Bombay High Court
Girish Manohar Wazalwar vs Purushottam Parasram Kotangale on 28 March, 1995
Equivalent citations: 1996(4)BOMCR88, (1995)97BOMLR44, 1995 A I H C 5858, (1996) 1 CURCC 141, (1996) 1 MAH LJ 673, (1996) 2 ICC 246
Author: R.M. Lodha
Bench: R.M. Lodha
JUDGMENT R.M. Lodha, J.
1. Group of all these civil revision applications arise out of the common order dated 29-10-1994 passed by the 2nd Joint Civil Judge, Junior Division, Nagpur, in six separate suits deciding the preliminary issue regarding jurisdiction and since common questions are involved in all these six civil revision applications, these revision applications have been heard together and are disposed of by the common order.
2. The Nagpur Improvement Trust (for short 'N.I.T.') issued the notice under section 286(2) of the City of Nagpur Corporation Act, 1948 (for short 'the Corporation Act') read with section 52 of the Nagpur Improvement Trust Act (for short 'the N.I.T. Act') to Girish Manohar Wazalwar (owner of the property and applicant in all the revision applications), Shri Hokchand Rupchand Jankalyani, Shri Purshottam Parasram Kotangale (tenant and non-applicant No. 1 in C.R.A. No. 1362/94), Shri Dulichand Shriram Dhawariya (tenant and non-applicant No. 1 in C.R.A. No. 1363/94), Shri Keshanand Tanumal Chawlani (tenant and non-applicant No. 1 in C.R.A. No. 1364/94), Shri Benzamin Anthony Carlo (tenant and non-applicant No. 1 in C.R.A. No. 1365/94), Shri Chetan Rupchand Jaikalyani (tenant and non-applicant No. 1 in C.R.A. No. 1366/94) and Shri Hotchand Rupchand Jaikalyani (tenant and non-applicant No. 1 in C.R.A. No. 13670/94) on 30-6-1994, asking the aforesaid persons to remove the unauthorised constructions as mentioned in aforesaid notices, being in possession of the aforesaid six tenants and the property owned by the own Girish Manohar Wazalwar. On the receipts of the said notice, all the aforesaid tenants filed separate applications under section 286(3) of the Corporation Act read with section 52 of the N.I.T. Act for extension of time before the District Court, Nagpur. Each of the tenants in the application filed under section 286(3) of the Corporation Act read with section 52 of the N.I.T. Act prayed that the time mentioned in the notice dated 30-6-1994 be extended by three months from the date of the application. It was inter alia, averred in the applications by the tenants that they were occupying the premises as tenants owned by the owner Girish Manohar Wazalwar for the last more than 32 years and they have been paying the rent to the landlord regularly. According to the tenants, the said notice have been got issued by the owner landlord from the N.I.T. with an attempt to evict the tenants and oust them from premises, depriving them of the peaceful enjoyment of the premises and civil rights. Thus, it was averred by the tenants that the notice issued by the N.I.T. was illegal, mala fide and an act of colourable exercise of power. The tenants clarified in the applications that the notice issued by the N.I.T. and received by them would be challenged by them in civil suit and since the mandatory notice under section 115 of the N.I.T. Act is necessary, the time given in the notice deserves to be extended, so that statutory compliance of section 115 of the N.I.T. Act could be done. The applications filed by the tenants under section 286(3) of the Corporation Act read with section 52 of the N.I.T. Act were allowed by the 6th Additional District Judge, Nagpur, by an order dated 20-7-1994 and it was directed that the period of notice of 28 days is extended by two months from the date of the said order. The tenants then served upon the notice under section 115 of the N.I.T. Act and filed six separate suits in the Court of the 2nd Joint Civil Judge, Junior Division, Nagpur, against the N.I.T. In the said suits, the owner/applicant moved an application for impleadment and accordingly he has been impleaded as defendant No. 2 in the suits. In all the suits, the tenants averred that they were tenants in the premises and the notice has been issued by defendant No. 1 in collusion with defendant No. 2 since the owner wanted the premises to be got vacated from them without following the process of law. According to the tenants/plaintiffs the defendant No. 2/owner intended to evict all the tenants by instigating the officials of the N.I.T. to demolish the suit property in the occupation of the tenants on the false ground of unauthorised construction. The defendant No. 2 owner succeeded in his unlawful design and has got the impugned notice for demolition under section 286(2) of the Corporation Act read with section 52 of the N.I.T. Act issued. The tenants set up the ground that issuance of notice by the N.I.T. was mala fide. The tenants in the suit also averred that the suit premises were constructed by the father of the owner about 50 years before and during all this time no action was ever taken by the N.I.T. and, therefore, the N.I.T. by issuing the notice has exceeded its jurisdiction.
3. Along with the plaints, the tenants made applications for grant of temporary injunction and the defendant No. 2 owner in his reply to the applications under Order XXXIX rules 1 & 2 of the Code of Civil Procedure filed by the tenants, raised an issue that the civil Court has no jurisdiction to entertain the suits and since the issue of jurisdiction goes to the root of the case, the owner (present applicant) prayed that the question of jurisdiction be decided as preliminary issue. On the application filed by the applicant under section 9-A of the Code of Civil Procedure, the trial Court in all the suits framed the preliminary issue, viz -
"Whether this Court has jurisdiction to try this suit ?"
Though the trial Court permitted the parties to lead evidence on the preliminary issue, yet the parties did not lead any oral evidence and prayed that the said issue be decided on the existing material.
4. The trial Court after hearing the learned Counsel for the parties by the common order dated 29-10-1994 has held that the Civil Court has jurisdiction to try the suits filed by the plaintiffs.
5. Upset by this common order passed by the 2nd Joint Civil Judge, Junior Division, Nagpur, dated 29-10-1994 in all the six suits, the present six revision applications have been filed by the applicant (owner) as aforesaid.
6. Shri C.S. Kaptan, the learned counsel appearing on behalf of the applicant (owner) strenuously urged that the jurisdiction of the Civil Court was barred in view of the provisions contained in section 286(5) and section 287 of the Corporation Act. Shri Kaptan would urge that the provisions contained in section 286(5) of the Corporation Act provide the complete machinery for the reliefs sought for in the suits and the tenants/plaintiffs having already filed the application under section 286(3) of the Corporation Act for extension of time, could not have filed the present suits under section 287 of the Corporation Act. Thus, Shri Kaptan contended that the suits were expressly barred under section 287 that the Corporation Act since it related to matters which would be settled, decided or dealt with by the Corporation under Chapter XXIV of the Corporation Act. Shri Kaptan also contended that the trial Court erred in relying upon the judgment of the Apex Court in Shiv kumar Chadda v. Municipal Corporation and others, .
7. On the other hand, the learned Counsel appearing on behalf of the tenants/plaintiffs, vehemently contended that the jurisdiction of the Civil Court is neither expressly nor impliedly barred under the Corporation Act and N.I.T. Act and, therefore, the Civil Court had not committed any error of jurisdiction in dismissing the application filed by the applicant/owner on the ground that the Civil Court had no jurisdiction. The learned counsel for the tenants/plaintiffs also contended that section 286(5) and section 287 of the Corporation Act have no application and the statutory notice having been given by them under section 115 of the N.I.T. Act, the Civil Court had jurisdiction to entertain the suits. The learned Counsel for the tenants/plaintiffs thus supported the reasons given by the trial Court in the order dated 29-10-1994 impugned in the present revision applications.
8. I have bestowed my anxious consideration to the respective contentions raised by the learned counsel for the parties and have perused the impugned order passed by the trial Court and other relevant material placed on the record of the revision applications.
9. Certain sections of the Corporation Act, which include sections 284 to 289 of the Corporation Act, so far as they are consistent with the tenor of the N.I.T. Act, are applicable to the area in respect of which improvement scheme is enforced and for the period during which such scheme remains in force under section 52 of the N.I.T. Act. Section 284 of the Corporation Act empowers the Corporation to regulate the line of building. Section 285 of the Corporation Act deals with compensation to the owner for damage or loss that may be sustained and covered under the same section. Sections 286 and 287, which are very material for appreciating the contentions raised by the learned counsel for parties, read as under :
"286. (1) If any building is erected or re-erected in contravention of any town-planning scheme mentioned under section 271 of any building bye-laws made under section 415, the Commissioner without prejudice to his right to take proceeding for fine in respect of the contravention, may be by notice require the owner either to pull down or remove the work or, if he so elects, to effect such alterations therein as may be necessary to make it comply with the said scheme or bye-laws.
(2) if a building is erected or re-erected-
(a) without any sanction as required by section 273(1), or
(b) when sanction has been refused, or
(c) in contravention of the terms of any sanction granted, or
(d) when the sanction has lapsed under section 279, the Commissioner may by notice required the owner or owners to alter or demolish the building within such reasonable time as the commissioner may think fit.
(3) If a person to whom a notice has been given under the foregoing provisions of this section fails to comply with the notice before the expiry of twenty-eight days, or such longer period as the District Court, Nagpur, may on his application allow, the Commissioner may pull down or remove the work in question, or effect such alteration therein as he deems necessary and may recover from him the expenses reasonably incurred by the Commissioner in so doing.
(4) If the plans are approved by the Commissioner and the approval is communicated to the person intending to build the house or if the plans are rejected by the Commissioner but no notice of their rejection is given to the person intending to build the house within the prescribed period, it shall not be open to the Commissioner to give a notice under sub-section (1) and (2) on the ground that the building is erected or re-errect in contravention of any scheme or bye-laws or any other requirements under this Chapter.
(5) Nothing in this section shall affect the right if the Corporation or any other person to apply to the District Court, Nagpur, for an injunction for the removal or alteration of any building on the ground that it contravenes any provision of this Act or of the bye-laws made thereunder, but if the building is one in respect of which plans have been deposited and the plans have been passed by the Commissioner or notice that they have been rejected has not been given within the prescribed period after the deposit thereof and if the work has been executed in accordance with the plans, the Court on granting in injunction shall have power to order the Corporation to pay to the owner of the work such compensation as the Court thinks just, but before making any such order the Court shall cause the Commissioner if not a party, to be joined as a party to the proceeding."
"287. Save as otherwise expressly provided in this Act or rules made thereunder, no Civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Chapter required to be settled, decided or dealt with by the Corporation or the Commissioner."
10. A careful scan of the said provisions would reveal that under sub-section (1) of section 286, if any building is erected or re-erected in contravention of any town-planning scheme, the Commissioner may by notice require the owner either to pull down or remove the work which is in contravention of such scheme. This notice requiring the owner to pull down or remove the work in contravention of the scheme, is without prejudice to his right to take proceedings for imposition of fine for such contravention. Sub-section (2) of section 286 makes the provision that the Commissioner may by notice require the owner or owners to alter or demolish the building within such reasonable time as may be directed by him when the building is erected or re-erected without any sanction as required by section 273(1), or when sanction has been refused, or in contravention of the terms of any sanction granted, or when the sanction has lapsed under section 279. On receipt of the notice under sub-section (2) of section 286, a person to whom the notice has been given, before expiry of 28 days or such period as the District Court, Nagpur, may on the application of such person allow fails to comply with the notice for the extended period, the Commissioner may pull down or remove he work, or effect such alteration therein as he deems necessary, under sub-section (3) of section 286. Thus, under sub-section (3) of section 286, a person to whom notice has been given can seek extension of time from the District Court, Nagpur, beyond the time given in the notice by the Commissioner under sub-sections (1) or (2) of section 286. As per sub-section (4) of section 286, if plans are approved by the Commissioner and the approval is communicated to the person intending to build the house, or if the plans are rejected by the Commissioner but notice of rejection is given to the person intending to build the house with the prescribed period, the Commissioner is not empowered to give notice under sub-sections (1) and (2) of section 286, on the ground that the building is erected or re-erected in contravention of any scheme or bye-laws or any other requirements under this Chapter. Right of the Corporation or any other person is not affected to apply to the District Court, Nagpur, for an injunction for the removal or alteration of any building on the ground that it contravenes any provision of the Corporation Act or any bye-laws made thereunder subsection (5) of section 286. However, if the building is one in respect of which plans have been deposited or plans have been passed by the Commissioner, or that they have been rejected has not been given within the prescribed period after the deposit thereof and if the work has been executed in accordance with the plans, the Court on granting an injunction may order the Corporation to pay to the owner such compensation as the Court may fix, but such order shall only be passed after the Commissioner is joined as a party to the proceeding. It would be thus seen that sub-section (5) of section 286 only protect the right of the Corporation or nay other person for seeking appropriate orders from the District Court, Nagpur, against any person, who contravenes the provisions of the Corporation Act or the bye-laws made thereunder. Sub-section (5) of section 286 does not provide any remedy to the person, who is aggrieved by the illegal or unauthorised act or action of the Corporation or who intends to challenge the action of the Corporation in issuance of the notice under sub-sections (1) & (2) of section 286. No remedy is provided under section 286 to a person who is aggrieved the notice send upon him under sub-sections (1) & (2) of section 286, if the said notice is not in accordance with law or without jurisdiction or has been issued in colourable exercise of the power or mala fide or bad in law for any other reason. Rather this sub-section (5) of section 286 only provides that even if a notice is given by the Corporation under sub-sections (1) & (2) for its compliance thereof, in addition thereto, the Corporation or any other person aggrieved by the contravention of the provisions of the Corporation Act or the bye-laws by any person, may apply to the District Court, Nagpur, for appropriate orders. Thus, it is clear that section 286 does not provide any remedy to a person who is aggrieved by the notice given by the Corporation under sub-sections (1) & (2) of section 286, except seeking extension of time under sub-section (3) of section 286 from the District Court, Nagpur.
11. Section 287 of the Corporation Act bars the jurisdiction of the Civil Court to extend the questions which are required to be settled, decided or dealt with by the Corporation or the Commissioner under Chapter XXIV of the Corporation Act, are sought to be settled, decided or dealt with from the Civil Court. This means that if under Chapter XXIV of the Corporation Act, which deals with building control, all questions which are required to be settled, decided or dealt with by the Corporation or the Commissioner should be settled, decided or dealt with by the Corporation or the Commissioner and not by the Civil Court. If the questions which have been raised by the plaintiffs in the civil suits cannot be settled, decided or dealt with by the Corporation or the Commissioner under Chapter XXIV of the Corporation Act, the jurisdiction of the Civil Court cannot be said to be barred.
12. Section 9 of the Code of Civil Procedure reads as under :
"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 cognizance is either expressly or impliedly barred."
13. Accordingly the right of the aggrieved person to file a suit affecting his civil rights or rights under common law could always be agitated by filing a civil suit in the Civil Court, unless the jurisdiction of the Civil Court, is expressly or impliedly barred. Presumption always is in favour of the jurisdiction of the Civil Court and exclusion of jurisdiction of the Civil Court is not to be readily inferred. The jurisdiction of the Civil Court can only be taken to be ousted if its jurisdiction is excluded explicitly or by necessary implication. The principles relating to section 9 of the Code of Civil Procedure are now well settled and have been explained by the Apex Court from time to time. In Firm I.S. Chetty & Sons v. State of Andhra Pradesh , the Constitution Bench of the Supreme Court thus held :
"........In dealing with the question whether Civil Courts 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 courts to a citizen claiming that an amount has been recovered from him illegally and that such a remedy can be held to be barred only on a very clear and unmistakable indications to the contrary. The exclusion of the jurisdiction of Civil Courts to entertain civil causes will not be assumed unless the relevant statute contains an express provision to that effect, or leads to a necessary and inevitable implication to that nature. The mere fact that a special statute provides for certain remedies may not by itself necessarily exclude the jurisdiction of the civil courts to deal with a case brought before it in respect of some of the matters covered by the said statute."
14. Again in Sri Vedagiri Lakshmi Narsimha Swami Temple v. Induru Pattabhirami Reddi, , the Supreme Court held as under:
"13 Under section 9 of the Code of Civil Procedure, the courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. It is well settled principle that a party seeking to oust jurisdiction of an ordinary civil Court shall establish the right to do so. Section 93 of the Act does not impose a total bar on the maintainability of a suit in a civil Court. It states that a suit of the nature mentioned therein can be instituted only in conformity with the provisions of the Act, that is to say, a suit or other legal proceeding in respect of matters not covered by the section can be instituted in the ordinary way. It therefore imposes certain statutory restrictions on suits or other legal proceedings relating to matters mentioned therein. Now, what are those matters ? They are : (1) administration or management of religious institutions ; and (2) any other matter or dispute for determining or deciding which provision is made in the Act. The clause "determining or deciding which a provision is made in this Act", on a reasonable construction, cannot be made to qualify "the administration or management" but must be confined only to any other matter of dispute. Even so, the expression "administration or management" cannot be construed widely as to take in any matter however remotely connected with the administration or management. The limitation on the said words is found in the phrase "except under and in conformity with the provisions of this Act." To state it differently, the said phrase does not impose a total bar on a suit in a civil court but only imposes a restriction on suits or other legal proceedings in respect of matters for which a provision is made in the Act. Any other construction would lead to an incongruity, namely, there will be a vacuum in many areas not covered by the Act and the general remedies would be displaced without them by new remedies."
15. The principles regarding exclusion of jurisdiction of the civil Court have been succintly laid down by the Constitution Bench of the Apex Court in Dhulabhai etc. v. State of Madhya Pradesh and another, and after detailed consideration of the entire case law and the object and scope of section 9 of the Code of Civil Procedure, the Supreme Court summarized the principles of law in para 32 of the report, inter alia, as under :
"32. Neither of the two cases of Firm of Illuri Subayya, or Kamla Mills, can be said to run counter to the series of cases earlier noticed. The result of this inquiry into the diverse views expressed in this Court may be stated as follows:
(1) Where the statute gives a finality to the orders of the special tribunals the civil Court's jurisdiction must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.
(2) Where there is an express bar of the jurisdiction of the Court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil Court.
Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not.
(3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals.
(4) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit.
(5) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected a suit lies.
(6) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is a relevant enquiry.
(7) An exclusion of the jurisdiction of the civil Court is not readily to be inferred unless the conditions above set down apply.
16. In the light of the aforesaid principles, it would be seen that there is no merit in the contention of the learned counsel for the applicant that the jurisdiction of the Civil Court is barred in view of the provisions contained in sections 286(5) & 287 of the Corporation Act. Section 286 (5) & 287 of the Corporation Act expressly or by necessary implication do not exclude the jurisdiction of the civil Court to entertain the suit like the present case.
17. As observed above, section 115 of the N.I.T. Act mandates that no suit shall be instituted against the Trust or any trustee or any person associated with the Trust or any officer or servant of the Trust in respect of anything purporting to be done under the N.I.T. Act, unless a notice in writing has been given and two months have expired from the date of the receipt of such notice. There is no other provision in the N.I.T. Act barring the jurisdiction of the civil Court. What is required under section 115 of the N.I.T. Act is that before filing the suit by any aggrieved person against the Trust or its trustees or any person associated with the Trust or any officer or servant of the Trust, two months notice should be given. Thus, so far as the N.I.T. Act is concerned, the jurisdiction of the civil Court is not expressly or impliedly excluded. Rather the very fact that the provision has been made for giving two months notice before filing of the suit would show that the civil Court has jurisdiction and its jurisdiction is not excluded or ousted. The question is since under section 52 of the N.I.T. Act certain provisions of the Corporation Act have been made applicable, which include sections 284 to 298 of the Corporation Act, whether it can be said that the challenge made by the plaintiffs/tenants to the notice given under section 286(2) of the Corporation Act read with section 52 of the N.I.T. Act could be decided or adjudicated by the Civil Court or the Civil Court has no jurisdiction to decide such questions.
18. The schemes of sections 286 & 287 of the Corporation Act do not show that the jurisdiction of the civil Court is entirely barred. Section 287 of the Corporation Act only creates a bar of the matters which are required to be settled, decided or dealt with by the Corporation or the Commissioner. The allegations made by the tenants/plaintiffs in the plaint is that the notice has been got issued by the owner having an unlawful design to evict them in the grab of demolition without following the process of law by getting the tenancy of the tenants terminated after seeking permission from the Rent Controller and eviction decree through the competent Court of law. The plaintiffs/tenants have averred that the owner actuated with ulterior motive persuaded the officers of the N.I.T. in having the notice issued for demolition under section 286(2) of the Corporation Act of the construction which was raised about 50 years before i.e. sometime in the years 1945-46. According to the plaintiffs/tenants, the N.I.T. has exceeded all its legitimate jurisdiction in issuance of the said notice and, therefore, such action of the N.I.T. being without jurisdiction, was liable to be challenged in the Civil Court. The redressal of the grievance and the foundation on which such a plea is based cannot be get adjudicated by the tenants under sections 286(3) and 286(5) or any other provision of Chapter XXIV of the Corporation Act and, therefore, it cannot be said that the jurisdiction of the Civil Court is barred. Similarly, the reliefs sought for by the plaintiffs in the suits cannot be granted, settled, decided or dealt with by the Corporation or the Commissioner and, therefore, section 287 of the Corporation Act on its face does not take away the jurisdiction of the Civil Court. As is already observed by me above, so far as subsection (5) of section 286 of the Corporation Act is concerned, it provides no remedy to the present plaintiffs tenants and the present plaintiffs/tenants being aggrieved by the notice issued by the N.I.T. and they cannot apply to the District Court, Nagpur, since relief claimed by them, is not covered under sub-section (5) of section 286 of the Corporation Act. Sub-section (5) of section 286 only protects the right of Corporation or any other persons who is aggrieved by the contravention of the provisions of the Act or bye-laws by a person to apply to the District Court, Nagpur, for an injunction for the removal or alteration of the building, on the ground that such person has contravened the provisions of the Act or bye-laws and does not provide remedy or forum to the person who is aggrieved by the notice given by Corporation under sub-section (1) & (2) of section 286 of the Act.
19. In Shiv Kumar v. Municipal Corporation of Delhi and others (cited supra), the Apex Court has held as under:---
"28. According to us, it cannot be urged that the provisions of the Act have created any right or liability and for enforcement thereof remedy has been provided under the Act itself. The Act purports to regulate the common law right of the citizens to erect or construct buildings of their choice. This right existed since time immemorial. But with the urbanisation and development of the concept of planned city, regulations restriction, on such common law right have been imposed. But as the provisions of the Act intend to regulate and restrict a common law right; and not any right or liability created under the Act itself, it cannot be said that the right and the remedy have been given uno flatu e.g. "in the same breath". Most of the cases of this Court referred to above related to statutes creating rights or liabilities and providing remedies at the same time. As such the principles enunciated therein, shall not be fully applicable in the present case. Inspite of the bar prescribed under sub-sections (4) & (5) of section 343 and section 347E of the Corporation Act over the power of the courts, under certain special circumstance, the Court can examine, whether the dispute falls within the ambit of the Act. But once the Court is satisfied that either the provisions of the Act are not applicable to the building in question or the basic procedural requirements which are vital in nature, have not been followed, it shall have jurisdiction, to enquire and investigate while protecting the common law rights of the citizens. Can a Court hold a suit to be bot maintainable, although along with the plaint materials are produced to show that the building in question is not with the Corporation limits, or that the constructions were made prior to coming into force of the relevant provisions of the Act? We are conscious of the fact that persons who made unauthorised construction by contravening and violating the building bye-law s or regulations often run to courts, with pleas mentioned above, specially that no notice was issued or served, specially that not notice was issued or served on them, before the Corporation has ordered the demolition on the construction.
29. It is well know that in most of the cities building regulations and bye-laws have been framed, still it has been discovered that constructions have been made without any sanction or in contravention of the sanctioned plan, and such constructions have continued without any intervention. There cannot be two opinions that the regulations and bye-laws in respect of buildings, are meant to serve the public interest. But at the same time it cannot be held that in all circumstances, the authorities entrusted with the demolition of unauthorised constructions, have exclusive power, to the absolute exclusion of the power of the Court. In some special cases where "jurisdictional error" on the part of the Corporation is established, a suit shall be maintainable. According to us:
(1) The Court should not ordinarily entertain a suit in connection with the proceedings initiated for demolition, by the Commissioner, in terms of section 343(1) of the Corporation Act. The Court 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.
(2) The Court 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."
20. The Shiv Kumar's case squarely applies to the present case. A look at the Corporation Act and the N.I.T. Act would clearly reveal that the provisions of the said Act even if assumed to have created rights of liabilities do not provide any remedy for its enforcement, in its entirely. Not only that the averment made by the plaintiffs in the suits challenging the bona fides and the jurisdiction of the N.I.T. in issuing such notice would clearly made out a case for infringement of civil rights and jurisdiction of the civil Court for trial of the suit. The very fact that the suit premises are alleged to have been constructed in the year 1945-46 and the N.I.T. took the action after a span of 50 years and, therefore, a ground that the N.I.T. has exceeded in its jurisdiction, even otherwise made out a case for trial of the suit by the civil Court since the very jurisdiction of the N.I.T. in issuing such notice is under challenge, and on that basis, it cannot be said that the suits filed by the plaintiffs are not maintainable. Besides that , there are serious allegations about the collusion of the concerned officials of the N.I.T. with the owner in having got the notice issued and this also sufficiently established that such issue would be decided by the Civil Court and it cannot be said that the suit filed by the plaintiffs were expressly or impliedly barred.
21. The trial Court has thus properly considered the question on the basis of various decision of the apex Court and rightly concluded that the civil Court has jurisdiction to try the suits. The issue whether the Civil Court has jurisdiction to try the suits has rightly been answered in the affirmative and does not call for any interference by this Court.
22. Consequently, all these revision applications are liable to be dismissed and are dismissed accordingly with no order as to costs. Rule is discharge.