Rajasthan High Court - Jaipur
Ranjeet Modi vs Pr Secretary Gov Urban Dev Gov Dep &Ors; on 23 March, 2017
Author: Prakash Gupta
Bench: Prakash Gupta
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S.B. Civil Second Appeal No. 501 / 2016
Ranjeet Modi s/o Shri Shyam Sunder Modi aged 37 years, by caste
Cheepa, r/o House NO.3393, Durgalal Bardar ka Chowk, Jailal
Munishi ka Rasta, Chandpole Bazar, Jaipur Rajasthan
----Appellant/Plaintiff
Versus
1. Principal Secretary to the Government Urban Development and
Local Self Government Department, Government of Rajasthan,
Government Secretariat Jaipur
2. Principal Secretary to the Government Devasthan Department,
Govt. of Rajasthan, Government Secretariat, Jaipur
3. District Collector Jaipur
4. Director (Project) Jaipur Metro Rail Corporation Limited,
RAJSICO, Udyog Bhawan, Tilak Marg, C-Scheme, Jaipur
5. Commissioner Jaipur Commissionerate, Government Hostel,
Jaipur
----Respondent
_____________________________________________________ For Appellant(s) : Mr. B.L. Sharma, Senior Counsel assisted by Mr. Umesh Purohit For Respondent(s) : Mr. Ashok Gaur, Senior Counsel assisted by Mr. Sandeep Pathak & Mr. Shyam Arya, AAG _____________________________________________________ HON'BLE MR. JUSTICE PRAKASH GUPTA Judgment Reportable 23/03/2017
1. Instant second appeal is filed under Section 100 CPC by the appellant-plaintiff against the judgment and decree dated 01.12.2016 passed by the learned Additional District Judge No.10, Jaipur Metropolitan (hereinafter referred to as 'the first appellate court') whereby the regular first appeal No.65/2015, filed by the plaintiff-appellant was dismissed and the order & decree dated (2 of 11) [CSA-2/2016] 18.11.2016 passed by the learned Additional Civil Judge East, Jaipur Metropolitan (hereinafter referred to as the 'trial court') in Civil Suit No.167/2016, was confirmed. By the said order dated 18.11.2016, the application filed by the respondent No.4 under Order 7 Rule 11 was dismissed.
2. The brief facts leading to this second appeal are that the plaintiff-appellant filed a suit for permanent injunction in trial court against respondent-defendants for restraining them from demolishing the temple of Hanumanji, Mahadev ji and Mataji situated in Bal ji ka Khanda, Badi Chopad Jaipur and sifting of Idols. It has been averred on behalf of the appellant that it was initially observed by the trial court that suit is barred by law in the light of provision of section 39 of the Metro Railway (Construction of Works) Act, 1978 (in brief Act of 1978), however, subsequently the suit was registered and notices were issued to the respondent- defendants. Ultimately, while hearing an application filed on behalf of Respondent No.4 under order 7 rule 11, CPC, the suit was dismissed on the ground that it was barred by section 39 of the 'Act of 1978'. The plaintiff-appellant filed an appeal against the said order of learned trial court before the first appellate court which dismissed the appeal holding that the trial court has not committed any error of fact and law in dismissing the suit. Hence the present second appeal.
3. I have heard the learned counsel for the parties and perused the record.
4. The learned Senior Counsel for the plaintiff-appellant Shri Bajrang Lal Sharma, vehemently submits that after filing the suit (3 of 11) [CSA-2/2016] initially it was observed by the learned trial court that the suit was barred by section 39 of the Act of 1978, therefore he approached the respondent Jaipur Metro Rail Corporation Limited (in short 'Corporation') through filing an application under the Right to Information Act seeking information about the designating the Competent Authority and Appellate Authority with their office address and also the Gazette Notification issued in that regard. He further submits that "However the Jaipur Metro Rail Corporation Limited by reply dated 5.10.2016 informed that no Competent Authority and Appellate Authority is designated and no Gazette Notification is issued in this regard." Therefore, he filed an application under section 151, CPC with the submission that the said reply of the Corporation be taken on record and since no statutory authority is designate under the relevant Statute, the Civil Court has jurisdiction. Accordingly, the suit was registered. However, the suit was dismissed after hearing the application of respondent No.4 filed under Order 7 Rule 11 on the ground that the suit was barred by section 39 of the 'Act of 1978' even though no such ground was raised in the said application.
5. He submits that access to justice is fundamental right and if there is no statutory adjudicatory body in existence, the court should not turn the plaintiff of the gates without deciding his grievance on merits. In support of his submission, he extensively placed reliance on the judgments of the Hon'ble Apex Court in Ankta Kushwaha v. Pushap Sudan (2006) 8 SCC 509, D.K. Basu v. State of West Bengal and other (2015) 8 SCC 744 and Sheela Barse v. Union of India and Others (1988) 4 SCC 226. He also (4 of 11) [CSA-2/2016] placed reliance on the following paragraph from an article of Justice Kurian Joseph titled 'Judicial Legislation', published in The Indian Advocate, Volume XXXIX (Journal of the Bar Association of India) to buttress his argument that the learned trial court should have heard the suit on merits.
"Therefore, I would like to sum up by stating that judicial legislation is not necessarily an innovative role of an activist Judge, it is the solemn duty or role of function of judge who has taken oath under the Constitution of India to uphold it. In the earnest endeavour to uphold the Constitution, if the Judge finds that the enacted law is inadequate, it is for him to infuse life into it and make the Constitution functional. He shall not non-suit a person crying for justice taking a technical approach that there is no enacted law to be applied in the given circumstances. It is for the Judge to say what is the law in terms of the Constitution is such circumstances and it is not for the Judge to direct the Legislature to make the law. To quote Justice Bhagwati: "There is no need for judges to feel shy or apologetic about the law creating roles." In the words of Lord Denning: "Judges cannot afford to be timorous soul. They cannot remain impotent, incapable and sterile in the face of injustice."
6. On the other hand, the learned Counsel for the respondent- defendant submits that the order and decree of the learned court need no interference and in the light of the factual matrix and the settled provisions of law, the appeal deserves to be dismissed at the threshold. He inter alia argues that suit which claimed permanent injunction as relief was clearly barred by section 39 of the Act of 1978 and it was bounden duty of the court under Order 7 Rule 11 (d), CPC to dismiss it at any stage. In support of his (5 of 11) [CSA-2/2016] argument he placed reliance on Umesh Chandra Saxena v. Administrator General, Allahabade AIR 1999 Allahabad 109, Nagar Palika, Nathdwara v. Temple Board, Nathdwara, RLW 1981 (239), Sopan Sukhdeo Sable v. Asstt. Charity Commr. (2004) SCC 137, Govind Narayan v. Shri Baheti Dharmshala 2014 (4) RLW 3420 (Raj) and R.K. Roja v. U.S. Rayudu 2016 (4) WLN (SC).
7. I have given my careful consideration to the rival submissions.
8. At the outset, I am constrained to record that the submission of the learned counsel for the plaintiff, which also finds place in the memo of appeal, to the effect that "However the Jaipur Metro Rail Corporation Limited by reply dated 25.10.2016 informed that no Competent Authority and Appellate Authority is designated and No Gazette Notification is issued in this regard" is patently wrong. The reply dated 25.10.2016 is attached to the memo of the appeal and the information sought by the plaintiff and reply given by the Corporation read as under:
e-la- OkkafNr lwpuk izR;qRrj
1- pgh xbZ lwpuk dk fooj.k & izkstsDV funs"kky; dh i=kofy;ksa esa
1- The Metro Railways The Metro Railways
(Construction of Works) Act, 1978
ds section-16 ds izko/kkukuqlkj dsUnz (Construction of Works) Act, ljdkj }kjk t;iaqj esVªks jsy ifj;kstuk 1978 ds section-16 ds {ks= ds fy;s fu;qDr fd;s x;s l{ke izko/kkukuqlkj dsUzn ljdkj }kjk izkf/kdkjh (Competent Authority) rFkk vihy izkf/kdkjh (Appellate t;iaqj esVªks jsy ifj;kstuk {ks= ds Authority) ds uke] dk;kZy; ds irs fy;s fu;qDr fd;s x;s l{ke rFkk dk;kZy; nwjHkk'k uEcj dh fyf[kr tkudkjh@lwpuk izkf/kdkjh (Competent Authority) rFkk vihy izkf/kdkjh (Appellate Authority) ds uke] dk;kZy; ds irs (6 of 11) [CSA-2/2016] rFkk dk;kZy; nwjHkk'k uEcj ls lacaf/kr dksbZ nLrkost bl dk;kZy;
vihy izkf/kdkjh dh fu;qfDr ls lacaf/kr dksbZ nLrkost bl dk;kZy;
dh i=kofy;ksa esa miyC/k ugha gSA 2- mijksDrkuqlkj fu;qfDr;ksa ds laca/k esa izkstsDV funs"kky; dh i=kofy;ksa esa tkjh Official Gazette Notification The Metro Railways dh izekf.kr QksVks izfrfyfiA (Construction of Works) Act, 1978 ds section-16 ds izko/kukuqlkj dsUzn ljdkj }kjk t;iaqj esVªks jsy ifj;kstuk {ks= ds fy;s fu;qDr fd;s x;s l{ke izkf/kdkjh (Competent Authority) rFkk vihy izkf/kdkjh (Appellate Authority) ds uke] dk;kZy; ds irs rFkk dk;kZy; nwjHkk'k uEcj ls lacaf/kr dksbZ nLrkost bl dk;kZy;
vihy izkf/kdkjh dh fu;qfDr ls lacaf/kr dksbZ nLrkost bl dk;kZy;
dh i=kofy;ksa esa miyC/k ugha gSA
9. From the bare perusal of the above questions and replied, it is very much clear that the corporation has nowhere said that "no Competent Authority and Appellate Authority is designated and No Gazette Notification is issued in this regard". It has only said that it has no document in its files in this regard. It is also surprising that when the power to designate Competent Authority and Appellate Authority rests with the Central Government why the plaintiff approached the Corporation instead of the Central Government which could be expected to have the answer to the queries of the plaintiff.
(7 of 11) [CSA-2/2016]
10. Be that as it may, section 16 of the 'Act of 1978' provides for appointment of a competent authority and an appellate authority for the purpose of the Act of 1978. The functions of the competent authority have been given in sections 9, 10, 11, 13, 14, 15A, 21, 22 & 25 of the Act of 1978. Out of these functions, the competent authority has adjudicatory powers under Section 9, wherein he hears and decides the objection against acquisition of land and buildings for the purpose of metro railway, under section 13, wherein he determines the amount payable for acquisition, under section 14, wherein he determines the persons entitled to the amount payable for acquisition and apportionment thereof among such persons, under Section 22, wherein he determines the amount payable for prohibition of construction etc. and under section 25, wherein he determines the amount payable for damages, loss or injury. The jurisdiction of the appellate authority is to hear appeals against the orders of the competent authority passed under sections 13, 22 and 25. Thus, neither the competent authority nor the appellate authority have any jurisdiction either to hear a suit of the nature filed by the plaintiff or have any power to grant the relief of the nature claimed by the plaintiff. Therefore, appointment or not appointment of these authorities is not of any consequence respecting the suit field by the plaintiff.
11. It would be necessary to notice briefly the law pertaining to the maintainability of suits in civil courts under Section 9 C.P.C. in respect of subject matter of dispute and the ambit and scope of Order VII Rule 11 C.P.C. For ready reference the provisions of (8 of 11) [CSA-2/2016] Section 9 C.P.C. and Order VII Rule 11 C.P.C. is reproduced as under :-
"Section 9.- Courts to try all civil suits unless barred.- The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.
Explanation (I). - A suit in which the right to property or to an office is contested is a suit of a civil nature notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies.
{Explanation (II).- For the purposes of this section, it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place.} "
"Order 7 Rule 11. Rejection of plaint.- The plaint shall he rejected in the following cases:-
(a) where it does not disclose a cause of action:
(b) ...
(c)...
(d) where the suit appears from the statement in the plaint to he barred by any law;
(e) ...
(f) ...
From a bare reading of Section 9 C.P.C. it is clear that the civil courts subject to provisions contained in the code have jurisdiction to try all the suits of civil nature except the suit of which cognizance is either expressly or impliedly barred. Thus it is clear that if civil court's cognizance is either expressly or impliedly barred, the civil court would have no jurisdiction to (9 of 11) [CSA-2/2016] entertain the suit which is not of civil nature.
11. Section 39 of the Act of 1978 reads as under:-
"39. Bar of jurisdiction. No suit or application for injunction shall lie in any court against the Central Government or the metro railway administration or any officer or other employee of that Government or the metro railway or any person working for or on behalf of the metro railway administration, in respect of any work done or purported to have been done or intended to be done by it or the said administration or such officer or other employee or such person in connection with the construction of any metro railway or any other work connected therewith."
12. Bare perusal of the above section 39 shows that no suit for an injunction can be entertained by any court. This is an express legislative mandate and until this mandate is there in the Statute, no court can enter upon to hear a suit or application which seeks injunction restraining any work done or intended to be done in connection with the construction of any metro railway or any other work connected there with.
13. The contention of the learned Counsel for the plaintiff- appellant that the suit could not have been dismissed on the ground which was not raised by the respondent-defendant has also not any substance as much as the point of law need not be raised in the pleadings and the court itself has to take cognizance of the law. Order 7, rule 11 (d) of CPC clearly mandates the court not to entertain a suit which is barred by any law for the time being in force.
(10 of 11) [CSA-2/2016]
14. In Anita Kushwaha v Pushap Sudan (suprs) the issue before the court was as to whether the Hon'ble Apex Court could transfer civil or criminal cases from the State of Jammu & Kashmir to a court outside that State or Vice versa. The transfer petitions were opposed on the ground that the section 25 of CPC and 406 of CrPC which empowers such transfer were not applicable in the State of Jammu & Kashmir. In this back drop the Hon'ble Court discussed the issue of access to justice an ultimately held that in absence of enabling provisions, the court was justified in invoking its powers under article 32, 136 and 142 and transferring the cases out of the State of Jammu & Kashmir to meet the ends of justice. This judgment is not of any assistance to the plaintiff-appellant for the obvious reasons that in the instant case there is an express legislative mandate not to entertain a suit for injunction. It is not a case of lack of enabling provisions but is a case of express prohibition.
15. In D.K. Basu v. State of West Bengal and Others (supra), the main issue related to constitution of Human Rights Commission in some States under the Human Rights Commission Act, 1993. The contention of the States was that that Section 12 of the said Act used the word 'may', therefore, constitution of the Commission was not mandatory. In that context, the Hon'ble Apex Court discussed the issue of access to justice and held that despite the use of word 'may' consitution of commission is mandatory. This judgment is also not helpful for the plaintiff-appellant for the reason that in the present case mandate is clear and there is no issue of violation of human rights or any fundamentals rights.
(11 of 11) [CSA-2/2016]
16. Sheela Barse v. Union of India (supra) is a case of withdrawl of a PIL and the passages quoted by the learned counsel for the plaintiff-appellant are arguments of the petitioner. The real issue in that case was whether the petitioner was entitled to withdraw the PIL or not and the Hon'ble Court held that she was not. This judgment is not relevant for the present case.
17. The passage from the article of Justice Kurian Joseph is also not helpful. The passage stresses activism of a Judge where the legislative provisions are silent, whereas, in the instant case, to the contrary, the legislative provisions are express and very emphatic.
18. There is concurrent of both the courts below. No question of law much less substantial question of law is involved in this appeal.
19. In view of the above discussion, I find no infirmity, illegality or perversity in the judgments and decress under challenge and therefore this appeal fails. Accordingly, the appeal is dismissed with cost which is quantified at Rs.25,000/-.
(PRAKASH GUPTA),J Sanjay Gaur