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Civil Appeal No.36 of 1987, decided on 16th February, 1988.

(On appeal from the judgment and decree of the High Court dated 7 2 1987, in Civil Appeal No.25 of 1986).

S.18 Civil Procedure Code (V of 1908), S.9 Ouster of jurisdiction of Civil Court Civil Court when to entertain suit in spite of ouster of such jurisdiction Grievance against acquisition award Remedy to seek redress Civil Court despite ouster of its jurisdiction, held, could validly entertain suit if same was based on the fact constituting lack of jurisdiction or was challenged as being mala fide and there was no other efficacious remedy available to aggrieved person for redress of his grievance Person aggrieved by acquisition award, however, has remedy by way of seeking reference to Court and there is right of appeal against award by such Court Question of award being mala fide could be raised before Court to which reference was made Such aggrieved person could not litigate such matter by a separate suit.

Ghulam Mustafa and 3 others v. Mst. Zaitoon and others PLD 1986 Azad J&K 100 and Muhammad Nazir and 4 others v. Abdul Latif and 15 others PLD 1985 SC (AJ&K) 97 ref.

Qazi Nazir Ahmed v. Azad Jammu and Kashmir Government PLD 1964 Azad J&K 21 rel.

S.18 Acquisition award Redress of grievance Civil Court"s jurisdiction when to be invoked in spite of statutory ouster of such jurisdiction.

A special procedure has been prescribed in the Land Acquisition Act, 1894 for an aggrieved party to redress his grievance. Therefore, if a person had an opportunity and knowledge to question the validity of the award or any part thereof but fails to avail the remedy by seeking a reference under section 18 of the Act, he cannot be subsequently permitted to seek the redress of his grievance by filing the civil suit both on the principle of res judicata as well as in view of the fact that special procedure has been prescribed in the Land Acquisition Act to seek the adjudication of a controversy. The scheme of the Land Acquisition Act clearly shows that any redress arising out of an award must be sought by the procedure provided by the Act itself, until and unless, of course, it is shown that the person concerned had no knowledge of the proceedings under the Act or of the award and the period of limitation for moving the Collector in making a reference had expired due to no fault of such person. Even when there is statutory ouster of jurisdiction of the Civil Court a civil suit is competent if it is shown that the Tribunal or the Court whose order is being assailed lacked the jurisdiction in the matter or was actuated by malice, but in the proceedings arising out of the Land Acquisition Act any ground on which an award can be challenged in a separate civil suit, the same can be raised before the Court to which a reference is made under section 18 of the Land Acquisition Act. It is incorrect to suggest that the Court to which reference is made can adjudicate upon a particular controversy arising out of an award yet a separate civil suit is competent even if the aggrieved party had the knowledge and opportunity to redress his grievance by seeking a reference.

Jogesh Chandra Roy v. Secy. of State A I R 1919 Cal. 724; Saibesh Chandra Sarkar v. Bijoychand Mohatop Bahadur A I R 1922 Cal. 4; Cheddi Ram v. Ch. Ahmad Shafi and others A 1 R 1933 Oudh 100; Mt. Krishana Dei v. Governor General in Council and others AIR 1950 All. 1 and Kamala Kunwar v. Lakshan Goala and another AIR 1967 Cal. 105 rel.

Meaning, scope and import of Cause of action, held, would imply bundle of facts which legally entitle a person for redressing his grievance Where plaintiff was not offered opportunity to lead his evidence, Courts erred in holding that such plaintiff could not prove facts constituting cause of action Dismissal of suit on ground that plaintiff failed to prove facts constituting cause of action was erroneous in circumstances.

S.18 Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42 Appeal against dismissal of suit Remedy against acquisition of award having been provided in Land Acquisition Act itself, resort to civil suit for redress of same, held, was not competent Suit against award being not maintainable, appeal against dismissal of same was dismissed in circumstances:

Raja Muhammad Hanif for Appellant.

Respondents Nos. 1 and 2 in person.

Nemo for Respondents Nos. 3, 4 and 6. A .

Syed Ghulam Hussain Shah for Respondent No 5.

This appeal, by leave, has been directed against the order of the High Court dated 7 2 1987, whereby the appeal "filed by Mst. Begum Jan, appellant herein, was dismissed.

The brief facts giving rise to the present appeal are that Mst. Begum Jan, plaintiff/appellant, brought a suit in the Court of Sub Judge, Muzaffarabad, seeking a declaration to the effect that the award No.8/80 dated 14 5 1980, given by the Collector Land Acquisition, was ineffective and inoperative against her interest as being mala fide. She averred in her plaint that the suit land, an evacuee property, was allotted to her husband on 29 3 1950 as being destitute and old tenant. She has further alleged that her husband also constructed a house on the suit land and after his death she constructed another house which was in her possession. According to her case, defendant No.1 obtained illegal allotment of 1/2 share of the suit land and she has challenged his allotment before the Custodian. She has further stated in the plaint that she appeared before the Collector Land Acquisition and filed her objections but the Collector did not consider the same and no award was made in her favour. The plaintiff/appellant prayed that the award given by the Collector was mala fide and might be declared as ineffective and Co-operative against her interest and the defendants respondents should be restrained from interfering with her possession.

The averments made by the appellant were controverted by the defendants in their written statements. The trial Court proceeded to frame as many as ten issues; but proceeded to decide issues Nos.1 to 3 as preliminary issues without recording any evidence. The trial court dismissed the suit of the plaintiff appellant on the ground that the Civil Court had no jurisdiction in the matter; and that she could not show any cause of action because she failed to place on record any allotment chit in her favour. The appeals filed by the plaintiff before the District Judge and the High Court were also dismissed.

I have heard the arguments and gone through the file. A preliminary objection has been raised by Syed Ghulam Hussain Shah the learned counsel for the respondent No.5, that as the Commander 5 AK Brigade, who was a party in the High Court was not made a party in the appeal filed in this Court, the appeal was incompetent. It may be stated here that as the Military Estate Officer, who represents the interest of the Army, has been duly arrayed in the line of the respondents, the Commandar of 5 AK Brigade was not necessary party and his non impleadment as respondent would not render, the appeal as incompetent. Hence, the preliminary objection is overruled and the appeal is held to be in order.

It has been contended by Raja Muhammad Hanif, Advocate, appearing on behalf of the appellant, that the Courts below have erred in holding that the Civil Court had no jurisdiction in the matter: He has contended that as the award given by the Collector Land Acquisition is being assailed on the ground of mala fide, the civil Court does not possess the jurisdiction to adjudicate upon the matter. So far as the question of absence of cause of action is concerned, the learned counsel has contended that the averments made in the plaint sufficiently disclose a cause of action entitling the plaintiff to seek the redress of her grievance by filing a civil suit. He has maintained that the proof of facts alleged in the plaint is a different matter from the question as to whether the facts alleged in the plaint constitute a cause of action or not. The learned counsel has submitted that issue No.2 could not be decided without recording evidence and thus, the Courts below have committed error in holding that the plaintiff had no cause of action because she did not adduce any evidence in proof of the facts alleged in her plaint. He has maintained that the plaintiff was never provided an opportunity to lead evidence. The learned counsel has cited some authorities in support of his contention that the civil Court had the jurisdiction in the matter. In Ghulam Mustafa and 3 others v. Mst. Zaitoon and 5 others P L D 1986 Azad J&K 100, it was held that whenever a person interested fail to avail the remedy provided under section 18 of the Land Acquisition Act for want of notice or disability of other sufficient cause, he was not debarred to invoke jurisdiction of the civil Court to redress his grievance; but if a person had the notice of the award and failed to avail the opportunity by moving the Collector for making reference to the civil Court such person cannot subsequently invoke the jurisdiction of the civil Court by filing a suit and his case would be covered by rule of res judicata.

In Muhammad Nazir and 4 others v. Abdul Latif and 15 others P L D 1985 S C (Azad J&K) 97, the order of the Provincial Transport Authority was assailed as being mall fide. It was held that although section 66 of the Motor Vehicles Act ousts the jurisdiction of the civil Court in the matter yet statutory ouster would not be effective if the case is brought within the ambit of absence of jurisdiction lack of jurisdiction, flagrant disregard to statutory provisions or it is" shown that the authority concerned acted mala fide.

It may be observed here that in the instant case there is note averment in the plaint that the plaintiff/appellant had no notice of the award or was prevented by any sufficient cause for not availing the opportunity to challenge the award in question by seeking a reference under section 18 of the Land Acquisition Act; rather she has alleged in the plaint that she appeared before the Collector and also filed objections before him. Thus, the principle enunciated in case Ghulam Mustafa and others v. Mst. Zaitoon and others P L D 1986 Azad J&K 106, is not attracted in, this case. So far as the latter authority is concerned, the same did not pertain to the proceedings under the Land Acquisition Act. It is correct that a civil Court despite the ouster of its jurisdiction, can validly entertain a suit if the same is based on the fact constituting lack of jurisdiction or if challenged as being mala fide and there is no other efficacious remedy available to the aggrieved, person for the redress of his grievance. But if, a person is aggrieved by an award given under" the provision of the Land Acquisition Act, he has remedy by way of seeking reference to the Court and there is also right of appeal against the award made by such Court. Therefore, it cannot be said that if a person feels aggrieved by an award given under the provisions of the Land Acquisition act, he has no remedy to seek the redress against the same. The question of award being mala fide can be raised before the Court to which reference is made under section 18 of the Land Acquisition Act. The question of competency of a separate civil suit came up for consideration before various judicial authorities. It would be expedient to consider some of those:

In Qazi Nazir Ahmed v. Azad Jammu and Kashmir Govt. PLD 1964 Azad J&K 21, it was held that if a person had the knowledge of the proceedings under the Land Acquisition Act, the only remedy open to him for seeking, the redress of his grievance is to seek a reference under section 18 of the Land Acquisition Act and he cannot litigate the matter by a separate suit.

In Jogesh Chandra Roy v. Secy. of State A I R 1919 Cal. 724, it was held that only remedy of a person whose property is acquired under the Land Acquisition Act and who is dissatisfied with the award made by the, Collector is to call upon the Collector to refer the matter to the District Judge under section 18 of the Act and a" separate suit for redressing the grievance is not maintainable.

In Saibesh Chandra Sarkar v Bijoychand Mohatop Bahadur AIR 1922 Cal. 4, it was held that ordinarily when jurisdiction has been conferred upon a special Court for the investigation of matters such jurisdiction is exclusive. It was further opined that the Land Acquisition Act creates a special jurisdiction and provides a special remedy. Thus, it would not be reasonable to hold that the Legislature having provided a special remedy in the Land Acquisition Act intended to make it optional with a party to apply for a reference under section 18 or to institute a suit in the civil Court. Therefore, the party should seek redress by resorting to the remedy under section 18 and not by filing a civil suit.

In Cheddi Ram v. Ch. Ahmad Shaft and others A I R 1933 Oudh 100, it was held that as the jurisdiction under the Land Acquisition Act has been conferred upon a special Court for investigating a particular controversy, the jurisdiction of such Court exclusive. Thus, if a person has full opportunity of getting his rights adjudicated upon in accordance with the machinery provided under section 18 and such person does not avail of the same, he cannot be allowed to question the correctness of the award by resorting to a civil suit.

In Mt, Krishna Dei v. Governor General in Council and others A I R 1950 All. 1, it was held that where the predecessor in interest of a defendant never challenged the award, it cannot be objected to in the subsequent proceedings on the ground that the predecessor in-interest of the defendant were not made party to the proceedings before the Collector.

In Kamala Kunwar v. Lakshan Goala and another A I R 1967 Cal. 105, it was held that the provisions of the Land Acquisition Act are intended to be final and the salve cannot be questioned in a separate suit.

It is evident from the above survey of the case law that a special procedure has been prescribed in the Land Acquisition Act for an aggrieved party to redress his grievance. Therefore, if a person had an opportunity and knowledge to question the validity of the award or any part thereof but fails to avail the remedy by seeking a reference under section 18 of the Act, he, cannot be subsequently permitted to seek the redress of his grievance by filing the civil suit both on the principle of res judicata as well as in view of the fact that special procedure has been prescribed "in the Land Acquisition Act to seek the adjudication of a controversy. The Scheme of the Land Acquisition Act clearly shows that any redress arising cut of an award must be sought by the procedure provided by the Act itself, until and unless, of course, it is shown that the person concerned had no knowledge of the proceedings under Act or of the award and the period of limitation for moving the Collector in making a reference had expired due to no fault of "such person. As has already been pointed out, in the instant case the plaintiff/appellant, according to her own case, appeared before the Collector and also filed objections. There is no explanation whatsoever in the plaint as to why she did not sought the redress by seeking a reference under section 18 of the Land Acquisition Act. It is correct that even when there is statutory ouster of jurisdiction of the civil Court a civil suit is competent if: it is shown that the tribunal or the Court whose order is being assailed lacked the jurisdiction in the matter or was actuated by malice, but in the proceedings arising out of the Land Acquisition Act any ground on which an award can be challenged in a separate civil suit, the same can be raised before the Court to which a reference is made under section 18 of the Land Acquisition Act. It is incorrect to suggest that the Court to which reference is made can adjudicate upon a particular controversy arising out of an award yet a separate civil suit "is competent even if the aggrieved party had the knowledge and opportunity to redrees his grievance by seeking a reference.

So far as the question with regard to the absence of cause of action is concerned, it may be observed that the cause of action can be described as bundle of facts which legally entitle a person for redressing his grievance. The perusal of the plaint shows that the facts alleged by the plaintiff appellant did constitute a cause of action. The Courts below have erred in holding that as the plaintiff could not prove the facts constituting the cause of action, her suit was not maintainable. The perusal of the record shows that she was not offered an opportunity to lead evidence. Thus, .her suit could not be dismissed on the ground that she could not prove the facts constituting the cause of action.

In the light of what has been stated above I affirm the finding of the trial Court on issue No. 1 and dismiss the appeal. In view of the circumstances no order as to the costs so far as this Court is concerned.

A. A. /210/S. C. A. Appeal dismissed.

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