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The State of Bombay Vs. Mishrilal Onkardas Joshi - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberCivil Revision Application No. 1241 of 1956
Judge
Reported in(1958)60BOMLR560
AppellantThe State of Bombay
RespondentMishrilal Onkardas Joshi
Excerpt:
.....civil court has jurisdiction to try suit--liability of government to pay compensation for damage--damage if malicious or intentional.; where the only right that the plaintiff seeks to assert in his suit is the right conferred upon him under section 9 of the bombay land requisition act, 1948, i.e. the right to obtain compensation which the section gives to him, the only tribunal that can adjudicate upon the plaintiff's claim is the special officer referred to in section 9(2)(b) of the act, and the civil court has no jurisdiction to try the suit.; where a law creates a special right and for the purpose of determining that right creates a special tribunal, then only it is that special tribunal that has jurisdiction with regard to that right.; bhaishankar v. the municipal..........agencies. i am not prepared to accept that view. the position may be different if there was wanton damage caused by the person who occupied the requisitioned premises. then that particular act would be outside the scope of the section altogether. but there is no suggestion in the plaint, as far as i can see, that the person who occupied the premises of the plaintiff deliberately and wantonly caused injury to the property. the injury was caused because the person resided in the property and it may be he did not live there as carefully as he might have done or as carefully as the owner of the property might have done. further, the expression 'irresistible force' used in section 9(2) also leads one to the conclusion that the expression 'deterioration' is not used merely in the sense of.....
Judgment:

M.C. Chagla, C.J.

1. The opponent has a two-storeyed house in Jilha Peth and the first floor was requisitioned in 1949 and it was derequisitioned on March 6, 1951. The plaintiff then filed the suit from which this civil revisional application arises claiming damages for loss caused to his property in that a kitchen was installed on the first floor and also some other damage was caused to window panes etc. He claimed a sum of Rs. 425. The trial Court decreed the claim to the extent of Rs. 100 and the lower appellate Court confirmed that decree. The State of Bombay has come in this revision contending that the civil Court had no jurisdiction to try the suit.

2. Section 9 of the Bombay Land Requisition Act, 1948, provides that when the requisitioned land is released from requisition, the land shall be restored as far as possible in the same condition in which it was on the date on which the State Government was put in possession thereof and the State Government shall pay compensation for deterioration, if any, caused to the land otherwise than by reasonable wear and tear or irresistible force, and Sub-clause (b) provides that the officer authorised in this behalf by the State Government shall determine such amount of compensation as he deems just and his decision, subject to an appeal to the State Government, shall be final, and the contention of the State Government is that the only tribunal that can adjudicate upon the plaintiff's claim is the special officer referred to in Clause (b) of Sub-section (2) of Section 9 and the civil Court has no jurisdiction. Both the Courts have taken the view that as there is no express, ouster of the jurisdiction of the civil Court, it was open to the plaintiff to file a suit in the civil Court and what Mr. Kotwal has urged before me is that the plaintiff had the option either of availing himself of the summary remedy provided by Section 9 or filing a regular suit in the civil Court. The principle enunciated by the two Courts below is unimpeachable that unless there is an express provision in law ousting the jurisdiction of the civil Court, the jurisdiction of the civil Court with regard to civil disputes must continue. But what has been overlooked by the two Courts below is another equally well-settled principle that where a law creates a special right and for the purpose of determining' that right creates a special tribunal, then only it is that special tribunal that has jurisdiction with regard to that right, and Mr. Chandrachud's contention is that the right of compensation is conferred by Section 9 of the Act and if the plaintiff : wants that compensation, he can only get it from the tribunal set up under Section 9. Mr. Kotwal has attempted to argue that apart from Section 9, the plaintiff has a right to recover damages under the general law and that his suit is on torts and the jurisdiction of the civil Court has not been taken away to determine whether the plaintiff has suffered injury to his property and what are the proper damages. Reference was made to the well-known case of Bhai-shankwr v. The Municipal Corporation of Bombay ILR(1907) 31 Bom. 604 : 9 Bom. L.R. 417, where Sir Lawrence Jenkins and Mr. Justice Batty laid down the principle applying to these classes of cases, and what is stated in this case is that where a special tribunal, out of the ordinary course, is appointed by an Act to determine questions as to rights which are the creation of that Act, then, except so far as otherwise expressly provided or necessarily implied, that tribunal's jurisdiction to determine those questions is exclusive. It is an essential condition of those rights that they should be determined in the manner prescribed by the Act to which they owe their existence. In such a case, there is no ouster of the jurisdiction of the ordinary Courts for they never had any, and Mr. Kotwal says that the right which the plaintiff is asserting does not owe its existence to Section 9, but the right exists independently of Section 9 under the general law. Now, if the suit had been differently framed and if the plaintiff had come to Court claiming a right under the general law to damages, for tort caused by the State of Bombay, then the position might have been different. I do not express any opinion on that aspect of the matter, but it is clear looking to the plaint that the only right that the plaintiff has sought to assert in this suit is the right conferred upon him under Section 9-the right to obtain compensation which Section 9 gives to him. If that be so, then the principle of this judgment must apply, and if he is seeking the special right, he can only get it in the manner laid down in this special Act.

3. The other contention, which is a more interesting one, that has been put forward by Mr. Kotwal is that Section 9(2) only deals with cases of deterioration, and the plaintiff's complaint is not deterioration, but of damage and damage does not fall within the ambit of that statute. Now, deterioration means impairment in value, and wherever the value of the property has been reduced, that property suffers from deterioration. It is difficult to draw the line between deterioration and damage and I am inclined to accept the contention put forward by Mr. Chandrachud that deterioration refers more to the consequence and not to the reason which brought about that consequence. If the owner of the property finds, on his getting back the property, that its value has been impaired, then there is deterioration of his property and he is entitled to ask for compensation from the State. Mr. Kotwal says that the deterioration must be from natural causes and not from human agencies. I am not prepared to accept that view. The position may be different if there was wanton damage caused by the person who occupied the requisitioned premises. Then that particular act would be outside the scope of the section altogether. But there is no suggestion in the plaint, as far as I can see, that the person who occupied the premises of the plaintiff deliberately and wantonly caused injury to the property. The injury was caused because the person resided in the property and it may be he did not live there as carefully as he might have done or as carefully as the owner of the property might have done. Further, the expression 'irresistible force' used in Section 9(2) also leads one to the conclusion that the expression 'deterioration' is not used merely in the sense of unreasonable wear and tear. The Legislature contemplates that the deterioration might be caused by irresistible force which is force majeure. For instance, if a lightning were to strike the house or the house were to be damaged by earthquake, then the State would not be liable for the deterioration. That suggests that deterioration is used in a much wider sense than mere wear and tear by ordinary physical cause. Therefore, it seems to me that Section 9(2) means that Government is liable to pay compensation for any impairment in the value of the property except when that impairment is due by reasonable wear and tear or by force majeure. Subject to these two exceptions, no distinction is drawn between deterioration and damage as suggested by Mr. Kotwal. Of course, as I have already pointed out, if damage is done through malice or damage done is intentional, then the owner of the house would have a cause of action entirely different from the cause of action under Section 9(2) and the right which he would assert would be a different right altogether. But I do not find from the pleadings or from the issues that the plaintiff wanted to assert a right independently of Section 9(2). As his right was confined to the right conferred upon him by Section 9(2), the law requires that he should assert that right before the tribunal set up by that statute.

4. The result will be that the decree passed by the Courts below will be set aside. Rule absolute with costs. Mr. Chandrachud has agreed on behalf of the State Government that the officer referred to in Section 9(2)(b) will adjudicate upon the claim if made by the plaintiff and if the plaintiff makes the claim, I hope that the adjudication will be made as expeditiously as possible.


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