IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 02/12/2002
CORAM
THE HON'BLE MR.JUSTICE K.RAVIRAJA PANDIAN
C.R.P.(P.D.)No.858 of 2002
and
C.M.P.No.6954 of 2002
S.T.Sundaram .. Petitioner
-Vs-
1. Veerateswaran
2. The Chairman,
Karaikkal Planning Authority
Karaikkal
Pondicherry State
3. The Member Secretary,
Karaikkal Town Planning
Authority, Karaikkal,
Pondicherry State. ... Respondent
Prayer: Civil Revision Petition filed under Section 115 of C.P.C.
against O.S.No.26 of 2002 on the file of the Additional District Judge,
Karaikkal.
For Petitioner : Mr.R.Thiagarajan,
Sr.Counsel for
Mr.K.Mohanram
For Respondents: Mr.S.Sethuratnam,
Sr.Counsel for
Mr.S.Sounthar (R.1)
Mr.T.Murugesan, Govt.
Pleader (Pondicherry)
(RR.2 and 3)
:ORDER
The Civil Revision Petition is filed under Article 227 of the
Constitution of India against the suit in O.S.No.26 of 2002 on the file of the
Additional District Judge, Karaikkal.
2. The facts of the case are as follows:
The petitioner being the owner of the land in T.s.Nos.161, 164, 165
and 166 in ward No.F, Block No.38 at Nehru street, Karaikkal town obtained an
approved plan No.604/Kpa/98 dated 17.3.1999 from the respondents 2 and 3 for
putting up a Kalyana Mandapam. In accordance with the approved plan, the
petitioner had actually completed the construction of the Kalyana Mandapam
even in the year 2001. The first respondent is residing at D.No.219, Church
street, Karaikkal and the Kalyana Mandapam has been put up at Door No.58,
Nehru Street, which is on the north east of the first respondent’s property.
The petitioner by sale deed dated 18.6.2001 purchased the property bearing old
Door No.218 lying immediately on the north of Door No.219 owned by the first
respondent and on the west of the Kalyana Mandapam put up by him.
3. It is the further case of the petitioner that there is a
litigation between the first respondent and vendor, the owner of the old Door
No.218 and the litigation is still pending and as a power of attorney holder
of the vendor, the petitioner is looking after the litigation. Enraged by the
purchase of the suit property by the petitioner, the first respondent with a
mala fide intention sent telegrams dated 22.10.2001 and 24.10.2001 to the
respondents 2 and 3 to the effect that the Kalyana Mandapam has been put up in
violation of the approved plan and requested the respondents 2 and 3 to take
suitable action under the provisions of the Pondicherry Town and Country
Planning Act, 1969, (hereinafter referred to as “the Act, 1969”) against the
petitioner. The second respondent by letter dated 24.10.2001 replied to the
first respondent that there is no violation in putting up the construction of
the Kalyana Mandapam by the petitioner.
4. It is the further case of the petitioner that suppressing the
above facts, the first respondent filed a writ petition in W.P.No.1859 of 2002
before this Court for issuance of a writ of mandamus to direct the respondents
2 and 3 to remove the illegal construction put up in violation of the planning
permit and rules and regulations. That writ petition was disposed of by this
Court on 31.1.2002 by directing the third respondent to inspect the premises
and dispose of the representation made by the first respondent within four
weeks from the date of receipt of copy of the order. Pursuant to the order
made by this Court, the third respondent sent a communication on 26.3.2002 to
the first respondent informing about the action to be taken. However, the
first respondent, filed a suit in O.S.No.26 of 2002 before the Additional
District Judge, Karaikkal for a mandatory injunction directing the respondents
2 and 3 to remove the construction alleged to be in deviation of approved plan
and obtained an order of interim injunction in I.A.No.80 of 2002 restraining
the respondents 2 and 3 from giving “no objection certificate” for running the
Kalyana Mandapam and also obtained an order for appointment of an Advoc ate
commissioner in I.A.No.81 of 2002 to inspect the Kalyana Mandapam and file a
report. Since the petitioner is aggrieved by the orders so passed and also
aggrieved of filing of the civil suit before the Additional District Court,
Karaikkal, filed the present civil revision petition.
5. Mr.R.Thiagarajan, learned Senior Counsel appearing for the
petitioner has contended that the suit as filed before the Civil Court is not
maintainable in law in view of the bar of Civil Court’s jurisdiction under
Section 75 of the Act, 1969. The Civil Court has no jurisdiction to entertain
the suit. He further contended that the interim orders passed in I.A.Nos.80
and 81 of 2002 viz., appointment of Commissioner and interim order of
injunction restraining the respondents 2 and 3 from giving “no objection
certificate” to the petitioner for running the Kalyana Mandapam would amount
to injuncting the statutory authorities from performing their statutory
function. When the authorities under the Act sanctioned the planning permit
in accordance with the provisions of the Act, 1969 and the construction has
been carried out by the petitioner by scrupulously following the sanctioned
plan, an advocate commissioner, who is not well informed about the
technicalities cannot by his inspection alone find out whether there is
violation of the terms of the sanctioned plan without being equipped with the
basic materials for that purpose. He contended that the averments in the
affidavit filed in support of the writ petition filed before this Court has
been transformed into plaint and the present civil suit has been filed, which
is nothing but gross abuse of process of law, in the sense, having approached
this Court under Article 226 of the Constitution of India rightly, having
obtained an order in the writ petition directing the statutory authorities to
inspect the construction put up by the petitioner and take appropriate action
under the provisions of the Act, 1969, the first respondent abused the process
of law by filing civil suit with the same allegations. If there is any
violation of the sanctioned plan, the respondents 2 and 3, the statutory
authorities are empowered to take action against the petitioner. Further, by
filing writ petition, the first respondent caused to be issued a command from
this Court by way of mandamus. The authorities, respondents No.2 and 3 are
bound to take action against the petitioner if any violation is found in the
construction. The authorities so empowered by the statute and further issued
with the command of this Court in the writ petition having found that there is
no violation in putting up of the construction, did not take any action. Even
assuming that the respondents 2 and 3 failed to take any action on having
found that there are violations in spite of their statutory duty and in spite
of the direction of this Court, it would be proper for the first respondent to
approach this Court for ventilating his grievance. Without doing so, with a
mala fide intention and abuse of process of law, approached the Civil Court
which has no jurisdiction to entertain a suit, having regard to Section 75 of
the Act, 1969 and obtained an interim order, which order has also been passed
in total violation of the mandatory provisions of Order 39 Rules 2 and 3 of
the Civil Procedure Code. He further contended that the very institution of
the suit is a clear abuse of process of law and has been filed in utter
violation of Section 75 of the Act, 1969. The Additional District court has
also erred miserably in entertaining the suit and granted exparte interim
injunction in total violation of the provisions of the Act, 1969 and total
violation of the mandatory provisions of Order 39 Rules 1 and 2 of the Civil
Procedure Code.
6. On the other hand, Mr.Sethuratnam, learned Senior Counsel
appearing for the first respondent has contended that the first respondent was
forced to file the suit because of the inaction on the part of the respondents
2 and 3. Section 75 of the Act, 1969 is not applicable. Even assuming for
the sake of argument that the said provision is applicable, the question of
maintainability has to be decided by the trial Court. The trial Court’s
jurisdiction cannot be assumed to be ousted. The trial Court has every
jurisdiction to decide even the question of maintainability. However, in
respect of the granting of the interim order, he has not made out any argument
as to whether the same is in accordance with the Order 39 of the Civil
Procedure Code.
7. Mr.T.Murugesan, learned Government Pleader appearing for the
second and third respondents on instructions submitted that there is
absolutely no violation whatsoever in putting up of the Kalyana Mandapam by
the petitioner. Immediately after receipt of the telegram by the first
respondent and even after the disposal of the writ petition by this Court, the
authorities, respondents No.2 and 3 have inspected the premises and found that
there is no violation and hence the contention of the first respondent that
the respondent authorities have not taken action as contemplated under the Act
for violation of building construction by the petitioner is totally
misconceived.
8. Mr.R.Thiagarajan, learned Senior Counsel in his reply has
submitted that the petitioner has constructed the Kalyana Mandapam in
accordance with the sanctioned plan. Even assuming that there are certain
violations for which the authorities, respondents 2 and 3 are empowered to
take action by way of imposing fine and it is for the authorities under the
Act to take action. For that purpose, the first respondent cannot file a suit
and totally injunct the petitioner from enjoying the property, which he has
put up with heavy investment.
9. I heard the arguments of the learned counsel on either side and
perused the material on record.
10. It is true that the Pondicherry Town and Country Planning Act is
a Code by itself. Section 75 of the Act, 1969 provides that ” Save as
otherwise expressly provided under the Act, every order passed or direction
issued by the Government or Board or notice issued by planning authorities
under this Act shall be final and shall not be questioned in any suit or other
legal proceeding. This Court in CHENNAI METROPOLITAN DEVELOPMENT AUTHORITY
VS. ABDUR REHMAN reported in 2002(2) CTC 230, while considering pari materia
provision Section 101 of Tamil Nadu Town and Country Planning Act, 1971, which
provides that ” any decision or order of the Tribunal or the Government or the
planning authority or other authority or any other officer under this Act,
shall subject to any appeal or revision for review provided under this Act be
final and shall not be liable to be questioned in any Court of law”, has held
that the Civil Court shall have jurisdiction to try all suits of civil nature
except suits cognizance of which is either expressly or impliedly barred.
11. The exclusion of jurisdiction of the Civil Court in respect of
the special provisions has been considered by the Supreme Court in several
cases. The Constitution Bench in the case of DHULABHAI VS. STATE OF MADHYA
PRADESH reported in AIR 1969 SUPREME COURT 78 has laid down the following
principle regarding the exclusion of the jurisdiction of the Civil court:
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 provision, however does not exclude those cases where the provisions of
the particular Act have not been complied with or the statutory tribunal has
not acted in conformity with the fundamental principles of judicial procedure.
2. Where there is an express bar of the jurisdiction of the court, an
examination of the scheme of the particular Act to find the adequacy or the
sufficiency of the remedies provided may be relevant but is not decisive to
sustain the jurisdiction of the civil court. Where there is no express
exclusion the examination of the remedies and the scheme of the particular Act
to find out the intendment becomes necessary and the result of the inquiry may
be decisive. In the latter case it is necessary to see if the statute creates
a special right or a liability and provides for the determination of the right
or liability and further lays down that all questions about the said right and
liability shall be determined by the tribunals so constituted, and whether
remedies normally associated with actions in civil courts are prescribed by
the said statute or not.
(3) Challenge to the provisions of the particular Act as ultra vires
cannot be brought before Tribunals constituted under that Act. Even the High
Court cannot go into that question on a revision or reference from the
decision of the Tribunals.
(4) When a provision is already declared unconstitutional or the
constitutionality of any provision is to be challenged, a suit is open. A
writ of certiorari may include a direction for refund if the claim is clearly
within the time prescribed by the Limitation Act but it is not a compulsory
remedy to replace a suit.
(5) Where the particular Act contains no machinery for refund of tax
collected in excess of constitutional limits or illegally collected, a suit
lies.
(6) Questions of the correctness of the assessment apart from its
constitutionality are for the decision of the authorities and a civil suit
does not lie if the orders of the authorities are declared to be final or
there is an express prohibition in the particular Act. In either case the
scheme of the particular Act must be examined because it is a relevant
enquiry.
(7) An exclusion of jurisdiction of the Civil Court is not readily to
be inferred unless the conditions above set down apply.”
12. The scheme of the Act provided for constitution of the planning
board and notifying planning area, constitution and appointment of planning
authorities, the terms of office and meetings of the planning authorities.
The Act provided for procedure for approval and preparation of development
plan and control of the development and use of the land. The Act also
provided for provision for revocation of the permission to develop the land
and imposition of penalty for the development of the land, otherwise than in
conformity with the Act. It further provided power to the authorities require
removal of unauthorised development. Hence, the entire scheme of the Act is
for the purpose of development of the area and the granting of permission for
the purpose of developing the land i.e., granting of planning permission for
putting up construction and taking action against violation or irregularities
and the Act also provides for appeal provision to appellate authority by the
aggrieved person. Hence, so far as the application for planning permission,
refusal and any order passed thereon can be adjudicated under the provisions
of the Act. However, a third party, who is being aggrieved by the action
taken by the authorities under the Act cannot have recourse under t he Act as
per the Scheme of the Act and as such, it cannot be said that he cannot move
Civil Court for ventilating his grievance against the statutory authorities.
13. It is very well settled that the normal rule of law is that civil
Courts have jurisdiction to try all suits of civil nature except those of
which cognizance by them is either expressly or impliedly excluded as provided
under Section 9 of the Code of Civil Procedure but such exclusion is not
readily inferred and the presumption to be drawn must be in favour of the
existence rather than exclusion of jurisdiction of the civil Courts to try
civil suit. The test adopted in examining such a question is (i) whether the
legislative intent to exclude arises explicitly or by necessary implication,
and (ii) 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
adequate remedy to do what the civil Courts would normally do in a suit. Such
provision, however, does not exclude those cases where the provisions of the
particular Act have not been complied with or the statutory Tribunal has not
acted in conformity with the fundamental principles of judicial procedure.
This legal principle has been settled by the Supreme Court for nearly more
than 30 years back in Dhulabhai’ s case.
14. But so far as the present case is concerned, as stated in the
summation of facts, the first respondent has moved this Court by invoking the
extraordinary jurisdiction of this Court under Article 226 of the Constitution
of India under same set of allegations that the petitioner herein has violated
the conditions under which the petitioner was granted building permission and
the authorities under the Act has not taken any action against the petitioner
by exercising their power under the Act and even the representation made by
the first respondent herein has not been considered and disposed of. On the
above allegations, this Court has directed the respondents 2 and 3 to consider
the representation made by the first respondent and take action thereon. If
at all the first respondent is aggrieved that the action taken by the
statutory authorities, the respondents 2 and 3 is not in accordance with the
provisions of the Act or aggrieved that the second and third respondents have
in total disregard to the order passed by this Court in the writ petition have
not taken any action for the alleged violation or aggrieved against the
inaction on the part of the second and third respondents, proper course to the
petitioner is to move this Court to have redressal in the procedure known to
law. The tactics adopted by the petitioner to file a c ivil suit on the very
same set of grounds on the premise that in spite of the order passed by this
Court in the writ proceedings, the authorities have not taken any action
cannot be considered as a proper course and nothing but abuse of process of
law and in a way disgrace or lower the authority of this Court. It is also
manifestly clear that the intention of the first respondent is only to put the
petitioner in a stalemate condition by obtaining an order from any Court of
law and the so called violation pointed out in the affidavit filed in support
of the writ petition or in the plaint before the Additional District Judge,
Karaikkal is not a bona fide reason. The process of Court must be used bona
fide and properly and must not be misused or abused. It is the duty of the
Court to prevent improper use of its machinery. The Court has to consider the
jurisdiction of the Court as a means of oppression and process of the
litigation is free from vexatiousness. This Court has held in the case of
UNION OF INDIA VS. R.KARTHIKAI RAJAN AND OTHERS reported in 1999-3- LAW
WEEKLY 471 that when the facts and the basis of the claim are identical, then
the filing of the suit is clear case of abuse of process of Court. Hence, the
conduct of the first respondent having approached this Court by way of writ
petition and obtained an order against the respondents 2 and 3 and thereupon
for the very same grounds and the very same allegations, filing a suit before
the Civil Court is nothing but the abuse of process of law. It is not the
case of the petitioner that he is not left with any other remedy. If at all
his grievance is genuine, he would have very well taken the matter to this
Court as to the inaction on the part of the respondents No.2 and 3. The
Additional District Judge also without considering the averments contained in
the plaint that the first respondent has already invoked the jurisdiction of
this Court under Article 226 of the Constitution of India and obtained an
order against respondents No.2 and 3 has mechanically granted the order of
interim injunction restraining the respondents 2 and 3 from granting “no
objection certificate”. The said order has also been granted in total
violation of the mandatory provisions of Order 39 Rules 1 and 2 of C.P.C. The
trial Court did not even think of granting of injunction order as granted by
it would tantamount to injuncting the statutory authorities from doing their
statutory function. Useful reference can be had to the judgment of this Court
in the case of RT.REV DR. V.DEVASAHAYAM, BISHOP IN MADRAS CSI AND ANOTHER VS.
D.SAHAYADOSS reported in 2002 (1) LAW WEEKLY 672. Hence, I am of the view
that the interim order passed is in violation of the mandatory provisions,
without recording any reasons for granting such an interim order and the
action of the petitioner in moving the Civil Court is a blatant abuse of
process of Court resulting in miscarriage of justice and it is imminently
satisfy the parameters for invoking the jurisdiction under Article 227 of the
Constitution of India.
15. In the result, the Civil revision petition is allowed quashing
the interim orders granted by the Additional District Judge, Karaikkal in
I.A.Nos.80 and 81 of 2002 in O.S.No.26 of 2002. Further as I am satisfied
that the suit in O.S.No.26 of 2002 is an abuse of process of Court, I order
that the said suit shall be struck off and expelled from the file of
Additional District Judge, Karaikkal. Consequently, the connected C.M.P. is
closed. The petitioner is entitled to his costs.
Index:Yes
Website: Yes
usk
To
1. The Additional District Judge,
Karaikkal,
2. The Record Keeper,
V.R.Section,
High Court,
Madras.