Civil), Ghumarwin and only Forest Department had raised objection about the grant of Nautor. The land was granted to …3… him on 6.12.1970 and patta was executed on 24.5.1971. The mutation was attested and possession of land was handed over to him. 4. He is settled in village Panyali since the year 1963. He has improved the Nautor land after spending huge amount. It has been alleged that respondents No. 2 to 4 had filed an appeal against the grant of Nautor land before the Deputy Commissioner, which was allowed and the grant made in favour of respondent No. 1 was cancelled by the Deputy Commissioner. He filed an appeal before the Divisional Commissioner, which was dismissed on 14.9.1984. In these circumstances, the suit was filed. 5. The appellant and respondents No. 2 to 4 contested the suit. The appellant filed written statement. The respondents No. 2 to 4 filed joint written statement. The appellant took preliminary objections of want of notice under Section 80 CPC, limitation, valuation, jurisdiction, estoppel, lack of cause of action and locus- standi as well as the non-joinder of necessary parties. On merits, it has been alleged that Sub Divisional Officer (Civil), Ghumarwin did not follow due procedure of law before granting Nautor, the appellant has supported the orders of Deputy Commissioner and Divisional Commissioner. The other claim of respondent No. 1 was denied. 6. In the written statement of respondents No. 2 to 4 more or less same preliminary objections were taken. On merits, it was submitted that respondent No.1 had obtained Nautor by mis- representing the facts. He is resident of village Bari Miyan and not resident of village Panyali. It was admitted that grand-father of …4… respondent No. 1 was resident of village Chhandoh, which is 2 kilometers away from village Panyali. They contested the remaining claim of respondent No. 1. The learned Senior Sub Judge held that Deputy Commissioner in order Ex. P-3 and Divisional Commissioner in order Ex. P-7 have not gone into the question whether respondent No. 1 is resident of `estate’. These authorities have rejected the grant on the ground that respondent No.1 is not resident of village Panyali. The learned Senior Sub Judge has held that as per Rule 7 of H.P. Nautor Land Rules, 1968 (for short, the Rules), the eligibility is resident of `estate’ and not resident of `village’. On the issue of jurisdiction, the learned Senior Sub Judge has held that civil court has jurisdiction to try the suit. The learned Senior Sub Judge decreed the suit on 30.9.1991, in appeal the learned District Judge on 5.5.2000 has affirmed the judgement and decree dated 30.9.1991, hence, State has filed RSA No. 379 of 2000. Jaisi Ram has filed RSA No. 179 of 2001. Both the appeals have been admitted on following common substantial question of law:- Whether the civil court has no jurisdiction to go into the controversy involved between the parties, as alleged? 7. I have heard the learned counsel for the parties and have also gone through the record. It has been submitted on behalf of the appellants that civil court has no jurisdiction over the subject matter in view of remedy of appeal/ revision provided in the rules. The learned counsel for the appellants have relied Duglu Ram and others vs. State of H.P. and others 1998(2) Shim. L.C. 98 in support of their submissions. Mr. Sanjeev Bhushan, learned counsel …5… for respondent Yashwant Singh has submitted that civil court has jurisdiction to try the suit. There is no express bar in the rules excluding the jurisdiction of the civil court. He has supported the impugned judgement, decree and has prayed for dismissal of both the appeals. 8. The aforesaid substantial question of law is limited to the jurisdiction of civil court. Section 9 of Civil Procedure Code, 1908 provides that courts shall, subject to the provisions contained in the C.P.C. have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. The question raised by respondent Yashwant Singh in the suit is of civil nature. The learned counsel for the appellants have not pointed out any express provision excluding the jurisdiction of civil court with respect to allotment made under the Rules. 9. In Dhulabhai etc. vs. State of Madhya Pradesh and another AIR 1969 SC 78, while considering Section 9 of the Code, the Supreme Court has held as follows:- “32. Neither of the two cases of Firm of Illuri Subayya, 1964-1 SCR 752 = (AIR 1964 SC 322) or Kamla Mills, 1966 1 SCR 64 = (AIR 1965 SC 1942) can be said to run counter to the series of cases earlier noticed. The result of this inquiry into the diverse views expressed in this Court may be stated as follows :- (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 …6… 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.” 10. It is thus clear that exclusion of jurisdiction of civil court is not readily to be inferred unless the conditions mentioned by the Supreme Court in Dhulabhai case (supra) are fulfilled. In the present case, the Deputy Commissioner as well as Divisional Commissioner have not considered the eligibility of respondent Yashwant Singh under Rule 7 in accordance with law. Both the …7… authorities have given their judgements on the basis of resident of `village’ and not of resident of `estate’. The fundamental requirement of eligibility has not been considered by the said two authorities. The substantial rights of respondent Yashwant Singh were involved. He had no other remedy but to assail the orders of Deputy Commissioner and Divisional Commissioner before the civil Court. In these circumstances it cannot be said simply because remedy of appeal and revision are provided in the Rules, therefore, jurisdiction of civil court is impliedly barred under the Rules. The trial before the civil court has caused no prejudice to any party inasmuch as the civil court has decided the lis by affording opportunity to both the sides. `Duglu Ram’ (supra) is not applicable in the facts and circumstances of the case. In `Duglu Ram’, the allotment was made under the H.P. Grant of Nautor Land to Landless persons Scheme 1975, whereas in the present case, the allotment was made under the Rules. The appellants have failed to make out a case that civil court has no jurisdiction. The two courts below have rightly recorded a finding that civil court has jurisdiction to try the suit. There is no merit in the appeals. The substantial question of law referred above is decided against the appellants in both the appeals. 11. No other point was urged. 12. The result of above discussion, both appeals fail and are accordingly dismissed with no order as to costs. September 28, 2010. ( Kuldip Singh ), (Hem) Judge.