decision of “Mr. Yogesh Megaji Gada Vs. The Municipal
Corporation of Greater Mumbai and another” in Writ Petition
no.2243 of 2013 and others in respect of bar contained in
Section 515-A of the Mumbai Municipal Act and the position
that the bar of jurisdiction will not apply in aforesaid
circumstances is restated. The jurisdiction has to be
determined on the basis of the plaint. It will have to be seen
whether the Appellant has based its case on the ground that
the action complained is a nullity, being taken in bad faith or
fraud .
Therefore the approach of the learned District
Judge in dismissing the suit merely relying on the bar, without
examining the pleadings in the plaint as to whether the
grounds enumerated above exist or not, will have to be
corrected.
In the present case, the Appellant has pleaded that
the action is vitiated by fraud and the officers have acted in
bad faith. The protection to the officers is not available if case
of bad faith is made out and that is a matter to be considered
on merits. The learned Judge will have to consider the effect of
these pleadings, before coming to the conclusion, that the suit
is barred in view of Section 50(1) of the Act.
IN THE HIGH COURT OF BOMBAY AT GOA
FIRST APPEAL NO. 67 OF 2014
Maya Shrikant Sawant Dessai
V e r s u s
The Chief Secretary
CORAM: N. M. JAMDAR, J.
DATE: 25 FEBRUARY, 2015.
Citation;2016(2) MHLJ 420 Bom,2016(1) ALLMR610
Admit. Taken up for final disposal by consent.
2. Calling for record and proceedings is dispensed
with in view of the nature of the order impugned.
3. By this appeal, the Appellant challenges the order
dated 21 July, 2014 passed by the District Judge, South Goa,
Margao, allowing the application filed by the respondents for
rejection of the plaint filed by the Appellant.
4. The Appellant has filed a suit contending that she is
the one of the registered farmers in the command area of
Seraulim Irrigation Project (SIP). It was the case of the
Appellant that respondent no.2 had issued an auction notice
inviting bids on behalf of the Governor of Goa from the
interested parties situated in the command of SIP. The
Appellant, pursuant to the auction notice, made an application
for participation in the auction. She obtained the terms and
conditions of auction of lease. According to the Appellant,
when she obtained the terms and conditions she found that the
terms and conditions were different from the auction notice.
Appellant alleged several irregularities in the Auction. She
alleged that one of the applicants had forwarded the
application to participate in the auction beyond the stipulated
time, which was entertained. She further contended that the
officers who were in charge of opening the bids, allowed nine
other persons who were not entitled to bid. The Appellant
obtained certain information under the Right to Information
Act and filed the present suit praying to set aside the tendering
process. The Appellant averred in the plaint that the entire
process was vitiated by fraud. According to the Appellant, the
tendering process was illegal and there were several
irregularities and auction was thus in bad faith.
5. In the suit, a written statement was filed by the
respondents, in which it was contended that the suit is barred
by the provisions of Goa Command Area Development Act,
1997. Apart from denying the contentions on merits, the
respondents also filed an application under Order 7 Rule 11 of
Civil Procedure Code, 1908 praying that the plaint be rejected
since it is barred by the Goa Command Area Development
Act.
6. The learned District Judge heard the application
and came to the conclusion that the Court has no jurisdiction
to entertain the suit as well as the application for temporary
injunction, as the suit is barred by the Goa Command Area
Development Act. Accordingly by the impugned order, the
plaint was rejected.
7. Section 50 (1) of the Goa Command Area
Development Act, 1997 provides a bar in respect of
jurisdiction of the Civil Court. Section 50 reads as under :
“50. Bar of jurisdiction of Civil Courts.—
(1) No order passed or proceeding taken by an
officer or authority under this Act, shall be
called in question in any court in any suit or
application and no injunction shall be granted
by any court in respect of any action taken or
about to be taken by such officer or authority in
pursuance of any power conferred by or under
this Act. (2) No suit, prosecution or other
proceeding shall lie against any officer or
servant of the Government for any act done or
purported to be done under this Act, without the
previous sanction of the Government. (3) No
Officer or servant of the Government/staf
members of Command Area Development Board
Offices, shall be liable in respect of any such
act in any civil or criminal proceeding if the act
was done in good faith in the course of
execution of duties or the discharge of the
functions imposed by or under this Act. (4)
Save as otherwise provided in this Act, no suit
shall be instituted against the Government in
respect of any act done unless the suit is
instituted within six months from the date of the
act complained of. (5) In the case of an
intended suit against any Officer or servant of
the Government/staf members of Command
Area Development Board Offices under subsection
(1), the person intending to sue shall be
bound to give the Officer or servant, as the case
may be, at least two months notice of the
intended suit with sufficient description of the
cause of action failing which such suit shall be
dismissed. ”
8. The learned District Judge has held that tendering
process and holding of auction would fall within the purview
of the proceedings taken by the authority under the Act as
duties are provided under section 11 (9) of the Act, and
therefore in view of Section 50 (1) of the Act, a suit would not
be maintainable. The learned District Judge also took note of
Section 50 (3) of the Act, which states that if the Act is in good
faith the offences cannot be proceeded with.
9. Though Section 50 (1) of the Act contains a bar of
civil suit, it now well settled before the bar is made applicable,
the pleadings in the plaint have to be considered. There have
been various decisions of the Apex Court and this Court
holding that inherent jurisdiction of Civil Court is not taken
away if the action complained is nullity, that the authority has
not acted in conformity with the fundamental judicial
procedure or that the Act is not done in good faith. Therefore,
it is not an absolute proposition of law, as held by the learned
District Judge that the moment there is a statute barring the
jurisdiction of the Civil Court, in no circumstances a civil suit
will lie.
10. In the case of “Commissioner, Akola Municipal
Corporation Vs. Bhalchandra s/o. Govind Mahashabde”
reported in (2003) (4) Mh.LT 45, the learned Single Judge of
this Court (R. K. Deshpande, J.) considered the bar contained
in Section 433A of Maharashtra Municipal Council and
observed as under :
“7. Now, section 433A of the Maharashtra
Municipal Corporation 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 Designate
Officer,under sections 260,6 FA 67 2014
261, 264, 167 or 478 shall
not be questioned in any suit
or other legal proceedings.”
Undoubtedly, if the plaintif 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 efect, 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 ofending 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 said7 FA 67 2014
Act to ventilate such grievances in respect
of it. Hence, the question of law at Serial
No.(i) is answered accordingly.”
11. In case of bar created under section 149 of the
Maharashtra Town Planning Act in respect of jurisdiction of
the Civil Court, 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
after following the decision of the Apex Court in the case of
“Dhulabhai Vs. State of Madhya Pradesh and another”
reported in AIR 1969 SC 78 and “Kamal Mills Ltd. Vs. State
of Bombay”, reported in 1966 (1) SCR 64, held that if the
allegations made in the plaint are that the action under the Act
is a nullity, then Bar to the jurisdiction of civil court will not
come in the way of entertaining the suit.
12. In the case of “Mafatlal Industries Vs. Union of
India” reported in 1997 (5) SCC 536, the concept of
jurisdictional error was considered by the Constitutional
Bench. K.S. Paripoornan, J. in his Judgment held that concept
of nullity may arise during the course or conclusion of the
inquiry. He observed as under:
“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:
(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 inefective
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 no9 FA 67 2014
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 afected; (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.”
13. A review of all these decisions is taken in the
decision of “Mr. Yogesh Megaji Gada Vs. The Municipal
Corporation of Greater Mumbai and another” in Writ Petition
no.2243 of 2013 and others in respect of bar contained in
Section 515-A of the Mumbai Municipal Act and the position
that the bar of jurisdiction will not apply in aforesaid
circumstances is restated. The jurisdiction has to be
determined on the basis of the plaint. It will have to be seen
whether the Appellant has based its case on the ground that
the action complained is a nullity, being taken in bad faith or
fraud .
14. Therefore the approach of the learned District
Judge in dismissing the suit merely relying on the bar, without
examining the pleadings in the plaint as to whether the
grounds enumerated above exist or not, will have to be
corrected.
15. In the present case, the Appellant has pleaded that
the action is vitiated by fraud and the officers have acted in
bad faith. The protection to the officers is not available if case
of bad faith is made out and that is a matter to be considered
on merits. The learned Judge will have to consider the effect of
these pleadings, before coming to the conclusion, that the suit
is barred in view of Section 50(1) of the Act.
16. The appeal is allowed, with no order as to costs.
The impugned Judgment and Order dated 21 July, 2014 is
quashed and set aside. The application filed by the respondents
under Order 7 Rule 11 stands restored to the file of the learned
District Judge, to be disposed of in light of the legal position as
discussed above. The parties will appear before the learned
District Judge on 11 March, 2015 at 10:30 a.m.
N. M. JAMDAR, J.
No comments:
Post a Comment