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Sayed Mohomed-baquir and anr. Vs. the State of Bombay Now Gujarat - Court Judgment

LegalCrystal Citation
Overruled BySayed Mohomed Baquir El-edroos (Dead) by Lrss. Vs. State of Gujarat
SubjectCivil
CourtGujarat High Court
Decided On
Case NumberFirst Appeal No. 76 of 1963
Judge
Reported inAIR1977Guj62; (1977)0GLR1
ActsBombay Personal Inams Abolition Act, 1953 - Sections 2(1) and 3; Gujarat Devasthan Inams Abolition Act, 1969 - Sections 20; Code of Civil Procedure (CPC), 1908 - Sections 9
AppellantSayed Mohomed-baquir and anr.
RespondentThe State of Bombay Now Gujarat
Advocates: V.P. Shah, Adv. for; S.B. Vakil, Adv.
Cases ReferredKatikara Chintamani Dora v. Guntreddi Annamanaidu
Excerpt:
civil - jurisdiction - sections 2 (1) (e) and 3 of bombay personal inams abolition act, 1953, section 20 of gujarat devasthan inams abolition act, 1969 and section 9 of code of civil procedure, 1908 - whether civil court has jurisdiction to decide that particular grant is personal 'inam' in view of explanation to section 2 (1) (e) - jurisdiction of civil court to determine whether a particular 'inam' is personal 'inam' is specifically taken out by provisions of act of 1953 and also by act of 1969 - under the act of 1953 the state government is made sole and final authority and under act of 1969 there are hierarchy of tribunals to determine question which has been raised in suit - held, civil court has no jurisdiction to determine whether particular grant is personal 'inam' or not. - -..........at surat, he asked for a declaration that the village orma with which we are now concerned is an inam village held by the religious institution of edroos-durghas (ie., shrines i.e. rouzas) and that the provisions of the bombay personal inams abolition act, 1952,.(hereinafter referred to as 'the personal inams abolition act'), section 2, clause c section 4 and provisions of act no. 50 of 1953 are not applicable to the suit village in view of clause (2) of section 3 of the said personal inams abolition act. on that ground he asked for an injunction against the defendant, the then state of bombay, restraining it and its officers and servants from taking any action under the said act. the defendant inter alia contended that the suit village is a personal inam within the meaning of section.....
Judgment:
S. Obul Reddi, C.J.

1. The following two questions have been referred for the decision of the Full Bench by our learned brother D. P. Desai J:-

' (1) Whether Civil Court has jurisdiction to decide whether a particular grant is a personal inam in view of Explanation I to Section, 2 (1) (e) of the Bombay Personal Inams Abolition Act, 1952 and

(2) Whether the inams held by religious or charitable institutions and entered as such in the alienation register kept u/s. 53 of the Code or in the records kept under the rules made under the Pensions Act, 1871 only are saved from the operation of the Act in view of the Explanation to Section 3 of the aforesaid Act?' In so referring the two questions, the learned Judge doubted the correctness of the decision of the Division Bench of this Court in Sayed Mohmed v. State : (1966)7GLR217 . The Division Bench in that case though at one stage posed the question whether the inam in question is a personal inam as defined in Section 2 (1) (e) or whether it is an exempted inam falling under Section 3(2), later formulated the question in the following terms- 'The question before us is not whether the inam in question is a personal inam, but quite a different question whether the said inam is an exempted inam under Section 3 (2) of the Act.'

That made the learned Single Judge, D. P. Desai J., after quoting a passage of the Division Bench at page 220 observe-

'Speaking with great respect, the observations to be found in the first emphasized portion quoted above overlooks the very question posed by the learned Judges (which has been reproduced in the beginning of the above quotation). As found in the beginning of the observations, quoted earlier, the question posed was whether the grant in question was a personal inam or whether it is an exempted inam. If that was the question posed, speaking again with respect, it cannot be said that the question before the Division Bench was not whether the grant was a personal inam and that the real question was whether the grant was an exempted inam.'

He ultimately opined-

'............. there is much that can be said with regard to the second emphasized portion of the aforesaid quotation (in 7 GLR 220) which contains the submission made on behalf of the State Government before the Division Bench, if we look at the scheme of the Act as a whole. Therefore, two questions will arise for determination in this case by a larger Bench, as I do not feel inclined to agree with the determination of these questions by the Division Bench in Sayed Mohmed' case (supra).'

That is how this First Appeal is before us.

2. The facts relevant for purpose of determining the two questions referred to us may be briefly stated. The plaintiff, who is the appellant, is a Sajjadanshin of the religious institution known as Edroos-Durgha of Hazrat Sayedina Mohomed Bin Abdulla El-Edroos at Surat. In the action brought by him in the Court of the Civil Judge (Senior Division) at Surat, he asked for a declaration that the village Orma with which we are now concerned is an inam village held by the religious institution of Edroos-Durghas (ie., shrines i.e. Rouzas) and that the provisions of the Bombay Personal Inams Abolition Act, 1952,.(hereinafter referred to as 'the Personal Inams Abolition Act'), Section 2, Clause C Section 4 and provisions of Act No. 50 of 1953 are not applicable to the suit village in view of Clause (2) of Section 3 of the said Personal Inams Abolition Act. On that ground he asked for an injunction against the defendant, the then State of Bombay, restraining it and its officers and servants from taking any action under the said Act. The defendant inter alia contended that the suit village is a personal inam within the meaning of Section 2 (1) (e) of the Personal Inams Abolition Act and that the State Government alone is competent to decide the question whether the grant is a personal inam or not. In other words, the case of the State Government is that the Civil Court has no jurisdiction to decide the question whether the grant of the village in question is a personal inam or a Devasthan inam exempted under the provisions of Section 3 of the Personal Inams Abolition Act. The trial Court on the evidence placed before it held that it is a personal inam and, therefore, the plaintiff is not entitled to the reliefs prayed for. That Judgment and decree are the subject-matter of the appeal preferred by the plaintiff which the learned Single Judge has referred to us.

3. Before we read the relevant provisions of the Personal Inams Abolition Act, it may be pertinent to bear in mind that after the decree of the trial Court and after the judgment of this Court in Sayed Mohmed's case : (1966)7GLR217 the Gujarat Devasthan Inams Abolition Act, 1969, (Act No, 1.6 of 1969), (hereinafter referred to as 'the Devasthan Inams Abolition Act') came into force with effect from November 15, 1969. The grants of inams whether of a village, portion of a village or land, which were exempted under the provisions of Section 3 of the Personal Inams Abolition Act have also been abolished under the provisions of the Devasthan Inams Abolition Act, with the result, it is of little consequence whether a particular inam is a Devasthan inam or not because all inams named under the provisions of Section 2 and Section 3 of the Personal Inams Abolition Act have now, ceased to exist either with effect from the date the Personal Inams Abolition Act came into force or from the date when the Devasthan -Inams Abolition Act came into force.

4. The main contention of Miss Shah is that the decision in 'Sayed Mohmed v. State : (1966)7GLR217 still holds good not-withstanding the Devasthan Inams Abolition Act coming into force and that, therefore, the civil court has jurisdiction to decide the question involved, namely, whether the inam is a Devasthan inam or a personal inam. We must say at the outset itself that Miss Shah is unable to persuade us to hold that the civil Court has jurisdiction to enquire whether a particular grant of a village or a portion of a village or land, is a personal inam or a Devasthan inam.

5. To show that the Civil Court jurisdiction is not ousted or excluded by the passing of the Personal Inams Abolition Act, Miss Shah invited us to the provisions of Sections 2 and 3 of the Personal Inams Abolition Act. To the extent relevant, they read-

'2. (1) In this Act, unless there is anything repugnant in the subject or context,-

xx xx xx

(e) 'personal inam' means,-

(i) a grant of a village, portion of a village, land or total or partial exemption from the payment of land revenue entered as personal inam in the alienation register kept under Section 53 of the Code.

(ii) a grant of money or land revenue including anything payable as a cash allowance on the part of the State Government in respect of any right, privilege, perquisite or ,office and entered as class I, II, III, IV or V in the records kept under the rules made under the Pensions Act, 1871.

Explanation I:- If any question arises whether any grant is a personal inam such question shall be referred to the State Government and the decision of the State Government shall be final and the entry, if any, in respect of such grant in the alienation register kept under Section 53 of the Code shall be deemed to have been amended accordingly.

Explanation II:- In sub-clause (i) of this clause the reference to a grant of land shall include a reference to a grant consisting of a share in the revenues of a village, portion of a village or land.'

'3. Nothing in this Act shall apply to-

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(2) devastan inams or inams held by religious or charitable institutions;

xx xx xx

Explanation:- For the purposes of this Section inams held by religious or charitable institutions mean Devasthan or Dharmadaya inams granted or recognised by the ruling authority for the time being for a religious or charitable institution and entered as such in the alienation register kept under Section 53 of the Code or in the records kept under the rules made under the Pensions Act, 1871.'

The Legislature has by virtue of the explanation added to the definition, vested in the State Government power to determine when any question arises, whether a particular grant is a personal inam or not. In other words, even if a person were to contend that the inam is not a personal inam and that it falls within the scope of one or other clauses of Section 3, even then it is the State Government that is competent to determine that question. The Legislature has made the State Government the final authority to determine whether an inam is a personal inam or not. It is true, as pointed out by Miss Shah, the Explanation has not been happily worded nor is there anything which prescribes the, mode of reference to the State Government, but the language of the Explanation is of wide amplitude so as to constitute the Government the sole authority to determine any question which arises whether any grant is a personal inam. The expression 'any question' is wide enough to take in the present dispute between the parties. Whether the inam in question is a Devasthan inam or a personal inam is ultimately a question of fact which has to be determined with reference to the revenue records and the entries made therein. Even after the abolition of Devasthan inams, the jurisdiction of the Government is preserved to ultimately decide the question under Gujarat Act No. XVI of 1969. See. 2 (6) of the Act defines 'Devasthan inam' as under:-

'(6) 'Devasthan inam' means an inam consisting of a grant or recognition as a grant-

(a) of a village, portion of a village or land, whether such grant be-

(i) of soil with or without exemption from payment of land revenue or

(ii) of assignment of the whole of the land revenue of the village, portion of the village or, as the case may be, land, or of a share of such land revenue, or

(iii) of total or partial exemption from payment of land revenue in respect of any land; or

(b) of cash allowance or allowance in kind by whatever name called, by the ruling authority for the time being for a religious or charitable institution and entered as such in the alienation register kept under Section 53 of the Code or in any other revenue record or public record maintained in respect of alienations or determined as such by a decision under Section 5 of the Gujarat Surviving Alienations Abolition Act, 1963, but does not include-

(i) revenue free sites granted by a competent authority for the construction of schools, colleges, hospitals, dispensaries or other public works from which no profit is intended to be derived, or

(ii) any alienation to which the provisions of the Gujarat Surviving Alienations Abolition Act, 1963 cir of any of the laws specified in the Sche6ule thereto apply;'

Section 4 exclusively vests the power to decide whether any village, portion of a village or land, is held under a Devasthan inam, in the 'authorised officer.' The State Government is empowered to authorize any officer under the proviso to Section 4 (1) to decide questions arising under clauses (a), (b) or (c) of Section 4. Under sub-section (2) of Section 4, any person aggrieved by the decision of the authorised officer is given the right of appeal to State Government within sixty days from the date of such decision, it is not necessary for the purpose of answering the two questions to refer to the other provisions of the Devasthan inams Abolition Act but suffice it if we notice Section 20 which lays down-

'20. No Civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with, by the officer authorised under the proviso to sub-section (1) of Section 4 or Section 25 or the Collector, the Gujarat Revenue Tribunal in appeal, or the State Government in appeal. or revision or in exercise of their powers of control.'

The Explanation to Section 2 of the Personal Inams Abolition Act and Section 20 of the Devasthan Inams Abolition Act put beyond the pale of any doubt that the jurisdiction of the Civil Court has been taken away by the Legislature to determine the question whether a particular inam is a personal inam or a Devasthan inam.

6. Similar questions as to the Jurisdiction of the Civil Court when special tribunals are appointed after the abolition of inams or estates came to be considered by the Supreme Court. In Desika Charyulu v. State of Andhra Pradesh : AIR1964SC807 , the question which arose for consideration before the Supreme Court was whether it was within the exclusive jurisdiction of the Settlement Officer to decide whether 'inam village' is an 'inam estate.'

In examining the question, Rajagopala Ayyangar J., considered the scope of Section 9 of the Code of Civil Procedure also and referred to the earlier decisions of the Court in Firm of Illuri Subbayya Chetty v. State of Andhra Pradesh AIR 1964 SC 322. The observations of Lord Thankerton in Secretary of State v. Mask & Co. and also of Lord Esher in The Queen v. The Commissioner for Special purposes of the Income Tax, (1838) 21 QBD 313 at pp. 319320 were also noticed by the learned Judge. After noticing the view expressed by the Court in the Firm of Illuri Subbayya Chetty's case and the observations of Lord Esher and Lord Thankerton, the learned Judge said:-

'It is manifest that the answer to the question as to whether any particular case falls under the first or the second of the above categories would depend on the purpose of the statute and its general scheme, taken in conjunction with the scope of the enquiry entrusted to the tribunal set up and other relevant factors. In the present case, this is determined by the terms of Section 9(1) which prescribes and delimits the functions of the Settlement Officer and thus in effect, of the appellate forum. This sub-section enjoins on or empowers the Settlement Officer to determine whether 'any inam village' is 'an inam estate or not' and the object of the Act is to 'abolish' only 'inam estates'. This determination involves two distinct matters in view of the circumstance that every 'inam village' is not necessarily 'an inam estate' viz., (1) whether a particular property is or is not an 'inam village' and (2) whether such village is 'an inam estate' within the definition in Section 2 (7). The first of these questions whether the grant is of an 'inam village' is referred to in Section 9 (1) itself as some extrinsic fact which must pre-exist before the Settlement Officer can embark on the enquiry contemplated by that provision and the Abolition Act as it stood at the date relevant to this appeal, makes no provision for this being the subject of enquiry by the Settlement Officer.'

The learned Judge then quoted with approval the view expressed by Rajamannar, C. J., in Venkatanarasavya v. State of Madras : AIR1953Mad60 . What the learned Chief Justice said in that case is this-

'The aggrieved party will have a right of suit as he would have a good cause of action when proceedings are taken under colour of an Act which does not apply to the facts of the case.'

7. Hidayatullah, C. J., in Dhulabhai v. State of Madhya Pradesh : [1968]3SCR662 , enunciated the principles regarding the exclusion of jurisdiction of Civil Courts. The principles stated by him to the extent material here are-

'(1) Where the statute gives a finality to the orders of the special tribunals the civil Courts' jurisdiction must be held to be excluded if there is adequate remedy to do what the civil court would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.

(2) Where there is an express bar of the jurisdiction of the Court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil Court. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in civil Courts are prescribed by the said statute or not.'

The jurisdiction of the Civil Court to determine whether a particular inam is a personal inam or a Devasthan inam is specifically taken out by the provisions of both the Acts. Under the Personal Inams Abolition Act, the State Government is made the sole and final authority. Under the latter Act there are hierarchy of Tribunals to determine the question which has been raised in the suit.

8. Suffice it if we refer to one more decision of the Supreme Court in Katikara Chintamani Dora v. Guntreddi Annamanaidu : [1974]2SCR655 where Sarkaria J., held-

'Where under the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948 as it stood at the material date, the enquiry by the Settlement Officer was confined to the ascertainment of two issues viz., (1) was the village in question an 'inam village' and (2) if so, was it an 'inam estate' as defined in Section 2 (7) of the Abolition Act, the enquiry would be complete after determination of the second issue and the limits of his exclusive Jurisdiction circumscribed by Section 9 (1) reached. If he went beyond those limits to investigate and determine further something which was unnecessary or merely incidental or remotely related to issue (2), then such incidental or unnecessary determination, could be questioned in the Civil Court.'

The basic question or the sole question raised by the appellant that the inam is not an inam falling within Section 2 (e) of the Personal Inams Abolition Act is a jurisdictional question and the forum prescribed under that Act, namely, the State Government is alone competent to determine that question and no other authority. Even assuming for the purpose of argument that it is not an inam village as defined in Section 2 (e) but it falls within the ambit of Section 3 (2) of the Personal Inams Abolition Act, even then, after the coming into force of the Devasthan Inams Abolition Act, the State Government or 'the authorised officer', as the case may be, is competent to determine the question whether it is a Devasthan grant. Either the grant is a personal inam or a Devasthan inam. It is nobody's case that it falls under any other category. That being the case we have to hold in view of the provisions of both the enactments that the Civil Court is not competent to go into the question involved in this appeal. We are, therefore, unable to persuade ourselves to the view expressed by the Division Bench in Sayed Mohmed's case : (1966)7GLR217 (supra) that the jurisdiction of the Civil Court is not barred in view of the provisions of Section 3 of the Inams Abolition Act. That view can no longer be sustained having regard to the construction placed by us upon the Explanation to Section 2of the Personal Inams Abolition Act and also in view of the subsequent enactment of Devasthan Inams Abolition Act.

9. The questions referred to us are answered accordingly and we hold that the Civil Court has no jurisdiction. In view of the opinion expressed by us, we think it unnecessary to send the matter back to the learned single Judge. We direct the plaint to be returned to the appellant for presentation to the proper forum. Mr. J. R. Nanavati, learned Assistant Government Pleader appearing for the respondent Government, has assured the Court that the Government would take proper steps to initiate proceedings to determine the question involved whether the grant relating to the suit village falls within the purview of the Devasthan Inams Abolition Act or not. He has also assured the Court that in the event of the plaintiff appellant moving the, Government or the authorised Officer, the authorised Officer will determine the question involved on merits.

10. In the result the appeal preferred by the plaintiff is dismissed but, in the circumstances, there will be no order as to costs.

11. Appeal dismissed.


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