IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 596 of 2009()
1. VINCENT MATHEW(CORRECT NAME IS
... Petitioner
Vs
1. POTHANICADU FARMER'S CO-OPERATIVE
... Respondent
2. THE POTHANICADU GRAMA PANCHAYATH,
For Petitioner :SRI.S.V.BALAKRISHNA IYER (SR.)
For Respondent :SRI.PEEYUS A.KOTTAM
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :08/06/2010
O R D E R
THOMAS P.JOSEPH, J.
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C.R.P. No.596 of 2009
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Dated this the 9th day of June, 2010
O R D E R
Petitioner, obviously on the strength of a plan and permit
obtained from the local authority started construction of a building
in his property. Respondent No.1 which is a Co-operative Bank and
which owned a building adjacent to the building being constructed
by petitioner made a representation to the local authority
(respondent No.2) on 06.10.2008 stating that proposed
construction is not in accordance with the Building Rules (for short,
“the Rules”) and that if the illegal construction is proceeded with,
it will result in irreparable loss and injury to respondent No.1 and
hence requested local authority (respondent No.2) to direct
stoppage of construction. Since no action according to
respondent No.1, was taken respondent No.1 moved this Court in
W.P(C) No.32191 of 2008 impleading petitioner, respondent No.2,
Additional Director (Vigilance), Panchayat Directorate, Trivandrum
and others as parties. Prayer was to issue a writ of mandamus or
other appropriate writ or direction and command respondent
Nos.1 to 5 therein to take immediate action on the representation
made by respondent No.1 and on enquiry if it found that
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respondent No.6 in the Writ Petition (petitioner herein) is
carrying on illegal construction, take immediate steps to prevent
such construction and demolish the construction already made by
petitioner. That Writ Petition, I am told is pending. In the
meantime under the impression that respondent No.2 is not
taking effective steps on the representation respondent No.1 filed
O.S. No.490 of 2008 in the court of learned Munsiff, Muvattupuzha
seeking a decree for permanent prohibitory injunction restraining
petitioner from making construction in plaint B schedule property
in violation of the Rules and in such a way as to prevent free
flow of air and light to the building in plaint A schedule belonging
to respondent No.1 and also in such way as to affect privacy,
safety and security of the building of respondent No.1 and the
Bank functioning therein. There was also a prayer for mandatory
injunction to direct petitioner to demolish and remove that part
of construction made in plaint B schedule in violation of the
Rules. The suit was resisted by petitioner on various grounds
including that the civil court has no jurisdiction to entertain the
suit. As per order of court below local authority was impleaded
as additional defendant No.2 (respondent No.2 in this case.) Issue
regarding jurisdiction was heard by the learned Munsiff as a
preliminary issue and as per order dated 01.07.2004 learned
Munsiff held that jurisdiction of the court is not ousted. That
order is under challenge in this revision petition. Learned Senior
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Advocate for petitioner-defendant No.1 contend that in so far as
the Kerala Panchayat Raj Act (for short, “the Act”) and the Rules
which are made applicable to the Panchayat in question provides
for ample remedy for demolition of structures constructed in
violation of plan and permit or the Act and Rules and
Respondent No.1 having already moved the local authority for
the said purpose jurisdiction of the civil court is impliedly ousted.
It is also the contention of learned Senior Advocate that
respondent No.1 has elected a course of action by moving a
petition before the local authority and hence also jurisdiction of
the civil court is ousted and respondent No.1 cannot now choose
a different Forum – the civil court. Learned Senior Advocate has
placed reliance on the decisions in Thodupuzha
Municipality v. Abraham Philip (2007 [4] KLT 972),
Rajasthan Road Transport Corporation v. Mohar
Singh (2008 [3] KLT 371 (SC) and Premier Automobiles v
K.S. Wadke (AIR 1975 SC 2238). In response it is contended
by learned counsel for respondent No.1 that representation made
by it before local authority was only for staying further
construction of building and not for demolition of the existing
structures and that jurisdiction of civil court is not ousted either
expressly or impliedly by any provision in the Act or the Rules.
Learned counsel has placed reliance on the decision in
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Rajasthan SRTC v. Bal Mukund Bairwa (2009) 4 SCC
299). According to the learned counsel principle of election of
Forum does not arise on the facts and circumstances of the case.
2. Before going into the question of jurisdiction of civil
court it is necessary to refer to the averments in the plaint (Ext.R1
(b). It is stated in paragraph 3 of the plaint that petitioner has
started with construction of a multi storied building very close to
the building of respondent No.1 and that construction is in
violation of provisions of the Act and the Rules. Details of the
alleged violation are given in the said paragraph. In paragraph 4
it is stated that petitioner had submitted building plan before
respondent No.2 for construction of the building. In paragraph 5 it
is stated that petitioner has started construction of building in
plaint B schedule in violation of the Rules, respondent No.1 raised
objection but petitioner did not care for that objection. Hence
respondent No.1 made a complaint to respondent No.2.
Respondent No.2 was reluctant to take any action against
petitioner in spite of a genuine complaint made by respondent
No.1 and turned a Nelson’s eye to that complaint. Respondent
No.2 has not taken steps to prevent the alleged act. In
paragraph 8 of the plaint it is stated that since construction in
plaint B schedule property is without leaving adequate open
space on its sides it is illegal and affected privacy, safety and
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security of the Bank situated in plaint A schedule. It is also
stated that free flow of air and light to the building in plaint A
schedule is affected by the illegal construction in plaint B
schedule. That amounted to a violation of civil rights of
respondent No.1 for enjoyment of its properties.
3. No doubt, the Act and the Rules provide for taking
action against unauthorised or illegal construction. Section 235W
of the Act states that if construction has commenced without
obtaining permission of the Secretary or in contravention of
decision of the Panchayat or is not in accordance with the plan or
is in violation of permission granted it is within the power of
Secretary to direct removal of such structure in the manner stated
therein. Section 235X of the Act enables the Secretary to issue
order stopping further construction. Section 235W(5) enables
the Government, if construction, re-construction or alteration of
the building is against provisions of the Act or the Rules to direct
the Secretary of local authority to cause demolition of such
construction or re-construction as the case may be.
4. Question is whether the said provisions expressly or
impliedly ousted jurisdiction of the civil court. Section 9 of the
Code enables civil court to entertain a suit of civil nature
cognizance of which is not expressly or impliedly barred.
Learned Senior Advocate has in all fairness concede that there is
no provision in the Act and the Rules which expressly ousted
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jurisdiction of civil court but contended that provisions of the Act
and Rules impliedly barred civil court from entertaining the
suit. It is in that regard that reliance is placed on Thodupuzha
Muncipality v. Abraham Philip (supra). That was a case where
building owner against whom Exts.A9 to A12 notices and orders
were issued by the local authority filed a suit for injunction to
restrain the local authority from demolishing the building
pursuant to the said orders. In the meantime plaintiff had also
challenged the said orders before the statutory authority as
referred to in the Act and Rules. Jurisdiction of civil court to
entertain the suit was contested by the local authority. This Court
referring to the decisions in Kamala Mills v. Bombay
State (AIR 1965 SC 1942), Ram Swarup V. Shikar
Chand (AIR 1966 SC 893), Shiv Kumar Chadha v.
Municipal Corporation of Delhi (1993) 3 SCC 161) and
Dhiru Green Field Ltd. V. Hukam Singh (2002) 6 SCC
416) held that civil court is not sitting in appeal over decision of
the local authority (in issuing Ext.A9 to A12 orders) and that
remedy of plaintiff was to challenge the said orders before proper
authority under the Act and Rules. Accordingly it was held that
suit is impliedly barred. It has to be remembered that there,
challenge was to (Exts.A9 to A12) notices and the orders issued
by local authority. Certainly, civil court was not sitting in appeal
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over correctness of the notices and order of local authority as
the local authority was competent to issue such notices and
orders. In such a situation jurisdiction of the civil court was only
to the extent of considering whether notices and orders were
without authority, in violation of statutory provisions and the
principles of natural justice. To grant the relief prayed for, one
had to overcome those notices and orders. It is in the
circumstances that this Court held that civil court has no
jurisdiction to entertain the suit. That decision or decisions relied
on by this Court in that decision have no application to the facts
of this case. Kamala Mills v. Bombay State’s (supra)
was a case where appellant-plaintiff sued for recovery of sales
tax illegally collected by the taxing authorities. Section 13 of the
Bombay Sales Tax Act expressly provided for refund of amount
collected in excess of the amount actually due and proviso to
Sec.13 of the Act provided period of limitation for claiming
refund. Section 21 of that Act provided for appeal while Sec.22
provided for exercise of power of revision with the Government.
Section 23A of that Act provided for rectification of mistakes.
Section 20 of the Act stated that save as provided in Sec.20 no
assessment made and no order passed under the Act or the rule
made thereunder by the authorities referred to therein could be
challenged in the civil court. It followed that excess amount
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which according to the appellant has collected as per order of
the authority could not be challenged in the suit. In paragraph 14
of the decision the Supreme Court observed that Sec.20 of the
said Act protected not only assessment properly or correctly
made or but even assessment which is not valid. It is in the
circumstances that civil court was found to have no jurisdiction to
entertain the suit. Ram Swarup Shikar Chand `s case (supra)
is a case dealing with U.P(Temporary) Control of Rent and Eviction
Act. That Act stated that a landlord could sue for eviction of a
tenant only on proof of grounds mentioned therein and with the
specific permission of the District Magistrate. The District
Magistrate refused to grant permission to the landlord. But
landlord was successful in getting permission from the
Commissioner in his revisional authority and on the strength of
that authority sued the tenant for eviction. Trial court and
appellate court found that permission obtained by the landlord
was valid and ordered eviction. The High Court however held that
permission obtained from Commissioner was illegal land hence
the suit is not maintainable. The suit was dismissed. Matter was
taken up before the Supreme Court. The Supreme Court referred
to the relevant provisions of that Act and held that permission
given by the District Magistrate or Commissioner was beyond
challenge in the civil court in view of Sec.16 of the said Act and
held that civil court had no authority to decide upon validity of
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permission granted by the Commissioner. In Shiv Kumar
Chadha v. Municipal Corporation of Delhi (Supra) scope of
Sec.9 of the Code was considered. It was held that a statute
when created a right or liability and also provides a Forum for its
enforcement ouster of jurisdiction of civil court can be upheld on
the finding that rights and liabilities in question have been
created by the Act without touching a pre-existing right under
common law. It was held that 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 as
remedy against the orders passed under such statute is
concerned. In such cases 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. Dhiruv Green Field Ltd v. Kukam
Singh’s case (supra) relates to the Punjab Village Common
Lands (Regulation) Act where Sec.13 read with Sec.10A of that Act
barred jurisdiction of the civil Court. These decisions have no
application to the present case.
5. The Supreme Court in Raja Ram Kumar
Bhargava v. Union of India (AIR 1988 SC 752) has dealt
with jurisdiction of civil court under Sec.9 of the Code and the
circumstances under which it is ousted expressly or by
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implication. It is held that when a right not pre-existing in
common law is provided in the statute and that statute prescribes
a remedy for enforcement of that right, then, in the absence of
an express bar jurisdiction of civil court is not ousted in that the
right is not created by the statute for the first time. On the other
hand a right not existing in common law is provided in the statute
and it provides for enforcement of that right, then, even in the
absence of an exclusionary provision jurisdiction of civil court is
ousted by necessary implication reason being that right is
created by the statute and a machinery to enforce that right is
also provided. In the present case right of an adjacent owner
whether or not he has suffered damages on account of
unauthorised construction to move the civil court to enforce the
law in force is not a right created for the first time under the Act
or the Rules. Instead, it is a right available to the adjacent owner
in common law. That has been accepted by this Court in Saina
v. Konderi (1984 KLT 428) and P.S.Saseendran v.
Vishwambharan & Others (2003 (1) KLJ 265).
6. Yet another fact I must bear in mind is that in the
present case challenge is not merely against violation of Rules.
It is alleged by respondent No.1 that construction in plaint B
schedule property affected security, privacy and safety of
banking business conducted by respondent No.1 in plaint A
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schedule and that construction adversely affected free flow of air
and light to the building in plaint A schedule. Learned Senior
Advocate has a contention that such allegations are connected
with the allegation that building is constructed not in accordance
with the provision of the Act and the Rules. But on a reading of
the plaint I am unable to accept that contention. Even if it is
assumed that respondent No.1 is not able to prove that
construction of building is in violation of the Act and Rules if he
is able to show that construction has affected free flow of air and
light to the building in plaint A schedule civil court has to consider
whether construction in plaint B schedule is liable to be removed.
I notice from paragraph 1 of the plaint that building of
respondent No.1 plaint A schedule property has been in existence
since 40 years. In that case civil court necessarily has to
consider whether respondent No.1 has a right to get free flow
of air and light laterally also by way of prescription under Section
15 or at least vertically as a natural right under Section 7 of the
Indian Easements Act. These matters are not required to be
decided by the authorities under the Act and the Rules.
Therefore even if it is assumed that issue of construction of
building being against the provisions of the Act and Rules is a
matter for decision by the statutory authority, it is well within
the power of the civil court to entertain the suit on allegations of
infringement of right for free flow of air and light. Hence
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contention that suit is impliedly barred cannot be accepted.
7. Next contention is that by the doctrine of election
respondent No.1 having elected to seek redressal of his
grievance before the statutory authorities he cannot turn round
and choose a different Forum – the civil court. Reference is
made to the representation dated 6.10.2006. Learned counsel
for respondent No.1 has given to me for perusal a photocopy of
that representation addressed to the Secretary of respondent
No.2 where request is to pass appropriate orders to stay further
constructions in plaint B schedule. There is no request for
demolition of structure already put up. I also find from the copy
of Writ Petition referred to above that it is alleged by respondent
No.1 that Panchayat authorities are siding with petitioner in the
matter of unauthorised construction in plaint B schedule. In the
plaint it is averred by respondent No.1 that in spite of complaint
(representation dated 6.10.2006 preferred to the local authority)
no action has been taken by the local authority to redress
grievance of respondent No.1. Therefore it is a case where
respondent No.1 does not pursue his remedy before the statutory
authorities for the reason that he does not expect to get relief
from the said authorities.
8. As regards the contention based on the doctrine of
election of Forum learned Senior Advocate placed reliance on the
decisions in Premier Automobiles v. K.S. Wadke and
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Rajasthan RTC v. Mohar Singh (supra). In the former case the
Supreme Court quoted from Neville v. London “Express”
Newspaper (1919 AC 368) thus:
“There are three classes of cases in which a liability
may be established by statute. There is that class
where there is a liability existing at common law, and
which is only re-enacted by the statute with a special
form of remedy; there, unless the statute contains
words necessarily excluding the common law
remedy, the plaintiff has his election of proceeding
either under the statute or at common law. Then
there is a second class, which consists of those cases
in which a statute has created a liability, but has
given no special remedy for it; there the party may
adopt an action of debt or other remedy at common
law to enforce it. The third class is where the statute
creates a liability not existing at common law, and
gives also a particular remedy for enforcing
it………….. With respect to that class it has always
been held, that the party must adopt the form of
remedy given by the statute”.
Rajastrhan RTC v. Mohar Singh’s case (supra) was a case
where jurisdiction of the civil court to entertain a dispute which
was otherwise required to be dealt with under the Industrial
Disputes Act or connected law was considered. Doctrine of
election is based on principle of estoppel. This Court in
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Canara Bank v. Thankappan (1989 [2] KLT 74)
considered the question whether a Bank having resorted to the
remedy of revenue recovery for realisation of amount and failed in
that attempt could institute a civil suit for recovery of the amount.
Overruling the decision in Maniyan v. Federal Bank (1988
[2] KLT 922) which took the view that by the doctrine of election
Bank is precluded from filing a civil suit the Division Bench held
that principle of estoppel by election would arise only in cases
where the two courses of action available are mutually exclusive
and the opposite party on the faith of representation by conduct
or otherwise has acted to his detriment or has adopted a course
of action which otherwise he would not have resorted to.
Applying that principle I am not able to find that on account of
respondent No.1 making representation before Secretary of
respondent No.2 requesting for stay of further construction in
plaint B schedule property either petitioner or respondent No.2
has changed their position or acted to their detriment. Learned
Senior Advocate would contend that it is on account of the said
representation that petitioner was dragged into this Court and
he had to suffer loss on account of that. But that is not a change
of position for applying the principle. As such the contention that
by electing to make representation before the local authority
respondent No.1 has forfeited his right to move the civil court
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cannot be accepted. I do not find reason to interfere with the
finding of court below that it has jurisdiction to entertain the suit.
Civil Revision Petition fails. It is dismissed.
Interlocutory Application No.3267 of 2009 shall stand
dismissed.
THOMAS P. JOSEPH, JUDGE.
vsv