Gauhati High Court
Sri Manzoor Alam vs Smti Ila Pathak And 3 Ors on 11 February, 2020
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/11
GAHC010081832018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : FAO 22/2018
1:SRI MANZOOR ALAM
S/O LATE KAUSAR ALAM, R/O COLE ROAD, AKBAR PATTY, AZIZ MANJIL,
OPPOSITE TO MASJID P.O. AND P.S. DIBRUGARH, DIST. DIBRUGARH,
ASSAM, PIN 786001
VERSUS
1:SMTI ILA PATHAK AND 3 ORS,
PROPRIETOR OF M/S HILLS AND PLAINS EMPORIUM, W/O LATE
BHAGWAN PATHAK, R/O AKHASHI PATH, AMOLA PATTY, P.O. AND P.S.
DIBRUGARH, DIST. DIBRUGARH, ASSAM.
2:SRI RAKESH KUMAR ACHANTANI
PROPRIETOR OF TRIPLEX
S/O LATE MOTILAL ACHANTANI
R/O MANCOTA ROAD
P.O. AND P.S. DIBRUGARH
DIST. DIBRUGARH
ASSAM.
3:SRI PANCHAM SINGH
PROPRIETOR OF M/S ASIATIC TRADERS
S/O LATE SHIVA NATH SINGH
R/O JOGESH DAS PATH
KHALIHAMARI
PO. AND P.S. DIBRUGARH
DIST. DIBRUGARH
ASSAM.
4:THE ADDL. DEPUTY COMMISSIONER CUM CEO
DIST. DISASTER MANAGEMENT AUTHORITY
DIBRUGARH OFFICE OF THE DEPUTY COMMISSIONER
Page No.# 2/11
DIBRUGARH
ASSAM
PIN 78600
BEFORE
HON'BLE MR. JUSTICE KALYAN RAI SURANA
Advocates for the appellant : Mr. Y.S. Mannan,
Advocates for respondent : Mr. P.K. Kalita, Senior Advocate,
: Mr. N. Das, : Mr. C.K.S. Barua, Govt. Advocate.
Date of hearing : 09.01.2020.
Date of judgment : 11.02.2020.
JUDGMENT AND ORDER
Heard Mr. Y.S. Mannan, the learned counsel for the appellant. Also heard Mr. P.K. Kalita, the learned senior counsel, assisted by Mr. N. Das, the learned counsel for the respondents No.1, 2 and 3 and Mr. C.K.S. Barua, the learned Govt. Advocate, appearing for respondent No.4.
2) This appeal under Order XLIII read with section 104 CPC has been filed to challenge the order dated 16.02.2016, passed by the learned Civil Judge, Dibrugarh in Misc. (J) Case No. 86/2015 in Title Suit No. 99/2015, by which the said learned Court had held, inter-alia, that the suit filed by the respondents No.1, 2 and 3 was maintainable, and the further extension of the order of status quo dated 22.12.2015 was allowed till further orders.
3) The case in brief, necessary for the purpose of this order is that the respondents No.1, 2 and 3 are the plaintiffs in the suit. The appellant and the respondent Page No.# 3/11 No.4 are arrayed as the defendant Nos.1 and 3 in the suit. In the plaint, it was projected that the brother of the appellant's father was the owner of ground floor of the building in question, having 6 (six) commercial tenants. Out of the said tenants, the respondents No.1, 2 and 3 are 3 (three) tenants, who purchased the shops together his proportionate share in the land from out of the share of the said brother of the appellant's father. Accordingly, the names of the respondents No.1, 2 and 3 were mutated in respect of their purchased property. On death of the appellant's father, the appellant inherited his estate. The Addl. Deputy Commissioner - cum - CEO, District Disaster Management Authority, by his letter dated 20.03.2015, made some request to the Executive Engineer, PWD, Dibrugarh Building Division, who by his letter dated 27.07.2015, portrayed the building as damaged and recommended demolition or extensive restoration and retro-fitting and the Executive Engineer, PWD also issued a cessation certificate dated 27.08.2015 to demolish the building. Accordingly, the respondent No.4, by issuing notice, called the concerned parties to his office for discussion and thereupon, prepared a Minutes of Meeting held on 04.12.2015, inter-alia, stating that the respondents No.1, 2 and 3 would have one month's time and additional 15 day's time till 19.01.2016 to vacate the building, the appellant would have 6 month's time to construct new building (at least the ground floor), which included the time for demolition of building and upon completion, the appellant would hand over possession of commercial establishments to their owner as per their mutual agreement.
4) The aggrieved respondents No.1, 2 and 3 then instituted the suit and amongst others, prayed (i) for declaration that the respondent No.4 had issued the cessation certificate dated 27.08.2015 without their knowledge and on request of the appellant, which was illegal, inoperative and liable to be set aside; (ii) for declaration that finding by the respondent No.4 vide order dated 04.12.2015 for demolition of the building and for reconstruction of shop premises of the respondents No.1, 2 and 3 by the appellant was illegal, inoperative and liable to be set aside; (iii) for declaration that there is no damage to the ground floor of the said R.C.C. building and the appellant had no right to dismantle the ground floor and construct multistoried building on the land of the said respondents; (iv) for declaration that the respondents No.1, 2 and 3 had right, title and interest over their Page No.# 4/11 respective land and shop premises, which cannot be curtailed by the defendants; for cost, etc. The said suit was filed on 22.12.2015.
5) From the order impugned herein, it appears that on 05.02.2016, the learned Govt. Pleader had filed petition bearing No. 143/16, stating that the suit was barred under Section 71 of the Disaster Management Act, 2005. As per the order, although no specific petition was filed under Order VII Rule 11(d) CPC, it is recorded that both sides had fairly conceded that the Court can hear the parties on the question of maintainability of the suit even in the absence of petition under Order VII Rule 11(d) CPC. Upon hearing the learned counsel for the contesting parties, the learned trial Court held that there were facets in the suit, one relating to action taken by the respondent No.4 and the other relating to right, title and interest of the respondents No.1, 2 and 3. Upon discussing case laws, relied upon by the contesting parties, it was held that every order passed and every action done by the authority would not be immune from challenge in the Court of law and that such act must be done in pursuance of the powers conferred by or in relation to the functions of the authority as enumerated under the Act. The learned Court below questioned the legality of the order by respondent No.4, allowing the appellant to carry out construction and at the same time keeping the respondents No.1, 2 and 3 out although they were owners of the ground floor of the building. The Court also found fault with the order dated 04.12.2015, wherein reference was made to mutual agreement by mentioning that the said authority did not consider whether any such agreement existed or not. Accordingly, it was held that under the garb of the order, the respondent No.4 gave a go-bye to the legal and civil rights of the respondents No.1, 2 and 3. Thus, by holding that the respondent No.4 had acted beyond its powers under the Act, as such, the suit was not barred under Section 71 of the said Disaster Management Act, 2005. Accordingly, the suit was held to be maintainable. By referring to the petition No. 412/2016, filed by the respondents No.1, 2 and 3, further extension of status quo order was allowed.
6) Assailing the impugned order, it has been submitted by the learned counsel for the appellant that the appellant had initially challenged the said order under Section 115 Page No.# 5/11 CPC read with Article 227 of the Constitution of India. However, this Court by order dated 08.01.2018 in CRP 182/2016, though dismissed the revision on technical grounds, but permitted the appellant to approach the appropriate appellate forum, and, as such, it is submitted that the present appeal has been preferred. It is submitted that under the provisions of Section 71 of the Disaster Management Act, 2005 save and except the Supreme Court of India and the High Court, the jurisdiction of the civil Court was specifically barred. Hence, by referring to the provisions of Section 9 CPC, it is submitted that without admitting, even if it is assumed for the sake of argument that the actions taken by the respondent No.4 was not sustainable, yet the aggrieved party had alternative remedy available to challenge such action before the Courts as mentioned in Section 71 of the said 2005 Act. It is also submitted that keeping in mind the purpose of the Disaster Management Act, 2005, the provisions of Section 71 thereof must be strictly adhered to. In support of his submissions, the learned counsel for the appellant had relied on the following three cases, viz., (i) Gundaji Satwaji Shinde Vs. Ramchandra Bhikaji Joshi, AIR 1979 SC 653 (para- 14 to 18); (ii) Srikant Kashinath Jituri Vs. Municipal Corporation of the city of Belgaum, (1994) 6 SCC 572 (para- 7 & 8); and (iii) Sahebgouda (Dead) by LRs. & Ors. Vs. Ogeppa & Ors., (2003) 6 SCC 151 (para- 8).
7) Per contra, the learned senior counsel for the respondents No.1, 2 and 3 has submitted that the appeal was not maintainable because of the fact that the appellant did not file any application for rejection of plaint and, as such, he cannot be the aggrieved party to maintain this appeal. It is also submitted that this Court, by order dated 08.01.2018 in CRP 182/2016, while dismissing the civil revision petition filed by the appellant had clearly held that even if the appellant had supported the petition filed by the learned Govt. Pleader on behalf of some of the defendants, the same will not give any locus to the petitioner to assail the order dated 16.02.2016 regarding the finding that the suit was maintainable. However, in so far as it related to extension of the order of status quo, this Court had observed that the appellant could approach the appellate forum. Hence, it is submitted that the appellant could have only agitate his grievance only against the order of extension of the order of status quo and not to challenge the issue of maintainability of the suit, because the judgment and order Page No.# 6/11 dated 08.01.2018, passed by this Court in CRP 182/2016 had attained finality.
8) It is submitted that in order to appreciate the legality of the impugned order, this Court would also like to examine whether nor not the action taken by the respondent No.4 was in accordance with the provisions of the Disaster Management Act, 2005 and moreover, as the respondents No.1, 2 and 3 had raised the question of determination of their right, title and interest, the respondents as plaintiffs would suffer prejudice if the suit is allowed to proceed for some part of relief and not in respect of the whole claim.
9) The learned Govt. Advocate has made his submissions in support of the present appeal and against the order impugned herein.
10) Perused the materials available on record. It would be relevant to mention at the outset that there is no dispute at the Bar that the appellant had not filed any petition for rejection of plaint. This Court, in the order dated 08.01.2018, passed in CRP No. 182/2016, inter-alia, had observed as quoted hereunder:-
"... The instrumentalities of the State, who are the defendants in the suit, have not assailed the aforesaid order dated 16.02.2016.
But the present petition is filed by the defendant No.1, who had not raised any issue regarding maintainability of the suit by filing any petition. Even if the defendant No.1 had supported the petition filed by the learned Government Pleader on behalf of some of the defendants, the same will not give any locus to the petitioner to assail the order dated 16.2.2017 regarding the finding that the suit was maintainable.
If the petitioner was aggrieved in any manner by continuation of the order of status quo passed earlier, the remedy was available to him to approach the appropriate appellate forum. This petition cannot be pressed into service for interfering with the continuance of order of status quo passed earlier.
Page No.# 7/11 In view of the above discussion, his petition is dismissed. No cost ."
11) Thus, the inevitable conclusion that can be drawn from the above quoted portion of the said order dated 08.01.2018 is that this Court had held in no uncertain terms that the appellant herein would have no locus to assail the order dated 16.02.2016, in so far as it relates to order of maintainability of suit, but, the subject matter of this present appeal is the order of maintainability of the suit. Thus, the present appeal is not sustainable in view of the said order dated 08.01.2018, passed by this Court in CRP 182/2016, which has attained finality.
12) Having decided that the appeal was not maintainable, there appears to be an issue which is deemed appropriate to be addressed. No doubt that in the cases cited by the learned counsel for the appellant, it has been held that the civil Court has jurisdiction to try all suits of civil nature excepting suits of which their cognizance is either expressly or impliedly barred. There is no quarrel with the said well settled principle. However, in this case, the learned trial Court had given a categorical finding to the effect that the respondent No.4 had allowed only the appellant to demolish the structure, and to carry out new construction, however, at the same time, the respondent Nos.1, 2 and 3 were excluded although they were owners of the ground floor of the building in question and moreover, in the order dated 04.12.2015 passed by the respondent No.4, reference was made to mutual agreement, but the said authority did not consider whether any such agreement between space owners of the said building proposed to be demolished had existed or not. Under such circumstances, when the learned trial Court had held that under the garb of the order, the respondent No.4 gave a go-bye to the legal and civil rights of the respondents No.1, 2 and 3 and thus, the respondent No.4 had acted beyond its powers under the Disaster Management Act, 2005 and, as such, it was held that the suit was not barred under Section 71 of the said Disaster Management Act, 2005. In this regard, the Court is reminded of the case of Shiv Kr. Chadha Vs. M.C. Delhi & Ors., (1993) 3 SCC 161 (FB) . By referring to the powers vested in the Delhi Municipal Corporation under Section 343(i) of the Delhi Municipal Corporation Act, inter-alia, held that the Court should not ordinarily entertain a suit in connection with the proceedings Page No.# 8/11 initiated for demolition by the Commissioner in terms of Section 343(i) of the Act and the Courts should direct the persons aggrieved to pursue the remedy before the Appellate Tribunal and then before the Administrator in accordance with the provisions of the said Act. However, the Courts should entertain a suit questioning the validity of an order passed under Section 343 of the Act only if the Court is of prima facie opinion that the order is nullity in the eyes of law because of any jurisdictional error in exercise of the power by the Commissioner or that the order is outside the Act. This is a principle, which the Division Bench of this Court had laid down in the decision of Chairman, Doomdooma Town v. Jugal Prasad, (1965) ILR VI Assam 1. In this context, it would be relevant to quote paragraph 12 of the case of Islamuddin Ahmed Vs. Dr. Bijoy Singh Baid, AIR 2018 CC 859: (2017) 4 GLJ 531: (2018) 2 GLR 350: 2017 (3) GLT 420: (2017) 3 NEJ 479: (2017) 0 Supreme(Gau) 1103 , as under:
"12) On the perusal of the cases cited by the learned counsel for the parties, this Court is of the opinion that only the case of Debendra Ojha Vs. The Barpeta Municipal Board & Anr., (1984) 1 GLR 386 (DB) is relevant under the facts of the present case. It would be relevant to mention that while deciding the said case, the Hon'ble Division Bench of this Court had relied on the case of Chairman, Doomdooma Town v. Jugal Prasad, (1965) ILR VI Assam 1, wherein by referring to Section 320 of the Assam Municipal Act, 1923, which is precisely the same as the provisions of Section 326 of the Assam Municipal Act, 1956, it was held that expression "for anything done under the Act" mean acts strictly done under the Act and not those acts which the Board do in purported exercise of its powers. It was held that it would not be sufficient to apply the provisions even if it is established that the Board did something purporting to exercise its power under the Act. The relevant paragraph 3, 5, 6 and 8 are quoted below:
"3. The provisions of the Act lay down a complete procedure for taking action under the Act, Rules and Bye-laws. Apart from this procedure they enable a person aggrieved by any action of the Board or its officers in obtaining the necessary relief. Now, are the provisions of Section 326 of the Act applicable to all acts or actions of the Board? Broadly speaking there may be three classes of actions. First, action taken conformable with the Page No.# 9/11 provisions of the Act, within the jurisdiction of the Board or its officers. Secondly, an action may be professedly done under the Act which is sometimes staled as act purportedly done. The third category of action may be wholly illegal, in contravention of "the Act" or act beyond the jurisdiction of the Board. In our opinion the second and third categories of actions do not fall within the ambit of Section 326 of "the Act" The expressions used in Section 326 takes within their folds only such act which is "done under this Act or any rule or bye-law" and, excludes all other actions, including act done in purported exercise of the power. An action having the appearance of being done under the Act, rules or bye-laws have been omitted, whereas similar acts are saved in other laws. Acts done contrary to law but bona fide done also do not fall within the Section. Only "action directed" or action founded on strict law and conducted according to fixed forms falls within the ambit of Section 326. No purported action done contrary to the provisions of the Act does attract Section 326. Therefore, if the Board acts strictly within its jurisdiction or takes action fulfilling the requirements or the provisions of the Act, the case may fall within Section 326 otherwise not.
5. In our opinion purported acts do not attract Section 326 of "the Act". Section 326 is also not attracted when the action is 'ultra-vires' or illegal or wrongful. Professedly done acts, though seem to have been done in pursuance of the Act, are done without a vestige or semblance of authority or short of a right in the Board or its officers doing those Acts, therefore, such acts also do not fail within Section 326. Only the acts done strictly in conformity with the provisions of the Act attract the provisions of Section
326.
6. We find that the areas of operation of Section 326 is very much constricted. Even colourable exercise of the powers or actions professedly done do not fall within the contours of Section 326. While reaching the conclusion we have derived considerable assistance from Chairman, Doomdooma Town Committee v. Umed Sarma, S.A. No. 124 of decided on Page No.# 10/11 22.07.1980 by Hansaria. J.
7. xxx
8. If the Municipality threatens a person to evict him from his property without any authority of law or threatens to evict a lawful owner of a property on the assumption that the Board is the owner of the property, is the person threatened by the action obliged to serve notice, wait for two months? By that time he might be evicted unless he obtains an appropriate order from a competent Court questioning the validity of the actions. No such illegal act or action professedly done under the Act can stand as a bar to action under Section 326 of "the Act"."
13) Thus, it appears that when the learned trial Court has arrived at a prima facie finding that under the garb of the order, the respondent No.4 gave a go-bye to the legal and civil rights of the respondents No.1, 2 and 3 and thus, the respondent No.4 had acted beyond its powers under the Disaster Management Act, 2005 by following the ratio of the case of Shiv Kumar Chadha (supra) and Debendra Ojha (supra), this Court is of the view that there appears to be no infirmity with the impugned order passed by the learned Court below.
14) Moreover, in the case of Sejal Glass Ltd. Vs. Navilan Merchants Pvt. Ltd., (2018) 11 SCC 780, the Supreme Court of India, while dealing with the provisions of Order VII Rule 11 CPC, held that the provision refers to the "plaint" which necessarily means the plaint as a whole. It was held that only where the plaint as a whole does not disclose a cause of action that Order VII Rule 11 springs into being and interdicts a suit from proceeding, further holding that if the plaint survives against certain defendants and/or properties, Order 7 Rule 11 CPC will have no application at all, and the suit as a whole must then proceed to trial. In this regard, reference was made to other provisions of the CPC that if only a portion of the plaint, as opposed to the plaint as a whole, is to be struck out. Therefore, it appears that if one part of the suit survives and if for the other part of relief, the parties are sent to another forum, it would lead to multiplicity of proceedings and would give rise to chances of Page No.# 11/11 conflicting decisions in such multiple proceeding.
15) In view of the discussions, above, having seen that by order dated 08.01.2018, passed by this Court in CRP 182/2016, it was already held that the appellant had no locus to assail the order dated 16.02.2016 regarding the finding that the suit was maintainable, which had attained finality, this appeal fails and accordingly, this appeal stands dismissed.
16) The parties are left to bear their own cost.
JUDGE
Comparing Assistant