BHIMRAO SAMBHAJI LINGE Vs. HANUMANT ANANDRAO PAWALKAR

JUDGEMENT

(1.) THIS petition is directed against the order dated 5th October, 1995 passed by the Joint Civil Judge Junior Division, Pandharpur which decided the issue as to whether a Civil Court has jurisdiction to decide a suit wherein the prayer for permanent injunction has been prayed for in respect of some acts done by the respondents herein of interfering with the free flow of water in the canal. The Court answered the issue in the affirmative.

(2.) IT was contended that in view of the provisions of the Maharashtra Irrigation Act, 1976 the Civil Court would have no jurisdiction, Learned Counsel contends that in so far as the canal is concerned, there is a specific statute viz. Maharashtra Irrigation Act, 1976 which deals with the flow of water in the canal and all other incidental issues. It is pointed out that in terms of section 42 of the Maharashtra Irrigation Act in an event a dispute arises, such dispute has to be decided by a Canal Officer in terms of the said provision. A person aggrieved by the said order has a remedy by way of an Appeal or Revision in terms of section 103 of the said Act. It is, therefore, pointed out that though there is no express bar in the Act, nonetheless such right having being created under the Act not being a common law, right and a remedy having being provided therein, in such circumstances it must be construed that the jurisdiction of the Civil Court under section 9 has been implicitly barred. Learned Counsel further draws my attention to the provisions of section 26 of the Bombay Irrigation Act, 1879 wherein in respect of a similar provision, the section specifically provided that a decision of the Collector would remain in force until set aside by Decree of a Civil Court. It is pointed out that in the earlier Act it was made expressly clear that the decision of the Canal Officer would not be final. It is as such sought to be contended that since these words are absent in section 42 it must be construed to mean that a decision taken under section 42 cannot be challenged in a Civil Court. My attention has also been invited to a judgment of a Division Bench of this Court in the case of (Vishnu Vinayak Vaze v. The Secretary of State for India) reported in 24 Bom. L. R. 264. In that case the Court was considering the provisions of sections 36, 35 and 31 (d) of the Bombay Irrigation Act. The Division Bench after considering the said provisions which pertain to compensation came to the conclusion that as power has been conferred on the Collector to decide the compensation and considering the language of the statute the jurisdiction of the Civil Court was ousted.

(3.) ON the other hand learned Counsel for the respondents contends that there is no bar to a Civil Court deciding the issue. It is contended that jurisdiction of the Civil Court can be barred by an express provision or it can be implied. In the instant case, it is pointed out that section 104 of the Maharashtra Irrigation Act clearly sets out that no suit shall lie in any Civil Court, to contest the validity of a Canal Officers order under section 32, 70 or 71. It is, therefore, contended that only in so far as these sections are concerned, there can be no challenge to the said orders before a Civil Court. It is further pointed out that apart from the said order in respect of the other orders under the Act, clearly the Civil Court would have jurisdiction and it cannot be said that the jurisdiction is implicitly barred. For that matter it is contended if it was so, legislature need not have enacted section 104. In support of his contentions learned Counsel relies on the judgements of the Apex Court in the case of (Bharat Kala Bhandar Ltd. v. Municipal Committee, Dhamangaon) reported in A. I. R. 1966 S. C. 249, in the case of (Abdul Waheed Khan v. Bhawani and others) reported in A. I. R. 1966 S. C. 1718 and in the case of (Dhulabhai etc. v. State of Madhya Pradesh and another) reported in A. I. R. 1969 S. C. 78.