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3. Considering the evidence, the trial Court by its judgment and Decree dated 30.3.95, decreed the suit by holding that the suit property admittedly belonged to the appellant and that the respondents constructed illegal structure in the suit property for the first time in October, 89. On the issue whether Article 9 of the Code of Communidades, suit was maintainable, the Court held that no such sanction was required. The suit was primarily for preserving the Communidade land from encroachment by the trespassers. Aggrieved respondents herein preferred an appeal being Regular Civil Appeal No. 27/95 before the District Judge, Margao. On hearing the appeal, the order of the trial Court was set aside by the judgment and Decree dated 6.5.88. The first Appellate Court, on the issue of sanction for institution of the suit from the Administrative Tribunal in terms of Article 9 of the Code of Communidades, held that the suit essentially being a suit for mandatory injunction though the appellant had sought perpetual injunction as well, that could not be considered as a suit for conservation of the property of the Communidade and therefore, did not fall within the exceptions contemplated under Article 9 of the Code of Communidades. Reliance was placed on the judgment of the Court of Judicial Commissioner in Second Civil Appeal No. 15/74 in the case of Communidade of Velgem v. Ramnath Atmaram Palekar and Ors. C.A. No. 15/74. This judgment and Decree of the first Appellate Court is the subject-mater of the present appeal.

It would thus be clear that a civil Court has jurisdiction to try all suits of a civil nature, excepting suits of which their cognizance is either expressly or impliedly barred. Does Article 9 of the Code of Communidades expressly bar the jurisdiction of the Civil Court in entertaining a suit?. The expression "express bar" would be when an Act contains a provision which specifically excludes the jurisdiction of a Civil Court in respect of matters which are otherwise within its jurisdiction, namely the subject-matter. An implied ouster would be in those cases where though there is no express provision, considering that a right is created under the Act not provided by civil law and the remedy is also provided, the jurisdiction of the Civil Court would be impliedly barred. There are a catena of judgments on the issue. Secondly, the Code of Communidades is an exercise in subordinate legislation. The provisions of the Code of Communidades, therefore, cannot override the provisions of the Code of Civil Procedure. On this aspect also if Article 9 is considered to be a bar on the civil Court exercising jurisdiction, it would be contrary to Section 9 of the Code of Civil Procedure. This argument must, be rejected at the threshold. An exercise in subordinate legislation being pursuant to a power conferred by a statute, cannot override a substantive provision of law or for that matter a subordinate legislation cannot override the provisions of any primary legislation. Article 9, therefore, under no circumstances can be said to be an express bar on the civil Court to entertain a suit if, otherwise, a suit is cognizable by the civil Court.

7. The other aspect of the matter is what is the scope of Article 9 of the code of Communidades. If the language of Article 9 is considered, it is not a bar on the civil court excersing jurisdiction, but a prohibation on the Communidade from filling a suit without the consent of the Administrative tribunal except for matters as set out therein. Therefore, Article 9 cannot be said to be a bar on the Civil Court exercising its jurisdiction.

8. We may look at the object of the Article from another aspect. Careful reference may be made to Article 349 of the Code of Communidades, which reads as under :

When the Communidade decides to file any suit in the Court as per Article 9, the "procurador" should apply to the Administrative Court stating the probable expenses of the suit the rights of the case in a proper form with document through die respective Administrator who will inform the matter. The Administrative Court will summarily decide after hearing the Attorney General and if it sanctions that the suit be filed it will authorize the expenditure that it thinks will be necessary.

Article 349 provides for sanctioning of expenses for prosecution of suits where permission is required. For such suits, therefore described under Article 9, the Communidade cannot spend money from its funds without the sanction taken in terms of Article 349. Article 9 and Article 349, therefore, read together would lead to the conclusion that it is a bar on the Communidades from incurring expenses from its funds in the event sanction is not taken from the Administrative Tribunal. In my opinion, this is the only reasonable construction that will have to be given to Article 9, read with 349 of the Code of Communidades. If it is so read, it is neither a bar on the Civil court to exercise its jurisdiction nor for that matter a bar on the Communidades from filling a suit even if it not be of preservatory in nature. At the highest, if the Communidade files a suit and expends money towards it, the Communidade would not be reimbursed the amount expended towaeds filling and prosecution of the suit from its account. This in no manner excludes the jurisdiction of the civil Court. Therefore, as Article 349 was not considered when the Court of Judicial Commissioner disposed off the second Appeal No. 15/74, nor were the provisions of Section 9 of C.P.C. considered in the matter of ouster of jurisdiction, that judgment cannot be said to be a judgment of a co-ordinate Bench of this Court and on the principle of judicial discipline to be followed by another Co-ordinate Bench. The language of articles and the rule of construction which we have applied, would show that the jurisdiction of the Civil Court is neither expressly or impliedly barred and that is always open to the Communidades, whether it be a suit of preservatory character or for that matter what may be said to be non-conservatory in nature to file a suit. Speaking for myself, I would say that there is no distinction between the suit for perpetual injunction and the suit for mandatory injunction, as both are with the object of preserving the property. However, in my opinion, that is totally immaterial considering the object of Article 9, read with Article 349 of the Code of Communidades.