2007 PLP 1211 (CLC)

MUZAFFAR ALI, J.

This second appeal assails the judgment/order dated 9-7-2005, whereby the learned District Judge has set aside, the order dated 23-3-2004, passed by the learned Civil Judge Shigar/Kharmang and the Suit No.94 of 2003 has been returned to the present appellant to avail remedy from the proper forum, hence this appeal. The facts of the case are that, the present appellants called into question, the acquisition of their land, shops etc., and also sought cancellation of Award No.DK-1(14)/2003/5546, dated 28-6-2003 through Suit No.49 of 2003, the plaintiffs mainly founded the plaint on the point that, the impugned award has been passed without resorting to the mandatory provisions and procedure as provided by the Land Acquisition Act, 1894, (hereinafter called the Act) as such the impugned award is without jurisdiction and void ab initio. The plaintiff also filed an application for temporary injunction to restrain the respondents from demolishing the shops etc. owned by the plaintiffs. The respondents after getting several adjournments failed to submit any written statement, replication or any record in rebuttal of the plaintiffs' claim; hence no defence version is available on the record. On 22-3-2004, the learned Civil Judge heard the parties on the application and carne to the conclusion that, the award has been passed in violation of mandatory provisions of the Act .as the learned District Attorney frankly conceded the fact, hence the learned Civil Judge vide his order dated 22-3-2004, directed the Collector Land Acquisition to comply the mandatory provisions of the Act, before entering into the land, and declared the impugned award void and without jurisdiction and also disposed of the suit with the above directions. The order passed by the learned Civil Judge was impugned before the Court of learned District Judge by the respondents. The learned District Judge, after hearing the parties came to the conclusion that, the matter relates to the "special Law" and the Act provides remedies, hence he held that the Civil Courts lack jurisdiction to entertain civil suits in respect of grievances arising out of proceedings under the Act, and returned the matter to the appellants/plaintiffs to avail remedy from the proper forum. I heard the learned counsel for the petitioner and the learned Advocate-General for the respondents and also have gone through the orders passed by both the learned lower Courts, whereby, the learned lower Courts, having diversion view on the point that, the Civil Courts vest jurisdiction to entertain the present suit or not. The facts of the case and the "Admission" of the learned District Attorney, recorded in the order passed by the learned Civil Court and failure of the learned Advocate-General to put forward any record even before this Court, which may reveal that, the impugned award was passed by the learned Collector Land Acquisition after complying with the mandatory provisions of the Act, show the impugned award "without jurisdiction and ultra vires" . Since the lower Courts are at variance on the point that, in the above circumstance. The Civil Court have jurisdiction to declare the impugned award to be void and to set aside the same or the remedy in the special forum is available to the appellants under the Special Act, I, therefore, deem it proper to go into the relevant law to find out the answer to the above. The perusal of the Act transpires that, the landowners or the persons aggrieved, by the proceedings attended by the Collector or Government under the Act, in acquiring the land, may avail some remedies under the Act, which may be categorized as under: Remedy under section 5-A of the Act.

"The section purports, objection by an interested person against acquisition of the land, within thirty days after the issuance of the notification under sections 4 and 5 of the Act. The section itself speaks that, the remedy under this section is available before passing the award under section 12 and within thirty days after issuance of the notification under section 4 of the Act. The section cannot be construed to be available to declare an award to be void and without jurisdiction or to set aside the same." Section 18 of the Act.

"Section 18 of the Act provides objections with a special procedure, under this section, an interested person who has not accepted the award, may file objections before the Collector Land Acquisition with the request to refer the same to Referee Court to determine the specified points, may state as (a) measurement of the land (b) the amount of the compensation (c) the person to whom the amount is payable (d) apportionment of the compensation. The jurisdiction of the Referee Court is restricted to determine the points as postulated in the section and the Referee Court is not competent to even determine the point of limitation as provided by subsection (2) of section 18, if in a case the Collector has referred, the objection application which was barred under subsection (2) hence the section is insufficient to determine any award to be void and to set aside the same on the said ground." Section 49 of the Act.

The remedy under this section is restricted only to the cases, where, the owners of the acquired building, house or manufactory desires to be acquired as a whole." The Special Act provides the above remedies, but I could not find out any provision, which may enable any forum to declare an award to be void or without jurisdiction and to cancel the same, if found to be made without resorting to the provisions of the Act, while the higher judiciary is in consonance that, an award made by the Collector Land Acquisition is void and without jurisdiction, if the same has been passed without complying the mandatory provisions of the Act i.e. the sections 4 and 9 etc. of the Act. In the case in hand, the admission of the District Attorney has come to the record, that, "the procedure has not been followed by the Collector before making the award, under the Act, therefore, the impugned award is void and without jurisdiction", hence in my opinion the Civil Courts have jurisdiction under section 9 of C.P.C. as the section envisaged "the Civil Courts have jurisdiction to try all suits of a civil nature unless the suits have been either expressly or impliedly barred the section is based on the principle of law "ubi jus ibi remedium" meaning hereby that, "where, there is right there is remedy". The only exception to the power conferred on the Civil Courts under section 9 is that, the jurisdiction of the Civil Courts must be barred by a Special Act either expressly or impliedly. Keeping in view the scheme of section 9, C.P.C., if I go through the Land Acquisition Act, which is indeed a Special Law, it manifests that, cases come within the ambit of sections 5-A, 18 and 49 of the Act, are impliedly bar jurisdiction of the Civil Courts to entertain the suits, otherwise. I found no any provision which is expressly oust jurisdiction of the Civil Courts, rather section 52 of the Act can be construed and acceding of right to sue before the Civil Courts by a person aggrieved, against any person, for anything done, in pursuance of the Act. The last, but not the least reason is that, where jurisdiction of the Civil Court has been barred expressly even then the Civil Courts would have jurisdiction to try cases, where provisions of the Act have not been complied or the special forums or Tribunal has not followed the procedure provided by the special Act or has acted malafidely. In holding this view I am supported by case-law:-- (1) 2001 SCMR 398, (2) 1998 CLC page 27, (3) PLD 1963 SC page 671, (4) 1999 CLC page 422, (5) 2003 CLC page

422. The upshot of the above discussion is that I am in consonance with the view taken by the learned Civil Judge in his order dated 22-3-2004, hence the impugned order passed by the learned District Judge is set aside, respondents are directed to follow the directions given in the order, dated 22-3-2004 by the learned trial Judge. S.A.K./16/Glt. Appeal accepted.