JUDGMENT
1. This First Appeal raises an important point regarding exclusion of jurisdiction of Civil Court. The same can be appreciated in the light of following few facts:–
2. The appellant herein was the plaintiff while the respondents were the defendants. The Defendants Nos. 1 and 2 were the owners
of a vacant plot of land bearing Cadestral Survey No. 656 of Mandvi Division situated at 138-140, Narayan Dhuru Street Nagdevi, Bombay. It seems that the Defendant No. 1 gave intimation to the plaintiff some time on or about 10th December, 1960 under S. 337 of the Bombay Municipal Corporation Act, 1888 and expressed his desire to construct a building on the said plot of land. However, permission was not granted by the plaintiff as the said plot was reserved for public purpose under the Development Scheme which was prepared under the provisions of the Bombay Town Planning Act, 1954. Thereafter, the defendants I and 2 started constructing some movable wooden stalls on the said plot of land.
3. The plaintiffs filed a suit for a declaration that the erection of 10 wooden stalls by the defendants and intended further erection of other stalls on the said plot of land was illegal and in violation of the provisions of the Bombay Municipal Corporation Act (hereafter called the Corporation Act). The plaintifffs also prayed for an injunction restraining the defendants perpetually from taking any steps or doing any further acts towards the completion of those wooden stalls. The plaintiffs also prayed for a permanent injunction restraining the defendants from letting out or parting with possession of the wooden stalls which were already erected on the said plot of land. The plaintiffs also prayed for a mandatory injunction against the defendants directing them to remove the wooden stalls which were already erected by them. The plaintiffs alleged that the defendants 1 and 2 have started constructing stalls on wheels. Each stall admeasured about 10′ x 9′. The work of the said erection was given to the contractor i.e. defendant No. 3 who was carrying on the said construction. It was averred that 10 stalls have been constructed and the defendants were going to construct further stalls on the same. This has been done illegally even though no permission was granted under the Corporation Act. The plaintiff apprehended that the defendants would complete all the stalls on the said plot in contravention of the provisions of the Corporation Act and would let out the same
to various parties. It was alleged that the defendants were continuing with the construction of those stalls in defiance of a notice which was issued to them under S. 354X of the Corporation Act.
4. The defendants 1 and 2 filed a written statement and inter alia contended that the suit did not disclose any cause of action and the same was not maintainable. It was denied that any notice was served upon them under S. 354-A of the Corporation Act, and in any case, such a notice was ultra vires the provisions of the Corporation Act. It is also contended that the plaintiff was guilty of gross delay. It was also contended that they were having wooden stalls on wheels temporarily and it was not necessary to have permission from the appellant as it was a mobile and removable stall and cannot be said to be a building under Corporation Act. It was contended that those were not ‘building’ and it was not necessary on the part of the defendants to give any notice in that respect under S. 337 before the construction was undertaken. It was also pointed out that the construction of stalls have been completed by 10th January, 1963 and have been let out to various parties on leave and license. It was, therefore, prayed that the suit be dismissed.
5. The defendant No. 3 filed a written statement and adopted the contentions of the defendants 1 and 2. It was pointed out that defendant No. 3 had constructed the stalls pursuant to the agreement with Defendants 1 and 2.
6. The Court below framed various issues. The very first issue framed was “whether the Plaint discloses a cause of action”? The said issue was treated as a preliminary one. The learned Judge of the City Civil Court, Bombay, by his order dated 2nd October, 1973 held that the suit did not disclose a cause of action. The learned Judge relied upon the judgment of this Court in Thana Borough Municipality v. Akbarali and held that the Corporation Act creates a statutory right in the plaintiff to take steps against those persons who were violating the provisions of the said Corporation Act while erecting constructions. No common law
right has been created and there was no right in the plaintiff correlative to the obligation upon the owner of the plot not to build without the permission of the plaintiff or in contravention of its bye-laws. He held that the B.M.C. Act provides for remedy to the plaintiff in case any of the building bye-laws are violated by any party while constructing the structures. The Act does not give any right specifically to the plaintiff to file a suit in this respect. Therefore, it was held that in the absence of such a right in the plaintiff, it was not open to it to file the present suit complaining infringement of any of the provisions of the Corporation Act or the building bye-laws. In the result, the said issue came to be answered in favour of the defendants.
7. Being aggrieved, the plaintiff has preferred the appeal. Mr. R. S. Dalal, learned Counsel appearing on behalf of the plaintiff, submits that the Court below has erred in answering the said preliminary point. It is his contention that the plaintiff is free to file the suit in the view of S. 517(1)(j) of the Corporation Act. He contends that there is no prohibition on the plaintiff in filing the present suit and it was an error to hold that there was no cause of action. He further contended that unless the Court conies to the conclusion that the jurisdiction of Civil Court was ousted, either expressly or by implication, under Section 9 of the Civil Procedure Code, it cannot be said that there was no cause of action or the suit was not maintainable. He contended that there should be remedy by way of suit available to the Corporation to take action whenever it was found that the construction was done in violation of the provisions of the Corporation Act or its bye-laws. He further contended that it cannot be said that the jurisdiction of the Civil Court was ousted by Implication inasmuch as the Act does not give a complete or exhaustive remedy to the plaintiff and, in any case, the said remedy cannot be said to have finality. Therefore, though a right has been created in the plaintiff to take action under the Corporation Act and remedy is provided, but finality is not intended to it and therefore the jurisdiction of the Civil Court under S. 9
of the Civil Procedure Code was not ousted.
8. Mr. P. L. Nain, learned Counsel appearing on behalf of the defendants, supported the order passed by the Court below and contended that the jurisdiction of the Civil Court has been excluded by implication in the present case, inasmuch as the Corporation Act creates a statutory right and also provides for the remedy to the Corporation in case of violation of any of its provisions or bye-laws. The remedy which is provided is not summary. The same is complete and exhaustive inasmuch as the plaintiff can take steps after hearing the concerned parties. He further contended that the decision which is given by the Commissioner is a final one and the same is intended to have finality. There is no appeal provided against those statutory decisions which are taken in the name of the plaintiff under the various provisions of the Corporation Act. It is further contended that whenever the Corporation Act wanted that the plaintiff should be able to file a suit in spite of provision of remedy, specific provision has been made. He relied on S. 211 of the Corporation Act which gives power to the plaintiff to file a suit for recovery of the taxes mentioned therein and when any party has defaulted in payment thereof and the Corporation was not able to recover the same by adopting the procedure as provided under the Corporation Act. He contended that the Corporation Act is a self-contained code and the decision of the plaintiff are intended to have finality. Therefore, the jurisdiction of the Civil Court under S. 9 is excluded.
9. Mr. Dalai, learned Counsel has drawn my attention to the various provisions of the Corporation Act. Chapter XII deals with Building Regulations. Section 337 says that any person intending to erect a building shall give prescribed notice to the Commissioner of the plaintiff in that respect. Section 342 further lays down that a person shall give notice to the Commissioner of his intention to make additions, alterations or repairs to a building as prescribed therein. Section 347 lays down when a person shall be entitled to commence the work. Section 351 gives power to the Commissioner of the plaintiff to take
necessary proceedings in respect of building or a work as contemplated under Section 354 and erection of any building or execution of any work as mentioned in Section 342 has been commenced contrary to the provisions of Section 347. It provides that the Commissioner shall give written notice to the person executing such a work and shall call upon him to show sufficient cause why such building or work should not be removed or altered or pulled down. Sub-section (2) thereof provides that if such a person fails to show sufficient cause, to the satisfaction of the Commissioner, then the same may be pulled down or removed and the expenses thereof shall be paid by the concerned person. Section 351 reads as follows:–
“351. (1) If the erection of any building or the execution of any such work as is prescribed in Section 342, is commenced contrary to the provisions of Section 347, the Commissioner unless he deems it necessary to take proceedings in respect of such building or work under S. 354, shall –
(a) by wirtten notice, require the person who is erecting such building or executing such work, or has erected such building or executed such work (or who is the owner for the time being of such building or work), on or before such day as shall be specified in such notice, by a statement in writing subscribed by him or by an agent duly authorized by him in that behalf and addressed to the Commissioner, to show sufficient cause why such building or work shall not be removed, altered or pulled down; or
(b) shall require the said person on such day and at such time and place as shall be specified in such notice to attend personally, or by an agent duly authorised by him in that behalf, and show sufficient cause why such building or work shall not be removed, altered or pulled down.
(2) If such person shall fail to show sufficient cause, to the satisfaction of the Commissioner, why such building or work shall not be removed, altered or pulled down, the Commissioner may remove, alter or pull down the building or work and the expenses
thereof shall be paid by the said person.”
Section 352 deals with power of the Commissioner of the plaintiff when building or work is commenced contrary to Section 347. Section 352A confers summary powers for demolition on the Commissioner of the plaintiff in certain circumstances. The Commissioner can exercise the said power if he was of the opinion that immediate action should be taken under the provisions of Sections 351 and 352 of the Act. Section 354 confers upon the Commissioner to remove structures etc. which are in ruinous or likely to fall. Similarly, Section 354A confers power on the Commissioner to issue notice to the concerned person to stop erection of building or work commenced or carried on unlawfully. Section 354A reads as follows:–
“354A. (1) If the Commissioner is satisfied that the erection of any building or the execution of any such work as is described in Section 342 has been unlawfully commenced or is being unlawfully carried on upon any premises, the Commissioner may, by written notice, require the person erecting such building or executing such work to stop such erection or work within the period specified in the notice.
(2) If the erection of the building or execution of the work is not stopped within the period specified in the notice given under subsection (1), the Commissioner may direct that any person directing or carrying on such erection or work shall be removed by any police officer from the place where the building is being erected or the work is being executed.”
10. Section 471 provides for penalties or fine for certain offences which were punishable under the Act. Section 489 provides for enforcement of the orders issued by the Commissioner or by any Municipal officer empowered under Section 68 in that respect. It provides for the measures which can be taken by the authority for violating various provisions of the Act which includes Sections 352 and 354. Section 490 further provides for recovery of expenses which were required to be undertaken by the Commissioner for
removing certain structures which were held to be illegal and ordered to be removed. Section 517 provides for institution etc. of civil and criminal actions and for obtaining legal advice. Section 517(1)(j) thereof provides for the approval, institution and prosecution of any suit or withdrawal or compromise thereof by Corporation.
11. Sections 197 to 210 deal with various provisions regarding imposition and collection of taxes by plaintiff and the method and manner thereof. Section 211 lays down as follows:–
“211. Instead of proceeding against a defaulter by distress and sale as hereinbefore provided, or after a defaulter shall have been so proceeded against unsuccessfully or with only partial success, any sum due or the balance of any sum due, as the case may be, by such defaulter, on account of a property-tax or of the tax on vehicles and animals, may be recovered from him by a suit in any court of competent jurisdiction.”
Therefore, this Section specifically provides that the Corporation is, free to file a suit against a defaulter whenever it fails to recover the taxes and under the conditions as mentioned therein.
12. Mr. R. L. Dalai submits that considering the provisions of Corporation Act, it cannot be said that the jurisdiction of Civil Court was ousted by implication and there is no provision expressly ousting it. He contends that Section 517(1)(j) gives power to the Municipal Corporation to file any suit and, therefore, the suit was maintainable. He contends it cannot be said that the jurisdiction of Civil Court was ousted merely because the Corporation Act provided some machinery or remedies to the Corporation for demolishing structures. The said remedies cannot be said to be exhaustive and the Corporation was having power to file the suit and it was an error to say that there was no cause of action.
13. Mr. Dalai has relied upon some decisions in support of his submission. He first relied upon Taj Mohammad v. Agricultural Produce Market
Committee, Nagpur. It was a case where the Agricultural Produce Market Committee filed civil suit praying for injunction restraining certain persons from working as commission agents within the market area without licence granted by it and restraining certain commission agents from recovering commission from the cultivators in excess of the rate prescribed under the licence. This Court held that the Market Committee could file such a suit when it wanted to prevent such persons from encroaching upon its statutory right to regulate the marketing of agricultural and other products in the market area. The Court negatived the contention raised on behalf of the defendants that criminal prosecution as provided under. Section 46 was the normal remedy in case of breach of the provisions of the Act or its rules. The Court therefore held that the jurisdiction of the Civil Court was not barred and the jurisdiction cannot be said to be ousted as there is nothing in the enactment to lead to such a conclusion. After examining the scheme and the provisions of the Maharashtra Agricultural Produce Marketing (Regulation) Act, 1964 and the Rules framed thereunder, the Court held that there is no provision or no remedy for enforcing the provisions of the Act. The remedy provided under Section 46 cannot be said to be a remedy at all so as to enable the Committee to regulate the marketing within the limits in an orderly manner for which no specific provision is made. He then relied upon_. The Agricultural Produce Market Committee, Sholapur v. Pantappa Savanna
Vangari. This was a case under the Bombay
Agricultural Produce Marketing Act. In the said case, a suit was filed by the Market Committee for recovering the license fees from the traders who were operating within the market area without licence. Criminal prosecution was also launched against those traders. They were prosecuted and convicted. This Court took the view that there is no express or implied exclusion of jurisdiction under the Act. It was held that trading without licence may be a criminal offence and a trader may be liable for prosecution but there is no provision under the Act for recovering the licence fee. The Market Committee was entitled to recover the license fees as otherwise it would suffer loss by nonpayment thereof by those traders. This Court held that under the Act, there is a duty cast on the traders to obtain the licence and to trade on that basis in the market area. The Act did not provide for the remedy regarding the right of recovery of such license fee from the traders operating without licence. Therefore, this Court negatived the contention regarding the exclusion of jurisdiction of the Civil Court under Section 9 of the C.P.C. It was held that the prosecution launched was not for recovering the licence fee and cannot be said to be a remedy for recovering such fees. In my view, the ratio of both these decisions are of no assistance to the appellant in any manner. It is amply clear that no remedy was provided though right was created in the Market Committee. Therefore, the jurisdiction of the civil Court cannot be said to be excluded by necessary implication.
14. Mr. Dalai also relied upon , P. Saina v. Konderi. It was a case
where the Municipal regulations were violated by a party while constructing a building. The adjoining owner therefore filed a suit for injunction. Defence was raised that the said suit was not maintainable as the plaintiff suffered no injury and was having no cause of action and the Kerala High Court rejected the said contention holding that whenever there is clear violation of the building rules, it entitles an adjoining owner of the building to institute a suit for such violation. It might not result in the curtailment of the plaintiff’s right to light, air or privacy or causes material injury to him. It was held that this was because a citizen has a right to institute a suit with a view to ensure effective implementation of the Municipal regulations such as the building rules and it was not necessary that such a person should suffer specific personal injury. It was held that if there is violation of building rules, then a citizen is having a locus standi to file a suit for remedying the breach and for enforcement of those building regulations. Mr. Dalai also relied on , V. P. Mohmmed Kutty v. Thottoli Kunhikoya Haji. It was a case where the District Collector granted permit as per direction of
the State Govenment under the Rice Milling
Industry (Regulation) Act. This was done by him though the initial permit was rejected. It was held that the State Government cannot give direction under the Act to the District Collector as the Collector has to exercise his discretion independently and a member of the public, who approaches the Court is acting bona fide and not for personal gain, can file a suit challenging the said action when it was against public interest. In my view, the ratio of both these decisions are totally inapplicable to the facts of the present case. They related to filing a suit by an individual and his locus standi.
15. Mr. Dalai relied upon the judgment reported in (1963) 65 BLR 521, Chenaji
Kaliaji v. Municipal Borough, Dhulia. It was
a case under the Bombay Municipal Boroughs Act, 1925. Section 203 thereof
provided that in lieu of any process of recovery allowed by or under the Act or in case of failure to recover by such process, any amount recoverable under Chapter VIII or of any compensation, expenses, etc., it shall be lawful for a Municipality to sue, in any Court of competent jurisdiction, the persons liable to pay the same. Section 104 of the said Act provided for procedure for recovery of the taxes etc. under the Act. A bill was served upon the appellant to make the payment of certain taxes. The same was challenged by filing a writ petition under Article 226 of the Constitution of India. It was alternate procedure or remedy provided to Municipality. It was arbitrary and illegal in view of Article 14 of the Constitution of India. The Municipaliy is given power to decide to launch a suit or to take the proceedings under the Act. This could lead to discrimination. However, this Court negatived the said contention and further held that it was necessary to give such a power under S. 203 to the Municipality because the Municipality can take steps under Section 104 and avail of the coercive machinery provided under certain conditions. In case the conditions are not satisfied, then it will be left with no remedy for recovering the taxes etc. Therefore, the provisions as contained in Section 203 were necessary in the interest of the Municipality and to protect
collection of revenue by it. In my view, there is no question of exclusion of jurisdiction involved in the matter and the judgment is of no help. Section 203 specifically gave power to the Municipality to file the suit. At this juncture, we can note the similarity. Section 211 of the Corporation Act, also gives power to file a suit for recovery of certain taxes under certain conditions.
16. Mr. Dalai heavily relied upon, Raja Jagdish Pratap Sahi v. State of Uttar Pradesh in support of his contention. It was a case where the assessee failed to make payment of the Agricultural Income-tax. The assessment was made and the assessee was asked to pay. However, he took certain proceedings under the Act and also filed a Writ Petition challenging the assessment. Thereafter, a suit came to be filed on behalf of the State for recovery of the amounts. A contention was raised on behalf of the assessee-defendant that the suit was not maintainable. The Supreme Court negatived the said contention holding that the amount towards the tax was due and it was not paid. The same became debt. The State Government can recover the said debt by filing a suit. It was held that failure of the assessee to make payment of tax within the time on receipt of notice of demand created a debt in favour of the State and the same can be recovered by the State in any of the modes under the general law. It held that there was no prohibition and after the amendment of Section 46 in 1953, an explanation was provided which gave additional power to the State to file a suit. Therefore, it was held that the suit was maintainable and the State was free to file the suit. In this case there is no question of recovering any tax or amounts. Further there is no summary remedy under which the steps are to be taken by the Corporation under the Corporation Act. The Corporation Act provides for hearing and obliges the Commissioner to give hearing to all the concerned parties. It provides for full remedy to the Corporation and it can demolish any unlawful structure as determined by it and it is the same relief that can be obtained from the Civil Court. In my view, therefore, the said judgment is of no
no help to the plaintiff.
17. Mr. Dalai also relied upon the judgment reported in AIR 1989 SC 789. Jiyajeerao Cotton Mills Ltd. v. The Madhya Pradesh Electricity Board. I do not understand how the said case can be of any assistance to the plaintiff. It was a writ petition challenging the additonal demand made by the Electricity Board in respect of electric charges. No question of any exclusion of jurisdiction was involved. The Electricity Act, 1910, provided for prosecution if there was theft of electricity. It provided for prosecution and disconnection of supply. There is no provision by which the Electricity Board could recover the charges for the electricity consumed. Therefore it was held that the Board could file a suit for recovering the charges. This has nothing to do with the power of the Corporation to file the suit regarding demolition of an unlawful structure. The Corporation Act provides for sufficient power and remedy in that respect to the Corporation.
18. Mr. Dalai further relied upon 1988 All England Reports 807, Waverley Borough
Council v. Milden. It was a case where two gipsies purchased a five-acre wooded copse and began laying hardcore and prepared it as a site for caravens. Although planning permission for such a change of use was required, it was neither sought nor granted. Individual caravan pitches were sold to the different 27 gipsies who tried to develop the said property. Stop notices were issued against those persons requiring them to discontinue use of the site as a caraven park, remove the caravan, the hardcore and a fence, and to close an unauthorised access to a public road. The planning permission was rejected by the planning authority. Various appeals were filed to the Secretary of State by those gipsies. However, they were rejected. Prosecutions were filed for illegal user etc. There were convictions. A Public inquiry was prayed and it was ordered by the Secretary of State. Prior to that inquiry, council decided that the only effective remedy to enforce the notices was to obtain an injunction under Section 222 of the Local Government Act, 1972. The council accordingly resolved to institute such proceedings. However, it awaited the outcome of the public inquiry and thereafter commenced proceedings in the Civil Court in view of the resolution passed. An application for injunction was filed. One of the points raised by the defendants was the Civil Court could not decide the matter. It was held that Section 222(1) gave specific right to the local authority to take legal proceedings after passing the resolution. It gave power to the local authority to pass such a resolution for permission for protection of the interest of the inhabitants of that area. In view of this, the observations were made that the proceedings taken by the local authority were maintainable. In my view, there is nothing in the said judgment which can support the plaintiff. It was based on specific provision i.e. S. 222. There is no such provision involved here.
19. Mr. Dalai also relied upon the judgment , Dhulabhai etc. v. State of Madhya Pradesh. The
Supreme Court laid down seven propositions for considering exclusion of jurisdiction of the civil Court under S. 9 of the Civil Procedure Code. It was a case where the suit was filed for declaration that certain provisions of law relating to the Agricultural Income-tax were ultra vires and for refund of tax illegally collected. It was held that such a suit was not barred and the Civil Court can decide it. However, the Supreme Court exhaustively laid down the propositions regarding exclusion of jurisdiction. The two material propositions for my consideration are (at page 89):–
“(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.”
20. Mr. P.L. Nain, learned Counsel for defendants, relied upon the observations made in para 9 of , Raja Ram Kumar Bhargava (dead) by Lrs. v. Union of India, which are as follows (at page 756) :-- "9..... Generally speaking, the broad
guiding considerations are that wherever a right, not pre-existing in common law, is created by a statute and that statute itself provided a machinery for the enforcement of the right, both the right and the remedy having been created uno flatu and a finality is intended to the result of the statutory proceedings, then, even in the absence of an exclusionary provision the Civil Courts’ jurisdiction is impliedly barred. If, however, a right pre-existing in common law is recognised by the statute and a new statutory remedy for its enforcement provided, without expressly excluding the Civil Courts’ jurisdiction, then both the common-law and the statutory remedies might become concurrent remedies leaving open an element of election to the persons of inherence…..”
He also relied upon Jitendra Nath Biswas v. M/s.
Empire of India and Ceylone Tea Co. It was a case where an industrial employee prayed for continuation of service and back wages by filing the suit. A contention was raised that the Civil Court was having no jurisdiction to grant the relief of reinstatement as the said
employee was governed by the provisions of the Industrial Disputes Act and should follow the remedies as available to him under the said Act. It was contended that the Industrial Disputes Act provided for complete procedure and machinery for enforcement of the rights of an employee and, therefore, the jurisdiction of the Civil Court was excluded by implication. The Supreme Court accepted the said contention and held that the employee was asking in substance for the relief of reinstatement and back wages by filing the suit. Such a suit was not maintainable as the jurisdiction of the Civil Court was excluded by implication, Mr. Nain also relied upon the judgment which was cited before the Court below and which is reported in, , Thana Borough Municipality v. Akabaralli Hassanally. In the said case, the owner of a building started construction of second floor in contravention of the bye-law and in spite of the refusal by the Municipality. The latter thereupon filed a criminal complaint against the person. However, because of congestion in the Criminal Courts, it filed simultaneously a civil suit for an injunction restraining the owner from occupying the suit building either by himself or his tenants and for a direction to demolish the unauthorised construction. The question arose whether such a suit was maintainable in the Civil Court. It was held that the obligation which was imposed upon the owner by the bye-laws framed under the Bombay Municipal Boroughs Act cannot be said to be for the benefit of the Municipality. There was right in the Municipality correlative to the obligation upon the owner not to build without its permission or in contravention of its bye-laws. It was held that when the right was created in the Municipality by the statute and the said statute also provided for the enforcement of the said right, the remedy by way of civil suit for getting the reliefs as prayed was not competent. It was held that the suit cannot be said to be alternative remedy available to the Municipality.
21. It is necessary for me therefore to consider the scheme of the Corporation Act and to see whether jurisdiction of the Civil Court in the facts of the case is excluded or
not. In my view, such jurisdiction is excluded by implication. Section 351 provides that proteedings shall be taken in respect of buildings or works commenced contrary to Section 347 by the Commissioner of the appellant. A notice shall be given in that respect to the concerned party who will be called upon to submit his say. A Hearing is contemplated thereafter by the Commissioner and then the order can be passed by the Commissioner to demolish or to remove the unlawful structure. Section 354-A also gives power to the Commissioner to order stopping of erection of building or work commenced or carried on unlawfully. It can be done by giving written notice to the concerned party and after hearing him. It also gives power to the Commissioner to take steps in case the person fails to follow the order. The Commissioner can take the help of the police officer and remove the structure. Further, Sections 489 and 450 provide for recovery of costs and expenses in case the Commissioner is required to undertake certain costs and expenses for removing unlawful structures or for carrying out the order. In my view, therefore, the Corporation Act creates rights and also provides for the remedies and also machinery for the enforcement thereof. There is no independent right in the Corporation to take steps in case there is any unlawful structure except under the provisions of the Corporation Act. Statutory right in created and the conferment of powers on the Corporation is complete and exhaustive. In my view, it provides adequate remedy to the Corporation to take the necessary steps for removal of unlawful construction or to stop a person from making such construction. The powers are the same which can be exercised by the Civil Court while decreeing the suit. Therefore, the intendment of the Corporation Act is clear considering the scheme and remedies provided by the Act. Further, I find that the power which can be exercised in that respect is a final one. In my view, therefore, the jurisdiction of the Civil Court is excluded by implication in the present case. Further I find that whenever the Corporation Act wanted to make a special provisions and to provide for a suit as an alternative remedy, even
though specific powers are conferred upon the Corporation, such provision is separately made. The said provision can be found in Section 211 of the said Act. It is relating to the recovery of certain taxes, etc. i.e. the amounts due to the Corporation. Though the Corporation Act makes provision for recovery of those amounts by coercive procedure, under the Act, Section 211 gives right to the Corporation to file a suit to recover the same in certain circumstances. This provision also clearly supports the defendants and indicates that the legislature when wanted to provide suit as alternative remedy, it has done so. In my view, Section 517(1)(j) gives power to the Corporation to file such suits where no specific provision or remedy is made available by the Corporation Act, to enforce its rights created by the Act. It is a general provision and cannot help the appellant in the present case. In the present case, the Commissioner is given jurisdiction to decide about the unlawful structures etc. by the Act and to take necessary steps. It creates a right in the corporation and also provides for the remedy. The jurisdiction of the Civil Court, therefore, can be said to be excluded by implication.
22. In my view further, if such an interpretation is not put then it would result into giving scope to the Corporation to give discriminatory treatment, if the Corporation is held to be free to follow the alternate remedies. If the Corporation wanted to favour somebody, then it can launch a suit. It is well known that suits take many years. This suit itself is sufficient to show this, If the Corporation did not want to favour, it can proceed under the Corporation Act and take immediate steps. In my view, this is totally undesirable and against public interest. In all cases, the Corporation must and is bound to exercise the powers which arc specifically conferred upon it for the said purpose and take immediate steps whenever illegal construction is found. Secondly, in my view, if such alternate remedies are permitted then the Corporation or its officers shall be prone to pass on their responsibility to the Courts. They would shirk from taking the necessary decision or proper action by exercising the powers under the Corporation Act . They
would safely wait for the decision of the Civil Court to decide though the statute provides and intends that they should decide and exercise the power. They would aviod their responsibility. This is totally against the public interest. Further, the litigation would also cost a lot of amount and there shall be wastage of public money. The Corporation is supposed to spend for furthering the interests and welfare of the citizens residing in the city. Instead the amounts shall be thrown in the Courts. Further, if such suits are permitted; then the Courts shall be flooded with the same. The time of the Courts would be consumed in deciding those suits. In my view, it is, therefore, necessary to hold that the jurisdiction of the Civil Court is excluded by implication in the present case.
23. In the present case there was no preexisting right of demolition in the Corporation. It was not the right created by common law but by the statute. The statute also provided for remedy for enforcement of it and created machinery. The statute also intends to give finality to the order passed by the Commissioner. The proceedings which are taken by the Commissioner are nothing but statutory proceedings. Therefore, the jurisdiction of the Civil Court is ousted by implication. There is no section whatsoever giving any express power to the Corporation to file the suit in the facts of the present case The Corporation is free to take steps under the Corporation Act and demolish the structure, if found unauthorised. This is the same relief which the Civil Court can grant Therefore, in my view, the jurisdiction of the Civil Court was excluded and the Court below was right in holding that there was no cause of action for the suit.
24. In the result, the appeal is dismissed However, in the facts and circumstances of the case, there shall be no order as to costs.
25. Appeal dismissed.