Holding

The Supreme Court held that the Fifth Amendment's bar under Section 58(2) applied retrospectively to pending suits, thereby ousting the civil court's jurisdiction to pass the eviction decree.

Summary

Mrs. Judith Fernandes and others leased land containing coconut trees to Conceicao Antonio Fernandes and others for six years. After the lease expired, the plaintiffs filed an eviction suit on 10 October 1973, before the Fifth Amendment to the Goa, Daman and Diu Agricultural Tenancy Act, 1964 came into force. The amendment, effective 20 April 1976, redefined "garden" to include land used for coconut trees and introduced a bar in Section 58(2) that barred civil courts from deciding matters that should be dealt with by the Mamlatdar or other special machinery under the Act. The trial court decreed in favour of the plaintiffs in 1983, after the amendment was operative, and the decree was affirmed by the appellate court. The High Court set aside the decree, holding that the bar applied and the civil court lacked jurisdiction. The Supreme Court affirmed the High Court, stating that once the amendment became effective, the bar under Section 58(2) applied to pending suits, depriving the civil court of jurisdiction, and dismissed the appeal.

Issues considered

Whether the bar on civil court jurisdiction under Section 58(2) of the Goa, Daman and Diu Agricultural Tenancy Act, 1964 applies to a suit filed before the Fifth Amendment but decreed after its commencement.
Whether the Fifth Amendment Act is to be given prospective or retrospective effect on pending litigation.
Whether the civil court can entertain an eviction suit concerning land classified as "garden" under the amended definition.

Legislation cited

Code of Civil Procedure, 1908s. 9
Goa, Daman and Diu Agricultural Tenancy Act, 1964s. 2(1A), s. 2(7A), s. 58(1), s. 58(2), s. 7, s. 8

Subjects

agricultural tenancyjurisdictioncivil courtevictionretrospective legislationsection 58coconut treesleaseGoa Daman Diu

Judgment

A MRS. JUDITH FERNANDES AND ORS.
v.
CONCEICAO ANTONIO FERNANDESE AND ANR,

AUGUST 22, 1996

B [N.P. SINGH AND K. VENKATASWAMI, JJ.]

Goa, Daman and Diu, A~~icultural Tenancy Act, 1964: Serttions 7,58
and 2( JA) a11d 2(7A) (As i11troduced by Fifth AmendmentAct)--Applicability
of
c Code of Civil Procedure, 1908: Section 9--Bar to jurisdiction of Courts.

Appellant-plai11tiff executing a lease deed in favour of 1·espondent-
defendant-Land in question containing coconut trees-Expiry of lease-Suit
for eviction-Ame11dments introduced in 1964 Act during pe11dency of
D suit-After amendment 'Garden' defined to include land used plima1ily for
growing coconut trees-Suit decreed by Tlial Court and affinned by Appellate
Court-High Court holding that Civil Court had no julisdiction to entertain
suit after coming into force of the :tmendment Act-'-Appeal-Hield after the
Amendment the provisio11s of the Act wer,e applicable ev_en in rewect of lands
E growing coconut trees and the bar presc1ibed in section 58(2) became ap-
plicable--ln the present case Amendment Act came into force b~fore passing
of decree by Trial Court-771erej;1re, bar contained in section 5()(2) became
applicable-Held High Cow1 was justified in setting aside the d[.icree passed
by Courts below.

F Union Tenitory of Goa, Daman and Diu v. Lakshmibai Narayan Patil
& Ors., (1990) 4 SCC 102, referred to.

Inacio Martines (d) through LRs. v. Narayan Hari Naik & Ors., [1993)
3 sec 123, 1relied on.

G CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1763 of
1986.

From the Judgment and Order dated 28.6.85 of the Bombay High
Court in S.C.A. No. 20 of 1983.

H Ranjit Kumar and Ms. Binu Tamta for the Appellants.
64
JUDITH FERNANDES v. CONCEICAO ANTONIO FERNANDES 65

Dhruv Mehta, Fazlin Anam, (V.D. Khanna) (NP) and S.K. Mehta A
for the Respondents.

The following Order of the Court was delivered :

The plaintiffs are the appellants in this appeal. On January 18, 1967
the original plaintiff No. 1 executed a deed of lease for a period of six years B
in favour of the defendant-Respondent No. 1 herein (hereinafter referred
to as the Respondent) in respect of the lands in question containing
coconut trees. On May 5, 1972 notice of termination of the lease was given
by the aforesaid plaintiff. There is no dispute that the Jease expired in
..>
January, 1973. On October 10, 1973 the plaintiffs filed a suit for eviction
of the defendant. During the pendency of the said suit amendments were c
introduced in the Goa, Daman and Diu Agricultural Tenancy Act, 1964
(hereinafter referred to as the Act). The amendments were introduced by
the Fifth Amendment Act which came into force with effect from April 20,
, 1976. The Trial Court decreed the suit which decree was affirmed by the
Court of Appeal. However, the High Court on appeal filed by the defen-
dant-respondent set aside the said decree saying that Civil Court had no D
jurisdiction to entertain the suit after coming into force of the Fifth
Amendment Act.

It may be mentioned that by the Amending Act aforesaid in Section
2(1A) new definition of 'agriculture' was introduced. Section 2(7A) defined
'garden' to mean land used primarily for growing coconut trees, arecanut E
trees, cashew nut trees and mango trees. In view of aforesaid introduction
of sub-section (7A) in Section 2 the expression 'garden' shall include the
land used primarily for growi.1g coconut trees. Section 7 of the Act
·provides that if any question arises whether any person is or was a tenant
or should be deemed to be a tenant under this Act, the Mamlatdar shall, p·
after holding an enquiry, decide such question. In view of section 8 of the
Act no tenancy of any land shall be terminated and no person holding land
as a tenant shall be liable to be evicted therefrom save as provided under
the Act. Section 58 of the Act is as follows :

..... "Bar to jurisdiction of Courts - G
(i) No suit or other proceeding shall lie against any person in
respect of anything which is in good faith done or intended to be
done under this Act.

(ii) Save as provided in this Act-, no Court shall have jurisdiction H
66 SUPREME COURT REPORTS (1996] SUPP. 5 S.C.R.

A to settle, decide or deal with any question which is by or under
this Act required to bf: settled, decided or dealt with by the
Mamlatdar, Tribunal, Collector or Government, and no order
passe.d by these authorities under this Act shall be questioned in
any Civil or Criminal Court".

B In view of sub-section (2) of Section 58 of the Act, no court has
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 Mamlatdar,
Tribunal, Collector or Government. It can be said that aforesaid sub-sec-
tion (2) of Section 58 prescribes a bar on the power or the Civil Court to
C entertain a suit for settling, deciding or dealing with any question which i's
by or under this Act required to be settled, decided or dealt with by the
Mamlatdar, Tribunal, Collector or Government.

As already mentioned above, the suit on behalf of the plaintiffs had
been filed on October 10,1973 when the Fifth Amendment was not in force
D and Section 2 (7A) was not in the Act. It can be said that on the date of
filing of the suit the expression 'agri1;ulture' as defined then did not include
the land which was being used primarily for growing coconut trees. The
necessary corollary thereof shall be that any suit for eviction filed against
a person in possession of such land which was being used primarily for
growing coconut trees was not barred by sub-section (2) of Section 58. It
E cannot be disputed that after the amendment aforesaid and the introduc-
tion of Section 2(7A) which defines ',garden' to include land used primarily
for growing coconut trees, the provisions of the Act became applicable
even in respect of lands growing coconut trees and the bar prescribed in
sub-section (2) of Section 58 became: applicable.

F On behalf of the appellants, it was urged that as on the date when
the suit in question had been filed the bar of sub-section (2) of Section 58
was not applicable, it was well within the jurisdiction of the Trial Court to
decree the said suit which was affirmed by the Court of Appeal. As such,
the High Court should not have set aside the decree passed in the suit in
G question. As a first impression this argument is attractive especially when
it is an admitted position that the date on which the Trial Court passed the
decree, the Fifth Amendment had been declared to be ultra vires. It may
be mentioned that the aforesaid judgment declaring the Fifth Amendment
to be ultra vires has been set aside by this Court and the said amendment
has been held to be legal and valid in the case of Union of Territory of Goa,
H ·Daman and Diu v. Lakshmibai Narayan Patial & Ors. Reported in f1990)
JUDITH FERNANDES v. CONCEICAO ANTONIO FERNANDES 67

4 SCC 102. In this background, we have to proceed that when the Fifth A
Amendment came into force, it was a valid piece of legislation. The only
question which remains to be examined is as to what effect it shall have to
suits which were pending before the Civil Courts. This aspect has also been
examined by this Court in the case of Inacio Martines (d) through Lrs. v.
Narayan Hari Naik & Ors., Reported in (1993] 3 SCC 123, wherein it was
observed as follows : B

"After the amendment came into force, the provisions of the
Act became applicable to the lands in question which were
primarily used for growing coconut trees and receiving produce
therefrom. By virtue of Section 7 any question whether a person C
is a tenant or a deemed tenant was required to be decided by the
Mamlatdar and the jurisdiction of the civil court stood ousted by
Section 58(2) of the Act. The question is whether this subsequent
change in the law deprived the civil court of jurisdiction which it.
undoubtedly possessed on the date of the institution of the suit:
Three situations, therefore, develop in the context of the provisions D
of the Act as amended by the fifth amendment, namely, (i) the
civil court retains jurisdiction or (ii) the civil court is precluded
from deciding, even incidentally, questions falling within the ambit
of section 7 of the Act or (iii) the civil court's jurisdiction is wholly
ousted. Since the Act is silent as to the fate of pending litigation E
after the fifth amendment the situation arising on the amendment
of the Act must be decided on first principles. If a suit is filed to
recover possession of agricultural land from a trespasser and no
dispute arises, the adjudication whereof is required to be done by
the special machinery set up under the Act the civil Court will
continue to have jurisdiction. If, however, the defendant raises a
F
dispute which is required to be resolved by the special machinery
under the Act, a question will arise what procedure the civil court
should adopt. There may arise a situation where the entire dispute
pending before the civil court can be adjudicated by the special
machinery only and not the civil court, what procedure should the G
civil court follow in such a situation? ........... .

Before we answer those questions we must decide on the
impact of the fifth amendment on pending litigation. The question
whether the fifth amendment is prospective or retrospective really H
,
68 SUPREME COURT REPORTS [1996] SUPP. 5 S.C.R.

A recedes in the background if we examine the question from the
angle whether the civil court can decide any question falling within.
the jurisdiction of the special forum under the Act in a pending
litigation in the absence of an express provision in that behalf. If
the question of tenancy in regard to agricultural land cannot be
decided by the civil court under the Act and there is no express
B
saving clause permitting the civil court to decide the same, it is
obvious that any decision rendered by the civil court would be
without jurisdiction."

So far as the facts of the present case are concerned, the plea of the
C defendant-respondents was that they were tenants of the land in question
having coconut trees, as such the Civil Court had no jurisdiction to pass
the decree for eviction against them, because of sub-section (2) of Section
58 of the Act. From a bare reference to sub-section (2) of Section 58 it is
apparent that the bar has been placed on the court from settling, deciding
D or dealing with any question which is by or under the said Act required to
be settled, decided or dealt with by the Mamlatdar, Tribunal, Collector or
Government. In the present case, no doubt the suit had been filed on
October 10, 1973 but the Trial Court passed the judgment and decree on
January 27, 1983, the fifth Amendment having come into force with effect
from April 20, 1976, several years before the passing of the decree. Ac-
E cording to us, the bar of sub-section (2) of Section 58 became applicable.
In this background, the High Court was justified in setting aside the
judgment and decree passed by the Trial Court which had bee~ affirmed
by the Court of Appeal. We find no ground to take a view contrary to the
view taken by the High Court. Accordingly, the appeal fails and it is
p dismissed. No costs.

In orde:r to expedite the disposal of the dispute, we direct that the
plaint, written statement and other connected records which had been filed
before the Gvil Judge, Senior Division, Quepem, be transferred to the
G concerned Mamlatdar of the area within whose jurisdiction the disputed
lands are situate. We further direct that the Mamlatdar shall pass ap-
propriate orders in accordance with law as early as possible, pref~rably
within six months from the date of the receipt of the records.

T.N.A. Appeal dismissed.