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High Court Of Madhya Pradesh
T. P. Naik and G. P. Singh, JJ.
RAO BHUPENDRA SINGH - Appellant
Versus
GOPAL KUNWAR UMATH - Respondents
First Appeal 17 Of 1961
Decided On : 09/12/1969
(2) Civil P. C. 1908 - S. 9 - ousting of the jurisdiction of civil Courts - limitation on - Abolition of Jagir & Land Reform Act, 1953 (Bhopal) - S.39.
The language employed in section 39 is apparently quite comprehensive. But statutory provisions like section 39 of the Act, which oust the jurisdiction of the ordinary Courts inspite of their apparent wide language, have certain inherent limitations. Thus the second sub-section which prevents the calling in question in any Court of an "order of the State Government etc., under this Act" will have no application if the order that is called in question, is really not an order under the Act but a nullity. In other words, if a purported order is no order at all, the immunity conferred by sub-section (1) will not protect such an order from being challenged in a Civil Court. The question whether an order of the State Government, Tahsildar etc., is a nullity is also not one which is required to be settled, decided of dealt with by these authorities under the Act and therefore, the bar of sub-section (1) will not prevent such a question being tried by a civil Court. [Para 4
Whenever in the course of inquiry under section 10 of the Act a question is raised, whether the person invoking the jurisdiction of the Jagir Commissioner is one falling under the case delimited by the aforesaid words, the Jagir Commissioner will have to decide that question, whether it depends upon the construction of the aforesaid words or investigation, of facts. But it is decision on that question will not be final, for he cannot either by wrong construction of the words of the section or by wrongly determining any fact confer the benefit of the section to persons not entitled to it or deny the benefit to persons entitled to it. An error in that behalf would be an error in relation to a question of jurisdictional law or fact and will result in making his final decision of fixing or declining to fix maintenance allowance a nullity and such a decision will be open to challenge in a civil Court inspite of the exclusionary provision contained in section 39. Further, the Jagir Commissioner in fixing the maintenance allowance has to take into consideration matters specified in clause (i) to (iii) of section 10 and rule 21. If the Jagir Commissioner does not take into account these matters at all when those matters are ascertainable and have relevance to the case in hand and if he fixes the maintenance allowance on consideration of matters foreign to section 10, that would again make his decision a nullity liable to be challenged in a civil suit. However, if jurisdiction is invoked in respect of a right person and matters required to be taken into consideration are taken into consideration, the questions as to what weight should he attached to those matters and what amount should be fixed as the maintenance allowance, are questions which will fall within the area where the Jagir Commissioner has the sole authority and is free to err; his order then even if it be erroneous will not be liable to be called in question any Court. [Para 6
(3) Jurisdiction - Tribunals of limited jurisdiction - order when a nullity and when may be challenged in a civil Court.
(4) Interpretation of statutes - exclusionary clause in an enactment - interpretation of.
The legal position may now be summed up as follows:-
(1) An Exclusionary Clause using the formula "an order of the tribunal under this Act shall not be called in question in any Court"-is ineffective to prevent the calling in question of an order of the tribunal if the order is really not an order under the Act but a nullity.
(2) Cases of nullity may arise when there is lack of jurisdiction at the stage of commencement of inquiry e.g., when (a) authority is assumed under an ultra vires statute, (b) the tribunal is not properly constituted, or is disqualified to act, (c) the subject-matter or the parties are such over which the tribunal has no authority to inquire, and (d) there is want of essential preliminaries prescribed by the law for commencement of the inquiry.
(3) Cases of nullity may also arise during the course or at the conclusion of the inquiry. These cases are also cases of want of jurisdiction if the word "jurisdiction" is understood in a wide sense. Some examples of these cases are: (a) when the tribunal has wrongly determined a jurisdictional question of fact or law, (b) when it has failed to follow the fundamental principles of judicial procedure, e. g., has passed the order without giving an opportunity of hearing to the party affected (c) when it has violated the fundamental provisions of the Act e.g., when it fails to take into account matters which it is required to take into account or when it takes into account extraneous and irrelevant matters, (d) when it has acted in bad faith, and (e) when it grants a relief or makes an order which it has no authority to grant or make. 1968 JLJ 926 (SC), AIR 1968 SC 377, AIR 1964 SC 322, AIR 1964 SC 807, AIR 1962 SC 1622, AIR 1940 PC 105, (1969) 1 All. ER 208 relied on. [Para 5
(5) Abolition of Jagirs & Land Reforms Act, 1953 (Bhopal) - S. 10 - scope of - includes persons to whom maintenance allowance is paid in cash or from Jagir land.
Section 10 of Act is not limited to persons who were paid maintenance allowance in cash from the income of the Jagir but also applies to a person who was entitled to maintenance allowance from the income of the Jagir, but instead of being paid in cash was granted or put in possession of Jagir village or villages for realising the maintenance allowance out of the income of the same. [Para 7
(6) Practice (Civil) - presumption - right exercised and recognized - for a long time - must be presumed to have legal origin.
It must be assumed that a right which was exercised and recognised for generations must have held a legal origin. [Para 8
(7) Limitation Act, 1908 - Art. 131 - scope of - does not embrace a suit for recovery of arrears due under a right - interpretation of the Limitation Act.
On a plain grammatical construction of Article 131 is restricted to suit "to establish a periodically recurring right" and does not embrace a suit for recovery of arrears due under that right. It is well settled that strict grammatical construction of the words is the only safe guide in interpreting the Limitation Act. AIR 1962 SC 1716 & AIR 1932 PC 165 relied on.
Article 131 cannot, therefore, be extended to cover a relief claiming recovery of arrears that may have fallen due under a periodically recurring right. Even if in the same two reliels, one for establishing the right and the other for recovery of the arrears, are combined together. Article 131 will apply only to the first relief and some other appropriate Article or Article 120 will apply to the relief for recovery of arrears. AIR 1914 Mad. 377 dissented from. AIR 1965 Orissa 138, AIR 1959 Kerala 1, AIR 1937 All. 57, AIR 1931 Bom. 189 & AIR 1926 Pat. 205 relied on. 36 MPLC 149 referred to. [Para 11
(8) Limitation Act, 1908 - Art. 62 - scope of - money payable all maintenance allowance under section 10 of the Bhopal Abolition of Jagirs & Land Reforms Act - this Article applies - denial of right of the plaintiff by the Jagirdar - is not material.
The test for application of Article 62 is not whether the defendant intended to receive the money for the plaintiff's use. If the money is received by the defendant in such circumstances that from the very moment of receipt the plaintiff has a right to claim it, it is money had and received for the plaintiff's use though actually not received with that intention, AIR 1965 SC 1773 relied on.
The amount of Mansab received by the defendant appellant from the Government to the extent of the amount of maintenance payable from it to the plaintiff must, therefore, be taken as money had and received for the plaintiff's use, notwithstanding that the appellant may have intended to receive it wholly for his own benefit. Article 62 thus applies to the suit and the claim for arrears beyond three years is barred by limitation. [Para 11
( 1 ) THIS appeal arises out of a suit which was filed by the plaintiff-respondent thakur Bharatsingh for recovery of Rs. 13,472. 50 paise against the defendant-appellant. Bharatsingh died during the pendency of the appeal and his legal representatives have been substituted in his place. The suit was based on the facts that the plaintiff was a Guzaredar of the defendant who held a jagir known as mangalgarh jagir. The plaintiff was in possession and enjoyment of income of a part of the village Ankia of the jagir in lieu of Guzara until the abolition of the jagir. In order to induce the Jagirdars to voluntarily surrender their jagirs, the government of the erstwhile State of Bhopal, where the jagir was situated, offered to pay Mansab or cash annuity to a Jagirdar in the event of his voluntarily surrendering the jagir and applying for conversion of the same into Mansab. The defendant took advantage of this offer and surrendered his lagir to the State. By an order of the State Government dated 12th August, 1953 he was granted mansab or cash annuity of Rs. 21,507/11/-per year payable in two equal six monthly instalments during his life. The plaintiff being a Guzaredar of the jagir, became entitled to receive out of the Mansab payable to the Jagirdar such amount for maintenance as may be fixed by the Jagir Commissioner under Section 10 read with Section 45-A of the Bhopal Abolition of Jagirs and Land Reforms Act, 1953. On an application made by the plaintiff, the Jagir Commissioner by his order dated 8th March, 1954 fixed the maintenance allowance payable under Section 10 at Rs. 2,129/8/- per year in two equal six monthly instalments out of the Mansab received by the defendant from the State. In spite of this order, the defendant did not pay the maintenance allowance, although he had received from 1st April, 1954 upto the date of the suit eleven six monthly instalments of his Mansab. The plaintiff, therefore, claimed that he be granted a decree for recovery of the arrears of maintenance allowance amounting to Rs. 13,472. 50 paise. The defendant in answer to the suit denied that the plaintiff was a Guzaredar. He also contended that the order of the Jagir Commissioner fixing the maintenance allowance was without jurisdiction, was not based on any law, had no legal force and was a nullity. A further plea was raised that the suit was barred by limitation. The second Additional District Judge, Bhopal, who tried the suit, held on all the points in favour of the plaintiff and decreed the entire suit. Aggrieved from that decree the defendant has come up in appeal to this Court.
( 2 ) THE first contention of the learned counsel for the appellant is that the order of the Jagir Commissioner was a nullity and no suit could be based on it. The learned counsel points out three infirmities in the order of the Jagir Commissioner in support of this contention. It is first submitted that on a true construction. Section 10 of the Act applies only to persons who were receiving maintenance allowance in cash from the income of the Jagirs and the Jagir Commissioner misconstrued the section and applied it to the plaintiff who on his own admission was not receiving any maintenance allowance in cash but was in possession of a jagir village for purposes of his maintenance. The second defect pointed out is that the plaintiff was not in fact a Guzare-dar or a person entitled to receive maintenance allowance in cash or otherwise under any law, rule or custom and the Jagir Commissioner wrongly found this fact in favour of the plaintiff. Lastly it is said that the Jagir commissioner did not take into consideration the various matters mentioned in clauses (i) to (iv) of Section 10 and Clauses (a) to (g) of Rule 21 (1), which he was bound to take into consideration before fixing the maintenance allowance. According to the learned counsel, by reason of these three infirmities the order of the Jagir Commissioner though purporting to be under Section 10 was i
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