HIGH COURT OF CHHATTISGARH AT BILASPUR
-----------------------------------------------------------------------------------SINGLE BENCH : HON'BLE MR. P. SAM KOSHY, J.
-----------------------------------------------------------------------------------SECOND APPEAL NO. 188 OF 2005
APPELLANTS
:
State of Chhattisgarh
and another
Versus
RESPONDENTS
:
Chandra Bhan Singh
and others
SECOND APPEAL UNDER SECTION 100 OF THE
CIVIL PROCEDURE CODE, 1908
-----------------------------------------------------------------------------------Present:
Mr. G.D. Vaswani, Govt. Advocate, for the Appellants.
Mr. Shree Kumar Agrawal, Senior Advocate, with Mr. Anand Gupta,
Advocate, for the Respondents.
-----------------------------------------------------------------------------------JUDGEMENT
(Delivered on 29-11-2013)
Heard.
2.
The instant second appeal has been preferred by the
appellants challenging the judgement and decree dated 25.11.2004
passed by Additional District Judge, Korba, in Civil Appeal No.1A/2004. By the said judgement dated 25.11.2004, the first appellate
Court i.e. Additional District Judge, Korba, has affirmed and
confirmed the judgement and decree dated 30.12.2003 passed by
the trial Court i.e. Civil Judge, Class-II, Korba, in Civil Suit No.193A/2002.
3.
Facts leading to the instant appeal are that the plaintiffs/
respondents No.1 to 4 filed a suit before the trial Court for
declaration of title and possession. The said suit was registered as
Civil Suit No.193-A/2002. The said civil suit was filed by plaintiffs/
respondents No.1 to 4 in respect of the suit land situated at Khasra
No.65/1 in village Rampur, measuring 2.75 acre and the land at
Khasra No.173/1 in village Rampur, measuring 4.90 acre. Total
area in the suit land is 7.65 acres. The contention of plaintiffs was
that the land was in the name of their forefathers i.e. initially in the
name of Thakur Maksudhan Singh, even before the time the
Madhya Pradesh Land Revenue Code came into the force, and that
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the name of Thakur Maksudhan Singh was entered in the
revenue records as Bhumi Swami over the said suit land. The
name of Thakur Maksudhan Singh finds place in the Jama Bandi
of the year 1954-55 and that the forefathers of the plaintiffs were
in constant possession of the said suit land. After the demise of
Thakur Maksudhan Singh, the plaintiffs/respondents No.1 to 4
and respondents No.5 to 7 i.e. defendants No.3 to 5 in the civil
suit, by virtue of succession, acquired the rights in the said land.
The dispute arose when the Forest Department of the State
Government, whose land said to be adjacent to the suit land,
while encircling the forest land by barbed wire, forcibly entered
into the suit land claiming it to be the forest land. It, therefore,
became necessary for the plaintiffs/respondents No.1 to 4 to file a
suit.
4.
The trial Court in the course of deciding the suit, framed
four specific issues as to;
(i)
whether the plaintiffs and defendants No.3 to 5
were the title holder of the suit land being their
ancestral property ?
(ii)
whether defendant No.2 had forcibly and illegally
dispossessed the plaintiffs and defendants No.3 to 5
from the suit property?
(iii) whether the trial Court hearing the suit had the
jurisdiction to hear and decide the said suit?
(iv) whether the plaintiffs were entitled for the relief
sought for on the suit property?
5.
All the said issues were decided by the trial Court in the
affirmative holding that the suit property was in fact is the
ancestral property of the plaintiffs and defendants No.3 to 5. It
was also held that defendant No.2 had illegally and forcefully
dispossessed the plaintiffs and defendants No.3 to 5 from the suit
property. Further, on the question of whether the trial Court
hearing the matter having jurisdiction to hear the case, the Court
below, while deciding the said issue No.4, specifically considered
the evidence that have come on record and held that the plaintiffs
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had in fact established before the Court in respect of their title
over the suit property. The Court below also came to the
conclusion on the basis of the evidence that have come on record,
saying that the State Government had failed to produce any
document or proof to show that the land belonging to the
plaintiffs had in fact been acquired by the State Government and
it was a government land. The Court also reached to the
conclusion that the Forest Department has failed to show ample
evidence in respect of the land, adjacent to the suit land, having
been acquired nor any compensation was paid to the affected
persons. The Court below further reached to the conclusion that
since there is no express bar of jurisdiction of Civil Court in the
Indian Forest Act, 1927 (henceforth, “the Forest Act”), the Civil
Court does have the jurisdiction to decide the claim pertaining to
the title over the suit. Similarly, issue No.5 that was framed by
the Court below was in respect of whether the suit filed by the
plaintiffs was barred by limitation. The said issue was decided by
the trial Court in the negative holding that the suit was in fact
not barred by limitation for the reason that the witness of
defendant No.1 & 2 himself could not lead evidence to show a s to
which date the suit property came under the forest land and from
which date the defendants No.1 & 2 are in actual possession over
the suit property and, therefore, the suit cannot be said to be
barred by limitation. Finally, after considering all the evidence
that were brought on record, the issue as to whether the plaintiffs
can be granted the relief as claimed for in the suit, was also
decided in favour of the plaintiffs. The suit was allowed and a
decree was drawn up accordingly declaring the plaintiffs and
defendants No.3 to 5 to be the title holders of the suit land and
the suit land not being an area under the forest plan and that it
was also decided that it is defendants No.1 & 2 who had illegally
dispossessed the plaintiffs and defendants No.3 to 5 from the suit
property.
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6.
The said judgement and decree dated 30.12.2003 passed by
the trial Court was put to challenge by the State Government by
way of first appeal which was registered as Civil Appeal No.1A/2004, before the first appellate Court. The first appellate Court
also after considering the rival contentions of the parties to the
suit,
vide
its
judgement
dated
25.11.2004
confirmed
the
judgement of the trial Court and dismissed the appeal of the
State Government. The first appellate Court also in the course of
deciding the civil appeal, considered the submissions made by
the trial Court and accepting the version of the trial Court, on the
same set of facts, reached to the conclusion that in fact the Civil
Court had the jurisdiction to entertain the suit of the plaintiffs.
7.
It is this judgement and decree dated 25.11.2004 which has
been challenged by the appellants/defendants No.1 & 2 by way of
instant second appeal which was admitted by this Court on the
following substantial questions of law:“Whether after issuance of notification deciding to
constitute any land, a reserve forest, and appointing a
Forest Settlement Officer to inquire into and determine
the existence, nature and extent of any right, alleged to
exist in favour of any person, in or over any land
comprised within such limits etc., the jurisdiction of
Civil Court is barred?”
8.
Shri Vaswani, learned counsel appearing for the State
Government, submitted that the jurisdiction of the Civil Court in
the instant case was ousted as per Chapter II of the Forest Act.
According to the counsel for the State Government, though under
the Forest Act, there is no express bar of jurisdiction of the Civil
Court, but the provisions under Chapter II by its implication bars
the jurisdiction of the Civil Court for the reason that if we read
the provisions of Section 3, 4 & 5 of the Forest Act, it clearly
empowers the State Government for declaring an area to be
reserved forest by way of issuance of notification in this regard
and after a notification is issued, all rights over the said property
vests with the State Government unless a permission is granted
in this regard by the State Government.
-5-
9.
Further contention of Shri Vaswani is that if at all the
plaintiffs had any dispute, they ought to have approached the
Forest Settlement Officer in accordance with Section 4(c) of the
Forest Act and then should have got the dispute redressed and if
thereafter any further grievance still remains on the order of the
Forest Settlement Officer, the order passed by the Forest
Settlement Officer could be subjected under challenge. Shri
Vaswani has relied upon the decision of Hon'ble Supreme Court
passed in the case of Vankamamidi Venkata Subba Rao v.
Chatlapalli Seetharamaratna Ranganayakamma, reported in 1997
(5) SCC 460, whereby the exclusion of jurisdiction of the Civil
Court has been dealt with.
10.
Per contra, Shri Agrawal, learned senior counsel for the
respondents, denied the fact that the Civil Court does not have
the jurisdiction and contended as per Section 3 of the Forest Act,
the provision presupposes that the ownership of the land of the
State Government should be established first for the purpose of
the Forest Act to come into play for the applicability of Chapter II
of the said Act before the Settlement Officer. Further contention
of Shri Agrawal was that in any case the jurisdiction of the title of
a suit land can only be decided by the Civil Court and that the
question of title cannot be decided by the authorities under the
Forest Act. Shri Agrawal also made a submission that all the
averments made by the State Government was only by way of
pleadings and arguments, but there is no documentary proof in
respect of the claim of the State Government regarding the fact
that the suit land belongs to the State Government and does not
belong to the respondents. He also makes a submission that the
State Government has failed to show any notification with respect
to the suit land whereby the suit land has been specifically spelt
out in the notification by showing its Khasra number. The
counsel even went to the extent of conceding the fact that even if
there is any document wherein the Khasra No. of the suit land is
-6-
shown in the Government's notification or order, he would
concede that the jurisdiction vests with the State Government.
11.
Considering the rival contentions of the counsel for either
party and also the substantial question of law framed as to
whether the jurisdiction of the Civil Court was barred in
entertaining the present suit after the issuance of the notification
under Section 3 & 4 of the Forest Act. If we see the evidence of
witness DW-1 namely Hirendra Kumar Singh, the Assistant
Forest Conservator, Korba, who had lead evidence on behalf of
defendants No.1 & 2/State Government, it is evidently clear that
the said witness had exhibited the notification dated 8.7.1965
(Exbt. D-1) issued by the State Government under Section 4 of
the Forest Act declaring the area including the suit land to be a
reserved forest. The said witness also exhibited the document
(Exbt. D-2) which is the proceedings before the Settlement
Officer. Similarly, the said witness (DW-1) also exhibited before
the Court below the gazette of the State Government dated
17.2.1978 showing the notification dated 17.6.1977 whereby
certain portion of the land as per the schedule in the said
notification which was earlier declared to be the protected forest
area denotifying them from the protected forest land and thereby
these lands ceased to be protected forest land. In the said
notification also the land of the plaintiffs were not denotified and
which shows that their land also remains to be that of a forest
land. Further, the witness of defendants No.1 & 2 also exhibited a
map (Exbt. D-4) of the reserved forest in Korba Range, which
specifically shows the area of the reserved forest in Korba Range
and wherein the suit land is also shown to be within the sketch of
reserved forest land.
12.
As regards the contention of learned senior counsel for the
respondents/plaintiffs that the notification shown by the State
Government would not be applicable in the case of the plaintiffs
for the reason that it does not disclose the Khasra No. of the suit
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land of the plaintiffs, it is submitted that an explanation, given
under Section 4 (1) of the Forest Act, specifically holds that for
the purpose of specifying the situation and limits of the land to be
declared as forest land it is sufficient to describe the limits of the
forest by roads, rivers and other readily intelligible boundaries.
For convenience sake, the explanation of Section 4 (1) of the
Forest Act is reproduced below:“Explanation.- For the purpose of clause (b), it shall be
sufficient to describe the limits of the forest by roads,
rivers, ridges or other well-known or readily intelligible
boundaries.”
13.
From the plain reading of the explanation itself, it is
evidently clear that the requirement of law is not that each and
every Khasra No. has to be specified for the purpose of declaring
a land to be reserved forest. If the notification has specific
boundaries that is sufficient for the purpose of attracting the
provisions of the Forest Act and the requirement of Section 4 of
the Forest Act to be achieved.
14.
From the above given facts and circumstances, it is
evidently clear that the land belonging to respondents/plaintiffs
No.1 to 4 in fact falls within the area of the reserved forest land
and, therefore, the provisions of the Forest Act becomes
applicable upon them.
15.
Dealing with the issue of whether the jurisdiction of the
Civil Court was barred or not, if we see the decision of Hon'ble
Supreme Court in the case of Rajasthan State Road Transport
Corporation and another v. Bal Mukund Bairwa, reported in 2009
(4) SCC 299, the Supreme Court has categorically held that if a
statute while creating rights and obligations does not constitute a
forum for enforcing the same, the plenary jurisdiction of civil
court cannot be held to have been taken away. That is to say in
the event if there is a forum for enforcing the provisions of law in
the special statute created for the specific purpose then in that
case by implication the jurisdiction of the civil court would be
-8-
taken away. The decision of the Supreme Court in the said case
was on the basis of the principles laid down in the case of
Rajasthan State Road Transport Corporation v. Krishna Kant,
reported in AIR 1995 SC 1715, where the Hon'ble Supreme Court
has held that power of a civil court would be only in a case where
there is no other alternative remedy available for a person for the
recognition, observance and enforcement of his right. In such
case, the recourse of the civil court would be open. However, in
the same judgement, the Hon'ble Supreme Court in categorical
terms held that where there is an alternate remedy under an Act
created, then only the remedy is to approach the forum created
by the said Act.
16.
On reading Chapter 9 of the book “Principles of Statutory
Interpretation” by Justice G.P. Singh dealing with the statutes
affecting jurisdiction of the Court, it is evidently clear that the
exclusion of jurisdiction of civil courts is not to be readily inferred
and such exclusion must either be explicitly expressed or clearly
implied. It is a principle by no means to be whittled down. As a
necessary corollary of this rule provisions excluding jurisdiction
of
civil
courts
and
provisions
conferring
jurisdiction
on
authorities and tribunals other than civil courts are to be strictly
construed. The general jurisdiction conferred upon a civil court is
a matter of right, unless expressly or impliedly debarred to insist
for free access to the courts of general jurisdiction of the State.
17.
of
The said rule as stated above relating to strict construction
provisions
excluding
jurisdiction
of
courts
of
general
jurisdiction was also expressly approved by Hon'ble Supreme
Court in the case of Swamy Atmananda v. Sri Ramakrishna
Tapovanam reported in AIR 2005 SC 2392.
18.
Similarly, the Hon'ble Supreme Court in the case of United
India Insurance Company Limited v. Ajay Sinha and another,
reported in 2008 (7) SCC 454, (para 35), relying upon the
Principles of Statutory Interpretation by Justice G.P. Singh, has
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held that provisions excluding jurisdiction of civil courts should
receive strict construction.
19.
Thus, from the plain reading to the settled position of law, it
is evidently clear that where under the provisions of law or in a
statute, the legislature has created a hierarchy of authority and
also the provisions of challenging these orders of the authorities
by way of appeal for the determination of the issues is sufficient
for enforcing that the jurisdiction of the civil court to try the same
is barred as has been decided by the Hon'ble Supreme Court in
the case of Desika Charyulu v. State of Andhra Pradesh, reported
in AIR 1964 SC 807. That being so, the trial Court has erred in
law in deciding the issue that it has the jurisdiction in
entertaining
Civil
Suit
No.193-A/2002
and
passing
the
judgement and decree dated 30.12.2003 which has also been
affirmed and confirmed by the first appellate Court vide its
judgement and decree dated 25.11.2004 passed in Civil Appeal
No.1-A/2004.
Needless
to
say,
if
the
law
permits
the
respondents/plaintiffs may approach the competent authority
under the provisions of law.
20.
For the reasons stated in the preceding paragraphs, the
second appeal is allowed. Consequently, judgement and decree
dated 25.11.2004 passed by Additional District Judge, Korba, in
Civil Appeal No.1-A/2004 and judgement and decree dated
30.12.2003 passed by Civil Judge, Class-II, Korba, in Civil Suit
No.193-A/2002, being in excess of its jurisdiction, are set aside.
No order as to costs.
/sharad/
JUDGE
Head Note
For achieving the requirement u/S. 4 of Forest Act specific
Khasra No. of land is not required but general identification of
boundaries is sufficient.