IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 05.04.2002
Coram
THE HONOURABLE MR. JUSTICE P. SHANMUGAM
Civil Revision No.4154 of 2001 and C.M.P. No.22610 of 2001
and
Suo Motu Revision in reference to the Suits
pending before the City Civil Courts at Chennai
Chennai Metropolitan Development
Authority, rep. by its
Member Secretary,
Gandhi Irwin Road, Chennai-8. .. Petitioners
vs.
1. Abdur Rehman,
Hotel Nest International,
31, Gandhi Irwin Road,
Egmore, Chennai-8.
2. The Corporation of Chennai,
rep. by its Commissioner,
Chennai-3. .. Respondents
PRAYER : Petition under section 115 of Act V of 1908 praying the High
Court to revise the Order of the VII Assistant Judge, City Civil Court,
Chennai dated 10.9.2001 made in I.A. Nos.15149 and 11390 of 2001 in O.S.
No.4012 of 2001.
: ORDER
This petition coming on for orders as to hearing, upon
perusing the petition and upon hearing the arguments of Mr. A.L.
Somayajulu, Senior Counsel on behalf of Mr. V. Perumal, Advocate for
the Petitioners, and of Mr. T.V. Ramanujam, Senior Counsel, for the
first respondent in C.R.P. No.4154 of 2001 and of Mr. R. Mohan, Mr.
N. Jayabalan, Mr. P.B. Ramanujam, Mr. K. Venkataraman, Mr. S.
Suresh Kumar, Mr. S. Mohan, Mr. D.S. Rajasekaran, Mr. A.S.
Kailasam, Mr. K.M. Venugopal, Mr. M. Balasubramanian, Mr. S.
Sivaraman and Mr. P. Sukumar, Advocates for the Respondents in the Suo
Motu Revision, and having stood over for consideration till this day, the
Court passed the following Order :-
O R D E R
C.R.P. No.4154 of 2001 was preferred by the Chennai Metropolitan
Development Authority against the interm order of injunction passed by
the City Civil Court on the main plea that the suit filed against them is
barred under Section 101 of the Tamil Nadu Town and Country Planning Act,
1971 (hereinafter referred to as the Act). It was submitted on behalf of
the petitioner at that time that inspite of this specific bar, about 700
suits are filed against the notices issued under the Act and interim
orders obtained without reference to the maintainability of the suits.
It was further submitted that in lieu of ex parte orders passed by
various City Civil Courts, their whole object of providing an orderly
planned development of the urban land is being defeated.
2. In the light of the above submission, a suo motu revision was
taken by against those suits pending and the records were called for by
an order dated 21.12.2001. Notices to the counsel appearing on behalf of
the plaintiffs in those suits were ordered to be given on 8.3.20 02 and
the matter was since adjourned for hearing the counsel and ultimately, it
was heard on 28.3.2002.
3. The main question that arises for consideration is whether
the action taken by the Chennai Metropolitan Development Authority is
liable to be challenged in a civil court. Section 101 of the Act reads
as follows :
“101. Bar of jurisdiction of Courts. – Any decision or order of
the Tribunal or the Government or the planning authority or other
authority or of any officer under this Act shall subject to any appeal or
revision or review provided under this Act, be final and shall not be
liable to be questioned in any Court of Law.”
A plain reading of the Section leaves no room for doubt that a decision
or order of the planning authority shall not be liable to be questioned
in any court of law. The argument of the counsel on the side of the
respondents is twofold. Firstly, a notices issued under the Act is
neither an order nor a decision appealable or revisable and therefore,
they will not come within the purview of Section 101. Secondly, it is
contended that the development of the building had been carried out more
than three years earlier and therefore, they are excluded from the
purview of the Act.
4. For a better appreciation of these submission, it is
necessary to go through the relevant provisions of the Act.
‘Development’ has been defined under Section 2(13) as to mean not only
the carrying out of the works contemplated as per the plan, but shall
include the carrying out of building or other operation in or over the
land or the making of a material change in the use of any building or
land. The proviso to this section excludes the temporary repair work.
Section 49 of the Act deals with the application for permission. Any one
intending to carry out any development in a land or building shall have
to make an application in writing to the appropriate planning authority
for permission in such form and containing such particulars and
accompanied by such documents as may be prescribed. An appeal to the
Director is provided for against the refusal to grant permission under
Section 76 of the Act. A further appeal to the Tribunal under Section 77
and a revision to the District Court under Section 78 are provided for
under the Act.
5. If any development of land or building is carried out without
the permission or if it is done unauthorisedly or done in contravention
of such permission, Section 56 empowers the removal of such unauthorised
development by the competent authority. Before taking any decision, the
appropriate planning authority has to serve a notice on the owner
requiring him within a minimum of one month period to take such steps as
may be specified in the notice. If the notice requires the
discontinuance of any use of land or building, a notice shall be served
on the occupier also. The said notice issued under Section 56 readwith
Section 85 (for restoration) of the Act states that on inspection made on
a particular date, it was found that there was no approved plan and even
after request for production of the approved plan, it has not been
complied with and therefore, the owner is requested to stop the work
immediately and on complying with the request within three days from the
date of receipt of the notice, legal action will be taken. A further
notice in Form-I under Section 56 readwith Section 85 is given requiring
the demolition of the construction put up unauthorisedly without planning
permission and after referring to the ‘ stop work’ notice. The owner is
called upon to restore the land to its original state and on his failure
to do so within 30 days, action will be followed under Section 56(5) of
the Act. Sub-section (3) of Section 56 says that any person aggrieved by
such notice may apply for permission under Section 49 of the Act for
retention of the land or any building or works for the continuance of any
use of the land or building to which the notice relates.
6. Sub-section (4) says that on such application under Section
49, a notice issued under Section 56(1) shall not be issued in effect,
pending the final determination of the application. Section 57 of the
Act empowers to stop unauthorised development by issuing a notice.
Section 79 says that any person aggrieved by any decision or order under
Section 49 or Section 54 may apply to the prescribed authority. The
Director is empowered to call for and examine the records of any officer
subordinate to him on application, and the Government is also empowered
to call for and examine the records of the Director under Section 80.
The Director is empowered to suspend any decision or order pending the
revision and Sub-section (2) says that no order shall be passed without
an opportunity being given to the concerned. Section 81 provides for a
review. Section 82 empowers the execution of the orders passed under
appeal, revision or review.
7. By a reading of these provisions, it is clear that for an
orderly planned development of the town and in the public interest, a
clear scheme has been evolved under variuos provisions of the Act in
reference to the development contemplated under the Act. Section 101
bars the jurisdiction of the court in clear terms in reference to the
decision or order of the Tribunal or the Government or the planning
authority or any other authority under the Act.
8. Therefore, any suit covering the issues raised relating to
the activities coming under the Act is expressly barred to be entertained
by the civil court. Section 9 of the Code of Civil Procedure also, in
clear terms, says that no suit shall lie if it is expressly or impliedly
barred by any other enactment. Therefore, it follows that in all cases
relating to the development activity as defined under the Act, the civil
court shall not have any jurisdiction. The Act provides for a notice, an
appeal, a revision and a review by the authorities concerned. If the
civil courts have entertained a suit of a nature which comes within the
provisions of the Act, the said suit is clearly not maintainable. The
plaint ought not to have been entertained in those cases.
9. Now, we will see whether the notices issued in these cases
come under the provisions of the Act.
10. Section 56 of the Act empowers the authorities to require
removal of unauthorised development in the following cases :
(a) when development of land or building has been carried
out without permission;
(b) in contravention of any permission;
(c) after revocation of permission;
(d) in contravention of the modification of permission.
The notice shall require, in cases specificed under clauses (a) to ( c),
to restore the land to its original condition and in cases of (b) or (d),
to secure compliance of the permission. The notice can also require
under Sub-section (2), the demolition or alteration of any building work
with discontinuance of any use of land or building. Therefore, the
notice contemplated under Section 56 of the Act is not a mere notice of
information, but it is a decision required to be taken if the condition
under Sub-section (1) of Section 56 is fulfilled. It also empowers the
action that has to be called upon to be made in the said notice,
including demolition etc. The notice is preceded by the decision that
the ingredient of Section 49, Section 50, Section 5 4, Section 56 and
Section 57 are satisfied as the violations get attracted. Sub-section
(2) to Section 49 states the method of giving effect. Sub-section (5) to
Section 49 provides for the consequential action. Therefore, the
argument of the counsel on behalf of the respondents that there is no
decision so as to bar the jurisdiction of the court cannot be sustained.
11. However, if an application is made for permission under
Section 49 as per Sub-section (3), then the notice shall not have any
effect pending determination of the application as per Sub-section (4).
Section 80 of the Act provides for a revision by the Director on
application, to call for and examine the records of any officer
subordinate to him. The said provision is also available to the
Government to call for and examine the records of the Director.
Sub-section (3) empowers the Director or the Government to suspend the
execution of the decision or order pending disposal of the revision.
12. The Tamil Nadu Town and Country Planning Act, 1971 provides
for the planned and orderly development and use of urban land, and in
order to achieve the said object, it has provided for a scheme and
machinery for the control of development and use of the land. Section 49
begins with a prohibition as to the carrying out of development of any
land except as otherwise provided for, and only after making an
application in writing to the appropriate planning authority for
permission. The duration of permission is provided for under Section 50.
The removal comes only on the failure as per the Act. Section 56
empowers to remove the unauthorised development. As against the refusal
to grant permission under Section 49, an appeal is provided for under
Section 79 of the Act. A revision is provided for against the
proceedings taken under Section 80 of the Act. The remedies are
available against any decision and the proceedings under the Act. The
provisions give sufficient safeguards and opportunity to the concerned
either to explain, comply or move a revision. Section 56(1) itself
provides for one month’s time to take such steps. The person aggrieved
has a choice to apply for permission and get the matter postponed till
the final determination or file a revision against such a decision.
13. On the contrary, it is common knowledge that inspite of
these specific provisions, buildings are put up in violation of the Act
and civil remedies are resorted to, defeating the whole purpose. The
authorities are to wait helplessly only to see the lengthy civil
proceedings being dragged on. The fact that there are seven hundred
cases on the removal of unauthorised development alone shows the enormous
burden or the deadlock created in the functioning of the Act. The whole
scheme is set at naught by side-stepping the available remedies under the
Act.
14. Section 9 of the Code of Civil Procedure says that the civil
court shall have jurisdiction to try all suits of civil nature excepting
suits of which their cognizance is either expressly or impliedly barred.
In the present cases, the civil court’s jurisdiction is expressly barred
by Section 101 readwith Section 49, Section 56 and Section 80 of the Act.
15. In this context, the judgment of the Supreme Court in SHIV
KUMAR CHADHA VS. MUNICIPAL CORPORATION OF DELHI [1993 (3) S.C.C. 161
can be referred to. The Delhi High Court in that case directed the
Municipal Corporation of Delhi to issue appropriate notices to the
owners/ occupiers/builders of the buildings where illegal constructions
have been made with liberty to file fresh building plans with the
Corporation by the owners etc. The Corporation was directed by the High
Court if it finds that the constructions are beyond the compoundable
limits, then to seal the same and demolish it thereafter. The High Court
further directed 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 ceiling and or demolition of any building
or any part thereof. The lordships, after considering elaborately on the
jurisdictional aspect of the civil court vis-a-vis the special enactment,
have observed as follows :
“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 the
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.” (emphasis added)
Their lordships held that the court can examine whether the dispute falls
within the ambit of the Act, like for example, if materials are produced
along with the plaint to show that the building in question is not within
the Corporation limit, or that the constructions were made prior to the
coming into force of the relevant provisions of the Act. The court has
to look into these jurisdictional questions carefully before entertaining
a civil suit, the cognizance of which is specifically barred under
Section 101 of the Act. With regard to the grant of temporary injunction
also, their lordships issued the following directions :
“(i) The court should first direct the plaintiff to serve a copy
of the application with a copy of the plaint along with the 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 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 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.” (emphasis added)
16. In ANWAR VS. FIRST ADDITIONAL DISTRICT JUDGE, BULANDSHAHR
(A.I. R. 1986 S.C. 1785), the Supreme Court held that the jurisdiction
of the State Government (hearing authority under Section 68(d) of the
M.V. Act) is exclusive in character and it is not open to a civil court
to issue an order of injunction restraining the hearing authority from
proceeding with the case and exercising his statutory functions.
Whenever statute uses the expression that a decision of an authority will
be final, the jurisdiction of the civil court to go into the correctness
or otherwise of the question is taken away. Where the statute gives
finality to the orders of a Special Tribunal, the civil court’s
jurisdiction must be held to be excluded insofar as the merits of the
case are concerned. In STATE OF ANDHRA PRADESH VS. MANJETI LAXMI KANTHA
RAO [2000 (3) S.C.C. 689], their lordships of the Supreme Court held
that the test adopted in examining the exclusion of civil court’s
jurisdiction is :
(1) whether the legislative intent to exclude arises explicitly
or by necessary implication ? and
(2) whether the statute in question provides for adequate and
satisfactory alternative remedy to a party aggrieved by an order made
under it ?
Where a statute gives finality to the orders of the Special Tribunals,
jurisdiction of the civil courts must be held to be excluded if there is
an adequate remedy to do what the civil courts would normally do in a
suit. However, this will not exclude cases where the provisions of the
particular Act have not been complied with or when the statutory
authorities have not acted in conformity with the fundamental principles
of judicial procedure. In P. NIRATHILINGAM VS. ANNAYA NADAR [2001 (9)
S.C.C. 673], dealing with the Tamil Nadu Debt Relief Act 1980, the
Supreme Court held that from the provisions of the said Act, the
legislative scheme is clear that the scheme is not to allow interference
by any court with determination of the question of eligibility to receive
benefit under the said Act and that the legislative intent is to vest the
jurisdiction with the statutory authorities to the exclusion of the
court.
17. In order to maintain a suit, the plaintiff has to prima
facie establish that the notice/order is a nullity in the eye of law
because of any jurisdictional error. The only argument advanced by the
respondents in reference to this aspect is that the development in
question has taken place three years earlier and therefore, the notice
issued under Section 56 of the Act cannot have any legal force. The
Supreme Court also was conscious of the fact that persons who make
unauthorised construction by contravening or by violating the building
regulations often run to courts with the plea that the constructions were
made prior to the coming into force of the Act and that no notice was
served on them before the demolition order was made. It is also well
known that in most of the cities, building regulations have been framed,
but still it has been discovered that constructions have been made
without any sanction or in contravention of the sanctioned plan and that
such constructions have continued without any intervention. Their
lordships observed that there cannot be two opinions that the regulations
and bye-laws in respect of the buildings are meant to serve the public
interest. However, in special cases where a jurisdictional error on the
part of the Corporation is established, a suit is maintainable.
Therefore, by a mere statement that the construction is more than three
years old, it will not take away the jurisdiction of the authorities
under the Act and it shall not confer the jurisdiction to civil courts in
such cases provided the jurisdictional error is atleast prima facie
established. Otherwise, the very purpose of the various provisions of
the enactment will get defeated.
18. The 573 suits are pending in various City Civil Courts of
Chennai as against the notices issued and action taken under the Act.
Without looking into the maintainability of the suits, they have been
entertained and interim orders of injunction obtained. Though the
records have been called for, it is not practicably possible for this
court to hear all the parties and consider the issue. This court
considers it appropriate, just and necessary that all the suits be
remanded to the City Civil Court to try the questions, viz. whether the
civil court has jurisdiction and whether the bar created by the Tamil
Nadu Town and Country Planning Act, 1971 will not apply to the case as
the preliminary issue, and to deal with the suits in accordance with the
decision on this issue, in the light of the observations contained in
this order. The civil court shall pass appropriate orders, to vary or
discharge the interim orders granted, if the same had been granted
contrary to the provisions of Order 39(1), (2) or 3A of the Code of Civil
Procedure, and the principle set out in paragraph 14 of this order, on or
before 26.4.2002.
19. As the suits are pending in different courts, to avoid
further delay and for an expeditious disposal, it is hereby ordered that,
Items 1 to 200 (Docket Nos. vide page nos.42 to 82 of the typed
set, for the corrseponding suit numbers) be posted before the III
Assistant Judge, Civil Court, Chennai;
Items 201 to 400 be posted before the IV Assistant Judge, City
Civil Court, Chennai; and
Items 401 to 573 be posted before the XI Assistant Judge, City
Civil Court, Chennai,
and listed on 10.4.2002 and the same shall be disposed of on or before
26.6.2002. If any of the suits had already been disposed of, the
petitioner is at liberty to proceed further in accordance with law. The
civil court may exclude some of the cases wherein the issue may not arise
for consideration.
20. C.R.P. No.4154 of 2001 is remanded and posted before the
III Assistant Judge, City Civil Court, Chennai along with the other
matters as stated above, for disposal in the light of the observations
contained in this order. No costs. Consequently, the connected C.M.P.
is closed. The records along with the copy of this order shall be
despatched immediately to the courts indicated above.
Index : Yes 5th April, 2002. Internet : Yes ab NOTE TO OFFICE : Issue a copy of this order today. Sd/.. Assistant Registrar // TRUE COPY // Sub Assistant Registrar (C.S.) To 1. The Registrar, City Civil Court, Chennai-600 104. 2. The V.R. Section, High Court, Chennai. P. SHANMUGAM, J. Order in C.R.P. No.4154 of 2001 etc. Delivered on 05..04..2002