Case: Sayed Mohomed Baquir El-Edroos (Dead) By Lrs Vs. State of Gujarat

section 4 of the said Act enables the person aggrieved by the decision of the authorised officer to go up in appeal to the State Government within sixty days from the date of the decision. The High Court also referred to section 20 of the 1969 Act which specifically bars the jurisdiction of the Civil Court. It reads:"20. No Civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with, by the officer authorised under the proviso to sub section (I) of section 4 or section 25 or the Collector, the Gujarat Revenue Tribunal in appeal, or the State Government in appeal or revision or in exercise of their power of control."10. On the basis of the provisions of the 1969 Act the High Court came to the conclusion that Explanation 1 to section 2 (1) (e) of the 1952 Act and section 20 or the 1969 Act put beyond the pale of any doubt that the jurisdiction of the Civil Court had been taken away by the legislature to determine the question whether a particular inam is a personal or a devasthan inam.11. We are concerned in the present case with the provisions of the 1952 Act. There is no corresponding provision like section 20 of the 1969 Act in the 1952 Act nor is there any detailed procedure of appeal and revision in that Act as contemplated by the 1969 Act. The High Court in our opinion was not justified in invoking the provisions of the 1969 Act while deciding the case under the 1952 Act.12. The counsel for the State of Gujarat on the other hand referred to the definition of personal inam as given in section 2 (1) (e) of the 1952 Act and according to the learned counsel the inam in question is a personal inam in view of the definition itself which says:Personal inam means a grant of a village, portion of a village, land or total partial exemption from the payment of land revenue entered as personal inam in the alienation register kept under section 53 of the Code."So, entry of the nature of the inam in the alienation register is a decisive factor. In the instant case the inam in question has been entered as personal inam in the alienation register. Therefore, perforce it has to be taken as a personal inam and the plaintiff cannot escape the definition of the expression personal inam as given in section 2 (1) (e). Likewise, for a devasthan inam also it is necessary to be so entered in the alienation register kept under section 53 of the Code in view of Explanation to section 3 of the 1952 Act. The counsel for the appellant on the other hand referred to Explanation I to section 2 (1) (e) of the 1952 Act which indicates that the entry in the register is not an essential part of the definition of the personal inam but it is only descriptive. If the Government decides the case contrary to the entry in the alienation register, the alienation register shall be deemed to have been amended accordingly. This part of the Explanation takes away the rigour of the entry in the alienation register. If the entry in the alienation register will be deemed to have been automatically amended by the decision of the Government on the question whether it is a personal inam or a devasthan inam there is no sanctity attached to such entry which is mainly intended to serve the purpose of realisation of land revenue. The entry cannot be said to be s o sacrosanct that it cannot be changed. Indeed the explanation itself contemplates a change in view of the decision of the Government on the question.It was next contended for the State that the Revenue Court alone has exclusive jurisdiction to correct the entries in the revenue records and the counsel referred to section 53 of the Bombay Land Revenue Code. It reads:"53. A Register shall be kept by the Collector in such form as may from time to time be pre scribed by the State Government of all lands, the alienation of which has been established or recognized under the provisions of any law for the time being in force; and when it shall be shown to the satisfaction of the Collect or that any sanad granted in relation to any such alienated lands has been permanently lost or destroyed, he may, subject to the rules and the payment of the fees prescribed by the State Government under section 213, grant to any person whom he may deem entitled to the same a certified extract from the said Register, which shall be endorsed by the Collector to the effect that it has been issued in lieu of the sanad said to have been lost or destroyed, and shall be deemed to be as valid a proof of title as the said sanad."13. Section 203 of the said Code provides for appeal from any order passed by the Revenue officer to his superior and on the strength of these provisions it is sought to be argued that the plaintiff could have gone up in appeal against the decision of the officer under section 53 of the Code and the jurisdiction of the Civil Court is completely barred. If we refer to section 212 of the Code, the argument of the counsel for the State cannot be accepted. Section 212 con- templates that whenever in this Code it is declared that a decision or order shall be final such expression shall be deemed to mean that no appeal lies from such decision or order. If this is what finality means under section 212 it cannot be argued with any force on behalf of the State that the jurisdiction of the Civil Court is barred.For the foregoing discussion the decision of the Full Bench of the High Court cannot be sustained.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]In order to appreciate the contentions, of the counsel of the parties on the question of jurisdiction, it will be appropriate to refer to the relevant provisions of the 1952 Act Section 2 (1) (e) defines personal inams. Insofar as it is material, itthere is no specific bar under the 1952 Act. No provision has been brought to our notice specifically excluding t he jurisdiction of the Civilonly bar is provided by Explanation I to section 2 (1) (e). Explanation r provides that if any question arises whether any grant is personal inam, such question shall be referred to the State Government and the decision of the State Government shall be final. Whether Explanation I to section 2 (1) (e) excludes the jurisdiction of the Civil Court by necessary implication is the question for consideration. The finality of the decision of the State Government contemplated by the explanation, says the learned counsel, is only for the purpose of the Act, namely, the 1952 Act, and this finality cannot stand in the way of the Civil Court to entertain the suit. In support of his contention the learned counse has strongly relied upon two decisions: Secretary of State, Represented by the Collector n of South Arcot v. Ma sk and Company, (1) and Dhulabhai and Ors. v. The State of Madhya Pradesh and Anr.(2) In the first case the Privy Council dealing with the jurisdiction of the Civil Court observed as follows (at pageis 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.In Dulabhais case (supra) Hidayatullah C.J., speaking for the Court, on an analysis of the various decisions cited before the Court expressing diverse views, laid down the followingWhere the statute gives a finality to the orders of the special tribunals the Civil Courts jurisdiction must he held to be excluded if there is adequate remedy to do what the Civil Courts would normally do in a suit. A 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 or 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 orChallenge to the provisions of the particular Act as ultra views 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.If we consider the present case, in the light of the principles laid down by the Supreme Court in the above noted case, in our opinion the finality of the decision of the Government as contemplated by Explanation I to section 2 (1) (e) cannot exclude the jurisdiction of the Civil Court. Except for the Explanation, there is no other provision in the Act touching upon the jurisdiction of the Civil Court and none has been referred to before us by either party. The Act does not give any details about the reference to and the enquiry by the Government. No appeal has been provided for and it cannot be said that the case of the plaintiff has been considered by the Government in the same way as it would have been considered if the case had been filed before a Civil Court.The very first principle laid down in the case of Dhulabhai postulates that where a statute gives a finality to the orders of the special tribunal 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. From a perusal of the provisions of the Act it cannot be said that there is adequate remedy available to the plaintiffs on reference made to the Government. Even according p to the second principle laid down by the Supreme Court where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find out the adequacy or the sufficiency of the remedies provided may be relevant. The Act does not give any details about the reference to be made to the Government, the procedure to be followed by the Government, the opportunity to be afforded to the aggrieved party. In the absence of any such details in the Act it is not possible to hold that the use of the expression finality of the decision of the Government in Explanation I to section 2 (1) (e) of the 1952 Act was meant to bar the jurisdiction of the Civil Court.9. The High Court in our opinion has committed a manifest error in travelling beyond the 1952 Act and referring to the provisions of the 1969 Act. The High Court referred to section 4 of the 1969 Act, which exclusively vests the power to decide whether any village, portion of a village, or land is held in devasthan inam , in the authorised officer, and the State Government is empowered to authorise any officer under the proviso to section 4 (l) to decide questions arising under clauses (a) (b) or (c) of section 4. Subsection (2) of section 4 of the said Act enables the person aggrieved by the decision of the authorised officer to go up in appeal to the State Government within sixty days from the date of the decision. The High Court also referred to section 20 of the 1969 Act which specifically bars the jurisdiction of the Civil Court. ItNo Civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with, by the officer authorised under the proviso to sub section (I) of section 4 or section 25 or the Collector, the Gujarat Revenue Tribunal in appeal, or the State Government in appeal or revision or in exercise of their power of control.On the basis of the provisions of the 1969 Act the High Court came to the conclusion that Explanation 1 to section 2 (1) (e) of the 1952 Act and section 20 or the 1969 Act put beyond the pale of any doubt that the jurisdiction of the Civil Court had been taken away by the legislature to determine the question whether a particular inam is a personal or a devasthan inam.11. We are concerned in the present case with the provisions of the 1952 Act. There is no corresponding provision like section 20 of the 1969 Act in the 1952 Act nor is there any detailed procedure of appeal and revision in that Act as contemplated by the 1969 Act. The High Court in our opinion was not justified in invoking the provisions of the 1969 Act while deciding the case under the 1952 Act.12. The counsel for the State of Gujarat on the other hand referred to the definition of personal inam as given in section 2 (1) (e) of the 1952 Act and according to the learned counsel the inam in question is a personal inam in view of the definition itself which says:Personal inam means a grant of a village, portion of a village, land or total partial exemption from the payment of land revenue entered as personal inam in the alienation register kept under section 53 of the Code."So, entry of the nature of the inam in the alienation register is a decisive factor. In the instant case the inam in question has been entered as personal inam in the alienation register. Therefore, perforce it has to be taken as a personal inam and the plaintiff cannot escape the definition of the expression personal inam as given in section 2 (1) (e). Likewise, for a devasthan inam also it is necessary to be so entered in the alienation register kept under section 53 of the Code in view of Explanation to section 3 of the 1952 Act. The counsel for the appellant on the other hand referred to Explanation I to section 2 (1) (e) of the 1952 Act which indicates that the entry in the register is not an essential part of the definition of the personal inam but it is only descriptive. If the Government decides the case contrary to the entry in the alienation register, the alienation register shall be deemed to have been amended accordingly. This part of the Explanation takes away the rigour of the entry in the alienation register. If the entry in the alienation register will be deemed to have been automatically amended by the decision of the Government on the question whether it is a personal inam or a devasthan inam there is no sanctity attached to such entry which is mainly intended to serve the purpose of realisation of land revenue. The entry cannot be said to be s o sacrosanct that it cannot be changed. Indeed the explanation itself contemplates a change in view of the decision of the Government on the question.It was next contended for the State that the Revenue Court alone has exclusive jurisdiction to correct the entries in the revenue records and the counsel referred to section 53 of the Bombay Land Revenue Code. ItSection 203 of the said Code provides for appeal from any order passed by the Revenue officer to his superior and on the strength of these provisions it is sought to be argued that the plaintiff could have gone up in appeal against the decision of the officer under section 53 of the Code and the jurisdiction of the Civil Court is completely barred. If we refer to section 212 of the Code, the argument of the counsel for the State cannot be accepted. Section 212 contemplates that whenever in this Code it is declared that a decision or order shall be final such expression shall be deemed to mean that no appeal lies from such decision or order. If this is what finality means under section 212 it cannot be argued with any force on behalf of the State that the jurisdiction of the Civil Court is barred.For the foregoing discussion the decision of the Full Bench of the High Court cannot be sustained.