When jurisdiction of civil court can be invoked?

 It is well settled that exclusion of the jurisdiction of the Civil Court is not to be readily inferred but such exclusion must either be explicity expressed or clearly implied. It is also well settled that even if the jurisdiction it so excluded the Civil Courts have jurisdiction is examine into the issues where the provisions of the Act have not been complied with, or statutory Tribunal has not acted in conformity with the fundamental judicial procedure. On the other hand, a suit in a Civil Court can always be maintained to question the order of a Tribunal created by a statute, even if its order is, expressly or by necessary implication, made final, if the said Tribunal abuses its power or does not act under the Act but in violation of its provisions. In other words, if the suit proceeds on the premises that the offending act has been done not in good faith, then there is no bar for such a suit.1

Bombay High Court

Qari Mohammed Zakir Hussain And ... vs Municipal Corporation Of Greater ... on 6 October, 2001

Equivalent citations: 2002 (2) BomCR 98

A.M. KHANWILKAR, J.

1. This appeal takes exception to the order passed by the Bombay City Civil Court, Bombay dated March 29, 2001 in L.C. Suit No. 7567 of 2000.

2. The only question that arises for consideration in the present appeal is whether the trial Court was justified in returning the plaint as presented by the appellants plaintiffs on the ground that the same was barred by section 42 of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 (hereinafter referred to as "the Act of 1971").

3. Briefly stated, the appellants herein filed a suit before the Bombay City Civil Court at Bombay. Appellant No. 1 claims to be the Chief Promoter of appellant No. 11 Co-operative Society, whereas appellant Nos. 2 to 10 claim to be the promoters of the said society.

4. The appellants seek to espouse the cause of about 350 hutment dwellers who were residing in land bearing City Survey No. 1582, Vile Parle (West), Andheri, Mumbai, till recently upto May 13, 2000. The said land admeasures about 21015. 70 square mtrs. It is not in dispute that the said land is owned by the respondent Corporation. According to the appellants, by virtue of the provisions of the Act of 1971, they were entitled for allotment of the subject- land for redevelopment and for constructing tenements thereon which could be occupied by them. The plaint as filed proceeds on the assertion that the plaintiffs made several representations to the concerned authorities in this behalf but their requests was turned down without indicating any reason whatsoever. According to the appellant, to their utter surprise, the authorities instead allotted the said land to respondent Nos. 5, 6 and 7 and 8 for development who, in turn, took unilateal action in demolishing the structures, namely, the hutments occupied by the members of the appellant society.

5. According to the appellants, on enquiries, it further revealed that the concerned authorities colluded with the said respondent and permitted them to develop the land by dispossessing the appellants members of the society. In this background, the appellants have filed the suit before the trial Court for the following reliefs.

"(a) It be declared by this Hon'ble Court that the Commissioner Report of defendant No. 1 at Exhibit N colly dated 20th July, 1996 is illegal, bad in law and is liable to be set aside.

(b) It be declared that the plaintiffs No. 11 society is the rightful claimant to the plot of land situate at C.T.S. No. 1582, Near Milan Sub-Way, Lohia Nagar, Vile Parle (West), Mumbai 400 050 area admeasuring about 21015.70 sq. mtrs. for slum rehabilitation projects, as per resolution passed on Item No. 51 by the Improvements Committee on 17th January, 1996.

(c) For mandatory order directing defendants Nos. 2, 3, 4 to allot the said plot of land C.T.S. No. 1582, Near Milan Sub-Way, Lohiya Nagar, Vile Parle (West) Andheri, Mumbai 400 050 admeasuring area 21015.70 sq. mtrs. to the plaintiff No. 11 society for Slum Rehabilitation in lieu of their structures in Slum declared by defendant No. 9.

(d) Defendant Nos. 5 to 8 and their servants and agents or any person or persons claiming through or under them be restrained by permanent order and injunction of this Hon'ble Court from entering upon and/or carrying on any construction on the said plot of land situated at C.T.S. No. 1582, Near Milan, Sub-Way, Lohiya Nagar, Vile Parle (West), Mumbai, 400 056, admeasuring area 21015.70 sq. mtrs.

(e) An order to be issued by this Hon'ble Court directing defendant No. 2 to 4 to produce files and papers before the Honourable Court in respect of Annexure 11 issued to defendant No. 8 and after perusing the same defendant No. 3 be directed to make detailed Enquiry into the circumstances in which it came to be granted.

(f) By order of mandatory injunction defendant Nos. 1 to 4 be directed to evict defendant Nos. 5 to 8 from the plot of land situate at C.T.S. No. 1582, Near Milan, Sub-Way, Lohiya Nagar, Vile Parle (West), Mumbai, 400 050.

(g) Pending the hearing and final disposal of this suit defendants Nos. 5 to 8 and their servants, agents, persons claiming through or under them be restrained by an order and injunction of this Hon'ble Court from entering upon and carrying on any construction work or activities on the said plot of land situate at C.T.S. No. 1582, Near Milan, Sub-Way, Lohiya Nagar, Vile Parle (West), Mumbai, 400 056, admeasuring area about 21015.70 sq. mtrs.

(h) That pending the hearing and final disposal of this suit, a Court Commissioner be appointed by this Hon'ble Court to visit the plot of land situate at C.T.S. No. 1582, Near Milan, Sub-way, Lohiya Nagar, Vile Parle (W), Mumbai admeasuring area 21015.70 sq. mtrs. and to submit his detailed factual report about the construction activities going on the suit site C.T.S. No. 1582 Near Milan, Sub-way, Lohiya Nagar, Vile Parle (W), Mumbai, 400 056 and the exact area on which it is going on.

(i) Interim and ad-interim reliefs in terms of prayer Clauses (f) and (g) be granted to the plaintiffs.

(j) Cost of this suit be provided for.

(k) Any other and further reliefs as this Hon'ble Court deems fit and proper in the circumstances of the case."

6. In the said suit, the appellants took out a notice of motion for temporary injunction and in response to the said notice of motion respondent original defendants filed reply refuting the allegations made in the plaint and instead, contended that the suit as filed was not maintainable. The objection regarding maintainability raised in the reply was two fold, viz., (i) that the suit was beyond pecuniary jurisdiction of the Bombay City Civil Court and (ii) that the same was barred by the provisions of section 42 of the Act of 1971. Be it noted that the trial Court has not examined the first objection in the impugned order, nor the same arises for consideration in this appeal. Besides filing reply to the said Notice of Motion, an application was filed on behalf of the respondents for framing preliminary issue regarding jurisdiction for consideration as required by section 9-A of the Code of Civil Procedure, 1908. On the basis of the said application, following issues were framed by the trial Court which read thus :

i) Do defendant Nos. 5 to 7 prove that on correct valuation of the suit, this Court has no jurisdiction to try and entertain the present suit?

ii) Do defendant Nos. 5 to 7 prove that by virtue of the provisions under section 42 of the Maharashtra Slum Areas (I.C. & R.) Act of 1971 this Court has no jurisdiction to try and entertain the present suit?

iii) What order?

7. The trial Court after considering the relevant provisions and materials on record, took the view that the reliefs claimed by the appellants plaintiffs were in the nature of requiring the competent authorities to discharge their duties as per the provisions of the Act and for that reason, the plaint as presented was barred by virtue of section 42 of the Act. Summation of this view can be discerned from paragraphs 25 and 26 of the impugned judgment. On the basis of the said view, the trial Court passed an order that the plaint is returned under Order VII, Rule 10-A to the plaintiffs for being presented before the proper forum within two months from the date of the impugned order. It is this order which is the subject matter of challenge in the present appeal.

8. According to the appellants, the Court below clearly glossed over the crucial aspects of the matter, particularly that the nature on the allegations in the plaint, if the same (plaint) was to be read as a whole, was that the authorities acted in collusion with respondent Nos. 5 to 8 and have unduly favoured the said respondents by permitting them to develop the subject land which decision inevitably affects the rights and the entitlement of the appellants under the policy of the Government regarding development of the slum area. In other words, it is contended that the impugned action, which is the subject matter of challenge in the suit, is tainted with mala fide and clearly amounts to transgressing powers entrusted to the concerned authorities under the provisions of the said Act of 1971. In this backdrop, the contention raised before this Court is that in such a situation, the suit as filed was competent within the meaning of section 9 of the Code of Civil Procedure.

9. In other words, the Counsel for the appellants submits that on reading the plaint as a whole and the reliefs claimed therein, it is clear that the reliefs that were essentially claimed were founded on the assertion that the authorities acted in excess of their jurisdiction and their act of commission or omission was vitiated on account of mala fide in fact and in law. Counsel therefore, contends that in such a situation, it would be preposterous to hold that the suit as filed was not maintainable. According to the appellants, the suit was clearly outside the purview of the protection of bar provided for in section 42 of the Act of 1971.

10. On the other hand, the Counsel for respondents Nos. 5 to 7 and respondent No. 8 contends that the argument of fraud and conspiracy is being raised for the first time before this Court. He further submits that on perusal of the plaint, it would appear that there are absolutely no pleadings and no foundation has been laid alleging that the offending action of the authorities was vitiated by fraud. Reliance has been placed upon the provisions contained in Order VI, Rules 2 and 4 of the Code of Civil Procedure to contend that in absence of assertion of material facts and particulars with regard to the allegation of fraud, no suit would proceed for want of cause of action. Counsel for respondents Nos. 5 to 7 and respondent No. 8 further contends that the appeal as presented is not maintainable because the order, which is impugned in appeal, is the order under Order VII, Rule 10-A of the Code of Civil Procedure against which no appeal is maintainable in law, and the only remedy in such a situation would be to prefer revision application.

11. Before I proceed to deal with the merits of the rival contentions, I would think it appropriate to deal with the objection raised on behalf of the respondent No. 5 to 8 regarding maintainability of the appeal. No doubt, the impugned order passed by the trial Court refers to the fact that the plaint is returned under Order VIII, Rule 10-A of the Code of Civil Procedure to the plaintiffs to present the same before the appropriate forum within two months from the date of the said order. However, this submission clearly overlooks the complete scheme of the relevant provisions. Relevant provisions with regard to return of a plaint can be traced to Rules 10 and 10-A of Order VII of the Code of Civil Procedure. Rule 10 postulates that subject to the provisions of Rule 10-A, the plaint shall, at any stage of the suit, be permitted to be presented to the Court in which the suit should have been instituted. On the other hand, Rule 10-A provides, where, in any suit, after the defendant has appeared, the Court is of the opinion that the plaint should be returned, it shall, before doing so, intimate its decision to the plaintiff. Sub-rule (2) of Rule 10-A prescribes that on such intimation by the Court, the plaintiff may make an application to the Court and on such application being made, the Court shall, by virtue of sub-rule (3), pass necessary orders including of returning the plaint. By virtue of sub-rule (5), of Rule 10-A of Order VII, appeal against such an order is clearly barred. On conjoint reading of these provisions, it would appear that the Court may record its opinion that the plaint needs to be returned to the plaintiff for being presented before the Appropriate Court, but, as soon as it forms that opinion it is obliged to intimate the plaintiff about this opinion and, if such intimation is given to the plaintiff, an option is available to the plaintiff to withdraw the suit and present the same before the appropriate forum but if he fails to avail of the said opinion of withdrawing the suit for being presented before the appropriate forum, only thereafter the order of the Court returning the plaint would become effective. The latter order, however, would be tractable to Rule 10 of Order VII and cannot be traced to Rule 10-A as such. On the other hand, if the plaintiff on being informed by the Court makes application under Rule 10-A only then that order would be tractable to one having been passed under Rule 10-A, for an application by the plaintiff under this provision is a sine qua non.

12. In the present case, though the trial Court in its order has referred to the provisions of Order VII, Rule 10-A that has been obviously done to enable the plaintiffs to withdraw the plaint for being presented before the appropriate Court. However, undisputedly, the plaintiffs have not opted for the said remedy but have chosen to challenge the decision of the trial Court which takes the view that the plaint as presented was barred by section 42 of the Act of 1971. Understood thus, such an order would be one under Rule 10 which is appealable under Clause (a) of Rule 1 of Order XLIII of Code of Civil Procedure. In my view, therefore, this objection deserves to be rejected.

13. With regard to the next objection raised on behalf of the respondents Nos. 5 to 7 and respondent No. 8 that the appellants have raised the plea of fraud and collusion for the first time before this Court. In my view, even this objection is inapposite. To support the plea of fraud and collusion, the appellants are relying on the averments in the plaint itself. According to the appellants, on reading the plaint as a whole, it is not possible to comprehend that such a plaint would be barred by section 42 of the Act of 1971. To my mind, this would be a legal question which can be raised in this appeal, though not specifically raised before the trial Court. Accordingly, I am of the view that even this objection is devoid of merits.

14. Coming back to the main controversy involved in this appeal as to whether the plaint as filed was barred by section 42 of the Act of 1971, I would think it apposite to advert to the provisions of the Act of 1971. It would be useful to first advert to section 42 which deals with bar of jurisdiction. Same reads thus :

"42. Save as otherwise expressly provided in this Act, no Civil Court shall have jurisdiction in respect of any matter which the Administrator, Competent Authority or Tribunal is empowered by or under this Act, to determine, and no injunction shall be granted by any Court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act."

Besides the aforesaid provision, it would also be necessary to advert to section 37 and section 40 as well as section 41 of the Act, which read thus :---

"37. No suit, prosecution or other legal proceeding shall lie against any person for anything which is in good faith done or intended to be done under this Act or Rules or Regulations made thereunder.

40. No prosecution for any offence punishable under this Act shall be instituted except with the previous sanction of the Competent Authority

41. No suit, prosecution or legal proceedings shall lie against the competent authority or against any person acting under its authority for anything which is done or intended to be done under this Act or the Rules made thereunder".

15. On conjoint reading of the aforesaid provisions, it would appear that no suit or prosecution can be maintained against the competent authority or against any person acting under its authority for anything which is in good faith done or intended to be done under the said Act or Rules made thereunder. Section 42 of the Act opens with the expression. "Save as otherwise expressly provided in this Act" followed by, "no Civil Court shall have jurisdiction in respect of any matter which the administrator, competent authority or Tribunal is empowered by or under this Act, to determine, and no injunction shall be granted by any Court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act. "As a necessary corollary it follows that if the allegation is that the act done or intended to be done by the concerned authority is the result of fraud, collusion or mala fide and is clearly in transgression of the powers conferred on that person or authority under the Act or Rules, in such a case, the allegation would be actionable, before the Civil Court being one of civil nature to be tried only by the Civil Court by virtue of section 9 of the Code of Civil Procedure Code.

16. It is well settled that exclusion of the jurisdiction of the Civil Court is not to be readily inferred but such exclusion must either be explicity expressed or clearly implied. It is also well settled that even if the jurisdiction it so excluded the Civil Courts have jurisdiction is examine into the issues where the provisions of the Act have not been complied with, or statutory Tribunal has not acted in conformity with the fundamental judicial procedure. On the other hand, a suit in a Civil Court can always be maintained to question the order of a Tribunal created by a statute, even if its order is, expressly or by necessary implication, made final, if the said Tribunal abuses its power or does not act under the Act but in violation of its provisions. In other words, if the suit proceeds on the premises that the offending act has been done not in good faith, then there is no bar for such a suit. This legal position is enunciated in catena of decisions including , State of Kerala v. N. Ramaswamy Iyer & Sons, , Firm Seth Radhakishan (deceased) represented by Harikishan v. Administrative Municipal Committee, Ludhiana, , as well as decision of Kerala High Court in

Secretary, K.S.E.B., Trivandrum v. M. Sainaba, .

17. Understood thus, what is to be seen is whether the allegations in the plaint are of such nature that the plaintiff complaints that the offending action is mala fide and in transgression of the authority. If such are the allegations, then the suit would obviously not be barred in terms of the bar of jurisdiction provided for under section 42 of the Act 1971 for, such a suit would be outside the purview of the said provision because the offending act is alleged to have been committed not in good faith or intended to be done under the said Act, but for extraneous reasons.

18. Applying the said principle to the present case, and more particularly on reading the plaint as a whole, it would be seen that necessary assertions have been made in the plaint in various paragraphs from paragraphs 13 to 36. The plaintiffs have given circumstances on the basis of which they have reasons to complain that the offending act of the authorities was obviously committed in connivance with respondents Nos. 5 to 8 so as to unduly favour the said respondents. The assertions, therefore made in the plaint are that the act done or intended to be done was clearly in transgression of the provisions of the Act of 1971. Such being the position, it would be incomprehensible that such a plaint ought to be returned being barred by section 42 of the Act.

19. This, however, is not to say that the assertion made in the plaint by themselves are sufficient to grant reliefs as claimed by the plaintiffs. That investigation will have to be done by the trial Court on merits in accordance with law. On the other hand, in the present case, the trial Court in paragraphs 25 and 26 of its order has merely observed that the reliefs that are claimed in the suit are in the nature of acts that could be undertaken by the authorities under the provisions of the Act, so as to hold that the plaint as presented was barred by section 42 of the Act. This approach in inappropriate and cannot be countenanced in law. On the other hand, the trial Court was obliged to undertake the scrutiny of the plaint as a whole while answering the issue on hand regarding the jurisdiction of the Civil Court. To my mind, investigation as to whether the plaint makes out a cause of action for grant of relief as claimed, is entirely a different issue which cannot and ought not to be mixed up while answering the question as to jurisdiction of the Civil Court as such. That investigation will have to be undertaken by the trial Court independently and, if it is found that the relief cannot be granted because no cause of action is made out in the plaint, then the Civil Court can pass orders under other provisions including Order VII, Rule 11 of dismissing the plaint. But, surely, that reasoning cannot be used for non-suiting the plaintiffs on the ground that the suit is barred by the provisions of section 42 of the Act, for the Civil Court has no jurisdiction.

20. Having taken this view, there is no option for this Court but to set aside the impugned order and restore the plaint on the file of the trial Court to be decided in accordance with law. Accordingly, appeal is allowed.

21. It is, however, made clear that all questions, including the action of maintainability of the suit on other counts, if any, may be examined by the trial Court in accordance with law. Suit having been restored on the file of the trial Court, the trial Court would also examine the reliefs prayed for in the notice of motion after giving opportunity to both the parties to be decided expeditiously, preferably within six months from today. Ordered accordingly.

Parties to act on the authenticated copy of the order.