BIRENDRA NATH BANERJEE Vs. MRITUNJOY ROY
HIGH COURT OF CALCUTTA
BIRENDRA NATH BANERJEE
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B.N.Banerjee, J. -
(1.) (After stating the facts, proceeded:) Mr. Jitendra Kumar Sen Gupta, learned Advocate for the appellants, argued three points for our consideration in this appeal. He contended that the Court below was wrong in holding that the plaintiff had not been served with notices either under Section 9 or under Section 12(2) of the Land Acquisition Act if the plaintiff be found to have been served with the statutory notices and if he failed, even thereafter, to apply for a reference, under Section 18 of the Land Acquisition Act, within the time provided by law, the suit filed by him must not be held to be maintainable. He contended further that even if no notice had been served on the plaintiff, even then the suit must fail, because there being a special remedy provided by the Land Acquisition Act, no remedy, by way of a suit was available to the plaintiff. Lastly, he contended that the plaintiff and defendant Nos. 4 and 11 had waived their right to claim the compensation money by reason of the settlement between them and defendant No. 1 whereby they received a sum of Rs. 3000/- in settlement of their disputed claim and they should not be allowed to claim more.
(2.) We propose to take up the second of the three points argued by Mr. Sen Gupta, first of all, because if that point succeeds the other points need not be considered at all. 2a. The question as to where the ordinary jurisdiction of the Civil Court is ousted when a statute creates a special jurisdiction and provides for a special remedy is not very easily to be answered. In Craies 'On Statute Law' (fifth edition) the question is dealt with in the following manner :
"The provision by a statute of a particular remedy for the infringement of a right of property created, enacted, or recognised as re-enacted does not oust the jurisdiction of the High Court to protect the right by equitable remedies, such as injunction, unless express provision is made excluding such remedies. This rule, it would seem, applies even where the particular remedy bars a common law right of action. But if it appears that the statutory right could not without very great inconvenience co-exist with the ordinary common law right, and so must have been intended as a substitutional, not an additional remedy, the common law remedy will be held to have been taken away."
(3.) In Maxwell on Statute (9th Edition) p. 134, the following passage appears:
"It is, perhaps, on the general presumption against an intention to disturb the established state of the law, or to interfere with the vested rights of the subject, that so strong a leaning now exists against construing a statute so as to oust or restrict the jurisdiction of the Superior Courts. It is supposed that the Legislature would not make any important innovation without a very explicit expression of its intention; specially since in recent years such an intention has often been very explicitly expressed. It would not be inferred, for instance, from the grant of a jurisdiction to a new tribunal over certain cases, that the Legislature intended to deprive the superior Court of the jurisdiction which it already possessed over the same cases." and at page 138 of the book there is the further observation:
"where, indeed, a new duty or cause of action is created by statute and a special jurisdiction out of the course of the common law is prescribed, there is no ouster of the jurisdiction of the ordinary court for they never had any." Keeping in view the above observations, we have to examine the relevant provisions of the Land Acquisition Act 1894 (hereinafter referred to as the Act).;
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