Karnataka High Court
Corporation Of The City Of Bangalore vs Yeshodamma on 19 November, 1990
Equivalent citations: ILR1991KAR1887, 1991(4)KARLJ647
JUDGMENT N.Y. Hanumanthappa, J.
1. This is defendant's first Appeal. Suit was for permanent injunction to restrain the Corporation from demolishing any portion of the building constructed by the plaintiff on the suit schedule property on the ground that -
(1) He is the owner of premises bearing No. 10, but demolition notice issued to one Sri Ramakrishna who is the owner of premises No. 7 has attached on the property of the plaintiff;
(2) An action of demolition cannot be initiated by the Corporation without applying its mind to mandatory requirements of Section 321 of the Bangalore City Corporation Act;
(3) Before taking steps of demolition, it has to be proved that there is unauthorised construction;
(4) A notice has to be issued calling upon the person to remove such obstruction or unauthorised construction and steps for demolition on refusal to remove his part.
2. As such mandatory requirements were not complied with by the Corporation before attempting to demolish some portion of the building, the plaintiff sought for a relief of permanent injunction. The Corporation filed written statement taking its stand that the suit itself not maintainable as under Section 444(3) of the Act the plaintiff has got an alternative remedy of filing an appeal before the Standing Committee. If aggrieved by an order of the Standing Committee, he may prefer an appeal to the Corporation.
3. On the pleadings, the lower Court framed following issues:-
"(1) Whether the plaintiff proves that the foundation put up in the suit site is lawful?
2) If so, is she entitled to injunction?"
4. In support of their case, plaintiff produced 9 documents Ex.P-1 to P-9 and examined himself as P.W.1. Whereas, the defendant/Corporation neither chose to examine nor produce any documents. It satisfied by taking shelter under Section 444(3) of the Corporation Act which reads as follows:-
"Section 444; Appeal from Commissioner to Standing Committee -
(1) & (2)xxx xxx xxx (3) The decision of the Standing Committee or where the matter has been referred to the Corporation as aforesaid, the decision of the Corporation shall be final."
5. After recording evidence, the trial Court came to a conclusion that issue No. 1 as proved viz., that plaintiff proved that foundation put up by him on the schedule property as a lawful one. Regarding issue No. 2 held that he is entitled for injunction.
Trial Court as stated earlier, after scrutinised the evidence available and examined the authorities relied upon. Plaintiff, of course did not rely upon any Decision in the case. But he contended that merely because there is an appeal provision under provisions of Section 444(3) of the Act, that itself is not sufficient to arrive at a conclusion that the plaintiff is excluded from instituting a suit in a Civil Court for the relief, particularly when the Act itself makes a provision that a person aggrieved, under Section 444(3) of the Act may file a suit for injunction against the Corporation in respect of any act of the Authorities or Officers under the guise of powers conferred in any of the provisions of the Act, Byelaws, Regulations or Orders. According to him, what was challenged before the trial Court was only action of the defendant in attempting to demolish the suit schedule property and not the notice that was addressed to Ramakrishna the owner of the plaintiff and fixed to the plaintiff's house.
6. Whereas, defendant/Corporation relied upon two authorities viz., DHULABHAI ETC., v. STATE OF MADHYA PRADESH AND ANR., , and RAJA RAM KUMAR BHARGAVA (dead) BY LRS. v. UNION OF INDIA, to support that when there is an appeal provision, it is implied that the jurisdiction of Civil Courts is excluded.
7. Trial Court after taking into consideration contentions of both sides including the principles laid down by the Supreme Court in both the Decisions, came to a conclusion that plaintiff has made out a case for injunction. Accordingly his suit was decreed.
8. The said Judgment and Decree now under challenge by the defendant on the grounds that -
(1) Trial Court was not justified in decreeing the suit;
(2) Trial Court erred in not taking into consideration scope of Section 444(3) of the Act;
(3) Trial Court committed error in not taking into consideration the effect of law laid down by the Supreme Court in the matter of availing or otherwise of relief before the Civil Court, as incorporated in and .
In support of his contention Sri Vasantha Kumar, learned Counsel for the defendant/appellant took me to the principles carved out in the Decisions; Dhulabhai etc., and State of Madhya Pradesh and Anr. and SAYED MOHAMED BAQUIR EL-EDROOS (dead) BY LRS. v. STATE OF GUJARAT. Relevant portions of the said Decisions read as follows:-
"The following principles regarding exclusion of jurisdiction of Civil Court may be laid down;-
"(1) Where the statute gives a finality to the orders of the special Tribunals the Civil Courts' jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Court would normally do in a suit. Such provisions, 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 jurisdiction of the Civil Court is not readily to be inferred unless the conditions above set down apply. Case law discussed.
Held on the facts and in the circumstances of the case that the suit in question for the declaration that the provisions of the law relating to assessment under the M.B. Sales Tax Act (30 of 1950) were ultra vires and for refund of the amount of the tax illegally collected was not barred by Section 17 of the Act. First Appeals Nos. 68, 69, 71 and 70 of 1961 respectively D/-. 5-1-1965 (MP) Reversed."
reads as follows:-
"The Civil Court has jurisdiction to decide the question whether a grant in a case is a personal inam or not. It is not correct to say that the Government alone is competent to decide the question and that the jurisdiction of Civil Court is excluded. (FB) Reversed and AIR 1940 PC 105 Foll.
The finality of decision of the Government as contemplated by Explanation I to Section 2(1)(e) cannot exclude the jurisdiction of the Civil Court. Except for the Explanation, there is no other provision in the Act touching upon the jurisdiction of the Civil Court. The Act does not give any details about the reference to and the enquiry by the Government. No appeal has been provided for and it cannot be said that the case of the plaintiff has been considered by the Government in the same way as it would have been considered if the case had been filed before a Civil Court. From a perusal of the provisions of the Act it cannot be said that there is adequate remedy available to the plaintiffs on reference made to the Government. Even where there is an express bar of the jurisdiction of the Court, an examination of the scheme of the particular Act to find out the adequacy or the sufficiency of the remedies provided may be relevant. The Act does not give any details about the reference to be made to the Government, the procedure to be followed by the Government, the opportunity to be afforded to the aggrieved party. In the absence of any such details in the Act it is not possible to hold that the use of the expression finality of the decision of the Government' in Explanation I to Section 2(1)(e) was meant to bar the jurisdiction of the Civil Court."
While dealing with the question of excluding or otherwise of jurisdiction of the Civil Court, Sri Vasantha Kumar also relied upon a latest Decision of the Supreme Court in Raja Ram Kumar Bhargava (dead) by lrs. v. Union of India which reads as follows:-
"Generally speaking, the broad guiding considerations for determining whether Civil Court jurisdiction is excluded are that whereever a right, not pre-existing in common law, is created by a statute and that statute itself provided a machinery for the enforcement of the right, both the right and the remedy having been created uno flatu and a finality is intended to the result of the statutory proceedings, then, even in the absence of an exclusionary provision the Civil Court's jurisdiction is impliedly barred. If however, a right pre-existing in common law is recognised by the statute and a new statutory remedy for its enforcement provided, without expressly excluding the Civil Court's jurisdiction, then both the common-law and the statutory remedies might become concurrent remedies leaving open an element of election to the persons of inherence.
For the reasons stated therein, Sri Vasantha Kumar submits that the appeal be allowed and the suit be dismissed.
8. As against this, Sri Papi Reddy, learned Counsel for the plaintiff/respondents submits that the trial Court was justified in decreeing the suit. According to him the principles laid down by the Supreme Court in the case which deals about the question relating to maintainability of the suit inspite of existence of a provision in a particular statute, which says that an order passed by a particular statutory authority as final, still it does not exclude jurisdiction of the Civil Court, are applicable to the case on hand, as held in that Decision. Paras 9, 10 and 14 are relevant which reads as follows;-
"If we consider the present case, in the light of the principles laid down by the Supreme Court in the above noted case in our opinion the finality decision of the Government as contemplated by Explanation I to Section 2(1)(e) cannot exclude the jurisdiction of the Civil Court. Except for the Explanation, there is no other provision, in the Act touching upon the jurisdiction of the Civil Court and none has been referred to before us by either party. The Act does not give any details about the reference to and the enquiry by the Government. No appeal has been provided for and it cannot be said that the case of the plaintiff has been considered by the Government in the same way as it would have been considered if the case had been filed before a Civil Court.
The very first principle laid down in the case of Dhulabhai postulates that where a statute gives a finality to the orders of the special Tribunal 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. From a perusal of the provisions of the Act it cannot be said that there is adequate remedy available to the plaintiffs on reference made to the Government. Even according to the second principle laid down by the Supreme Court where there is an express bar of the jurisdiction of the Court, an examination of the scheme of the particular Act to find out the adequacy or the sufficiency of the remedies provided may be relevant. The Act does not give any details about the reference to be made to the Government the procedure to be followed by the Government, the opportunity to be afforded to the aggrieved party. In the absence of any such details in the Act ft is not possible to hold that the use of the expression finality of the decision of the Government' in Explanation I to Section 2(1) (e) of the 1952 Act was meant to bar the jurisdiction of the Civil Court.
It was next contended for the State that the Revenue Court alone has exclusive jurisdiction to correct the entries in the revenue records and the Counsel referred to Section 53 of the Bombay Land Revenue Code. It reads:
"52. A Register shall be kept by the Collector in such form as may from time to time be prescribed by the State Government of all lands the alienation of which has been established or recognized under the provisions of any law for the time being in force: and when it shall be shown to the satisfaction of the Collector that any sanad granted in relation to any such alienated lands has been permanently lost or destroyed, he may, subject to the Rules and the payment of the fees prescribed by the State Government under Section 213, grant to any person whom he may deem entitled to the same a certified extract from the said Register, which shall be endorsed by the Collector to the effect that it has been issued in lieu of the sanad said to have been lost or destroyed and shall be deemed to be as valid as proof of title as the said sanad."
Section 203 of the said Code provides for appeal from any order passed by the Revenue Officer to his superior and on the strength of these provisions it is sought to be argued that the plaintiff could have gone up in appeal against the decision of the officer under Section 53 of the Code and the jurisdiction of the Civil Court is completely barred. If we refer to Section 212 of the Code, the argument of the Counsel for the State cannot be accepted. Section 212 contemplates that whenever in this Code it is declared that a decision or order shall be final such expression shall be deemed to mean that no appeal lies from such decision or order. If this is what finality means under Section 212 it cannot be argued with any force on behalf of the State that the jurisdiction of the Civil Court is barred."
9. After hearing both sides and going through the Judgment and decree passed by the trial Court, the conclusion arrived at by the trial Court about maintainability of the suit is correct, even though the approach to Section 444(3) of the Act including applicability of theAuthorities relied upon by the defendants to the question to be decided in the case is not correctly examined. However, one thing is clear that the finding given to the effect that plaintiff is entitled for a permanent injunction has to be held as correct.
10. Regarding scope of Section 444(3) of the Act is concerned, even principles laid down in and are not applicable or useful to the defendant/Corporation for the simple reason that in emphasis is made on ingredient No. 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 Court 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."
According to me, in order to arrive at a conclusion that a particular person has constructed a premises unauthorisedly or violating the building regulation etc., the same cannot be determined arbitrarily. But the same has to be decided following the procedure contemplated in the Act viz., by issuing a notice, notifying the person concerned and actual deviation or unauthorised construction and then calling upon such person to give his explanation and then to take a decision as otherwise any arbitrary action by a Corporation or an authority will deprive a citizen of his right to enjoy his property. In the instant case what the Corporation did was, it affixed a notice of demolition addressed in the name of one Ramakrishna Rao the owner of premises No. 7, on the premises No. 10 belonging to the plaintiff. Because of such an action plaintiff being a law abiding citizen was justified in approaching the Civil Court for immediate relief of injunction. Since action of demolition is illegal and arbitrary, there was no necessity for him to prefer an appeal before Standing Committee or before the Corporation as no order was passed against him except a threat of demolition.
(2) As far as principles laid down in AIR 1988 Page 752, is concerned, the same is not very useful to the defendant. On the other hand, decision of the Supreme Court in is against the contention of the defendant, where it has been clearly said that:
"Merely because that the particular Section 212 of the Bombay Land Revenue Code contemplates that whenever in this Code it is declared that a decision or order shall be final such expression shall be deemed to mean that no appeal lies from such decision or order. If this is what finality mean under Section 212 it cannot be argued that the jurisdiction of the Civil Court is barred."
11. Apart from this, one more thing has to be taken into consideration, namely, availability of Section 482 of the Act to a citizen to institute a suit against Corporation for injunction, against Corporation. If intention of the Legislature was that no suit should lie against Corporation inspite of its illegal action, the Legislature would not have incorporated Section 482 in the Statute. From this it has to be understood that object of Section 444(3) of the Act is that there should be a further appeal against an order passed by an Appellate Authority. The Legislature thought it proper that there shall be no more appeals before the Authorities of the Corporation. Hence, order under Section 444(3) is no doubt final. But it never excluded either by implication or inexplicit terms that jurisdiction of the Civil Court is excluded. Thus plaintiff was right in approaching the Civil Court for injunction which was rightly granted to him.
12. For the reasons stated above, I do not think the defendant/appellant has made out any other good ground to interfere with the order passed by the trial Court. Hence, this appeal is dismissed with costs of Rs. 3,000/- to be paid by the Corporation to the plaintiff since because of its mistake, the plaintiff had to approach the Court for protection.