IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.1170 of 2009 SWAMI NARENDRA BRAHMACHARI, SON OF SHRI BADRI PRASAD TIWARI, R/O SECOND FLOOR, PUSPANJALI MARKET, THAKURBARI ROAD, KADAMKUA, PATNA REPRESENTING YOG VEDANT SAMITI / SHREE ASARAM JI ASHARAM, B.N. RAI PATH, KADAMKUAN, PATNA ...WRIT PETITIONER/APPELLANT Versus 1. THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY, GOVERNMENT OF BIHAR, PATNA, 2. THE BIHAR STATE BOARD OF RELIGIOUS TRUSTS THROUGH THE ADMINISTRATOR, VIDYAPATI MARG, PATNA – 800 001, 3. MR. KISHORE KUNAL, THE ADMINISTRATOR, THE BIHAR STATE BOARD OF RELIGIOUS TRUSTS, VIDYAPATI MARG, PATNA – 800 001, 4. SRI UDAY SINHA, FORMER JUSTICE, PATNA HIGH COURT, CHAIRMAN, (ALSO SOLE TRUSTEE FOR SOME TIME) BABA BHIKHAM DAS THAKURBARI TRUST COMMITTEE, R/O 308, PATLIPUTRA COLONY, PATNA – 800 013. …………….….. RESPONDENTS / RESPONDENTS. ----------- For the Appellant: Mr. Indu Shekhar Pd. Sinha,Sr.Advocate Mr. Brajesh Kumar, Mr. Ujjawal Kumar Sinha, Mr. Manish Kumar and Mr. Shashi Nath Jha, Advocates. For the State: Mr. Ritesh Kumar, AC to AAG-I. For the Board: Mr. Ambuj Nayan Chaubey, Advocate. ------------ PRESENT: THE HON’BLE THE CHIEF JUSTICE THE HON’BLE MR JUSTICE MIHIR KUMAR JHA O R D E R (21.04.2010) 2 As per Dipak Misra, C.J.- The present intra-court appeal is directed against the order dated 12.08.2009 passed by the learned single Judge in CWJC No. 9647 of 2009. 2. Shorn of unnecessary details, the facts which are imperative to be stated for adjudication of this appeal are that the appellant invoked the extra-ordinary jurisdiction of this Court under Article 226 of the Constitution of India for quashment of the order dated 22.05.2008 passed by the learned Additional District Judge in Execution Case No. 1 of 2000. 3. The learned single Judge noted that a long dispute had been going on between the parties concerned which was initiated by way of Title Suit No. 22/1966/73 which was instituted by one Chandramani Das. The suit in question finally came to be decreed and, for execution of the said decree, Execution Case No. 1 of 2000 was levied before the executing court. As is evident the petitioner was dispossessed from the property in question on the basis of the decree. It was canvassed before the learned single Judge that after substitution of Section 43 by Act 3 No. 1 of 2007 in the Bihar Hindu Religious Trust Act, 1950, the civil court has no jurisdiction to pass any order in the execution proceeding. On behalf of the writ petitioner, two authorities, namely, Venkataraman & Co. V. State of Madras, AIR 1966 SC 1089 and Dhulabhai V. State of Madhya Pradesh, AIR 1969 SC 78 were pressed into service. 4. A further contention was put forth that as the Bihar State Board of Religious Trust (for short `the Board’) had approached the tribunal on 22.05.2008, the forum constituted under Section 43 of the amended Act had jurisdiction to decide the issue and the civil court had no authority to pass any order in the execution case. 5. The stand put forth by the writ petitioner was combatted by the learned counsel appearing for the Board contending, inter alia, that the language employed in Section 43 does not have any retrospective or retroactive effect and the amended law would come into effect from the date when it is notified and in the absence of the provision relating to transfer of cases to the tribunal created under the Act, such cases would be dealt with by 4 the civil court. It was further urged that the writ petitioner was at liberty to approach the civil court as per the Order XXI Rule 99 or 100 of the Code of Civil Procedure. 6. As is evincible from the order of the learned single Judge, he has interpreted Section 43 of the Act and opined that the said provision is prospective and expressed the view that the tribunal would not replace the civil court wherein disputes are pending before it. The authorities which were pressed into service were distinguished by the learned single Judge. That apart, he has further expressed the view that the tribunal has not been vested with the authority to execute the decrees that have already passed by the civil court. Being of this view, the learned single Judge did not interfere with the order impugned and, accordingly, dismissed the writ petition. 7. We have heard Mr. Indu Shekhar Prasad Sinha, learned Senior Counsel along with Mr. Brajesh Kumar, Ujjawal Kumar Sinha, Mr. Manish Kumar and Mr. Shashi Nath Jha, for the appellant and Mr. Ambuj Nayan Chaubey, learned counsel for the Board and Mr. Ritesh Kumar, learned A.C. to A.A.G.-I, for the State. 5 8. The seminal question that emanates for consideration whether the civil court had jurisdiction to proceed with the Execution Case No. 1 of 2000 which was levied on the basis of the judgment and decree passed in Title Suit No. 22/1996/73 after substitution of Section 43 by Act No. 1 of 2007 in Bihar Hindu Religious Trust Act, 1950. 9. Regard being had to the issue involved it is apposite to refer to Sections 43(1), 43A & 43D of the Act which came into force by the amended Act 1 of 2007. We have referred to the aforesaid provisions as the learned Senior Counsel appearing for the appellant has drawn inspiration from the said provisions to build up the contention that the civil court’s jurisdiction has been ousted. Section 43(1) deals with constitution of a tribunal, its powers and functions. The said provision reads as under: “43. (1) Constitution of a Tribunal its powers and functions.- The State Government shall, by notification in the official Gazette, constitute a Tribunal for deciding property disputes under section 43B and for taking decisions under section 43C and removal of encroachment on the trust 6 property under sections 43D, 43E and 43F of the Act and restoration of immovable property alienated in violation of section 44 of the Act and to appoint a receiver under section-72. (2) The Tribunal shall consist of a retired High Court Judge or a retired District Judge. The term of the Tribunal Judge shall be for a period of five years or till the age of 67 years whichever is earlier. (3) Service conditions of the Tribunal Judge and other staff members shall be such as may be prescribed by the State Government. (4) The Tribunal shall have the same powers as are vested in a Civil court under the Code of Civil Procedure, 1908 (Central Act 5 of 1908), while trying a suit or executing a decree or order. (5) No suit, prosecution or other legal proceeding shall lie against the Tribunal Judge for any damage caused or likely to be caused by anything, in good faith done or intended to be done in pursuance of the provisions of this Act.” Section 43A deals with the procedure for filing an application. It is as follows: “43A. Procedure for filing an application:- (1) Either the Board or with the permission of the Board, any religious trust or any two persons, interested in the affairs of a particular trust, may 7 file an application with the Tribunal for the recovery of the alienated property or for the removal of encroachment or for the decision on the property disputes referred to it under any provision of the Act. Provided that if the Board fails to take a decision on the permission within eight weeks from the receipt of the application, the permission will be deemed to have been granted. (2) Upon the receipt of such application the Tribunal shall hold a summary enquiry in the manner prescribed and pass an appropriate order. (3) The execution of any order of the Tribunal shall be made through the District Administration which shall comply with the order of the Tribunal. (4) Any party aggrieved by an order of the Tribunal made under this Act may, within ninety days from the date of the order, file an appeal before the High Court whose decision shall be final.” Section 43D provides for removal of encroachment on the trust property. The said provision is reproduced below: “43D. Removal of encroachment on the Trust property.- (1) Any trustee or any two persons interested in the religious affairs of the trust with 8 the permission of the Board may file an application with the Tribunal for removal of the encroachment on the trust property. Explanation- For the purpose of this section, the expression “encroacher” shall mean any person who unauthorisedly occupies any land, building, shop, tank and well or any other property and to include- (a) any person who is in occupation of property without the approval of the competent authority which has the power to sanction the lease or mortgage or licence of any trust property; and (b) any person who continues to remain in the property after the expiry or termination or cancellation of the lease, mortgage or licence granted to him. (2) Where, on receipt of any application under sub- section (1), the Tribunal finds that there is a prima facie case of encroachment, it shall cause to be served upon the encroacher a notice specifying the particulars of the encroachment and calling on him to show cause before a certain date why an order requiring him to remove the encroachment before the date specified in the notice should not be made. A copy of the notice shall also be sent to the trustees of the religious institution or endowment concerned. (3) The notice referred to in sub-section (2) shall 9 be served in such manner as may be prescribed. (4) Where after considering the objections, if any, of the encroacher received during the period specified in the notice referred to in sub-section (2) and after conducting such enquiry as may be prescribed, the Tribunal is satisfied that there has been an encroachment, he may by order and for reasons to be recorded, require the encroacher to remove the encroachment and deliver possession of the property (land or building or space) encroached upon to the trustee before the date specified in such order. (5) During the pendency of the proceeding, the Tribunal shall order the encroacher to deposit such amount as may be specified by it in consideration of the use and occupation of the properties in question in the manner prescribed.” 10. The submission of the learned Senior Counsel for the appellant is that Section 43(4) confers power on the tribunal which is vested in a civil court under the Code of Civil Procedure while trying a suit or executing a decree or an order and, therefore, the civil court’s jurisdiction to execute the decree passed on an earlier occasion is ousted. It is further urged by him that when Section 43D deals with removal of encroachment on 10 the trust property, the same has to be done in accordance with Section 43A by filing an application and, therefore, execution proceeding could not have been taken up by the civil court. 11. Before we scan and scrutinize the anatomy of the provisions on which reliance has been placed it is apt to notice certain decisions which deal with ouster of jurisdiction of a civil court. 12. In Secretary of State V. Mask & Co., AIR 1940 Privy Council 105, it has been held as follows: “……… It is settled law that the exclusion of the jurisdiction of the civil courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that 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. …..” 13. In Dhulabhai etc. v. State of Madhya Pradesh and Anr. (supra), the Constitution Bench has held thus: 11 “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 court’s 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 12 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 13 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.” 14. In Laxmi Engineering Works v. P.S.G. Industrial Institute, (1995) 3 SCC 583, a two-Judge Bench of the Apex Court on the basis of the decision rendered in R. v. Commissioner for Special Purposes of the Income Tax, (1888) 21 QBD 313 and Dhulabhai v. State of Madhya Pradesh (supra) has held as follows: “13. Having dealt with the meaning of the expression “any commercial purpose” in Section 2(d) in the light of the scheme of the enactment, it may be necessary to append a clarification to obviate any confusion. Section 24 declares that: “Every order of a District Forum, the State Commission or the National Commission shall, if no appeal has been 14 preferred against such order under the provisions of this Act, be final.” This section has to be read along with sub- section (3) of Section 13. Section 13 prescribes the procedure to be followed by the District Forum on receipt of a complaint. Sub-section (3) of Section 13 says that: “No proceedings complying with the procedure laid down in sub-sections (1) and (2) shall be called in question in any court on the ground that the principles of natural justice have not been complied with.” By virtue of Section 18 the procedure prescribed in Section 13 applies to State Commission as well. From the above provisions, it is clear that the orders of the District Forum, State Commission and National Commission are final as declared in Section 24 and cannot be questioned in a civil court. The issues decided by the said authorities under the Act cannot be re- agitated in a civil court. The said provisions make it equally clear that the forums created by the Act fall in the second category of tribunals mentioned in R. v. Commissioner for Special Purposes of the Income Tax, (1888) 21 QBD 313, 319 – which decision has been repeatedly affirmed and applied by this Court – which means that the Forums/Commissions under the 15 Act have jurisdiction to determine whether the complainant before them is a `consumer’ and whether he has made out grounds for grant of relief. Even if the Forum/Commission decides the said questions wrongly, their orders made following the procedure prescribed in sub- sections (1) and (2) of Section 13 cannot be questioned in a civil court – except of course, in situations pointed out in Dhulabhai v. State of M.P., (1968) 3 SCR 662 : AIR 1969 SC 78. They can and must be questioned only in the manner provided by the Act.” 15. In Musamia Imam Haider Bax Razvi v. Rabari Govindbhai Ratnabhai, AIR 1969 SC 439, it has been held that it is necessary to bear in mind the important principle of construction which is that if a statute purports to exclude the ordinary jurisdiction of a civil court it must do so either by express terms or by the use of such terms as would necessarily lead to the inference of such exclusion. 16. In Sahebgouda V. Ogeppa, AIR 2003 SC 2743, the said principle was reiterated. 17. In Church of North India v. Lavajibhai Ratanjibhai & ors., (2005) 10 SCC 760, it has been ruled 16 thus: “38. The question as regards ouster of a jurisdiction of a civil court must be construed having regard to the scheme of the Act as also the object and purport it seeks to achieve. The law in this regard is no longer res integra.” 18. In Mahant Dooj Dass v. Udasin Panchayati Bara Akhara, (2008) 12 SCC 181, the Apex Court has held that exclusion of the jurisdiction of the civil court is not to be readily inferred and such exclusion must either be explicitly expressed or clearly implied and further it is for the party, who seeks to oust the jurisdiction of the civil court, to establish its contention. 19. In Nahar Industrial Enterprises Limited v. Hong Kong and Shanghai Banking Corporation, (2009) 8 SCC 646, it has been held that when there is inconsistency in the procedures contained in the two Acts alone, the jurisdiction of the civil court cannot be said to have been ousted. 20. The purpose of referring to the aforesaid authorities is that the exclusion of jurisdiction of the civil court is not to be readily inferred. That is not an 17 acceptable facet of construction of a provision. That apart, there are certain circumstances the civil court can assume jurisdiction and further that such exclusion must either be explicitly expressed or clearly implied. On a perusal of Section 43(1) it is noticed that the said provision deals with the powers and functions of the tribunal. Sub-section (4) of Section 43 confers the same power on the tribunal as are vested in a civil court under the Code of Civil Procedure while trying a suit or executing a decree or order. The said provision is in the realm of adjective law. Section 43D upon which immense emphasis has been laid by the learned Senior Counsel for the appellant deals with removal of encroachment on the trust property. The explanation to the said section defines the term “encroacher” and the procedure adopted by the tribunal how to proceed with the matter when an application has been filed. Section 43A provides for filing an application. The said provisions manifestly do not appear to have any kind of retrospective applicability or retroactive application. In the case at hand, a decree had already been passed. Execution was levied to execute the decree. On a 18 studied scrutiny of the anatomy and scheme of the Act it is perceptible that there is no provision in the amended Act that the said proceedings would stand transferred to the tribunal. If an erroneous order has been passed by the executing court and the judgment-debtor has been erroneously dispossessed, he can take recourse to file an appropriate application as provided under Order XXI of the Code of Civil Procedure. That is another aspect altogether. He cannot come forward to propound that the civil court did not have the jurisdiction to proceed with the execution proceeding in the absence of express ouster of the jurisdiction of the civil court to deal with such a case. The same also could have been justifiably put forth had there been such an ouster by clear implication by employment of language in the Act. 21. Thus, we have no hesitation in holding that the conclusion arrived at by the learned single Judge that the civil court has jurisdiction to proceed with the matter cannot be found fault with. However, we may hasten to add that we have only dealt with the jurisdictional facet. It is open to the appellant to proceed to challenge the order 19 in accordance with law before the civil court or in any other appropriate forum, as advised in law. 22. Resultantly, with the aforesaid observations, the appeal stands dismissed without any order as to costs. Patna High Court. The 21st April, 2010. AFR. Dilip. ( Dipak Misra, C.J. ) ( Mihir Kumar Jha, J. )