STATE OF BOMBAY Vs. MISHRILAL ONKARDAS JOSHI

JUDGEMENT

(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 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.