Orissa High Court
Puri-Konark Development Authority vs Ratna Bhadra And Ors. on 19 June, 2002
Equivalent citations: AIR2002ORI207, 2002(II)OLR128, AIR 2002 ORISSA 207, (2002) 2 ORISSA LR 128 (2002) 94 CUT LT 95, (2002) 94 CUT LT 95
Author: A.S. Naidu
Bench: Chief Justice, A.S. Naidu
JUDGMENT A.S. Naidu, J.
1. The Puri-Konark Development Authority, a creature of the Orissa Development Authorities Act (hereinafter called "the ODA Act" for brevity), has filed this writ application under Articles 226 and 227 of the Constitution of India seeking a declaration that the Civil Courts have no jurisdiction to examine any order passed under Section 91 of the ODA Act and / or pass any order of injunction restraining the Statutory Authorities constituted under the ODA Act from carrying on their statutory duties. It has also been prayed to issue appropriate direction to dismiss Title Suit Nos. 382/97, 443/97, 215/98, 217/98 and 221/98 as also Misc. Case Nos. 246/97, 277/97, 137/98, 139/98 and 144/98 respectively pending before the Civil Judge (S.D.), Puri initiated by the Opposite Parties.
2. By order dated December 15, 1998, while issuing Rule Nisi, this Court was pleased to stay further proceedings of the aforesaid suits and call for the lower court records for perusal. All the said suits have been filed inter alia challenging initiation of proceedings under Section 91 of the ODA Act as well as the notices issued under the said Act by the petitioner-Authority. For the sake of brevity and better appreciation, the prayer of Title Suit No. 443 of 1997 which is almost identical in all the suits, is quoted hereunder:
"Pass a decree of permanent injunction restraining the defendants from giving effect to the notice-cum-letter bearing No. 1226/PKDA dated 1.8.1997 (First Day of August Nineteen Hundred Ninetyseven) and 5.8.1997 (Fifth Day of August Nineteen Hundred Ninetyseven) and from interfering with the possession of the plaintiff over the suit properties and from demolishing or damaging any structure or part thereof and causing any waste and damage thereto in any manner whatsoever."
3. As the suits are admittedly pending in the court below and any observation made by us may amount to prejudging the issue, we refrain from entering into the area of factual controversies and confine our judgment only to the question of law.
4. The point of law which is raised by the petitioners in this case is whether the provisions contained in Section 91(2) of the ODA Act to the effect that the "decision of the State Government or the officer shall be final" and "shall not be questioned" in any court of law, impliedly ousts the jurisdiction of the civil court ?
5. The Legislature in its wisdom enacted the ODA Act in the year 1982 and constituted Development Authorities under the said Act. The main objective sought to be achieved, as would be evident from the Preamble of the Act, is to ensure planned development of different towns of the State and to obstruct unsystematic and unplanned growth and./ or constructions, thereby giving rise to serious distortion in future. The Development Authorities were vested with powers to prepare development plans including Zonal Development Plans, to undertake works pertaining to construction of housing colonies, shopping centres, markets, industrial estates and provide public amenities. One of its paramount duties is also to regulate development / construction and use of land including private lands and undertake schemes for improvement and clearance of slums and re-development programmes.
6. Chapter V of the ODA Act deals with development of lands. Section 15 prohibits development without permission. Under the said Section, no person including a Department of the Central or State Government or a local authority or a body corporate constituted under any law is authorised to subdivide any land for utilising, selling, leasing out or otherwise disposing of, changing the use of any land or building or undertake or carry out any development in any building or in or over any land without obtaining permission in writing from the concerned Development Authority.
7. Section 16 of the Act provides the modalities for filing applications for obtaining such permission as well as sanction.
Sub-section (3) of Section 16 specifically stipulates that on receipt of any application for permission and after making such enquiry as considered necessary in consonance With the development plan in vogue or in relation to the regulation operating the planning and building standards or any other matter, as may be prescribed under the regulation, the Development Authority shall by order in writing either grant the permission, subject to such condition, if any, as may be specified in the order, or refuse to grant such permission.
Sub-section (9) of Section 16 clearly stipulates that the order passed under Sub-section (3) shall, subject to the order passed in appeal, if any, be final.
Section 17 empowers the Development Authority, if it is satisfied that any sanction was accorded under Sub-section (3) of Section 16 by any material misrepresentation or fraudulent statement contained in the application, to revoke such permission.
Section 18 stipulates that any applicant aggrieved by order under Section 16 or under Section 17 may prefer an appeal to the State Government or an officer appointed by the State Government. Sub-section (3) of Section 18 further specifies that the decision of the appellate authority shall be final and shall not be questioned in any court of law.
8. Similarly, Sections 90 and 91 of the ODA Act deal with penal consequences for non-compliance with any of the mandatory provisions enshrined under Sections 15 and 16 of the ODA Act. Section 90 stipulates that any person who undertakes or carries out development of any land in contravention of the development plan, or without permission, approval or sanction referred to in Section 15 or in contravention of any condition, subject to which permission, approval or sanction has been granted, shall, on conviction be punishable with simple imprisonment, fine or both. Section 91 deals with removal of unauthorised development. It specifies that where any development has been commenced or is being carried on, or has been completed in contravention of the development plan or without the permission, approval or sanction, referred to in Section 15, or in contravention of any condition subject to which such permission, approval or sanction has been granted or any development deemed to be a development undertaken, carried out or completed without a permission as referred to in Section 15 under Clause (b-1) or Sub-section (2) of Section 128, the Authority or an officer empowered, may in addition to any prosecution that may be instituted under the Act, make an order directing that such development shall be removed by demolition.
Sub-section (2) of Section 91 stipulates that any person aggrieved by an order under Sub-section (1) may appeal to the State Government or an officer appointed by the State Government in this behalf against that order and the Government, or the officer, as the case may be, may after hearing the parties to the appeal, either allow or dismiss the appeal, or may reverse or vary any part of the order.
"The decision of the State Government or the officer shall be final and shall not be questioned in any Court of law."
9. Of course, the finality of the order as has been declared by the Statute qua liabilities either by express exclusion of the jurisdiction of the Civil Court or by clear implication will not affect the jurisdiction of the High Court to deal with the matter under its Writ Jurisdiction and to issue a writ in the nature of Certiorari, if the order appears to be either without jurisdiction or suffers from the error of law apparent on the face of the record or had been passed in violation of the principles of natural justice.
10. The Supreme Court in the case of Lilavati Bai v. Bombay State, AIR 1957 SC 521, faced with a similar problem regarding Bombay Land Requisition Act, 1948, observed as follows :
"In a proper case the High Court or this Court in exercise of its special jurisdiction under the Constitution has the power to determine how far the provisions of the statute have or have not been complied with."
Reference may also be made to the observations made at page 150 of the decision in Union of India v. A.V. Narasimhalu, (1970) 2 SCR 145.
11. Mr. Padhi, learned counsel for the petitioner, forcefully submitted that the ODA Act is a self-contained Act, and provides efficacious alternative redressal forums and thus the jurisdiction of the Civil Court should be impliedly construed to have been ousted. Even otherwise, it is submitted by Mr. Padhi that in the case at hand, the Civil Court acted illegally and contrary to law in restraining the Development Authority, which is a statutory authority, from exercising the statutory powers conferred on it under a Statute.
In support of his contention, Mr. Padhi relied on the decision of this Court in Secretary, Cuttack Development Authority v. Dolagovinda Sahu, 1990 (1) OLR 293. In the said case, where the facts were almost identical to the present case, a Single Bench of this Court held that no Court can restrain a Statutory Authority from exercising the Statutory powers and that the Civil Court had no jurisdiction to grant injunction and entertain a suit unless there was a challenge to the validity of the Statute and if it was found that the prescribed procedure of the Statute had not been followed.
12. While dealing with the question as to whether the Civil Court's jurisdiction to entertain a suit is barred or not, it is necessary to bear in mind the fact that there is a general presumption that there must be a remedy in the ordinary Civil Court to a citizen for redressal of his grievance. Such a remedy can be held to be barred only on very clear and unmistakable indication to the contrary in any special Statute. In other words, exclusion of jurisdiction of the Civil Court to entertain civil cases will not be assumed unless the relevant Statute contains an express provision to that effect or leads to a necessary and inevitable implication of that nature.
13. The question of exclusion of jurisdiction of the Civil Court by virtue of specific provision contained in the Special Statute has been considered on several occasions, by different Courts.
We may in this connection refer to the oft quoted decision of the Privy Council in the case of Secretary of State v. Mask & Co., AIR 1940 PC 105. At page 110, while dealing with the provisions contained in Section 188 of the Sea Customs Act (VIII of 1878), the Privy Council observed as follows ;
"Exclusion of the jurisdiction of the Civil Courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, the Civil Courts had jurisdiction to examine into cases where the provisions of the Act had not been complied with or the statutory Tribunals had not acted in conformity with the fundamental principles of judicial procedure."
14. Referring to the said judgment, AIR 1940 PC 105, the Supreme Court in the case of Firm of Illury Subbayya Chetty & Sons v. State of Andhra Pradesh, AIR 1964 SC 322, further enunciated as follows :
"..... Non-compliance with the provisions of the Statute to which reference is made by the Privy Council must, we think, be non-compliance with such fundamental provisions of the statute as would make the entire proceedings before the appropriate authority illegal and without jurisdiction. Similarly, if an appropriate has acted in violation of the fundamental principles of judicial procedure, that may also tend to make the proceedings illegal and void and this infirmity may effect the validity of the order passed by the authority in question. It is cases of this character where the defect or the infirmity in the order goes to the root of the order and makes it in law invalid and void that these observations may perhaps be invoked in support of the plea that the Civil Court can exercise its jurisdiction notwithstanding a provision to the contrary contained in the relevant statute."
15. In the case of Anwar v. First Addl. District Judge, AIR 1986 SC 1785, the jurisdiction of the Authority under the Motor Vehicles Act (4 of 1939) vis-a-vis Civil Suit seeking injunction restraining the Authority from discharging the duties conferred under the Statute once again came up for consideration and the Supreme Court observed that where the Statute gives finality to the orders of a special tribunal, the Civil Court's jurisdiction must be held to be excluded, insofar as merit of the case is concerned. If jurisdiction is so excluded, the Civil Courts have jurisdiction only to examine whether the provisions of the Statute have not been complied with, or the Authority had or had not acted in conformity with the fundamental principles of judicial procedure. According to the ratio of the aforesaid decision, whenever Statute uses the expression that a decision of an Authority shall be final, the jurisdiction of a Civil Court to go into correctness or otherwise of the decision is taken away so far as merit of the case is concerned.
16. At this juncture, we feel that the Civil Court, where a plaint is presented has to deal with it in accordance with the provisions of Order 7, Rule 11 of the Code of Civil Procedure and only if it is satisfied that there is scope for entertaining the suit within the limited scope, it should proceed with it or it should reject the plaint at the threshold.
17. In the case of Chandrakant Tukaram Nikam and Ors. v. Municipal Corporation of Ahmedabad and Anr., JT 2002 (1) SC 578, while dealing with the Industrial Disputes Act, relying upon a Constitution Bench decision in the case of Dhulabhai and Ors. v. State of M.P. and Anr., (1968) 3 SCR 662, the Supreme Court reiterated its earlier view and held that an exclusion of the jurisdiction of the Civil Court is not readily to be inferred unless the Statute gives a finality to the order of the Special Tribunals / Authorities and the Tribunals/Authorities are entitled to grant adequate remedies that the Civil Court would normally do in a suit, and only in such circumstances the Civil Court's jurisdiction can be inferred to be excluded. But then, the Court also added that the Civil Court would normally do in a suit, and only in such circumstances the Civil Court's jurisdiction can be inferred to be excluded. But then, the Court also added that the Civil Courts' jurisdiction cannot be said to be excluded, if it is alleged that the provisions of a particular Act has not been complied with, or that the Statutory Tribunals / Authorities have not acted in conformity with the fundamental principles of judicial procedure.
18. After hearing the learned counsel for the parties in extenso and after perusal of the materials on record, we find that the O.D.A. Act has provided for adequate efficacious remedy for redressal of the grievance of a citizen who undertakes development / construction over his land in the shape of appeal to the State Government or to the official designated by the State Government and of course, thereafter he can approach Court invoking its Certiorari Jurisdiction. Similarly, the person aggrieved by an order of demolition passed under Section 91 of the O.D.A. Act, has adequate and efficacious remedy in the shape of appeal before the State Government and thereafter he has a right to approach this Court and invoke its Certiorari Jurisdiction.
19. The Legislature in its wisdom has made the decisions under the Act conclusive and final with a further stipulation that the same shall not be questioned in any court of law and it is not for this Court to question that wisdom. Thus, the conclusion is irresistible that without exhausting the remedies stipulated under the Special Statute, i.e. ODA Act, a person cannot knock at the dbors of a Civil Court and that the Civil Court has no jurisdiction to entertain such a suit.
20. It may be borne in mind that the ODA Act has been enacted by the Legislature to provide speedy, inexpensive and effective forums for resolution of disputes arising within the scope of the said Act. The powers of the forums created under the ODA Act are wide and the appellate authorities are empowered to grant adequate reliefs they think just and appropriate, as would be evident on a reading of Sub-section (2) of Section 91 which stipulates that the Government or the officer, as the case may be, may after notice to the parties to the appeal, either allow or dismiss the appeal, or may reverse or vary any part of the order. The Legislature also thought it just and prudent to give a finality to such decision arrived at by the appellate authority, subject of course to the power of the High Court under the Constitution, and we find no reason to question such wisdom of the Legislature.
21. In the aforesaid premises and in view of the discussions made above, we hold that the jurisdiction of the Civil Courts is impliedly barred, so far as the redressal of the grievance for which adequate provisions have been enacted under the ODA Act. The Civil Court has also no jurisdiction to grant interim injunctions restraining the Statutory Authorities from exercising the Statutory Powers conferred upon them. But then the Civil Courts shall have jurisdiction to examine cases where there are allegations that the provisions of the Act have not been complied with or the Statutory Authorities have not acted in conformity with the fundamental principles of judicial procedure as has been held by Lord Thankerton in the famous Mask case (supra).
22. It is pertinent to mention here that in this Writ Petition the propriety or otherwise of the order of injunction of the Court below has not been challenged and we have no scope to interfere with the same. But in the light of the observations made above, it would be open to the parties to move the Court below for appropriate orders and that Court would be bound to re-examine the matter.
With the aforesaid observations, the Writ Petition is allowed to the extent indicated. The parties to bear their own costs.
P. K. Balasubramanyan, C.J.
I agree.