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Remedy Provided Under Sub-Section (4) Of Section 143 Of Maharashtra Land Revenue Code Viz-A-Viz Jurisdiction Of Civil Court Under Section 9 Of CPC

By Kiranpawar2020 | Views 21432

Section 9 of Code of Civil Procedure is prime in dealing with jurisdiction of Civil Courts. As per section 9 of CPC, the Court shall have jurisdiction to try all suits of civil nature, excepting the suits, of which their cognizance by Civil Courts has been barred either expressly or impliedly. The legislature can exclude the jurisdiction of Civil Courts by enacting Special Acts which deal with special subject matters.

When there is special statute for specific subject matter, exclusion of jurisdiction of Civil Court therefrom can easily be inferred from plain reading of provisions of Special Act which either expressly or by necessary implication excludes the jurisdiction of Civil Court. However situation would be different when some provision of Special Act itself provides one mode to approach Civil Court along with clause of limitation, and another mode to approach the authorities established under same Special Act, to challenge the order passed under that Special Act, for which Civil Court has original jurisdiction otherwise also.

In such type of cases, the issues may arise, that if the aggrieved party, instead of availing remedy under Special Act, directly approaches Civil Court in its original jurisdiction, then, which limitation period would apply to such suit, and further, if the aggrieved party, instead of approaching Civil Court first availed remedy provided under such Special Act and later on approached the Civil Court in its original jurisdiction, then, would the jurisdiction of Civil Court be impliedly barred by the act of availing remedy provided under Special Act?

While deciding these issues, nature of remedies provided under such Special Act need to be considered. For that purpose, it would be necessary to ascertain whether the remedy provided under Special Act is, in addition, in alternative, independent or exclusive remedy. Further, it would also be necessary to ascertain whether the remedy provided under Special Act is adequate and equitable.

The discussion herein is made on the topic of remedy provided under sub-section (4) of Section 143 of Maharashtra Land Revenue Code (hereinafter referred to as MLR Code) and jurisdiction of Civil Court conferred by section 9 of Code of Civil Procedure (hereinafter referred to as CPC). From the conjoint reading of these two provisions, following two points arise for consideration:

Whether the limitation provided under sub-section (4) of Section 143 of MLR Code, is applicable to the suit governed by the jurisdiction of Civil Court conferred by section 9 of CPC?
If the order passed by Tahsildar under sub-section (1) of Section 143 of MLR Code is challenged in appeal or revision under the provisions of MLR Code, whether the jurisdiction of Civil Court conferred by Section 9 of CPC is impliedly barred?

Scheme and remedies provided under provisions of section 143 of MLR code:
Section 143
Right of way over Boundaries:
1. The Tahsildar may inquire into and decide claims by persons holding land in a survey number to a right of way over the boundaries of other survey numbers.
2. In deciding such claims, the Tahsildar shall have regard to the needs of cultivators for reasonable access to their field.
3. The Tahsildar's decision under this section shall, subject to the provisions of sub-sections (4) and (5), be subject to appeal and revision in accordance with the provisions of this Code.
4. Any person who is aggrieved by a decision of the Tahsildar under this section may, within a period of one year from the date of such decision, institute a civil suit to have it set aside or modified.
5. Where a civil suit has been instituted under sub-section (4) against the Tahsildar's decision, such decision shall not be subject to appeal or revision.
From the plain reading of the above provisions it appears that, sub-section (1) of Section 143 confers the powers on Tahsildar to inquire into and decide claims of right of way over the boundaries. Sub-section (2) provides for what should be taken into consideration while exercising the powers conferred under sub-section (1).

The Sub-section (3) of Section 143 of MLR Code expresses, that the Tahsildar's decision shall be, subject to the provisions of sub section (4) and (5), be subject of appeal and revision under provisions of MLR Code.

The Sub section (4) provides remedy to aggrieved person, of challenging the decision of Tahsildar by way of filing civil suit within one year from the date of decision/Order of Tahsildar passed under Sub section (1). Further, the Sub-section (5) expresses, that if remedy of filing civil suit under sub-section (4) is availed, the remedy of appeal or revision under MLR Code is barred.

It appears that the scheme of Section 143 of MLR Code provides two fold remedies for challenging the decision of Tahsildar passed under sub-section (1), i.e. aggrieved person may file civil suit within one year or he may file appeal and/or revision in accordance with law. Here it would be pertinent to note, that the legislature has left choice to the aggrieved person of adopting one of the two courses of action. Further, sub-section (5) specifically expresses bar to file appeal or revision, if aggrieved party adopts the course of filing civil suit.
Nature Of The Remedy Provided Under Sub-Section (4) Of Section 143 Of Mlr Code:
To understand the nature of the remedy provided under sub-section (4), first we have to analyze the expressions used in sub section (4). From the expression "Any person who is aggrieved by a decision of the Tahsildar under this section" it can be inferred that a person who may not be a party to the proceedings before Tahsildar, however being aggrieved by the decision of Tahsildar, may invoke the remedy provided under sub section (4) of MLR Code.

From the word 'may' used in sub-section (4), it can be inferred that remedy of instituting civil suit provided under the section is not regular but is an optional and can be applied at the choice of aggrieved person. Further specific expression 'Tahsildar's decision' implies bifurcation of expression 'Tahsildar's decision' and decision passed by appellate or revisionary authority under the provisions of MLR Code.

Further the expression "within a period of one year from the date of such decision" provides the limitation clause for institution of civil suit by the aggrieved person and lastly the expression "to have it set aside or modified" used in the sub section (4) expresses the types of reliefs for which suit under sub-section (4) can be filed.

Now, with the help of above expressions let's try to understand the nature of remedy provided under sub section (4). From the expression 'Tahsildar's decision' and further its reference in sub-section (3), (4) and (5) of Section 143 of MLR Code, it appears that legislature very consciously has provided the remedy of approaching civil court at intermediate stage of proceedings before Revenue Authority.

Further it appears that said remedy is an optional remedy of challenging the Tahsildar's decision, departing framework of hierarchy of Revenue Authorities, at an earlier stage of proceedings. Further remedy provided under sub-section (4) qualifies the person who is aggrieved only by the 'decision of Tahsildar' and when the party aggrieved by the decision of Tahsildar choses to approach to the Appellate or Revisionary Authority under MLR Code, then remedy provided under sub section (4) of Section 143 of MLR Code is automatically extinguished.

This can be explained by way of following illustrations:
Illustration:
A files application against B for the relief of right to way u/s.143 of MLR Code before Tahsildar. Tahsildar allowed the application and decided in favour of A. Here B would be aggrieved party. B, instead taking recourse of sub-section (4) of Section 143 of MLR Code, files appeal or revision under MLR Code. In appeal or revision the Tahsildar's order is set aside. Now A would be aggrieved party by decision of appellate authority.

If A wants to challenge the appellate or revisionary authority's order by filing civil suit, could the remedy provided under sub section (4) be available for A? The answer would certainly be 'No', because A was not aggrieved by the decision of Tahsildar. Here if A wants to challenge the decision of appellate or revisionary authority before Civil Court, he has to file civil suit by invoking jurisdiction of Civil Court provided under Section 9 of CPC.

Suppose, Tahsildar instead of allowing, rejects the application of A and, instead of availing remedy under sub-section (4) A availed remedy of appeal or revision under MLR Code. In appeal or revision if the decision of Tahsilar is set aside and allowed the application of A filed under sub-section (1), then B would be aggrieved party.

Now if B wants to challenge the decision of appellate or revisionary authority before Civil Court, he has to file civil suit by invoking jurisdiction of Civil Court provided under Section 9 of CPC.
Civil Courts have superior jurisdiction over the Revenue Courts or Authorities. If legislature intends to provide remedy of challenging the decision of Revenue Authority before Civil Court by provision of Special Act and thereby intends to bar impliedly or expressly the remedy provided under common law then, such special remedy ought to be adequate, regular, absolute, and equitable to all parties to the proceedings.

From this view, if we appreciate the provisions of sub-section (4), then it would appears that, the right to remedy provided under sub-section (4) is not adequate, regular, absolute and equitable.

Further, if we take into consideration the scope of remedy and relief provided under sub-section (4), it would appear, that the aggrieved party may institute civil suit, only for the purpose of setting aside or modifying Tahsildar's decision. Reliefs in the nature of declaratory and of prohibitory or preventive decrees and further those cases where the reliefs are claimed on the ground of provisions of the particular Act have not been complied with or the statutory authority has not acted in conformity with the fundamental principles of judicial procedure, are not included therein, and remedy therefor is not provided under the provisions of Section 143 of MLR Code, for which recourse of Civil Court by way filing of civil suit under common law would be necessary.

Remedy and Limitation provided under common law:

The remedy provided under sub-section (4) of Section 143 of MLR Code appears to be an independent of the remedy provided under common law. Under Section 9 of C.P.C., Civil Courts have jurisdiction to try all suits of civil nature unless barred either expressly or impliedly. Under common law, the orders of revenue Court passed, whether while exercising original or appellate jurisdiction, are always subject of inherent jurisdiction of Civil Court and such orders can be challenged before Civil Court within the period of three years from the date of arising of cause of action for filing civil suit.

Tahsildar's decision and further decision passed in appeal or in revision filed under MLR Code, if challenged in civil suit, then in relation to limitation, such civil suit would be governed by the Article 58 and Article 113 of the Limitation Act for which limitation prescribed is of three years.

The provisions of Article 58 and 113 of the Limitation Act read as follows:

Description of Suit	Period of Limitation	Time From Which Period Begins To Run
		Part III Suit Relating To Declarations
58. To obtain any other declaration	Three years	When the right to sue first accrues
		Part X - Suit For Which There Is No Prescribed Period
113. Any suit for which no period of limitation is provided elsewhere in this schedule.	Three years	When the right to sue first accrues

Therefore it appears that, the decision of Tahsildar, if challenged directly or after availing remedy of appeal or revision under MLR Code, under the common law by invoking jurisdiction of civil court u/s.9 of CPC, the limitation provided under sub-section (4) of section 143 of M.L.R.C. would not be applicable to such suit.

There is no bar to file civil suit after availing remedy of appeal or revision under MLR code:
Here it will be pertinent to note that the legislature, after providing two remedies under Section 143 of MLR Code, has specifically barred the remedy of appeal or revision under MLR Code if remedy under sub-section (4) is availed. However, the legislature very consciously has not barred the remedy of filing of civil suit after availing remedy of appeal or revision under MLR Code. Obviously, there is no express bar to file civil suit after availing remedy of appeal or revision under MLR Code.

Therefore, taking into consideration the language used in Sub section (5) of Section 143 of MLR Code, it cannot be inferred that the remedy of filing civil suit is expressly barred under the scheme of MLR Code, when aggrieved party has availed remedy of appeal or revision under MLR Code.

Further, if we consider the scheme provided under MLR Code, there is no provision in the Code conferring finality to the order passed in appeal or revision preferred for challenging the decision of Tahsildar passed under Sub section (1) of Section 143 of MLR Code. Even there is no any provision in MLR Code which gives overriding effect to the orders passed in appeal or revision under MLR Code, on other Laws.

Apart from above considerations, whether the provisions of Section 143 of MLR Code, impliedly bars the remedy of filing civil suit after availing remedy of appeal or revision, can safely be tested on the touchstone and criteria laid down by Constitution Bench of Hon'ble Apex Court in the case of Dhulabhai And Others Vs The State of Madhya Pradesh [AIR 1969 SC 78, 1968 SCR (3) 662].

While discussing the provision of section 9 of CPC, in relation to the exclusion of jurisdiction of Civil Court, the Constitution Bench of Hon'ble Apex Court has laid down law of which relevant portion is reproduced herein below:
Para No.32:
"Neither of the two cases of Firm of Illuri Subayya, 1964-1 SCR 752 = (AIR 1964 SC 322) or Kamla Mills, 1966 1 SCR 64 = (AIR 1965 SC 1942) can be said to run counter to the series of cases earlier noticed.

The result of this inquiry into the diverse views expressed in this Court may be stated as follows:
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 Courts 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. *
3. *
4. *
5. *
6. *
7. An exclusion of the jurisdiction of the Civil Court is not readily to be inferred unless the conditions above set down apply.
  The condition or criteria no.1 and 7 laid down in the aforesaid judgment would be relevant while deciding whether the provisions of Section 143 of MLR Code exclude the jurisdiction of Civil Court after availing remedy of appeal or revision under MLR Code.
  
  Considering the criteria/condition no.1 and grounds discussed as herein above, remedy provided under Section 143 of MLR Code appears inadequate and incomplete. Further, the scheme provided under MLR Code does not give finality to the order passed in appeal or revision preferred for challenging the decision of Tahsildar under Sub section (1) of Section 143 of MLR Code.

Conclusion:
From the discussion herein above, it appears that remedy provided under sub section (4) of section 143 of MLR code is optional and additional remedy at the intermediate stage of proceedings before Revenue Authority. It is an independent of remedies provided under common law.

Therefore, it can be said, that the limitation provided under sub-section (4) of Section 143 of MLR Code, cannot be made applicable to the suit which is governed by section 9 of CPC, and further it can be said that there is no express or implied bar to invoke jurisdiction vested in Civil Courts under section 9 of CPC even after availing remedy of appeal or revision under MLR Code against the decision of Tahsildar under Sub section (1) of Section 143 of MLR Code.

Award Winning Article Is Written By: Mr.Kiran Shamrao Pawar, B.S.L. LL.B. Advocate, Islampur District Sangli (Maharashtra) 415409