Full Judgment Text
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PETITIONER:
SHIV KUMAR CHADHA ETC. ETC.
Vs.
RESPONDENT:
MUNICIPAL CORPORATION OF DELHI AND ORS.
DATE OF JUDGMENT04/05/1993
BENCH:
SINGH N.P. (J)
BENCH:
SINGH N.P. (J)
VENKATACHALLIAH, M.N.(CJ)
SAWANT, P.B.
CITATION:
1993 SCR (3) 522 1993 SCC (3) 161
JT 1993 (3) 238 1993 SCALE (2)772
ACT:
%
Code of Civil Procedure, 1908:
Section 9-Civil Court’s jurisdiction- Ouster when.
Delhi Municipal Corporation Act, 195:
Sections 343,347E-Suits in connection with orders passed or
proceedings initiated for demolition of constructions-
Maintainability of-Directions of Supreme Court.
Code of Civil Procedure, 1908:
Order 39, Rule 3, proviso Temporary injunction-Granting of-
When-Court’s duty-Reasons for grant of injunction-Mandatory
to record-Supreme Court’s directions.
HEADNOTE:
In respect of some private dispute between two neighbors a
writ application was filed in the High Court. On the
material produced in the case it was treated as a Public
Interest Litigation and the High Court was to rind out a
solution in respect (if unauthorised constructions alleged
to have been made by different owners/occupiers/builders
without sanctioned plans or by making deviations from the
sanctioned plans. The High Court wanted to ensure that such
unauthorised constructions were not perpetuated on the basis
of interim orders of injunction passed by the Civil Courts-.
The High Court disposed of the petition holding that the
owners/ occupiers/builders were to be given liberty to file
fresh building plans and that the Municipal Corporation was
to examine such building plans in accordance with law and
that the Corporation was to seal and to demolish those
constructions which were beyond the compoundable limits.
The High Court also directed that no civil suit would be
entertained by any Court in Delhi in respect of any action
taken or proposed to be taken by the Corporation with regard
to the sealing and/or demolition of any building or any part
thereof. The High Court directed further that person
aggrieved by an order of sealing or demolition had the right
to file an appeal to the Appellate Tribunal under the Delhi
Municipal Corporation Act, 1957.
522
523
Against the High Court’s order the present appeals were
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filed by special leave.
On the question, "whether the jurisdiction of the Court has
been statutorily barred in respect of suits in connection
with the orders passed or proceedings initiated for
demolition of constructions, which have been made without
sanction or by deviating from the sanctioned plans",
allowing the appeals, this Court,
HELD:1.1. With the increase in the number of taxing
statutes, welfare legislations and enactments to protect a
class of citizens,a trend can be noticed that most of such
legislations confer decision making powers on various
authorities and they seek to limit or exclude Court’s power
to review those decisions. The result is that the power of
the Court under section 9 of the Code is being denuded and
curtailed by such special enactments, in respect of
liabilities created or rights conferred. The ouster of the
jurisdiction of the Court is upheld on the finding that the
rights or liabilities in question had been created by the
Act in question and remedy provided therein Was adequate.
(535-D-F)
1.2.The situation will be different where a statute purports
to curb and curtail a pre-existing common law right and
purports to oust the jurisdiction of the Court so far remedy
against the orders passed under such statute are concerned.
In such cases,the courts have to be more vigilant, while
examining the question as to whether an adequate redressal
machinery has been provided, before which the person
aggrieved may agitate his grievance. (535-G)
1.3.In spite of the bar placed on the power of the Court,
orders passed under such statutes can be examined on
"jurisdictional question". A suit will be-maintainable.
(536-F)
Katikara Chiniamani Dora v. Guatreddi Annamanaidu, AIR 1974
SC 1069; Desika Charyutttu v. State of Andhra Pradesh, AIR
1964 SC 807; PYX Granite Co. Ltd. v. Ministry of Housing and
Local and Government, 1960 A.C. 260 and Anisminic Ltd. v.
Foreign Compensation Commission, 1969 2 AC 147, relied on.
Wolverhampton New Waterworks Co. v. Hawkesford, [1859] 6
524
C.B. (N.S.) 336; Neville v. London "Express" Newspaper
Limited. [1919] Appeal Cases 368; Baraclough v. Brown,
[1897] Appeal Cases 615; Secretary of State v. Mask & Co.,
AIR 1940 P.C. 105; Firm Seth Radha Kishan v. Administrator.
Municipal committee, Ludhiana, AIR 1963 SC 1547; Finn of
Illuri Subbayya Chetty and Sons v. State of Andhra Pradesh,
AIR 1964 SC 322; M/s. Kamala Mills Ltd. v. State of Bombay,
AIR 1965 SC 1942; Ram Swarup and Ors. v. Shikar Chand, AIR
1966 SC 893; State of Kerala v. M/s. N. Ramaswami Iyer and
sons, AIR 1966 SC 1738; Rain Gopal Reddy v. Additional
Custodian Evacuee Property, Hyderabad, [1966]3 SCR 214;
Custodian of Evacuee Property, Punjab & Ors. v. Jafran
Begum, [1967]3 SCR 736; Dhulabhai v. Stale of Madhya
Pradesh, AIR 1969 SC 78; The Premier Automobiles Ltd. v.
Kamlaker Shantarm Wadke, AIR 1975 SC 2238=[1976] 1 SCC 496;
Bata Shoe Co. Ltd. v. Jabalpur Corporation, AIR 1977 SC 955=
[1977] 2 SCC 472; Munshi Ram v. Municipal Commitee,
Chheharta, AIR 1979 SC 1250= [1979]3 SCC 83; Rain Singh v.
Grain Panchayat, Mehal Kalan, AIR 1986 SC 2197=[1986]4 SCC
364; Raja Ram Kumar Bhargava v. Union of India, AIR 1988 SC
752= [1988] SCC 681 and Sushil Kumar Mehta v. GobindRam
Bohra, [1990] 1 SCC 193, referred to.
1.4. The Delhi Municipal Corporation Act purports to
regulate the common law right of the citizens to erector
construct buildings of their choice. This right existed
since time immemorial. But with the urbanisation and
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development of the concept of planned city, regulations,
restrictions, 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 unoflatu e.g. "in the
same breath". (537-E)
1.5. In spite of the bar prescribed under sub-sections (4)
and (5) of section 343 and section 347E of the Corporation
Act over the power of the Courts, under certain special
circumstances,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. (537-C)
1.6. The regulations and bye-laws in respect of buildings,
are meant to
525
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. (538-C)
1.7. 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. (538-D)
1.8. 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. (538-E)
2.1. A party is not entitled to an order of injunction as a
matter of right or course. Grant of injunction is within
the discretion of the Court and such discretion is to he
exercised in favour of the plaintiff only if it is proved to
the satisfaction of the Court that unless the defendant is
restrained by an order of injunction, an irreparable loss or
damage will be caused to the plaintiff during the pendency
of the suit. (538-H)
2.2.The purpose of temporary injunction is, to maintain the
status quo. The Court grants such relief according to the
legal principles- ex debite justitiae. Before any such
order is passed the Court must be satisfied that a strong
prima facie case has been made out by the plaintiff
including on the question of maintainability of the suit and
the balance of convenience is in his favour and refusal of
injunction would cause irreparable injury to him. (539B)
2.3. ’The Court should be always willing to extend its hand
to protect a citizen who is being wronged or is being
deprived of a property without any authority in law (or
without following the procedure which are fundamental and
vital in nature. But at the same time the judicial
proceedings cannot be used to protect or to perpetuate a
wrong committed by a person who approaches the Court. (539-
1))
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526
2.4. Power to grant injunction is an extra-ordinary power
vested in the Court to he exercised taking into
consideration the facts and circumstances of a particular
case. The Courts have to be more cautious when the said
power is being exercised without notice or hearing the party
who is to he affected by the order so passed. (539-E)
2.5. In spite of the statutory requirement, in order 39,
Rule 3 the Courts have been passing orders of injunction
before issuance of notices or hearing the parties against
whom such orders are to operate without recording the
reasons for passing such orders. It is said that if the
reasons for grant of injunction are mentioned, a grievance
can be made by the other side that Court has prejudged the
issues involved in the suit. This is a misconception about
the nature and the scope of interim orders. Any opinion
expressed in connection with an interlocutory application
has no bearing and shall not affect any party,, at the stage
of the final adjudication. Apart from that now in view of
the proviso to Rule 3 of Order 39, there is no scope for any
argument. When the statute itself requires reasons to he
recorded, the Court cannot ignore that requirement by saying
that if reasons are recorded, it may amount to expressing an
opinion in favour of the plaintiff before hearing the
defendant (539-H, 540-H)
2.6. Proviso to Rule 3 of Order39 of the Code, attracts the
principle, that if a statute requires a thing to he done in
a particular manner, it should be done in that manner or not
all.
Taylor v. Taylor, (1875)1 Ch. D. 426; Nazir Ahmed v.
Emperor, AIR 1936 PC 253 and Ramachandra Keshar Adke v.
Gavind Joti Chavare, AIR 1975 SC
915, relied on.
2.7. Whenever a Court considers it necessary in the
facts and circumstances of a particular case to pass an
order of injunction without notice to other side, it must
record the reasons for doing so and should take into
consideration, while passing an order of injunction, all
relevant factors, including as to how the object of granting
injunction itself shall be defeated if an exparty order is
not passed. But any such exparty order should be in force
up to a particular date before which the plaintiff should be
required to serve the notice on the defendant concerned.
(541-C)
Supreme Court Practice 1993, Vol. 1, at page 514, referred
to.
527
2.8.The Court should first direct the plaintiff to serve a
copy of the application with a copy of the plaint along with
relevant documents on the counsel for the Corporation or any
competent authority of the Corporation and the order should
be passed only after hearing the parties. (541-F)
2.9.If the circumstances of a case so warrant and where the
Court is of the opinion, that the object of granting the
injunction would be defeated by delay, the Court should
record reasons for its opinion as required by proviso to
Rule 3 of Order 39 of the Code, before passing an order for
injunction. The Court must direct that such order shall
operate only for a period of two weeks, during which notice
along with copy of the application, plaint and relevant
documents should be served on the competent authority or the
counsel for the Corporation. Affidavit of service of notice
should be filed as provided by proviso to Rule 3 of Order 39
aforesaid. If the Corporation has entered appearance, any
such ex parte order of injunction should be extended only
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after hearing the counsel for the Corporation. (541-H, 542-
A)
2.10.While passing an exparte order of injunction the Court
shall direct the plaintiff to give an undertaking that he
will not make any further construction upon the premises
till the application for injunction is finally heard and
disposed of. (512-C)
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2531-33 of
1993.
From the Judgment and Order dated 19.2.1991 of the Delhi
High Court in C.W.P. No. 3499 of 1989.
R.M. Bagai, V. Shekhar, Ms. Bina Gupta and Ms. Monika Mohil
for the Appellants.
Kapil Sibal, Ranjit Kumar and R.P. Sharma for the
Respondents.
The Judgment of the Court was delivered by
N.P. SINGH. J. Special leave granted.
These appeals have been filed against an order passed by the
Delhi High Court directing the Municipal Corporation of
Delhi (hereinafter referred to as "the Corporation") to
issue appropriate notices to the owners/occupiers/builders
of the building where illegal constructions have been made.
A liberty has been given to
528
the owners/occupiers/builders to file fresh buildings plans
with the Corporation in conformity with the existing bye-
laws. The building plans as filed are to be examined in
accordance with the law. The Corporation has been directed
that if it finds that the constructions are beyond the
compoundable limits, then to seal the same and to demolish
thereafter.
The appellants have no grievance so far as the aforesaid
part of the order is concerned. They have sought
interference of this Court with the other part of the order,
where it has been said that "no civil suit will be
entertained by any court in Delhi in respect of any action
taken or proposed to be taken by the Corporation with regard
to the sealing and/or demolition of any building or any part
thereof. Any person aggrieved by an order of sealing or
demolition which is passed shall, however, have the right of
filing an appeal to the Appellate Tribunal under the
Municipal Act. The Appellate Tribunal is the only forum
which has the jurisdiction to grant interim relief." The
other part of the order in respect of which objection has
been taken is where the Court has directed the Corporation
to approach those courts which have already issued
injunction "for variation and vacation of the injunction
orders in the light of" the said order.
Initially a writ application was filed in respect of some
private dispute between two neighbours. In due course on
the material produced by one party or the other it was
treated as a Public Interest Litigation and by the impugned
order the High Court has purported to find out a solution in
respect of unauthorised constructions alleged to have been
made by different owners/ occupiers/builders in the
different parts of the city without sanctioned plans or by
making deviations from the plans which had been sanctioned.
The Court has also purported to ensure that such
unauthorised constructions are not perpetuated on the basis
of interim orders of injunction passed by Civil Courts.
It cannot be disputed that by the impugned order the
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jurisdiction of any Court in Delhi to entertain any suit in
connection with demolition of any part of any building
which, according to the Corporation, is unauthorised and
illegal has been ousted.
The Delhi Municipal Corporation Act, 1957 (hereinafter
referred to as "the Corporation Act") has made provisions
for the constitution of the Corporation and has prescribed
the procedure for election of the councillors, levy of
taxes, sanitation and public health. Chapter XVI contains
provisions regarding erection of buildings within the
Corporation area. Section 331 defines the expression "to
erect a building". Section 332 says that" no person shall
erect or commence to erect
529
any building or execute any of the works specified in
section 334 except with the previous sanction of the
Commissioner". The relevant part of section 343 is as
follows:-
"343. Order of demolition and stoppage of buildings and
works in certain cases and appeal
....................................
(2)Any person aggrieved by an order of the Commissioner made
under sub-section (1) may prefer an appeal against the order
to the Appellate Tribunal within the period specified in the
order for the demolition of the erection or work to which it
relates.
(3)Where an appeal is preferred under sub-section(2)against
an order of demolition, the Appellate Tribunal may, subject
of the provisions of sub-section (3) of section 347 C, stay
the enforcement of that order on such terms, if any, and for
such period, as it may think fit:
Provided that where the erection of any building or
execution of any work has not been completed at the time of
the making of the order of demolition, no order staying the
enforcement of the order of demolition shall be made by the
Appellate Tribunal unless security, sufficient in the
opinion of the said Tribunal has been given by the appellant
for not proceeding with such erection or work pending the
disposal of the appeal.
(4)No Court shall entertain any suit, application or order
proceeding for injunction or other relief against the
Commissioner to restrain him from taking any action or
making any order in pursuance of the provisions of this
section.
(5)Subject to an order made by the Administrator on appeal
under section 347 D, every order made by the Appellate
Tribunal on appeal under this section, and subject to the
orders of the Administrator and the Appellate Tribunal on
appeal. the order of demolition nude by the Commissioner
shall be final and conclusive".
Section 344 vests power in the Commissioner to stop the
construction of the
530
building where the erection of such building or execution of
any work has been commenced or is being carried on either
without sanction or contrary to sanction so granted or in
contravention of any condition subject to which sanction has
been accorded. Under section 345A, the Commissioner at any
time, before or after making an order of demolition under
section 343 or of the stoppage of the erection of any
building or execution of any work under section 343, can
make an order directing the sealing of such erection or work
or of the premises in which such erection or work is being
carried or has been completed. A further appeal has been.
provided under section 347D to the Administrator against the
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order of the Appellate Tribunal. Section 347E says:-
"347E. Bar of jurisdiction of courts.
(1) After the commencement of section 7 of the Delhi
Municipal Corporation (Amendment) Act, 1984, no court shall
entertain any suit, application or other proceedings in
respect of any order or notice appealable under section 343
or section 347B and no such order or notice shall be called
in question otherwise then by preferring an appeal under
these sections.
(2)Notwithstanding anything contained in sub-section (1),
every suit, application or other proceeding pending in any
court immediately before the commencement of section (7) of
the Delhi Municipal Corporation (Amendment) Act, 1984, in
respect of any order or notice appealable under section 343
or section 347B, shall continue to be dealt with and
disposed of by that court as if the said section had not
been brought into force."
Because of sub-sections (4) and (5) of section 343 and
section 347E aforesaid the stand of the Corporation is that
the Courts have been debarred from entertaining suits,
applications or proceedings for injunction, against any
order or notice for demolition and the order of demolition
passed by the Commissioner, subject to appeals before the
Appellate Tribunal and Administrator shall be deemed to be
final and conclusive.
In spite of several pronouncements of this Court during the
last four decades, the question as to whether the
jurisdiction of the Court has been statutorily barred in
respect of suits in connection with the orders passed or
proceedings initiated for demolition of constructions, which
have been made without sanction or by deviating from the
sanctioned plans, has to be answered.
531
Section 9 of the Code of Civil Procedure, (hereinafter
referred to as "the Code") says that Courts shall have
jurisdiction to try all suits of civil nature "except suits
of which their cognizance is either express Iyor impliedly
barred".According to the Corporation once the jurisdiction
of the Court to try a suit in which the validity of any
order passed under the provisions of the Corporation Act or
the notice issued thereunder has been specifically barred
and an internal remedy has been provided for redressal of
the grievances of the persons concerned, there is no scope
for Court to entertain a suit.
In the olden days the source of most of the rights and
liabilities could be traced to the common law. Then
statutory enactments were few. Even such enactments only
created rights or liabilities but seldom provided forums for
remedies. The result was that any person having a grievance
that he had been wronged or his fight was being affected,
could approach the ordinary Civil Court on the principle of
law that where there is a right there is a remedy-ubi jus
ibi remedium. As no internal remedy had been provided in
the different statutes creating rights or liabilities, the
ordinary Civil Courts had to examine the grievances in the
light of different statutes. With the concept of the
Welfare State, it was realised that enactments creating
liabilities in respect of payment of taxes obligations after
vesting of estates and conferring rights on a class of
citizens, should be complete codes by themselves. With that
object in view, forums were created under the Acts
themselves where grievances could be entertained on behalf
of the persons aggrieved. Provisions were also made for
appeals and revision to higher authorities.
Then a question arose as to where a particular Act had
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created a right or liability and had also provided a forum
for enforcement of such right or for protection from
enforcement of a liability without any authority in law,
whether a citizen could approach a Court. It may be pointed
out that many statutes have created certain rights or
liabilities and have also provided the remedial measures in
respect thereof. But such statutes have not touched the
common law rights of the citizen. But there are some
statutes, which in public interest affect even the common
law rights or liabilities of toe citizen, which were in the
nature of existing rights. The distinction between the two
types of rights or liabilities is subtle in nature but at
the same time very vital.
In one of the earliest case of Volverhampton New Waterworks
Co. v.
Hawkesford, (1859) 6 C.B. (N.S.) 336, Willes, J, said:-
"There are three classes of cases in which a liability may
be
532
established founded upon a statute. One is, where there was
a liability existing at common law, and that liability is
affirmed by a statute which gives a special and peculiar
form of remedy different from the remedy which existed at
common law: there, unless the statute contains words which
expressly or by necessary implication exclude the common-law
remedy, and the party suing has his election to pursue
either that or the statutory remedy. The second class of
cases is, where the statute gives the right to sue merely,
but provides no particular form of remedy: there, the party
can only proceed by action at common law. But there is a
third class, viz. where a liability not existing at common
law is created by a statute which at the same time gives a
special and particular remedy for enforcing it. The present
case falls within this latter class, if any liability at all
exists. The remedy provided by the statute must be
followed, and it is not competent to the party to pursue the
course applicable to cases of the second class."
The same view was reiterated by the House of Lords in
Neville v. London "Express" Newspaper Limited, (1919) Appeal
Cases 368. In Barraclough v. Brown, (1897) AC 615, it was
said:-
"I do not think the appellant can claim to recover by virtue
of the statute, and at the same time insist upon doing so by
means other than those prescribed by the statute which alone
confers the right."
It was further pointed out "The right and the remedy are
given uno flatu, and the one cannot be dissociated from the
other."
In the well-known case of Secretary of State v. Mask & Co.,
AIR 1940 Privy Council 105, this question was considered in
connection with Sea Customs Act (1878). It was said:-
"It is settled law that the 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 have
jurisdiction to examine into cases where the provisions of
the Act have not been complied with, or the statutory
tribunal has not acted in conformity with the fundamental
principle of judicial procedure."
533
But having enunciated the general principle in respect of
ouster of the jurisdiction of the Civil Court it was said:-
"But, in their Lordships’ opinion, neither Sec, 32 nor the
principle involved in the decision in 401 A
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48, affect the validity of an Act of the
Indian Legislature which creates an obligation
and provides an exclusive Code for its
determination such an obligation is not
covered by sub s. (2) of Section 32."
In connection with the imposition of Terminal Tax on salt
under the Punjab Municipal Act. In Firm Seth Radha Kishan
v. Administrator, Municipal committee. Ludhiana, AIR 1963
SC 1547, it was said that where a statute created a
liability and provided a remedy, party aggrieved should
pursue the remedy provided under the Act. A Constitution
Bench of this Court in Firm of Illuri Subbaya Chetty and
Sons v. State of Andhra Pradesh, AIR 1964 SC 322, considered
the provisions of Madras General Sales Tax Act and the
exclusion of the jurisdiction of the Civil Court. It was
pointed out that there was an express and unambiguous
prohibition and no suit could be entertained by a Civil
Court. In connection with the Bombay Sales Tax Act the same
view was reiterated by a Constitution Bench of this Court in
M/s. Kamala Mills Ltd. v. State of Bombay AIR 1965 SC 1942.
In Ram Swarup and ors. v. Shikar chand, AIR 1966 SC 893, a
Constitution Bench examined the bar on the jurisdiction of
the Civil Court in connection with the House and TenantsU.P.
(Temporary) control of Rent and Eviction Act, and came to
the conclusion that a special statute had excluded the
jurisdiction in clear and unambiguous words and it had
provided an adequate and satisfactory alternative remedy to
a party. That may be aggrieved by the relevant order and as
such the jurisdiction of the Civil Court had been ousted.
This very question was examined in State of Kerala v. MI s
N. Ramaswami Iyer and sons, AIR 1966 SC 1738, in connection
with the Travancore-Cochin General Sales Tax Act and it was
held that the jurisdiction of the Civil Court would be
deemed to have been excluded because the legislature had set
up a special tribunal to determine the question relating to
rights or liabilities. which had been created by the
statute. Again in connection with the provisions of the
Evacuee Property Act, in Ram Gopal Redd), v. Additional
Custodian Evacuee Property Hyderabad, [1966] 3 SCR 214 and
Custodian of Evacuee Property Punjab & Ors. v. Jafran Begum,
[1967] 3 SCR 736, it was held that complete machinery for
adjudication of all claims had been provided under the Act
and there being a bar on the jurisdiction of any court, the
Act over-rides other laws, including Section 9 of the Code
of Civil Procedure and there was no scope for the Civil
Court to entertain any suit.
The Constitution Bench in Dhuilabhai v. State of Madya
Pradesh, AIR 1969
534
SC 78, said:-
"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
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or not."
In connection with the Industrial Disputes Act, in The
Premier Automobiles Ltd. v. Kamlakar Shantaram Wadke. AIR
1975 SC 2238 = [1976] 1 SCC 496, it was pointed out that
"the Civil Court will have no jurisdiction to try and
adjudicate upon an industrial dispute, if it concerned
enforcement of certain right or liability created only under
the Act. " The jurisdiction of the Civil Court in
connection with the levy of octroi duty under the C.P. and
Barar Municipalities Act, 1922 was examined by this Court in
Bata Shoe Co. Ltd. v. Jabalpur Corporation, AIR 1977 SC 955
1 9771 2 SCC 472, and held it was barred.
Whether the Court can hear and determine suits relating to
levy of professional tax under the Punjab Municipal Act,
1971 was examined in the case of Munshi Ram v. Municipal
Committee. Chheharta, AIR 1979 SC 1250 = [1979] 3 SCC 83,
and it was held:-
Where a Revenue Statute provides for a person aggrieved by
an assessment thereunder, a particular remedy to be sought
in a particular forum, in a particular way, it must be
sought in that forum and in that manner, and all other
forums and modes of seeking it are excludes."
It was pointed out in Ram Singh v. Gram Panchayat,
MehalKalan, AIR 1986 SC 2197 = [1986] 4 SCC 364, that when
by a special statute rights have been created and
jurisdiction of the Court has been barred then the
jurisdiction of the
535
Court to try such suits has been taken away. In the case of
Raja Ram Kumar Bhargava v. Union of India, AIR 1988 SC 752 =
[1988] 1 SCC 68 1, it was said:-
"... Wherever a right, not preexisting 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 courts’jurisdiction is impliedly barred."
The jurisdiction of Civil Court to entertain a suit for
ejectment was examined in Sushil Kumar Mehta v. GobindRam
Bohra, [1990] 1 SCC 193, and it was held that the Rent
Control Act was a complete Code and the jurisdiction to try
a case for ejectment was exclusive under that Act.
With the increase in the number of taxing statutes, welfare
legislations and enactments to protect a class of citizens,
a trend can be noticed that most of such legislations confer
decision making powers on various authorities and they seeks
to limit or exclude Court’s power to review those decisions.
The result is that the power of the Court under section 9 of
the Code is being denuded and curtailed by such special
enactments, in respect of liabilities created or rights
conferred. This Court in the judgments referred to above
has upheld the ouster of the jurisdiction of the Court on
examination of two questions (1) Whether the right or
liability in respect whereof grievance has been made, had
been created under an enactment and it did not relate to a
pre-existing common law right? (2) Whether the machinery
provided for redressal of the grievance in respect of
infringement of such right or imposition of a liability
under such enactment, was adequate and complete? The ouster
of the jurisdiction of the Court was upheld on the finding
that the rights or liabilities in question had been created
by the Act in question and remedy provided therein was
adequate.
But the situation will be different where a statute purports
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to curb and curtail a pre-existing common law right and
purports to oust the jurisdiction of the Court so far remedy
against the orders passed under such statute are concerned.
In such cases, the courts have to be more vigilant, while
examining the question as to whether an adequate redressal
machinery has been provided, before which the, person
aggrieved may agitate his grievance. In the case of
katikara Chintamani Dora v. Guatreddi Annamanaidu, AIR 1974
SC 1069, this Court after referring to the case of Desika
Charyulu v. State of Andhra Pradesh, AIR 1964 SC 807,
observed:-
536
"It was pertinently added that this exclusion of the
jurisdiction of the Civil Court would be subject to two
limitations. First, the Civil Courts have jurisdiction to
examine into cases where the provisions of the Act have not
been complied with or the statutory tribunal has not acted
in conformity with the fundamental principles of judicial
procedure. The second is as regards the exact extent to
which the powers of statutory tribunals are exclusive. The
question as to whether any particular case falls under the
first or the second of the above categories would depend on
the purpose of the statute and its general scheme, taken in
conjunction with the scope of the enquiry entrusted to the
tribunal set up and other relevant factors."
It was held that a suit for declaration that "the decision
of the Settlement Officer/Tribunal holding certain
properties to be an ’estate’ under section 3(2) (d) of the
1908 Act was void, was maintainable on the ground that the
suit property was not an’inam village’. In Pyx Granite Co.
Ltd. v. Ministry of Housing and Local Government, [1960]
A.C. 260, the appellants sought a declaration of their
common law right to quarry their land without the need to
obtain planning permission under the Town and Country
Planning Act, 1947. In that connection it was said:-
"The appellant company are given no new right
of quarrying by the Act of 1947. Their right
is a common law right and the only question is
how far it has been taken away. They do not
uno flatu claim under the Act and seek a
remedy elsewhere. On the contrary, they deny
that they come within its purview and seek a
declaration to that effect."
In spite of the bar placed on the power of the Court. orders
passed under such statutes can be examined on
"jurisdictional question". To illustrate-, a special
machinery has been provided for removal of the encroachments
from public land’ under different enactments in different
states and the jurisdiction of the Court has been barred in
respect of the orders passed by such special tribunals or
authorities constituted under such Acts. Still a suit will
be maintainable before a Court on a plea that the land in
question shall not be deemed to be public land within the
meaning of the definition of public land given in the Act in
question, and as such provisions thereof shall not be
applicable.
In the case of Anisminic Lid. v. Foreign Compensation
Commission, (1969) 2 AC 147, a wide interpretation has been
given to the word ’jurisdiction’ by the House of Lords. It
was pointed out that in many cases where although the
Tribunal
537
has jurisdiction to enter upon an enquiry, it has done or
failed to do something in the course of such enquiry which
is of such a nature that its decision becomes a nullity.
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By mere reference to different provisions of the Corporation
Act it shall appear that the Act does not create any right
or liability. Chapter XVI of the Act only purports to
regulate the erection of the buildings within the
Corporation area, so that erections of the buildings within
the Corporation area are systematic, planned and do not
adopt the character of mushroom growth. In view of the
Provisions of the Act, whenever it is discovered that
erection of any building or execution of any work has been
commenced or is being carried or has been completed, either
without sanction or contrary to the sanction or in
contravention of any condition subject to which such
sanction had been accorded, the Commissioner can make an
order directing that such erection or work shall be
demolished. Any person aggrieved by an order has been given
a right to prefer an appeal before the Appellate Tribunai
and thereafter to the Administrator. Subject to any order
passed by the Appellate Tribunal and the Administrator, the
order for demolition shall be deemed to be final and
conclusive.
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 immorial. But with
the urbanisation and development of the concept of planned
city, regulations, restrictions, 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 liability created under the Act itself, it cannot be
said that the right and the remedy have become 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. In spite of the bar
prescribed under sub-sections (4) and (5) of section 343 and
section 347E of the Corporation Act over the power of the
Courts, under certain special circumstances, 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 not maintainable, although along with the plaint
materials are produced to show that the building in question
is not within the Corporation limits, or that the
constructions were made prior to coming into force of the
relevant provisions of
538
the Act? We are conscious of the fact that persons who make
unauthorised constructions by contravening and violating the
building bye-laws or regulations often run to Courts, with
pleas mentioned above, specially that no notice was issued
or served on them, before the Corporation has ordered the
demolition of the construction.
It is well-known 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-
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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.
TEMPORARY INJUNCTION
It need not be said that primary object of filing a suit
challenging the validity of the order of demolition is to
restrain such demolition with the intervention of the Court.
In such a suit the plaintiff is more interested in getting
an order of interim injunction. It has been pointed out
repeatedly that a party is not entitled to an order of
injunction as a matter of right or course., Grant of
injunction is within the discretion of the Court and such
discretion is to be exercised in favour of the plaintiff
only if it is proved to the satisfaction of the Court that
unless the defendant is restrained by an order of
injunction, an irreparable loss or damage will be caused
539
to the plaintiff during the pendency of the suit. The
purpose of temporary injunction is, thus, to maintain the
status quo. The Court grants such relief according to the
legal principles--ex debite justitiae. Before any such
order is passed the Court must be satisfied that a strong
primafacie case has been made out by the plaintiff including
on the question of maintainability of the suit and the
balance of convenience is in his favour and refusal of
injunction would cause irreparable injury to him.
Under the changed circumstance with so many cases pending in
Courts, once an interim order of injunction is passed, in
many cases, such interim orders continue for months; if not
for years. At final hearing while vacating such interim
orders of injunction in many cases, it has been discovered
that while protecting the plaintiffs from suffering the
alleged injury, more serious injury has been caused to the
defendants due to continuance of interim orders of
injunction without final hearing. It is a matter of common
knowledge that on many occasions even public interest also
suffers in view of such interim orders of injunction,
because persons in whose favour such orders are passed are
interested in perpetuating the contraventions made by them
by delaying the final disposal of such applications. The
court should be always willing to extent its hand to protect
a citizen who is being wronged or is being deprived of a
property without any authority in law or without following
the procedure which are fundamental and vital in nature.
But at the same time the judicial proceedings cannot-be.
used to protect or to perpetuate a wrong committed by a
person who approaches the Court.
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Power to grant injunction is an extraordinary power vested
in the Court to be exercised taking into consideration the
facts and circumstances of a particular case. The Courts
have to be more cautious when the said power is being
exercised without notice or hearing the party who is to be
affected by the order so passed. That is why Rule 3 of Order
39 of the Code requires that in ail cases the Court shall,
before grant of an injunction, direct notice of the
application to be given to the opposite party, except where
it appears that object of granting injunction itself would
be defeated by delay. By the Civil Procedure Code
(Amendment) Act, 1976, a proviso has been added to the said
rule saying that "where it is proposed to grant an
injunction without giving notice of the application to the
opposite party, the Court shall record the reasons for its
opinion that the object of granting the injunction would be
defeated by delay......
It has come to our notice that in spite of the aforesaid
statutory requirement, the Courts have been passing orders
of injunction before issuance of notices or hearing the
parties against whom such orders are to operate without
recording the reasons for passing such orders. It is said
that if the reasons for grant of injunction
540
are mentioned, a grievance can be made by the other side
that Court has prejudged the issues involved in the suit.
According to us, this is a misconception about the nature
and the scope of interim orders. It need not be pointed out
that any opinion expressed in connection with an
interlocutory application has no bearing and shall not
affect any party, at the stage of the final adjudication.
Apart from that now in view of the proviso to Rule 3
aforesaid, there is no scope for any argument. When the
statute itself requires reasons to be recorded, the Court
cannot ignore that requirement by saying that if reasons are
recorded, it may amount to expressing an opinion in favour
of the plaintiff before hearing the defendant.
The imperative nature of the proviso has to be judged in the
context of Rule 3 of Order 39 of the Code. Before the
Proviso aforesaid was introduced, Rule 3 said "the Court
shall in all cases, except where it appears that the object
of granting the injunction would be defeated by the delay,
before granting an injunction, direct notice of the
application for the same to be given to the opposite party".
The proviso was introduced to provide a condition, where
Court proposes to grant an injunction without giving notice
of the application to the opposite party, being of the
opinion that the object of granting injunction itself shall
be defeated by delay. The condition so introduced is that
the Court "shall record the reasons" why an ex parte order
of injunction was being passed in the facts and
circumstances of a particular case. In this background, the
requirement for recording the reasons for grant of ex parte
injunction, cannot be held to be a mere formality. This
requirement is consistent with the principle, that a party
to a suit, who is being restrained from exercising a right
which such party claims to exercise either under a statute
or under the common law, must be informed why instead of
following the requirement of Rule 3, the procedure
prescribed under the proviso has been followed. The party
who invokes the jurisdiction of the Court for grant of an
order of restraint against a party, without affording an
opportunity to him of being heard, must satisfy the Court
about the gravity of the situation and Court has to consider
briefly these factors in the ex parts order. We are quite
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conscious of the fact that there are other statutes which
contain similar provisions requiring the Court or the
authority concerned to record reasons before exercising
power vested in them. In respect of some of such provisions
it has been held that they are required to be complied with
but non-compliance there of will not vitiate the order so
passed. But same cannot be said in respect of the proviso
to Rule 3 of Order 39. The Parliament has prescribed a
particular procedure for passing of an order of injunction
without notice to the other side, under exceptional
circumstances. Such ex parte orders have far reaching
effect, as such a conditions has been imposed that Court
must record reasons before passing such order. If it is
held that the compliance of the proviso aforesaid is
optional and not obligatory, then the introduction of the
proviso by the Parliament shall be a futile exercise and
that part of Rule 3 will be
541
a surplusage for all practical purpose. Proviso to Rule 3
of Order 39 of the Code, attracts the principle, that if a
statute requires a thing to be done in a particular manner,
it should be done in that manner or not all. This principle
was approved and accepted in well-known cases of Taylor v.
Taylor. (1875) 1 Ch. D. 426, Nazir Ahmed v. Emperor, AIR
1936 PC 253. This Court has also expressed the same view in
respect of procedural requirement of the Bombay Tenancy and
Agricultural Lands Act in the case of Ramachandra Keshav
Adke v. Govind Joti Chavare, AIR 1975 SC 915.
As such whenever a Court considers it necessary in the facts
and circumstances of a particular case to pass an order of
injunction without notice to other side. It must record the
reasons for doing so and should take into consideration,
while passing an order of injunction, all relevant factors,
including as to how the object of granting injunction itself
shall be defeated if an ex parte order is not passed. But
any such ex parte order should be in force upto a particular
date before which the plaintiff should be required to serve
the notice on the defendant concerned. In the Supreme Court
Practice 1993, Vol. 1, at page 514, reference has been made
to the views of the English Courts saying:-
"Exparte injunctions are for cases of real urgency where
there has been a true impossibility of giving notice of
motion....
An ex parte injunction should generally be until a certain
day, usually the next motion day. . . ."
Accordingly we direct that the application for interim
injunction should be considered and disposed of in the
following manner:-
(i)The Court should first direct the plaintiff to serve a
copy of the application with a copy of the plaint along with
relevant documents on the counsel for the Corporation or any
competent authority of the Corporation and the order should
be passed only after hearing the parties.
(ii)If the circumstances of a case so warrant and where the
Court is of the opinion, that the object of granting the
injunction would be defeated by delay, the Court should
record reasons for its opinion as required by proviso to
Rule 3 of order 39 of the Code, before passing an order for
injunction. The Court must direct that such order shall
operate only for a period of two weeks, during which notice
along
542
with copy of the application, plaint and relevant documents
should be served on the competent authority or the counsel
for the Corporation. Affidavit of service of notice should
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be filed as provided by proviso to Rule 3 of order 39
aforesaid If the Corporation has entered appearance, any
such exparte order of injunction should be extended only
after hearing the counsel for the Corporation.
(iii)While passing an ex parte order of injunction the Court
shall direct the plaintiff to give an undertaking that he
will not make any further construction upon the premises
till the application for injunction is finally heard and
disposed of.
In the result, the appeals are allowed to the extent
indicated above. In the circumstances of these cases, there
shall be no order as to costs.
VPR. Appeals allowed.
787