1. This is a first appeal from the judgment and decree of Sri Jagmohan Lal, Civil Judge,. Gorakhpur dated the 4th of April, 1952. By that judgment the plaintiff's suit has been dismissed upon the ground that it was barred by Section 233(m) of the U. P. Land Revenue Act. The question of the bar of section 233(m) has been disposed of as a preliminary issue.
2. Before we deal with the contentions advanced before us it is necessary to refer to the plaint The plaint alleged that the plaintiff was a Zamindar and an Advocate but his activities were confined to looking after his zamindari only, that there was one Sri Kishan Saran Chand, father of Sri Bhagwat Chand, that the former took a contract of the Gorakhpur Birdghat ferry from the P. W. D., Gorakhpur for a period of three years beginning from the 15th of April, 1948 to the 14th of April, 1951, that the lease amount of the said contract was Rs. 2,45,555/-, that Sri Kishan Saran' Chand died and his son, Sri Bhagwat Chand, succeeded and carried on the contract taken by his father, that due to various causes Sri Bhagwat Chand suffered a heavy loss in the running of the ferry and he could not pay the dues of the P. W. D. relating to the contract regularly, that, therefore, the District Magistrate took possession of the ferry from the said Sri Bhagwat Chand in the month of January, 1951 i.e. before the expiry of the leased term, that Sri Bhagwat Chand was related to the plaintiff and he went to the plaintiff for legal advice and help and also requested the plaintiff to move the P. W. D. authorities, Gorakhpur, for remission in the contract money as there had been a loss owing to unforeseen circumstances, that the P. W. D. authorities were asserting that a sum of Rs. l,08,616/9/- was due from Sri Bhagwat Chand and had attached his property, that the plaintiff under the said Sri Bhagwat Chand's instructions made an application to the P. W. D, authorities including the Superintending Engineer representing Bhagwat Chand's case and prayed on his behalf for a substantial remission, but the plaintiff's endeavours did not succeed, that, the Tahsildar of Sadar Tahsil, Gorakhpur without any ground or reason, called upon the plaintiff to pay the entire dues owing by Sri Bhagwat Chand to the P. W. D., that the action of the Tahsildar in calling upon the plaintiff and asking him to pay the dues, for which he was not at all liable, was not only ultra vires but was also mala fide and illegal, that the plaintiff was never a lessee of the ferry in question and had nothing to do with it, that the process chosen by the Tahsildar, as an agent of the defendant for realising the aforesaid dues was also unwarranted and without jurisdiction and the Tahsildar had no business to call the plaintiff and to threaten him with taking steps for realisation of the aforesaid amount absolutely in violation of law, that the plaintiff came to know that the P. W. D. authorities were annoyed with the plaintiff as he had represented the case of Sri Bhagwat Chand to the Superintending Engineer of the P. W. D. and as he had pointed out many irregularities committed by the said Department, that as the P. W. D, failed to realise the dues from Sri Bhagwat Chand, hence the local P, W. D. in collusion with Sri Bhagwat Chand wanted to treat the plaintiff as lessee and illegally realise 'the dues from the plaintiff, that so far as the plaintiff had been able to ascertain, the total dues of the P. W. D. on the date of the suit after deducting the security money paid in connection with the contract would not exceed Rs. 78,000/- and the claim made by the Tahsildar was, in any case, highly excessive and exaggerated, that the plaintiff gave a notice under Section 80 of the C. P. C, to the defendant on the 5th of May, 1951 but no reply was given, that the cause of action for the suit had arisen on the 3rd of May, 1951 when the Tahsildar of the Sadar Tahsil demanded Rs. 1,08,616/9/- from the plaintiff treating the latter as a contractor of the Birdghat ferry in Gorakhpur and on the 6th of July, 1951, the date of expiry of the notice.
3. The plaintiff prayed for a permanent injunction in his favour against the defendant restraining the latter from realising the P. W. D. dues of the Gorakhpur Birdghat ferry standing in the name of Sri Bhagwat Chand contractor for the period from the 15th of April, 1948 to the 14th of April, 1951.
4. We have given hereinabove practically the entire plaint, as it stands after the amendment, which was allowed by the trial Court to be made in the plaint.
5. The Uttar Pradesh Government was the defendant impleaded in the suit and they filed a written statement pleading, inter alia, that the plaintiff had deliberately not disclosed the true facts and had based his claim on totally wrong allegations, that as a matter of fact the plaintiff was the real Thekedar of the Birdghat ferry in question which he had acquired benami originally in the name of his relation, Shi Kishan Chand and, after his death in the name of the deceased's son, Sri Bhagwat Chand, who along with a third person named Ram Pearey Kunwar, was admitted by the plaintiff into a partnership of the Birdghat ferry business, that the plaintiff is a lawyer and resorted to the course of benami transactions by utilising the names of his close relations as lessees only to avoid the formal appearance of his doing business; that he was the real Thekedar and was principally in charge of the whole business and actually carried it on in his own interest along with his aforesaid partners all of whom were jointly and severally liable for the dues in respect of the Birdghat ferry lease which were realisable as arrears of land revenue under the Land Revenue Act read with Section 9 of the Northern India Ferries Act and, therefore, the suit was barred by Section 233(m) of the Land Revenue Act, as it then stood because suits could not be instituted in Civil courts with respect to claims connected with or arising out of the collection of land revenue (otherwise than claims under Section 183 thereof) on account of the prohibition contained in that section.
6. We may now reproduce the issues that were framed in the case :
1. Whether the suit is barred by Section 233(m) of the U. P. Land Revenue Act?
2. Whether the suit is barred by Section 56(d) of the Specific Relief Act?
3. Is the plaintiff the real contractor of Birdghat Ferry and was Sri Kishan Saran Chand a benamidar for the plaintiff? If so, its effect?
4. Was there any partnership between Sri Bhagwat Chand, Ram Pearey Kunwar an'd the plaintiff as alleged by the defendant? If so, its effect?
5. Whether the plaintiff has appropriated the benefits of the contract in question and is he liable for the dues in question on this ground?
6. To what relief, if any, is the plaintiff entitled?'
7. It appears from the record that it was at first agreed that the disposal of issue No. 1 would necessitate going into facts also and that the whole suit should be tried at one and the same time but later an application was made on behalf of the defendant that the legal issue No. 1 be decided as a preliminary issue as it related to the jurisdiction of the court to entertain the suit. It is in consequence of this application that issue No. 1 was treated as a preliminary issue and was disposed of.
8. The learned Judge of the court below came to the conclusion that the suit was barred by section 233(m) of the Land Revenue Act.
9. From the issues framed in the case, as quoted above, and the judgment of the court below, it will appear that no issue was framed on the allegations which had been made by the plaintiff that the claim in regard to the ferry dues was mala fide and without jurisdiction. The importance of these two allegations does not seem to have been present in the mind of the court when the issues were framed and decision was given thereon and the matter was treated as if the bar of Section 233(m) of the Land Revenue Act was an absolute bar under all circumstances and a suit questioning the demand which had been made against the plaintiff would not lie even if the demand was made mala fide or was beyond jurisdiction,
10. When the case was opened before us by Sri Ambika Prasad, he contended that Section 233(m) of the Land Revenue Act did not stand in the way of his suit having regard to the frame of the plaint and the nature of the allegations made therein and consequently he contended that it was necessary for the court to enquire into the allegations of mala fides and examine the question whether the authorities had overstepped their statutory powers,
11. Section 9 of the Northern India Ferries 'Act (Act No. XVII) of 1878 runs as follows:
'All arrears due by the lessee of the tolls of a public ferry on account of his lease may be recovered from the lessee or his surety (if any) by the Magistrate of the district in which such ferry is situate as if they were arrears of land revenue.' The said Section 9 is, therefore, a provision for the recovery of arrears from lessees or from sureties and from nobody else. Now if arrears are to be recovered from the lessee or his surety, if any, then alone they can be recovered in accordance with the Land Revenue Act. Chapter VIII of the U. P. Land Revenue Act (Act III of 1901) is the chapter dealing with collection of revenue. Section 141 of that chapter provides that 'the revenue shall be deemed to be a first charge on a Mahal'. Section 142 places the responsibility for payment of land revenue on all proprietors jointly and severally. Section 143 provides for rules as to payment of revenue arrears 'and lays down that persons responsible for payment thereof are to be considered as 'defaulters'. Section 144 deals with interest. Then comes Section 145 which runs as follows :
'A statement of account, certified by the Tahsildar shall, for the purposes of this chapter, be conclusive evidence of the existence of the arrear, of its amount, and of the person who is the defaulter.'
Section 146 deals with process of recovery, while Section 147 provides for a writ of demand to issue and citation to appear. Because of the provisions of Section 148, the defaulter may be arrested and detained and under Section 149 there may be an attachment and sale of movable property. There can be an attachment of land also under Section 150. Then there are ancillary provisions with which we are not concerned at the moment. Then we come to Section 183 which runs as follows :
'Whenever the proceedings are taken under this chapter against any person for the recovery of any arrear of revenue, he may pay the amount claimed under protest to the officer taking such proceedings, and upon such payment the proceedings Khali be stayed and the person against whom such proceedings were taken can sue the Provincial Government in the Civil Court for the amount so paid;
and in such suit the plaintiff may, notwithstanding anything contained in Section 145, give evidence of the amount (if any) which he alleges to be due from him.
No protest under this section shall enable the person making the same to sue in the civil-court, unless it is made at the time of payment in writing and signed by such person or by an agent duly authorised in his behalf.'
12. The only other section with which we are at present concerned is Section 233 (m) which runs as follows :
'No person shall institute any suit or other proceeding in the Civil Court with respect to any of the following matters ;
(m) claims connected with or arising out of the collection of revenue (other than claims under Section 183), or any process enforced on account pi an arrear of revenue, or on account of any sum which is by this or any other Act realizable as revenue.'
The other sub-clauses of this section are not relevant and they relate to other matters in which the cognizance of the civil court is barred.
13. The documentary evidence filed in this case has not been typed out for us and is not a part of the paper-book but it was admitted that in this case there are three communications on the record which are said to be under Section 9 of the Northern India Ferries Act and which are addressed by the Additional Collector and District Magistrate to the Tahsildar for taking action in regard to realization of the Birdghat ferry lease dues against the persons named therein. We are not determining the legal effect of the aforesaid three communications.
In the first of these dated 22-1-1951 the person from whom the recovery was to be made is Sri Bhagwati Chand, whereas in the second dated 1-5-1951, the names given are (1) Sri Bhagwati Chand and (2) Sri Deo Prayag Singh, the present plaintiff, and in the third one dated 20-7-1951 the persons from whom recovery is to be made are (1) Sri Bhagwati Chand, (2) Sri Deo Prayag Singh and (3) Sri Ram Pearey Kunwar. A sum of Rs. 1,09,137/- is indicated in the first communication as being recoverable, whereas in the latter two, the amount indicated as realizable is Rs. 1,08,616/9/-. It is because of the issue of these communications and the action of the Tahsildar with reference to them that the suit had been filed and the reliefs contained in the plaint have been sought for, the case of the plaintiff being that he is not even a lessee on the face of the lease.
The view of the court below is that there is only one way of questioning proceedings taken under Ch. VIII of Land Revenue Act in a civil court and that is by having recourse to Section 183 of the Act. Save and except this, there is said to be an absolute bar placed on the filing of a suit because of Section 233 (m) of the Act. Inasmuch as proceedings were purported to be taken under Ch. VIII of the Land Revenue Act and the suit was clearly not one of the types provided in Seetion 183, the court below held that it could not be entertained and dismissed it.
14. Two Full Bench cases were cited before the learned Judge in the court below and he has dealt with them. One is the case of Daya Ram v. Secretary of State : AIR1927All672 (SB), which was relied upon by the court below. The other is the case of Radha Kishan v. Ram Nagar Cooperative Society, reported in : AIR1951All341 (FB), which the court below considered was distinguishable from the facts of the instant case and was not applicable. These cases concern recovery of dues as arrears of land revenue.
15. In Daya Ram's case : AIR1927All672 , the process for recovery of dues was issued against the plaintiff himself on the ground that the amount was due from his predecessor-in-interest. The plaintiff paid the amount under protest under Section 183 of the Land Revenue Act and then brought a suit for recovery of the amount and also for damages. An objection was taken to the maintainability of the suit, the defaulter being his predecessor-in-interest and it was urged that Section 183 would, therefore, not apply. The objection was overruled in second appeal by this Court and the suit was decreed with respect to the amount that the plaintiff had paid under protest. The plaintiff's claim for damages was, however, dismissed on the ground that the Crown was not liable to pay compensation for the illegal acts of its servants but was bound to make restitution to the extent it had benefited by the illegal acts. We may note that the first two courts had dismissed the suit.
16. It was contended before us that the court below was wrong in relying upon this case because it was urged that whatever proceedings could be said to have been taken against the plaintiff were against a person who could not be considered to be a 'defaulter' or to have been declared a 'defaulter' within the meaning of the two Acts referred to already and so the provisions of Ch. VIII of the Land Revenue Act were not applicable. Secondly, it was urged that here there had been no payment under protest as is required under Section 183 of the Land Revenue Act and, thirdly, it was contended that no question of mala fides was raised in Daya Ram's case : AIR1927All672 , nor was any question raised in that case that there was an exercise of power beyond jurisdiction and it was urged, therefore, that the case was not applicable.
17. Learned counsel for the appellant, on the other hand, relied upon Radha Kishan's case : AIR1951All341 , referred to above for the proposition that Section 233 (m) of the Land Revenue Act should not be so interpreted as to exclude a suit in a civil court filed by a party to prove his claim that the property proceeded against belonged to him and not to the defaulter against whom revenue might be due.
18. In reply, it was contended that in Radha Kishan's case : AIR1951All341 , 'Radha Kishan was not named as the defaulter, but it was Phool Chand who was so named and further that the facts of Radha Kishan's case : AIR1951All341 , were that some property of Phool Chand was said to be in possession of Radha Kishan and was being sought to be attached and sold as the property of Phool Chand. It was said that it was, in those circumstances, that Radha Kisban brought the suit and the Full Bench held that his claim was not barred by Section 233 (m). If the contention of learned counsel for the appellant that merely because communications as stated above were issued by the Additional District Magistrate to the Tahsildar, that would not amount to his being named as a defaulter in accordance with the provisions of the Act is correct, then Radha Kishan's case : AIR1951All341 , might be attracted.
We do not wish to express ourselves further in regard to these two cases which have been cited before us because we are sending back the case for a retrial after setting aside the judgment and we think that the question whether Radha Kishan's case : AIR1951All341 or Daya Ram's case : AIR1927All672 , would apply to the facts of the present case should be determined after the facts have been properly ascertained but. we may point out that even in Radha Kishan's case : AIR1951All341 , the question has been considered as to whether a suit would lie in case there was an allegation of mala fides or if it, had been alleged that the authorities had acted beyond jurisdiction.
19. We now come to consider whether if there is allegation of mala fides and an allegation that the authorities have acted beyond jurisdiction in such circumstances a plaintiff can or cannot file a civil suit or whether he is still debarred from doing so because of Section 233 (m) of the Land Revenue Apt and whether his remedy in such a case is limited to the type of suit which can be filed under Section 183 of the Land Revenue Act.
20. On the question of the right of suit, despite a prohibition in the statute where mala 'fides are clearly alleged, we would like to refer to the case of Thin Yen v. Secy, of State : AIR1939Cal763 . In that case, it was recognised that had there been a charge of mala fides then despite the fact that the jurisdiction of the civil court had been ousted by the Sea Customs Act, 1878, a suit could be entertained. Reference was made in that case to the judgment of Coutts-Trotter, J. in Best and Co. Ltd. v. Collector of Madras, AIR 1919 Mad 715 at p. 716. In that last mentioned case, Section 106(2) of the Government of India Act was set up as a bar to the suit. The Court held that that section was a bar but pointed out that if there had been an allegation that the Secretary of State had acted mala fide or had purported to seek the protection of the statute with the full knowledge that what was being done was to commit a mere act of aggression, the suit would not be barred.
21. In Lady Dinbai Dinshaw Petit v. Dominion of India : AIR1951Bom72 , which was cited before us, the plaintiffs had alleged mala fides and attacked certain orders made by the Collector of Bombay on the ground of thase having been made for a collateral purpose. A statutory bar to the suit was pleaded but it was not accepted because it was held that on the facts alleged and if those facts were proved, it would not be a case of irregular exercise of power of jurisdiction but an exercise of power which the requisitioning authority did not possess.
22. In that case, there was also a discussion as to what are the requirements of pleadings when the challenge is on the ground of mala fides and it was stated that mala fides were a condition of the mind and it was impossible to expect a party to give particulars of something which is subjective as far as the other party is concerned. A distinction was drawn between Order 6, Rule 10 and Order 6, Rule 4 C, P. C. We mention this because it was said that there were no particulars of mala fides, which do not moreover appear to be so. Obviously, therefore the Petit case : AIR1951Bom72 , has held that if there is an allegation of mala fides despite statutory exclusion, the civil court would still have a jurisdiction to entertain the suit.
23. We would now like to refer to the case of Secy, of State v. Mask and Co., reported in , which is a Privy Council case. In that case, the facts were that the Assistant Collector of Customs assessed betelnuts imported by the respondents as boiled betel nuts. The respondents claim that betel-nuts should have been classed as raw sliced betelnuts and assessed to a lower duty. They deposited the amount of the higher duty and appealed to the Collector of Customs, and the Collector having decided against them, they applied to the Government of India for a revision of the Collector's decision. The Government of India affirmed the Collector's decision.
The respondents then instituted the suit in the Court of the subordinate Judge of Cuddalore for a refund of the difference between the higher duty levied and the lower duty which they claimed was the one properly leviable. The subordinate judge held that he had no jurisdiction and dismissed the suit. The High Court reversed his finding and remitted the suit for trial on the merits. Then there was an appeal to their Lordships of the Privy Council and the question raised before their Lordships of the Privy Council was whether the jurisdiction of the civil court was completely. ousted by the Sea Customs Act in the matters provided for in the Act and whether the procedure under the said Act was alternative, excluding resort to the civil court when one has elected to adopt it. It was observed by Lord Thankerton as follows :
'It is also well settled that even if jurisdiction is so excluded, the civil courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.' Their Lordships expressed the opinion that in that case, the jurisdiction of the civil court was excluded by the order of the Collector of Customs on appeal under Section 188 and it was unnecessary to consider whether prior to taking such appeal under Section 188, respondents would be entitled to resort to a civil court or whether they would be confined to a right of appeal under Section 188. Therefore, their view was that the jurisdiction of the civil court was, on the facts established and the statutory provisions applicable, excluded in the particular case and consequently they allowed the appeal and restored the order of the subordinate Judge, but nonetheless the observations of their Lordships of the Privy Council, as quoted above, would apply in an appropriate case which fell within the benefit of the rule laid down.
This case of , has been followed at least in three cases of this Court, namely : (1) Dr. Brij Behari Lal v. Emperor : AIR1943All123 , (2) Allah Taala v, District Board of Pilibhit : AIR1945All273 and (3) District Board of Farrukhabad v. Prag Dutt : AIR1948All382 .
24. In Firm Ralla Ram Raj Kumar v. Union of India , it has been laid down that:
'The exclusion of the jurisdiction of the Civil Courts is not to be readily inferred, but must either be explicitly expressed or clearly implied. Even if jurisdiction is so excluded, the civil courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.'
The Punjab case mentioned above was a case under the Land Revenue Act. The Court further held that the Land Revenue Act expressly and impliedly barred matters concerning the collection of land revenue where the property from which the land revenue is to be had, ex facie, belonged to the defaulter, but there is no express or implied bar of such a nature regarding property which, ex facie, belonged to somebody else.
25. Where therefore, in pursuance of it certificate under Section 46(2), Income-tax Act, forwarded to him the Collector attached the properties of a firm which thereupon brought a suit contesting the liability of the properties for attachment and sale on the ground that the assessee in respect of whom the certificate was issued was not a partner, it was held that the civil courts had jurisdiction to entertain the suit.
26. It seems to us upon a review of the cases mentioned above and other authorities, which we do not, think it necessary now to mention, that if there is a clear allegation of lack of power or of mala fide exercise of power then the statutory provisions of exclusion of the jurisdiction of a civil court would not bar such jurisdiction. We, therefore, feel that, in this case, we should and do hereby set aside the judgment and decree of the court below and vacate all findings given by that court and order that the case should go back to the trial court for disposal of all the issues including the issue which has already been disposed of in the light of all the proved facts and circumstances as also the statutory and case law and our observations. We are of opinion that all the issues in the case should be answered by the court below after a full trial. We order accordingly.
27. In view of what we have stated above, it would be necessary for the court below to decide two further issues which we have framed in order that there may be no doubt in the minds of the parties as to the points whereon they are at issue. These issues are as follows :
1. Whether the orders passed and the action taken by the authorities concerned against the plaintiff were mala fide?
2. Whether the orders passed and action taken by the authorities concerned were within and in accordance with the powers conferred by the relevant statutes?
28. We might add that parties were agreed that, in case we decided to send the case back to the trial court, all the issues should be disposed of by it afresh. Parties are further agreed that fresh opportunity should be given to them for filing any documentary evidence that they desire. Since the oral evidence has not yet been recorded, it is not necessary to pass any orders in respect thereof. We order accordingly.
29. The appeal is, therefore, allowed and disposed of in terms of the above order. The trialcourt shall now proceed to dispose of the suit inaccordance with law and the directions given hereinbefore. Costs here and hitherto will abide theresult.