P L D 1970 Azad J & K 35 (PLP)

The general principle is that every right has a remedy. It is also a general principle that where two proceedings or two remedies are available under the law, one of them must not be taken as operating in derogation of the other. An in fragment of an existing legal right is always actionable in a civil Court unless its cognizance is expressly or impliedly barred. A suit is said to be expressly barred when it is barred by an enactment for the time being in force. Where a right of action exists, a suit is maintainable to enforce that right independently of the] special remedy provided by law. There is, however, one quali fication for this rule. Where a right is created by statute and a method of enforcing the right or of redressing grievance caused in the exercise of enforcement of the right, is pointed out by the statute creating such right, then the general remedy] of suit will be impliedly barred. It has been laid down in Sasala Raminaidu v. Secretary of State (A I R 1942 Mad. 127) that :-- "When a right is given by a special statute and a remedy is provided for the violation of the right in that very statute, ordinarily the person whose right is violated is bound to follow the remedy provided in that Act. A village headman who has been dismissed has under section 23 of the Madras Hereditary Village Offices Act, 1895, a right of appeal to the District Collector and a further appeal to the Board of Revenue. Therefore, he has no right of separate suit in a civil Court that the order of dismissal is ultra vires on the ground that the rules have not been strictly followed." It was held in Narayanaroju Ramamurthy v. Parimi Venkata narayana (A I R 1941 Mad. 506) that.:- "Rule 1 of the Rules under the Madras Local Boards Act, 1920 does not debar a civil Court from going into the question whether an election was in point of fact held or not. If the Court comes to a finding that an election was held, it must at once stay its hands and allow the procedure under rule 1, to take its normal course. If, on the other hand, it comes to a decision that no election was held, its duty is equally clear. It must grant a declaration that no election was held." It was laid down in Secretary of State v. Allu Jaganradham (A I R 1941 Mad. 530) that:- "Rule 6 of the Rules under the Madras Local Boards Act of 1920 impliedly excludes the right to file a suit in respect .of an improper surcharge imposed thereunder. The power to surcharge arises not under the common law but under the statutory rules and hence the remedy provided by the rules in case of an improper surcharge alone is open." It was held in Karam Devi v. Ladha Kishan and others (A I R 1935 Lah. 406) that:- "The power to remove an executor and to provide for a successor to his office is one conferred upon the High Court alone by section 301, and such relief cannot be sought by regular suit." Raoji Narainji v. Ratanji Kanji (A I R 1930 Bom. 431) lays down that:- "A suit would lie to set aside the proceedings purporting to be taken under Schedule 2, Civil P. C., if the proceedings are fraudulent, fictitious or vexatious, but not if there has been an agreement to refer and the party wants to impugn the award made on such reference." The Arbitration Act provides a remedy for setting aside the award and no regular suit lies for setting aside the award. Where a special tribunal or a public body is created by or under the authority of an act of Legislature for the purpose e of determining questions as to rights which are the creation of the Act, then the jurisdiction of that tribunal or of that body is, unless provided otherwise, exclusive and the civil Courts] cannot take cognizance of such matters. It was lard down in Mani Ram v. Bhagwant Sarup (A I R 1949 All. 50) that:- "The cognizance of the civil Court to hear an election petition under the U. P. Municipalities Act or to give any relief in the nature thereof is clearly impliedly barred under the provisions of the Municipalities Act. The civil Court cannot assume the jurisdiction of Returning Officer nor can it assume the jurisdiction given to the Commissioner under section

28. It is therefore not competent to the civil Court to declare a person to have been duly elected, nor can it decide the election petition that was filed before the Commissioner." Ramabhaktula Ramayya v. Chittor District Co-operative Deputy Registrar (A I R 1945 Mad. 370) was a case under the Madras Co-operative Societies Act of 1932. It was laid down in this judgment that:- " It is not necessary that the jurisdiction of the civil Courts should be expressly excluded. The exclusion can be implied. The act provides an ample machinery for the execution of orders and the hearing of objections to sales in executions of the orders under the Act and therefore the only reasonable conclusion is that the Legislature intended the jurisdiction of the civil Courts to be removed in matters relating to execution of orders and sales in execution of the orders. Therefore, where an order is made by the liquidator against a member of the society under section 47 of the Act for the payment of a certain amount and the order is executed by sale of the, member's property the civil Court has no jurisdiction to entertain a suit by the member for a declaration that sale was fraudulent and that all the proceedings in an execution were: vitiated by material irregularities." Section 9 of the Azad Jammu and Kashmir Grant of Khalsa Waste Land Shamilat Deh Act, 1966, in clear terms bars the; jurisdiction of a civil Court on any matter which the Govern ment or any Revenue Officer is competent to dispose of under this Act. Section 9 is reproduced below:- "Section 9 (1). No civil Court shall have jurisdiction on any matter which the Government or any Revenue Officer is competent to dispose of under this Act and shall not take cognizance of the manner in which the Government or any Revenue Officer exercises any power vested in it or in him by, or under this Act or under Government Order No. 282/57." The section also provides that no civil Court shall take cognizance. of the manner in which the Government or any Revenue Officer exercises any power vested in it or in him by or under this Act or under Government Order No. 282/57. The intention to exclude the jurisdiction of the civil Courts to take cognizance of the manner in which the Government or any Revenue Officer exercises any power vested in it or in him under the Govern ment Order No. 282/5 % has been clearly expressed. Now remains the question whether section 9 of the Shamilat Deh Act should be given prospective or retrospective effect. We have discussed above and held that the intention to give retrospective effect to an amended statute need not be in express terms only but can be implied also. The Government had created a right in favour of persons who had broken up, the Khalsa land without permission of having such lands assessed to land revenue provided they were in possession on the first day of January 1950. Thus right was created under Govern ment Order No. 282/57 dated 22-7-1957 which is reproduced below:- "The Azad Jammu and Kashmir Government is pleased to, order that all such persons who are proved to have been in continuous possession of Khalsa land without the permission of the Government and are recorded as such till the 1st Day of January 1950 be granted proprietary rights of such land subject to the following limitations: (i) No such rights can be granted in areas within demarcated or un-demarcated forests or in respect of land likely to be required for any public purpose e.g. public roads graveyards, and areas reserved for grazing or watering of cattle; (ii) Such rights can be granted to the extent of 20 kanals only to a family. (iii) The area in respect of which such rights are granted shall not exceed one-fourth of the Khalsa land in a village. (iv) Such rights can be granted only on payment of premium equal to 20 times the land revenue of such land plus entire land revenue for the period of possession of -such land. This amount shall be paid in such manner as the Government may provide and may be recovered as arrears of land revenue. (2) The Government is further pleased to authorise the Collector and Assistant Collector 1st Grade of the District concerned to sanction the grant of proprietary rights in respect of Khalsa land covered by the first paragraph of this order after satisfying himself through an enquiry made by the Tehsildar as to from which date the Khalsa land was brought under cultiva tion by the applicant. The Collector shall assess the land revenue thereon and recover the premium as provided in paragraph 1. (3) On payment of the premium the proprietary rights of the land shall be mutated in the name of the Nautor Kunandas." The tribunal before which such rights were to be enforced was also provided in the Government Order. Persons who had broken up Khalsa lands without permission of the Government were coming to the civil Courts to seek their remedy in respect of the right created under the Government Order No. 282/57. A large number of cases were pending in Courts, therefore, the Azad Jammu and Kashmir Grant of Khalsa Waste Land Shamilat Deh Act, 1966 was enacted and the intention to give effect to section 9 retrospectively can be implied because the Government wanted to put a stop to the civil suits that were pending in respect of a right created by a Government Order which also provided the tribunal for enforcing such rights. We are of the opinion that section 9 of the Shamilat Deh Act intended to apply not only to future suits but also to pending suits and can be impliedly given retrospective effect so as to bar the jurisdiction of the civil Court even in respect of pending suits. The right to pursue one's remedy before a particular tribunal provided under the existing law may be a vested right but under the existing law the jurisdiction of the civil Courts had been barred, therefore, there was no vested right in the plaintiff or persons claiming similar rights under the Government Order No. 282/57 to come to the civil Court. Bindra, no doubt, writes on page 584 that there is a vested right to continue the proceedings in the tribunal before which the same had already commenced but there is a qualification to this rule that the proceedings should have commenced in the tribunal according to state of law as it stood at the time of the commencement of the proceedings. Gulab Khan filed his suit on 10-9-63. The state of law on], this date was that the right which he claimed to enforce in the civil Court had been created under the Government Order No. 282/57 which also provided a tribunal for enforcing such rights. So the state of law as it stood at the time of the com mencement of the suit was that the civil Court had no jurisdiction in the matter. The Government Order No. 282/57 not only created the right but also the tribunal where such right was to be enforced. If the plaintiff was dissatisfied with the order of the Collector or Assistant Collector 1st Grade he had a remedy by way of appeal before the Commissioner and a further appeal before the Additional Financial Commissioner. We have already E said above that where a special tribunal or a public body is created by or under the authority of an act of Legislature for the purpose of determining questions as to rights which are the creation of the Act, then the jurisdiction of that tribunal or of that body is, unless provided otherwise, exclusive and the civil Courts cannot take cognizance of such matters. We agree with the Courts below that the jurisdiction of the civil Court is barred. The appeal fails and is dismissed. S. A. H. Appeal dismissed.