The scope of the exclusionary clauses contained in the statutes has been considered in great detail with reference to the decisions of the superior courts in England and also the decisions of the Supreme Court of India by Justice G.P. Singh (former Chief Justice, M.P. High Court) in "Principles of Statutory Interpretation", 6th edition (1996) at page 475. The law is stated thus:
A review of the relevant authorities on the point leads to the following conclusions:(1) An Exclusionary Clause using the formula 'an order of the tribunal under this Act shall not be called in question in any Court' is ineffective to prevent the calling in question of an order of the tribunal if the order is really not an order under the Act but a nullity.
(2) Cases of nullity may arise when there is lack of jurisdiction at the stage of commencement of enquiry e.g., when (a) authority is assumed under an ultra vires statute; (b) the tribunal is not properly constituted, or is disqualified to act; (c) the subject-matter or the parties are such over which the tribunal has no authority to inquire; and (d) there is want of essential preliminaries prescribed by the law for commencement of the inquiry.(3) Cases of nullity may also arise during the course or at the conclusion of the inquiry, These cases are also cases of want of jurisdiction if the word 'jurisdiction' is understood in a wide sense. Some examples of these cases are (a) when the tribunal has wrongly determined a jurisdictional question of fact or law; (b) when it has failed to follow the fundamental principles of judicial procedure, e.g. has passed the order without giving an opportunity of hearing to the party affected; (c) when it has violated the fundamental provisions of the Act, e.g., when it fails to take into account matters which it is required to take into account or when it takes into account extraneous and irrelevant matters; (d) when it has acted in bad faith; and (e) when it grants a relief or makes an order which it has no authority to grant or make; "as also (f) when by misapplication of the law it has asked itself the wrong question.
With great respect to the learned author, I would adopt the above statement of law, as my own.
IN THE HIGH COURT OF BOMBAY
Writ Petition Nos. 2243, 1947, 2071, 2172, 2242, 2255, 2278, 2576 of 2013,
Mr. Yogesh Megaji Gada Vs. The Municipal Corporation of Greater Mumbai & Ors. etc. etc.
Hon'ble Judges/Coram:
N.M. Jamdar, J.
1. Rule in all these Petitions. Rule is made returnable forthwith. The learned counsel for the Respondents waives service in all these group of petitions. Taken up for final disposal. The Petitioners have challenged the action taken by the Respondent-Municipal Corporation in respect of their structures. In some of these Petitions, the Corporation has issued notice under section 351 of the Mumbai Municipal Corporation Act, 1888 and in some under section 354 of the Act.
2. When the Petitions come up on board individually, Mr. A.Y. Sakhare, the learned Senior Advocate appearing for the Corporation submitted that the scope of the writ jurisdiction of this court while considering challenge to the action of the Corporation taken pursuant to the above mentioned sections, needs to be examined in the light of various decisions governing the issue and therefore, the Petitions were taken up on board for hearing together as a group.
3. All the above Writ Petitions, except in Writ Petition Nos. 338 of 2014 and 726 of 2014, the petitioners challenge the notices issued under section 351 of the Mumbai Municipal Corporation Act, 1888 (the Act) and the orders passed by the competent authority of the Corporation, pursuant to the notices. The Petitioners in Writ Petition Nos. 338 of 2014 and 726 of 2014 challenge the notices issued under section 354-A of the Act and the orders passed by the competent authority, pursuant to the notices.
4. Mr. Sakhare's preliminary objection is that the Petitioners have invoked writ jurisdiction of this court seeking adjudication of seriously disputed questions of facts and the scope of writ jurisdiction to decide the disputed questions of facts is extremely narrow. According to him, Section 515-A has been incorporated in the Act to provide that an order passed by the designated officer under sections 351 & 354-A shall not be questioned in a suit or any proceedings and the legislative policy to incorporate such provision must be kept in mind while exercising the writ jurisdiction. He submitted that, it cannot be that the legislature has chosen to bar a remedy of a civil suit for a particular purpose, which gets nullified by expanding the scope of the writ jurisdiction. He submitted that the legislative intent for enacting section 515-A is to minimise litigation in respect of the unauthorized constructions. He submitted that even otherwise the bar on jurisdiction of civil courts incorporated under section 515-A of the Act is not absolute, and civil suit will be maintainable if the action of the designated officer is a nullity or there is jurisdictional error. He submitted that a division bench of this court in the case of Abdul Karim Ahmed Mansoori vs. Municipal Corporation of Greater Mumbai & Anr., reported in MANU/MH/1531/2013 : 2014 (1) Mah. L.J. 227, has taken a view that the petitions cannot be entertained merely because of the petitioners' perception that the suit is barred. Therefore, on mere assertion of the Petitioners that the suit is not maintainable, a writ court should not exercise its jurisdiction and further more adjudicate seriously disputed questions of facts. He further submitted that it is open to the petitioners to institute a civil suit and contend that their cases fall within the permissible extent of challenge. Mr. Janak Dwarkadas, learned Senior Advocate appearing for one of the respondents supported the submissions of Mr. Sakhare.
5. Mr. Dinyar Madon, Mr. Vineet Naik, learned senior Advocates, Mr. G.S. Godbole, Mr. R. A, Thorat, learned Advocates, and other learned Advocate appearing for other concerned Petitioners did not have a serious objection to the proposition that, as directed by the division bench, the petitioner cannot approach the writ court on their perception that suit is not maintainable. They submitted that time may be granted to them for approaching the civil court. They however, voiced an apprehension that if the suit is held not to be maintainable and if the writ petition is also not to be entertained then the Petitioners would be rendered remediless. Mr. Bapat, the learned advocate submitted that in his petition the error is so fundamental that the petition should be entertained by the writ court and jurisdiction of the court is not taken away. In the context of rival submissions, this position of law as regards the legal position needs to be ascertained.
6. Firstly, the provisions under which the Corporation takes action in respect of the unauthorized constructions needs to be noticed. It is contained in section 351 and 354-A of the Act. Section 351 reads as under:
351. Proceedings to be taken in respect of buildings or work commenced contrary to section 347.----[(1) The Commissioner shall, by notification in the Official Gazette, designate an officer of the Corporation to be the Designated Officer for the purposes of this section and of sections 352, 352A and 354A. The Designated Officer shall have jurisdiction over such local area as may be specified in the notification and different officers may be designated for different local areas.]
[(1A)] If the erection of any building or the execution of any such work as is described in section 342, is commenced contrary to the provisions of section of 342 or 347], the [Designated Officer], unless he deems it necessary to take proceedings in respect of such building or work under section 354 shall-
(a) by written 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], [within seven days from the date of service of] 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 [Designated Officer], to show sufficient cause why such building or work shall not be removed, altered or pulled down; or(2) If such person shall fail to show sufficient cause, to the satisfaction of the [Designated Officer], why such building or work shall not be removed, altered or pulled down, the [Designated Officer] ***** may remove, alter or pull down the building or work and the expenses thereof shall, be paid by; the said person.--[In case of removal or pulling down of the building or the work by the [Designated Officer], the debris of such building or work together with one building material, if any, at the sight of the construction, belonging to such person, shall be seized and disposed of in the prescribed manner and after deducting from the receipts of such sale or disposed, the expenditure incurred for removal and sale of such debris and material, the surplus of the receipt shall be returned by the [Designated Officer], to the person concerned]
(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 authorized by him in that behalf, and show sufficient cause why such building or work shall not be removed, altered or pulled down.
[Explanation-"To show sufficient cause" in this subsection shall mean to prove that the work mentioned in the said notice is carried out in accordance with the provisions of section 337 or 342 and section 347 of the Act]
[(3) No Court, shall stay the proceeding of any public notice including notice for eviction, demolition or removal from any land or property belonging to the Stae Government or the Corporation or any other local authority or any land which is required for any public project or civil amenities, without first giving the Commissioner a reasonable opportunity of representing in the matter.]
Under sub-section (1A) of section 351, the designated officer can take necessary proceedings in respect of any building or execution of any work which has commenced contrary to the provisions of Sections 342 or 347, unless he deems necessary to take proceedings in respect of such work under section 354, will require such persons to show sufficient cause. Section 342 of the Act deals with a situation where additions, alterations and repairs are carried out in a building. Then Notice of Intent has to be furnished to the Commissioner. Section 347 mandates that no person one shall commence the work without furnishing Notice of Intent. If a person fails to give sufficient cause to the satisfaction of the designated officer, the Designated Officer can proceed to pull-down the work.
7. Next section is Section 354-A. which reads as under:
354A. Power of [Designated Officer] to stop erection of building or work commenced or carried on unlawfully.-
(1) If the [Designated Officer] 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 [Designated Officer] may, by written notice, require the person erecting such building or executing such work to stop such erection or work [forthwith].
[(2) If the erection of the building or execution of the work is not stopped as required by the [Designated Officer] or permission approved by the competent authority in favour of the erection of the building or execution of the work is not produced within twenty-four hours from the service of notice referred to in sub-section (1), the [Designated Officer] may, without further notice, remove or pull down the building or work and the expenses thereof shall be paid by the said person or owner of the building or work. The [Designated Officer] may also direct that any person directing or carrying out 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.]
[(3) In addition to the action that the [Designated Officer] may take under sub-section (2), he may, without further notice, cause to be removed by any materials, machinery, equipments, devices or articles used in the process of erecting of the building or execution of such work.
(4) If the expenses incurred by the [Designated Officer] may take under sub-section (2) and (3) are not paid within one month from the date of demand, such sum as remains unpaid shall be treated, as arrears of property tax and the procedure prescribed under this Act for recovery of arrears of property tax shall, mutatis mutandis, apply to the recovery of such unpaid sum].
Under this section, if the designated officer is satisfied that erection of any building or the execution of any work is commenced without prior permission or is unlawfully carried on, he may issue an order to stop such work. If a person to whom such notice is issued does not produce the requisite permission, the designated officer can then take necessary steps to stop the work.
8. As stated above in all these Petitions actions have been taken under either of these sections. Generally parties resorted to the remedy of civil suits to challenge the orders issued pursuant to these two sections. In the suits, interim orders used to be sought, and if granted, suits and further proceedings would linger on for years. By the Maharashtra Act 32(2) 2012, section 515-A was incorporated in the Act which reads as under:
515A. Save as otherwise provided in this Act, any notice issued, order passed or direction issued by the Designated Officer, under section 351 or 354A shall not be questioned in any suit or other legal proceedings.
By this newly introduced section, recourse to remedy of filing a civil suit to challenge the order or direction passed by the designated officer under section 351 or 354-A of the Act was sought to be taken away.
9. Constitutional validity of Section 515A was challenged in writ petition (ldg.) No. 1709 of 2013 in case of Abdul Razzaq Sunesra vs. Municipal Corporation of Greater Mumbai. The challenge was considered by the division bench of this court. (Coram: Dr. D.Y. Chandrachud & S.C. Gupte, JJ.). The challenge to the constitutional validity of section 515A was mainly on the ground that no requirement of hearing is stipulated before the order is passed, remedy of civil suits is barred without any adequate machinery provided in the statute, and the provision is arbitrary. The division bench issued notice to the learned Advocate General in view of the challenge to the constitutional validity of the section. It was submitted on behalf of the State that the requirement of principles of natural justice does not necessitate a personal hearing. An adequate opportunity to show cause and application of mind by the designated officer is safeguarded in both sections 351 and 354A. It was submitted that jurisdiction of courts under section 9 of the Civil Procedure Code to entertain an action of a civil nature can be barred by the statute and absence of an appellate remedy does not render the provisions unconstitutional. The division bench repelled the said challenge by observing in paragraphs 11 and 12 thus:
11. Ordinarily a civil court under the provisions of Section 9 of the Code of Civil Procedure, 1908, shall have the jurisdiction to try all suits of a civil nature excepting suits of which cognizance is either expressly or impliedly barred. The conferment of jurisdiction on civil courts to try suits of a civil nature is, therefore, subject to a law which may be enacted by the competent legislature either expressly barring the jurisdiction or impliedly taking away the jurisdiction of the Court. There is nothing uncommon, as a first principle of law, in a competent legislature barring the jurisdiction of a civil court to entertain a civil suit of a specified nature. The legislature in the State of Maharashtra has introduced Section 515A to exclude the jurisdiction of the civil court in matters involving demolition of unauthorized constructions in order to obviate the inordinately long delays that were occasioned in the taking of steps against illegal structures and constructions due to the pendency of suits before the civil courts. The legislature was entitled to take cognizance of these delays and to enact a suitable statutory provision. In the judgment in Dhulabhai etc. Vs. State of Madhya Pradesh and another, the Supreme Court summarized the principles of law governing the interpretation of finality clauses and statutory provisions ousting the jurisdiction of civil courts. In regard to the express bar of jurisdiction, the principle enunciated in the judgment of the Supreme Court is as follows:
35(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.12. In the present case, there is an express bar on the jurisdiction of the civil court in Section 515A to entertain a suit calling into question any notice, order or direction issued under Sections 351 and 354A. Hence, in view of the law laid down in Dhulabhai (supra), an examination of the scheme of the Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is strictly speaking, not decisive. Be that as it may, under Section 351, sufficient safeguards have been provided by the legislature to ensure that the determination by the authority is subject to the observance of statutory parameters. The statute incorporates requirements to ensure that the procedure is fair and that the outcome of the inquiry is based on objective considerations. The conditions which are imposed by the statute ensure firstly that before action is taken, a written notice must be issued to the person who is erecting a building or executing a work. Following the issuance of a notice, the statute secondly mandates that an opportunity to show sufficient cause must be granted in the form of a statement in writing. Thirdly the designated officer is empowered in an appropriate case to allow the person to whom the notice is issued, to show cause in person or through an agent. Fourthly, the designated officer is required to apply his mind whether the person to whom a notice was issued, has or has not failed to show sufficient cause to his satisfaction. The satisfaction of the designated officer is not a subjective satisfaction but is a satisfaction which has to be arrived at objectively after appreciating the contents of the defense and the cause which has been shown. The officer must, in particular, apply his mind whether work of the description which is mentioned in Section 342 has been commenced contrary to the provisions of Section 342 or Section 347. The officer is thereupon vested with the discretion on whether or not to demolish the structure. This discretion is again a discretion which has to be exercised judiciously and not arbitrarily. Reasons must be recorded in the order of the designated officer. Reasons provide an assurance against an arbitrary exercise of power and allow the decision to be challenged and scrutinized under Article 226 of the Constitution.
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.
10. The division bench also took note of the observations of the Apex Court in the case of Pratibha Co-operative Housing Society Ltd. vs. State of Maharashtra, reported in MANU/SC/0335/1991 : (1991) 3 SCC 341 in which the Apex Court emphasized the need to curb the menace of illegal and unauthorized constructions. The division bench observed that the State of Maharashtra, more particularly in urban areas, are plagued by a menace of unauthorized constructions and the object of section 515-A was to ensure that recourse to the civil remedy was not utilized to abuse the process with every possible means to ensure that a delay takes place in the disposal of the proceedings, once a stay is obtained. The division bench observed that adequate safeguards have been provided under section 351 and 354-A and the authority must ensure that the principles of natural justice are complied with and a speaking order accompanied by the reasons should be passed. Accordingly, the division bench dismissed the petition by its decision dated 17 July 2013.
11. In an Appeal from Order (st.) No. 20254 of 2013, arising from order passed in a suit in respect of the above provisions, a learned single Judge of this court passed an order on 29 July 2003, dismissing the appeal on the ground that the suit from which the appeal from order arose do not survive in view of the bar to the jurisdiction of the civil court. The learned single Judge further directed the trial court to remove from its file all such suits in which its inherent jurisdiction was barred. During the course hearing of an another petition concerning a demolition order, Writ Petition (Ldg.) No. 1967 of 2013, the order passed in the Appeal from Order was brought to the notice of the Division Bench (Coram: S.C. Dharmadhikari & G.S. Patel, JJ.). The Division Bench on 30 August 2013 passed the following order:
P.C.
1. When this petition was placed before us for admission, Mr. P.J. Thorat, appearing on behalf of the petitioner, sought leave to amend the petition. On his request, leave to amend is granted. Amendment to be carried out forthwith.
2. When the writ petition was called out, Mr. V.A. Thorat, learned Senior Counsel, sought to intervene and submitted that the parties like the petitioner are facing a genuine difficulty and problem of law because the bar that has been created by introduction of section 515A in the Mumbai Municipal Corporation Act, 1888 is construed as so absolute that even registration of a civil suit is refused by the Registry of the Bombay City Civil Court. The Bombay City Civil Court and its Registry finds itself bound not only by the bar created but because of a direction given by this Court in Appeal from Order (Stamp) No. 20254 of 2013 with Civil Application (Stamp) No. 20255 of 2013 dated 29.7.2013. Mr. Thorat, learned Senior Counsel, submits that several members of the Bar would like to intervene not only on this point but on the larger point as well. But presently, this Court should clarify whether this order means that in addition to the bar created by section 515A of the Mumbai Municipal Corporation Act, the suits cannot be taken on file, numbered/registered because of the statutory bar. The order passed by the learned Single Judge dated 29.7.2013 reads thus:
1. The appeal from order is allowed to be withdrawn. The suit also cannot survive in view of the bar of the Civil Court's jurisdiction. Hence upon the withdrawal of this appeal from order the suit would stand dismissed as being without jurisdiction.3. With the assistance of Mr. Thorat, learned Senior Counsel, appearing on behalf of one of the interveners, and Mr. Sakhare, learned Senior Counsel appearing on behalf of the Mumbai Municipal Corporation, the respondents to the Writ Petition, we have perused the statutory provision and the above order. We are of the opinion that the well settled principle that right to bring a suit is an inherent right vesting in a litigant is a principle so basic and elementary that it need not be reiterated. In this context, in view of the observations of the Honourable Supreme Court in the case of Smt. Gangabai vs. Vijay Kumar & Ors. 1 that it is only when a suit is not competent in the sense that the subject matter thereof is not within the cognizance or powers of the civil Court and also in the limits, namely, pecuniary and territorial jurisdiction, that the suit could be held to be barred. That does not in any manner mean that the suit cannot be taken on file. A civil Court can take a civil Suit on file, register it and subject to such objections that may be raised including on the point of jurisdiction. Therefore, in our opinion, with greatest respect, the learned Single Judge could not have issued any direction muchless to the effect of removal of all suits from the file of the Civil Court on this issue and debarring the Registry of that Court from registering any further suits. Such a direction is clearly beyond the powers conferred in this Court while deciding the Appeal from order directed against the interim/ad-interim order of the City Civil Court. The learned Single Judge was exercising powers u/s. 104 of the Code of Civil Procedure read with Order 43 Rule 1 thereof. Both these provisions and equally the powers conferred in an appellate Court so also the inherent powers of this Court would not enable the learned Single Judge to issue such directions as are issued in the instant order.
2. The trial Court shall remove from its board all such suits in which its inherent jurisdiction is barred.
4. In the circumstances, the Registry of the City Civil Court and equally all civil Courts should ignore such direction and take the civil suits on file. However, this order and direction passed by us would not mean that the bar u/s. 515A of the Mumbai Municipal Corporation Act or any such provision carved out in the statute would not be attracted or a plea in that behalf cannot be raised. Subject to all such pleas including on the point of pecuniary and territorial jurisdiction being kept open, the civil suits be registered.
5. Needless to clarify that we are aware of the judgment of the Division Bench of this Court delivered on 17.7.2013 in Writ Petition (Lodging) No. 1709 of 2013 (Abdul Razzaq Sunesra vs. Municipal Corporation of Greater Mumbai & Ors.) about the constitutional validity of section 515A being upheld. That would not necessarily mean that the Division Bench has issued a direction of the nature contemplated in the order of the learned Single Judge. That the statute is held to be constitutionally valid or the statutory provision is upheld, does not mean that the administrative act of registration of a plaint or proceeding is barred.
6. S.O. to 13.9.2013.
As can be seen, the division bench noted the decision in the case of Abdul Razzaq Sunesra (supra) and held that the constitutional validity being upheld would not mean that the suit itself cannot be registered.
12. Then the question regards maintainability of a civil suit in view of section 515-A specifically arose before the division bench (Coram: S.C. Dharmadhikari & G.S. Patel, JJ) in the case of Abdul Karim Ahmed Mansoori (supra). In this case, the Petitioner had challenged the notice issued by the Municipal Corporation under section 354-A of the Act by way of a civil suit. An objection regarding the bar section 515-A was raised and ad-interim relief was refused by the civil court. An appeal from order was filed, which was withdrawn and thereafter, the writ petition came to be filed. The division bench considered the legal position as regards the bar to civil suits in respect of the section 515-A of the Act.
13. The division bench in Abdul Karim noted that in case of Secretary of State vs. Mask & Company, reported in MANU/PR/0022/1940 : AIR 1943 P.C. 105, it was held by the Privy Council that the jurisdiction of the civil courts is not to be readily excluded and even if a jurisdiction is so excluded, the civil courts will have jurisdiction to examine whether the provisions of the Act have been complied with and the tribunal has acted in conformity with the fundamental principles of judicial procedure. The division bench relied upon the decision of Apex Court in the case of Shiv Kumar Chadha vs. Municipal Corporation of Delhi, reported in MANU/SC/0522/1993 : 1993 (3) SCC 161. In case of Shiv Kumar Chadha (supra) the Apex Court took an over view of the various decisions and held that where a statute purports to curb and curtail a pre-existing common law right and purports to oust the jurisdiction of the court, the court will have to be more vigilant, while examining the question whether an adequate machinery has been provided before which the person aggrieved may agitate his grievance. The Apex Court observed in paragraphs 27, 28 and 29 as under:
27. By mere reference to different provisions of the Corporation Act it shall appear that the Act does not create any right or liability. Chapter XVI of the Act only purports to regulate the erections of the buildings within the Corporation area, so that erection of the buildings within the Corporation area are systematic, planned and do not adopt the character of mushroom growth. In view of the provisions of the Act, whenever it is discovered that erection of any building or execution of any work has been commenced or is being carried or has been completed, either without sanction or contrary to the sanction or in contravention of any condition subject to which such sanction had been accorded, the Commissioner can make an order directing that such erection or work shall be demolished. Any person aggrieved by an order has been given a right to prefer an appeal before the Appellate Tribunal and thereafter to the Administrator. Subject to any order passed by the Appellate Tribunal and the Administrator, the order for demolition shall be deemed to be final and conclusive.
28. According to us, it cannot be urged that the provisions of the Act have created any right or liability and for enforcement thereof remedy has been provided under the Act itself. The Act purports to regulate the common law right of the citizens to erect or construct buildings of their choice. This right existed since time immemorial. But with the urbanisation and development of the concept of planned city, regulations, restrictions, on such common law right have been imposed. But as the provisions of the Act intend to regulate and restrict a common law right, and not any right or liability created under the Act itself, it cannot be said that the right and the remedy have been given uno flatu e.g. "in the same breath". Most of the cases of this Court referred to above related to statutes creating, rights or liabilities and providing remedies at the same time. As such the principles enunciated therein, shall not be fully applicable in the present case. In spite of the bar prescribed under Sub-sections (4) and (5) of Section 343 and Section 347E of the Corporation Act over the power of the Courts, under certain special circumstances, the Court can examine, whether the dispute falls within the ambit of the Act. But once the Court is satisfied that either the provisions of the Act are not applicable to the building in question or the basic procedural requirements which are vital in nature, have not been followed, it shall have jurisdiction, to enquire and investigate while protecting the common law rights of the citizens. Can a Court hold a suit to be not maintainable, although along with the plaint materials are produced to show that the building in question is not within the Corporation limits, or that the constructions were made prior to coming into force of the relevant provisions of the Act? We are conscious of the fact that persons who make unauthorised constructions by contravening and violating the building bye-laws or regulations often run to Courts, with pleas mentioned above, specially that no notice was issued or served on them,' before the Corporation has ordered the demolition of the construction.
29. It is well-known that in most of the cities building regulations and bye-laws have been framed, still it has been discovered that constructions have been made without any sanction or in contravention of the sanctioned plan, and such constructions have continued without any intervention. There cannot be two opinions that the regulations and bye-laws in respect of buildings, are meant to serve the public interest. But at the same time it cannot be held that in all circumstances, the authorities entrusted with the demolition of unauthorised constructions, have exclusive power, to the absolute exclusion of the power of the Court. In some special cases where "jurisdictional error" on the part of the Corporation is established, a suit shall be maintainable. According to us:
(1) The Court should not ordinarily entertain a suit in connection with the proceedings initiated for demolition, by the Commissioner, in terms of Section 343(1) of the Corporation Act. The Court should direct the persons aggrieved to pursue the remedy before the Appellate Tribunal and then before the Administrator in accordance with the provisions of the said Act.
(2) The Court should entertain a suit questioning the validity of an order passed under Section 343 of the Act, only if the Court is of prima facie opinion that the order is nullity in the eyes of law because of any "jurisdictional error" in exercise of the power by the commissioner or that the order is outside the Act.
14. As stated earlier, the division bench in the case of Abdul Karim placed reliance on the above mentioned observations of the Apex Court. The division bench took note of the decision in case of Abdul Razzaq Sunesra (supra), upholding the constitutional validity and held that section 515-A does not hold that the ouster of the civil court's jurisdiction is so complete that a civil suit cannot be taken on file or the plaint cannot be registered at all.
15. The division bench thereafter proceeded to consider whether a writ petition should be considered on the premise there is no remedy of civil suit. Para 7 and 8 are material.15. The division bench thereafter proceeded to consider whether a writ petition should be considered on the premise there is no remedy of civil suit. Para 7 and 8 are material.
7. In these circumstances, we do not find that we should entertain writ petitions under Articles 226 of the Constitution of India, merely because the understanding of an individual Petitioner is that a Civil Suit will not lie. That would not enable him to invoke the writ jurisdiction of this Court straight way or for this Court to exercise it. Ultimately everything depends upon the facts and circumstances of each case.
8. We have no doubt in our mind, therefore, that when the Petitioner in this petition has not withdrawn the Civil Suit, that he would be prevented in law from pursuing it and satisfying the Trial Court that the jurisdiction of the Trial Court is still intact and the subject matter of the Suit is within the competence of the Civil Court/Trial Court.
16. An apprehension was raised on behalf of the Municipal Corporation before the division bench in Abdul Karim that if the Petitioner was permitted to approach the civil court, the parties like the petitioners would request the civil court to brush aside the bar under section 515A or would not take any note of it. The division bench addressed this apprehension of the Corporation as under in paragraph 10:
10. At this stage, we must take note of the apprehension expressed by Mr. Sakhare, learned Senior Counsel appearing for the Municipal Corporation. His submission is that if this process is permitted in all matters, parties like the Petitioner would request the Civil Court to brush aside the bar under Section 515A or would not take any note of it. We do not think that the Civil Court would be influenced by our order and clarification given today to this extent and as apprehended by Mr. Sakhare. In every individual case depending upon the pleadings, the issue of jurisdiction would have to be decided by the Civil Court. The applicability of Section 515A and the issue of jurisdiction must be, therefore, gone into, dealt with and decided in each case depending on the pleas raised by parties. The law is well settled inasmuch as the learned Judge will have to decide the issue of jurisdiction by considering the averments in the plaint. If the averments in the plaint do not make out any case which would enable the Court to apply the legal principles set out above, he would then apply the provision in question, namely, Section 515A and return a appropriate finding on the point of jurisdiction depending on the materials placed before him. It is not as if by our clarification and enabling parties to file a Civil Suit, that we have observed that the bar should be ignored or should not be taken note of. The Civil Court is obliged to take note of the provision and the statutory bar whenever that plea is raised by the Corporation before it. In such circumstances, no further clarification is needed. All that we state and observe is that we have not expressed any opinion on the rival contentions including on the point of jurisdiction of the Civil Court in this matter. Even if the Petitioner seeks to revive the Suit as it is still pending and seek interim relief therein, the Corporation can raise the plea of jurisdiction and the learned Judge should consider and decide in accordance with law.
Mr. Sakhare has placed heavy reliance on this decision and submitted that the view taken, being of a division bench, is binding.
17. Similar exclusion clauses have been incorporated in respect of other statutes governing planned development. Section433-A of the Maharashtra Municipal Corporation Act is in respect of bar of jurisdiction of civil courts. Section 433-A of the Act reads under:
433A. Bar of jurisdiction. Save as otherwise provided in this Act, any notice issued, order passed or direction issued by the Designated Officer, under sections 260, 261, 264, 167 or 478 shall not be questioned in any suit or other legal proceedings.
A learned single Judge of this court (R.K. Deshpande, J.) in the case of Commissioner, Akola Municipal Corporation vs. Bhalchandra s/o. Govind Mahashabde, reported in 2003 (4) Mh.L.J. 45, had an occasion to consider the effect of section 433-A. The learned single Judge considered, whether the said challenge to the notice issued under section 260 of the Maharashtra Municipal Corporation Act, for demolition of an unauthorized construction is barred under section 433-A of the Act. The learned single Judge observed in paragraph 7 and 10 as under:
7. Now, section 433A of the Maharashtra Municipal Corporations Act creating a bar of jurisdiction of the Civil Court, being relevant, is reproduced below:
433A. Bar of jurisdiction. Save as otherwise provided in this Act, any notice issued, order passed or direction issued by the Designated Officer, under sections 260, 261, 264, 167 or 478 shall not be questioned in any suit or other legal proceedings.Undoubtedly, if the plaintiff comes before the Civil Court alleging that a notice issued under section 260 of the said Act is illegal in any manner and seeks a declaration to that effect, then the bar of jurisdiction to try such a suit under section 433A of the said Act shall operate. However, nonetheless, the inherent jurisdiction of a Civil Court in a suit challenging the notice under section 260 of the said Act, on the limited grounds, viz. That the act of issuance of such notice is nullity, or that while issuing such notice, the mandatory provisions of the said Act have not been complied with, or that the Authority issuing such a notice has not acted in conformity with the fundamental judicial procedure, or that it is an abuse of exercise of power, or that the offending act has not been done in good faith, remains intact, in view of the aforestated law laid down in judicial pronouncement. The Civil Court is not precluded of its inherent jurisdiction to entertain and decide such challenge to a notice under section 260 of the said Act, on such limited grounds, particularly when there is no forum available under the said Act to ventilate such grievances in respect of it. Hence, the question of law at Serial No. (i) is answered accordingly.
10. A plea of bar to jurisdiction of the Civil Court to entertain and decide the challenge to a notice under section 260 of the said Act on the limited grounds, has to be considered having regard to the contentions raised in the plaint, the averments disclosing the cause of action, and the reliefs sought for therein. All such averments must be considered as a whole and not in isolation. The plaint must contain all such statements of material facts, as are necessary to invest such jurisdiction with the Civil Court. The statements of facts must be very clear and specific and not vague. The absence of a single material fact of jurisdiction, would entail the consequences of dismissal of suit, as barred by section 433A of the said Act.
The view taken by the learned single Judge in the case of Akola Municipal Corporation (supra) was approved by the Division Bench in the case of Abdul Karim (supra).
18. As regards the bar created by section 149 of the Maharashtra Regional and Town Planning Act, 1966 in respect of jurisdiction of the civil court it came up for consideration before the learned single Judge of this Court (A.S. Oka, J) in the case of Laxman Barkya Wadkar vs. Mumbai Municipal Corporation in First Appeal No. 1635 of 2010 and other connected matters. The learned single Judge considered sections 53 and 55 of the Act and held that a plain reading of section 149 of the MRTP Act, which contained a finality clause which excludes the jurisdiction of civil courts. The learned Judge thereafter, proceeded to analyze the dicta of the Apex Court in the case of Dhulabhai vs. State of Madhya Pradesh and another reported in MANU/SC/0157/1968 : AIR 1969 SC 78 and in the case of Kamala Mills Ltd. vs. State of Bombay, reported in MANU/SC/0291/1965 : 1966 (1) SCR 64. The learned single Judge taking note of the view of the apex court in the case of Shiv Kumar Chadha (supra), held that if allegations are made in the plaint that that action under section 53(1) or 55 of the Act is a nullity, then the provision excluding jurisdiction of the civil courts, will not come in the way of the civil court in entertaining the suit.
19. All these decisions would show that the suit would be maintainable in cases where there is a jurisdictional error. In the case of Shiv Kumar Chadha (supra) the Apex Court was specifically considering the statute dealing with an unauthorized construction and the bar of jurisdiction of civil court. The Apex Court laid down that a suit can be maintainable if a court is prima facie of the opinion that the order is nullity in the eyes of law or there is an jurisdictional error in exercise of a power by the Commissioner or that the order is outside the scope of Act. The Apex Court took note of the fact of interpretation given to the word "jurisdiction" by House of Lords in the case of Neville vs. London "Express" Newspaper Ltd., and in the case of Anisminic Ltd., vs. Foreign Compensation Commission, wherein the House of Lords held that not only the tribunal should have jurisdiction to enter upon an enquiry, but it has does or fails to do something, in the course of such enquiry, which is of such a fundamental nature, then that its decision also becomes a nullity.
20. The concept of "jurisdictional error" came up for consideration before the Constitution Bench in the case of Mafatlal Industries vs. Union of India reported MANU/SC/1203/1997 : 1997 (5) SCC 536. One of the issues that arose for consideration was exclusion of jurisdiction of civil courts and applicability of exclusionary clause when the decision is ultra virus or without jurisdiction. K.S. Paripoornan, J. elaborated the concept of "jurisdictional error" in paragraphs 334 to 338:
334. Opinions may differ as to when it can be said that in the "public law" domain, the entire proceeding before the appropriate authority is illegal and without jurisdiction or the defect or infirmity in the order goes to the root of the matter and makes it in law invalid or void (Referred to in Illuri Subbayya Chetty's case and approved in Dulabhai case). The matter may have to be considered in the light of the provisions of the particular statute in question and the fact situation obtaining, in each case. It is difficult to visualise all situations hypothetically and provide an answer. Be that as it may, the question that frequently arises for consideration, is, in what situation/cases the non-compliance or error or mistake, committed by the statutory authority or Tribunal, makes the decision rendered ultra-vires or a nullity or one without jurisdiction? If the decision is without jurisdiction, notwithstanding the provisions for obtaining reliefs contained in the Act and the "ouster clauses", the jurisdiction of the ordinary court is not excluded. So, the matter assumes significance. Since the landmark decision in Anisminic Ltd. v. Foreign Compensation Commission: (H.L.), the legal world seems to have accepted that any "jurisdictional error" as understood in the liberal or modern approach, laid down therein, makes a decision ultra vires or a nullity or without jurisdiction and the "ouster clauses", are construed restrictively, and such provisions whatever their stringent language be, have been held not to prevent challenge on the ground that the decision is ultra vires and being a complete nullity, it is not a decision within the meaning of the Act. The concept of jurisdiction has acquired "new dimensions". The original or pure theory of jurisdiction means, "the authority to decide", and it is determinable at the commencement, and not at the conclusion of the inquiry. The said approach has been given a go bye in Anisminic case, as we shall see from the discussion hereinafter (See De Smith, Woolf and Jowell-Judicial Review of Administrative Action; Halsbuny's Laws of England (4th edn.) p. 114-para 67-foot note (9). As Sir William Wade observes in his book, Administrative Law (7th edn.), 1994, at p. 299:
The tribunal must not only have jurisdiction at the outset, but must retain it unimpaired until it has discharged its task.The decision in Anisminic case has been cited with approval in a number of cases by this Court: Citation of few such cases; Union of India v. Tarachand Gupta & Bros. MANU/SC/0220/1971 : 1983(13)ELT1456(SC), A.R. Antulay v. R.S. Nayak and Anr.: MANU/SC/0002/1988 : 1988 Cri LJ 1661, R.B. Shreeram Durga Prasad and Fatehchand Nursing Das v. Settlement Commission (IT & WT) and Anr. MANU/SC/0429/1989 : [1989] 176 ITR 169(SC); N. Parthasarathy Etc. Etc. v., Controller of Capital Issues and Anr. Etc. Etc.: MANU/SC/0592/1991 : [1991] 2 SCR 329; Associated Engineering Co. v. Government of Andhra Pradesh and Anr.: MANU/SC/0054/1992 : [1991] 2SCR 924; Shiv Kumar Chadha v. Municipal Corporation of Delhi and Ors.: MANU/SC/0522/1993 : [1993] 3 SCR 522. Delivering the judgment of a two-Member Bench in Shri M.L. Sethi v. Shri R.P. Kapur: MANU/SC/0245/1972 : [1973] 1 SCR 697 Mathew, J. in paragraphs 10 and 11 of the judgment explained the legal position after Anisminic case to the following effect:
10. The word "jurisdiction" is a verbal cast of many colours. Jurisdiction originally seems to have had the meaning which Lord Baid ascribed to it in Anisminic Ltd. v. Foreign Compensation Commission, namely, the entitlement "to enter upon the enquiry in question". If there was an entitlement to enter upon an inquiry into the question, then any subsequent error could only be regarded as an error within the jurisdiction. The best known formulation of this theory is that made by Lord Denman in R. v. Bolton., He said that the question of jurisdiction is determinable at the commencement, not at the conclusion of the enquiry. In Anisminic Ltd., Lord Reid said:
But there are many cases where, although the tribunal had jurisdiction to enter on the enquiry, it has done or failed to do something in the course of the enquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the enquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which, under provisions setting it up, it had no right to take into account. I do not intend this list to be exhaustive.
In the same case, Lord Pearce Said:
Lack of jurisdiction may arise in various ways. There may be an absence of those formalities or things which are conditions precedent to the tribunal having any jurisdiction to embark on an enquiry. Or the tribunal may at the end make an order that it has no jurisdiction to make. Or in the intervening stage while engaged on a proper enquiry, the tribunal may depart from the rules of natural justice; or it may ask itself the wrong questions; or it may take into account matters which it was not directed to take into account. Thereby it would step outside its jurisdiction. It would turn its inquiry into something not directed by Parliament and fail to make the inquiry which the Parliament did direct. Any of these things would cause its purported decision to be a nullity.
11. The dicta or the majority of the House of Lords, in the above case would show the extent to which 'lack' and 'excess' of jurisdiction have been assimilated or, in other words, the extent to which we have moved away from the traditional concept of "jurisdiction". The effect of the dicta in that case is to reduce the difference between jurisdictional error and error of law within jurisdiction almost to vanishing point. The practical effect of the decision is that any error of law can be reckoned as jurisdictional. That comes perilously close to saying that there is jurisdiction if the decision is right in law but none if it is wrong. Almost any misconstruction of a Statute can be represented as "basing their decision on a matter with which they have no right to deal", "imposing an unwarranted condition" or addressing themselves to a wrong question". The majority opinion in the case leaves a court or Tribunal with virtually no margin of legal error. Whether there is excess of jurisdiction or merely error within jurisdiction can be determined only by construing the empowering statute, which will give little guidance. It is really a question of how much latitude the Court is prepared to allow....
In a subsequent Constitution Bench decision, Hari Prasad Mulshankar Trivedi v. V.B. Raju and Ors. MANU/SC/0015/1973 : [1974] 1 SCR 548, delivering the judgment of the Bench, Mathew, J., in para 27 at page 2608 of the judgment, stated thus: (SCC pp 423-24, para 28)
... Though the dividing line between lack of jurisdiction or power and erroneous exercise of it has become thin with the decision of the House of Lords in the Anisminic Case., we do not think that the distinction between the two has been completely wiped out. We are aware of the difficulty in formulating an exhaustive rule to tell when there is lack of power and when there is an erroneous exercise of it. The difficulty has arisen because the word "jurisdiction" is an expression which is used in a variety of senses and takes its colour from its context (see Per Diplock, J. at p. 394 in the Anisminic Case). Whereas the 'pure' theory of jurisdiction would reduce jurisdictional control to a vanishing point, the adoption of a narrower meaning might result in a more useful legal concept even though the formal structure of law may lose something of its logical symmetry. "At bottom the problem of defining the concept of jurisdiction for purpose of judicial review has been one of public policy rather than one of logic". (SA. De Smith, "Judicial Review of Administrative Action". 2nd Edn., p. 98.)" (1968 edition)
The observation of the learned author (S.A. De Smith) was continued in its third edition (1973) at page 98 and in its fourth edition (1980) at page 112 of the book. The observation aforesaid was based on the then prevailing academic opinion only as is seen from the foot notes. It should be stated that the said observation is omitted from the latest edition of the book De Smith, Woolf and Jowell-Judicial Review of Administrative Action-5th edition (1995) as is evident from page 229; probably due to later developments in the law and the academic opinion that has emerged due to the change in the perspective.
335. After 1980, the decision in Anisminic case came up for further consideration before the House of Lords, Privy Council and other courts. The three leading decisions of the House of Lords wherein Anisminic principle, was followed and explained, are the following: In re Racal Communications Ltd., O' Reilly and Ors. v. Mackman and Ors., Regina v. Hull University Visitor. It should be noted that In re Racal's case, the Anisminic principle was held to be inapplicable in the case of (superior) court where the decision of the court is made final and conclusive by the statute. (The superior court referred to in this decision is the High Court) (383, 384, 386, 391). In the meanwhile, the House of Lords in Council for Civil Service Union and Ors. v. Minister For the Civil Service enunciated three broad grounds for judicial review, as "legality", "procedural propriety" and "rationality" and this decision had its impact in the development of the law in post-Anisminic period. In the light of the above four important decisions of the House of Lords, other decisions of the court of appeal, Privy Council, etc. and the later academic opinion in the matter the entire case law on the subject has been reviewed in leading text books. In the latest edition of De Smith on "Judicial review of Administrative Action"-edited by Lord Woolf and Jowell, Q.C. [(Professor of Public Law) (Fifth edition)-(1995)], Chapter 5, titled as "Jurisdiction, Vires, Law and Fact" (pp. 223-294), there is exhaustive analysis about the concept, "jurisdiction", and its ramifications. The authors have discussed the pure theory of jurisdiction, the innovative decision in "Anisminic" case, the development of the law in the post Anisminic period, the scope of the "finality" Clauses (exclusion of jurisdiction of courts) in the statutes, and have laid down a few propositions at pages 250-256 which could be advanced on the subject. The authors have concluded the discussion thus at page 256;
After Anisminic virtually every error of law is a jurisdictional error, and the only place left for non-jurisdictional error is where the components of the decision made by the inferior body included matters of fact and policy as well as law, or where the error was evidential (concerning for example the burden of proof or admission of evidence). Perhaps the most precise indication of jurisdictional error is that advanced by Lord Diplock in Racal Communications, when he suggested that a tribunal is entitled to make an error when the matter "involves, as many do interrelated questions of law, fact and degree". Thus it was for the county court judge in Peariman to decide whether the installation of central heating in a dwelling amounted to a "structural alteration extension or addition". This was a "typical question of mixed law, fact and degree which only a scholiast would think it appropriate to dissect into two separate questions, one for decision by the superior court, viz. the meaning of these words, a question which must entail considerations of degree, and the other for decision by a county court, viz. the application of words to the particular installation, a question which also entails considerations of degree.
It is, however, doubtful whether any test of jurisdictional error will prove satisfactory. The distinction between jurisdictional and non-jurisdictional error is ultimately based upon foundations of sand. Much of the superstructure has already crumbled. What remains is likely quickly to fall away as the courts rightly insist that all administrative action should be, simply, lawful, whether or not jurisdictionally lawful.
(Emphasis supplied)
336. The jurisdictional control exercised by superior courts over subordinate courts, tribunals or other statutory bodies and the scope and content of such power has been pithily stated in Halsbury Laws of England: 4th edition (Reissue), to the following effect:
The inferior court or tribunal lacks jurisdiction if it has no power to enter upon an inquiry into a matter at all; and it exceeds jurisdiction if it nevertheless enters upon such an inquiry or, having jurisdiction in the first place, it proceeds to arrogate an authority withheld from it by perpetrating a major error of substance, form or procedure, or by making an order or taking action outside its limited area of competence. Not every error committed by an inferior Court or tribunal or other body, however, goes to jurisdiction. Jurisdiction to decide a matter imports a limited power to decide that matter incorrectly.
A tribunal lacks jurisdiction if (I) it is improperly constituted, or (2) the proceedings have been improperly instituted, or (3) authority to decide has been delegated to it unlawfully, or (4) it is without competence to deal with a matter by reason of the parties, the area in which the issue arose, the nature of the subject matter, the value of that subject matter, or the non-existence of any other prerequisite of a valid adjudication. Excess of jurisdiction is not materially distinguishable from lack of jurisdiction and the expressions may be used interchangeably.
Where the jurisdiction of a tribunal is dependent on the existence of a particular state of affairs, that state of affairs may be described as preliminary to, or collateral to the merits of, the issue, or as jurisdictional. (p. 114)
There is a presumption in construing statutes which confer jurisdiction or discretionary powers on a body, that if that body makes an error of law while purporting to act within that jurisdiction or in exercising those powers, its decision or action will exceed the jurisdiction conferred and will be quashed. The error must be one on which the decision or action depends. An error of law going to jurisdiction may be committed by a body which fails to follow the proper procedure required by law, which takes legally irrelevant considerations into account, or which fails to take relevant considerations into account, or which asks itself and answers the wrong question. (pp. 119-120)
The presumption that error of law goes to jurisdiction of a particular statute, so that the relevant body will not exceed its jurisdiction by going wrong in law. Previously, the courts were more likely to find that errors of law were within jurisdiction; but with the modem approach errors of law will be held to fall within a body's jurisdiction only in exceptional cases. The courts will generally assume that their expertise in determining the principles of law applicable in any case has not been excluded by Parliament" (p.120)
Errors of law include misinterpretation of a statute or any other legal document or a rule of common law; asking oneself and answering the wrong question, taking irrelevant considerations into account or failing to take relevant considerations into account when purporting to apply the law to the facts; admitting inadmissible evidence or rejecting admissible and relevant evidence; exercising a discretion on the basis of incorrect legal principles; giving reasons which disclose faulty legal reasoning or which are inadequate to fulfil an express duty to give reasons, and misdirecting oneself as to the burden of proof." (pp. 121-122)
(Emphasis supplied)
337. H.W.R. Wade and C.F. Forsyth in their book-Administrative Law, Seventh Edition (1994)-discuss the subject regarding the jurisdiction of superior courts over subordinate courts and tribunals under the head "Jurisdiction over Fact and Law" in Chapter 9, pages 284 to 320. The decisions before Anisminic and those in the post Anisminic period have been discussed in detail. At pages 319-320, the authors give the Summary of Rules thus:
Jurisdiction over fact and law: SummaryAt the end of a chapter which is top-heavy with obsolescent material it may be useful to summarise the position as shortly as possible. The overall picture is of an expanding system struggling to free itself from the trammels of classical doctrines laid down in the past. It is not safe to say that the classical doctrines are wholly obsolete and that the broad and simple principles of review, which clearly now commend themselves to the judiciary, will entirely supplant them. A summary can therefore only state the long-established rules together with the simpler and broader rules which have now superseded them, much for the benefit of the law. Together they are as follows:Errors of fact
Old rule: The court would quash only if the erroneous fact was jurisdictional.
New rule: The court will quash if an erroneous and decisive fact was-
(a) jurisdictional
(b) found on the basis of no evidence; or
(c) wrong, misunderstood or ignored.
Errors of law
Old rule: The court would quash only if the error was-
(a) jurisdictional; or
(b) on the face of the record.
New rule: The court will quash for any decisive error, because all errors of law are now jurisdictional.
(emphasis supplied)338. The scope of the exclusionary clauses contained in the statutes has been considered in great detail with reference to the decisions of the superior courts in England and also the decisions of the Supreme Court of India by Justice G.P. Singh (former Chief Justice, M.P. High Court) in "Principles of Statutory Interpretation", 6th edition (1996) at page 475. The law is stated thus:A review of the relevant authorities on the point leads to the following conclusions:21. The learned Senior Advocate appearing for the Corporation has in fact not taken an extreme position that the civil suit in all the circumstances is barred. He submitted that no Petitioner can directly approach this court on a presumption that suit is not maintainable and must show that there has been jurisdictional error in order to succeed in the suit. Mr. Dwarkadas, submitted that the legislative policy is to curtail the litigation by not permitting the challenge to the order of demolition/stoppage on merits, that is, on assessment of evidence in a regular trial. According to him by introducing exclusion clause the scope of the litigation will now to be restricted only to the jurisdictional error in the order of the authority. This submission is correct. Even if the jurisdiction of the civil court has been excluded by section 515-A, it is still open if the Petitioners show that there a jurisdictional error on the part of the authority. The scope to challenge the order has been narrowed down to this effect. There is no scope of unlimited challenge to the orders under the relevant sections.
(1) An Exclusionary Clause using the formula 'an order of the tribunal under this Act shall not be called in question in any Court' is ineffective to prevent the calling in question of an order of the tribunal if the order is really not an order under the Act but a nullity.
(2) Cases of nullity may arise when there is lack of jurisdiction at the stage of commencement of enquiry e.g., when (a) authority is assumed under an ultra vires statute; (b) the tribunal is not properly constituted, or is disqualified to act; (c) the subject-matter or the parties are such over which the tribunal has no authority to inquire; and (d) there is want of essential preliminaries prescribed by the law for commencement of the inquiry.
(3) Cases of nullity may also arise during the course or at the conclusion of the inquiry, These cases are also cases of want of jurisdiction if the word 'jurisdiction' is understood in a wide sense. Some examples of these cases are (a) when the tribunal has wrongly determined a jurisdictional question of fact or law; (b) when it has failed to follow the fundamental principles of judicial procedure, e.g. has passed the order without giving an opportunity of hearing to the party affected; (c) when it has violated the fundamental provisions of the Act, e.g., when it fails to take into account matters which it is required to take into account or when it takes into account extraneous and irrelevant matters; (d) when it has acted in bad faith; and (e) when it grants a relief or makes an order which it has no authority to grant or make; "as also (f) when by misapplication of the law it has asked itself the wrong question.
With great respect to the learned author, I would adopt the above statement of law, as my own.
22. Once there is a legislative policy to narrow down the scope of litigation, it may not be defeated by exercise of writ jurisdiction to consider wider issues. It cannot be that because suits with assessment of evidence and full-fledged civil trials are barred, the writ court should go into disputed questions of facts. If the writ petition is to be entertained, it will have to be entertained within the well known parameters of writ jurisdiction.23. Therefore, keeping the dicta of the division bench in mind that the petition cannot be entertained merely because of the perception of the Petitioner that suit cannot be filed. Now the only limited area of challenge remains and within that limited area the Petitioners will have to bring their case. Therefore, if the writ jurisdiction is not to be exercised, it cannot be said that the Petitioners are remediless.24. Consequently, since all the Petitioners in these present group of the petitions have approached this court on the premises that their Petitions are not maintainable, as laid down by the Division Bench in the case of Abdul Mansoori, the Petitions cannot be entertained on their perception. However, since in all these Petitions the court has granted ad-interim protection, it would be in the interest of justice to continue the same for some period albeit with certain observations and restrictions.25. All the Writ Petitions are rejected in the light of what is stated above. To enable the Petitioners to file a civil suit, I was inclined to continue the interim relief granted in these Petitions for a period of five weeks. Mr. Godbole, Learned Advocate pointed out that period of four weeks is required for giving statutory notice, which the Corporation should waive. Mr. Sakhare on instruction submitted that it will not be possible to waive this period and appropriate extension be granted. Accordingly, it is directed that the interim order shall continue for a period of eight weeks from today, inclusive of the notice period.26. In case, issue of limitation arises for filing of the suits, it will be open to the Petitioners to urge that they were prosecuting the petitions in good faith and the delay be condoned.27. Needless to be stated and clarified that this continuation of interim relief, shall not be construed as grant of ad-interim relief in the suit and for continuation of this order beyond the period of eight weeks. The Trial Court will be free to pass such orders on the request of the parties if made and after hearing them. It is further clarified that the trial Court will not be influenced by grant of ad-interim or continuation thereof by this court and will decide the suit on its own merit. All contentions of all the parties are kept upon in that regard.28. Chamber Summons No. 14 of 2014 in WP No. 458 of 2014 and the Notice of Motion No. 191 of 2014 in WP (L.) No. 662 of 2014 are disposed of in view of the order. The Petitioners shall give notice with adequate particulars of the intended suits to the Applicant-interveners and private Respondents.
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