The bar excluding the jurisdiction of
civil courts does not operate in cases where the plea is of nullity, which goes to
the root of the matter. A fraudulent act or an act ultra vires the law providing for it,
are nullities where despite even an express bar of jurisdiction the civil courts can
interfere.
18 I can do no better to affirm this than simply quote what the Supreme
Court said in Dhruv Green Field Ltd. vs. Hukam Singh9
. The Court stated the
law thus :
“9. The question, when and in what circumstances, can a suit of
civil nature be said to be barred by a special statute, is no longer
res Integra. In Kamala Mills Ltd. v. State of Bombay, AIR (1965)
SC 1942, a sevenjudge Bench of this Court laid down the
principle thus:
"The question about the exclusion of the jurisdiction of
civil courts either expressly or by necessary implication must be
considered, in every case, in the light of the words used in the
statutory provision on which the plea is rested, the scheme of the
relevant provisions, their object and their purpose. (AIR p.1951,
para 30)
Whenever a plea is raised before a civil court that its
jurisdiction is excluded either expressly or by necessary
implication to entertain claims of a civil nature, the Court
naturally feels inclined to consider whether the remedy afforded
by an alternative provision prescribed by a special statute is
sufficient or adequate. Where the exclusion of the civil court's
jurisdiction is expressly provided for, the consideration as to the
scheme of the statute in question and the adequacy or the
sufficiency of remedies provided for by it may be relevant, it
cannot however, be decisive.
But when exclusion is pleaded as a matter of necessary
implication, such considerations would be very important, and, in
conceivable circumstances, might even become decisive. If a
statute creates a special right or a liability and provides for the
determination of the right and liability to be dealt with by
tribunals specially constituted in that behalf, and it further lays
down that all questions about the said right and liability shall be
determined by the tribunals so constituted, it is pertinent to
enquire whether remedies, normally associated with actions in
civil courts are prescribed by the said statute or not.” (AIR p.
1952, para 32)
9 (2002) 6 SCC
That judgment was followed in Rama Swarup v. Shikar Chand,
AIR 1966 SC 893. There Gajendragadkar, CJ. speaking for a
Constitution Bench of this Court formulated the following tests:
"The two tests, which are often considered relevant in
dealing with the question about the exclusion of civil courts'
jurisdiction are (a) whether the special statute which excludes
such jurisdiction has used clear and unambiguous words
indicating that intention, and (b) does that statute provide for an
adequate and satisfactory alternative remedy to a party that may
be aggrieved by the relevant order under its material provisions.
Applying these tests the inference is inescapable that the
jurisdiction of the civil courts is intended to be excluded. (AIR p.
896, para 12)
The bar excluding the jurisdiction of civil courts cannot
operate in cases where the plea raised before the civil court goes
to the root of the matter and would, if upheld, lead to the
conclusion that the impugned order is a nullity.
10. In the light of the above discussion, the following
principles may be restated:
(1) If there is express provision in any special Act barring
the jurisdiction of a civil court to deal with matters specified
thereunder the jurisdiction of an ordinary civil court shall stand
excluded.
(2) If there is no express provision in the Act but an
examination of the provisions contained therein lead to a
conclusion in regard to exclusion of jurisdiction of a civil court,
the court would then inquire whether any adequate and
efficacious alternative remedy is provided under the Act; if the
answer is in the affirmative, it can safely be concluded that the
jurisdiction of the civil court is barred. If, however, no such
adequate and effective alternative remedy is provided then
exclusion of the jurisdiction of civil court cannot be inferred.
(3) Even in cases where the jurisdiction of a civil court is
barred expressly or impliedly, the court would nonetheless retain
its jurisdiction to entertain and adjudicate the suit provided the
order complained of is a nullity.”
19 As I have noted above, the present suit being based on a plea of
fraud against the State in a matter of acquisition under the Slum Act and also on
a plea of ultra vires, the suit is clearly maintenable on the pleadings of the
Plaintiffs. As of today, there is no evidence to either sustain or decline the pleas
of fraud and ultra vires. The matter is argued on a demurrer, based on pleadings
and admitted documents on record. There is no case for dismissing the suit for
want of jurisdiction. The preliminary issue is, thus, answered in the negative.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
SUIT NO. 2862 OF 2008
Abdul Sattar Haji Usman & Anr.
vs.
The Archbishop of Bombay & Ors
CORAM : S.C. GUPTE, J.
PRONOUNCED ON : 12 APRIL 2016
Citation: 2017(2) ALLMR 260
The suit seeks declaration of ownership of the Plaintiffs and
Defendant No.3 of a plot of land and challenges acquisition of the plot by the
State Government under the Maharashtra Slum Areas Act, 1971 as vitiated by
fraud and prays for directions to the State to restore possession of the plot to the
Plaintiffs and Defendant No.3.
2. By an order dated 5 December 2011, and as amended by an order
dated 4 January 2016, the following issue was framed as a preliminary issue, on
the application of Defendant No.5.
“(a) Whether Defendant No.5 proves that the present suit is
barred by virtue of Section 42 of the Maharashtra Slum
Areas (Encroachment and Improvement) Act 1971?”
The parties have chosen not to lead any evidence and instead
argued the preliminary issue on the pleadings and admitted documents on
record. (By a Notice of Motion, Defendant Nos.4 and 5 sought leave to lead
evidence on the preliminary issue. By an order of 8 December 2015, that
application was rejected by this Court, holding inter alia that the questions
involved were pure questions of law and parties had agreed to argue the matter
on the basis of the averments in the plaint and provisions of law.) This order
disposes of the preliminary issue.
3. The Plaintiffs' case may be briefly stated as follows :
By an agreement dated 21 December 1960, Defendant No.1, who
originally owned the land bearing CTS Nos.40, 40/1, 129 at Vile Parle in Mumbai
admeasuring about 3695.70 sq.mtrs. agreed to sell the land to Haji Usman Haji
Abdul Karim, the father of the Plaintiffs. Haji Usman Haji Abdul Karim died
intestate on 25 November 1966 leaving behind him the Plaintiffs, Defendant No.3
and one Hajrabai Haji Usman as his only legal heirs according to the Sunni
Muslim law. By a registered conveyance dated 23 December 1974, Defendant
No.1 conveyed the suit land together with structures standing thereon to the
Plaintiffs, Defendant No.3 and Hajrabai Haji Usman, after obtaining the requisite
permission from the Charity Commissioner, State of Maharashtra. Defendant
No.1 also authorised the Plaintiffs to collect all income of the suit property and
pay all outgoings. It is the case of the Plaintiffs that since a large number of
properties were purchased under the indenture of conveyance with different
survey and CTS Nos., certain errors had crept in the schedule of properties
appended to the conveyance. These errors included a wrong mention of the area
of Survey No.40, Hissa No.1 (CTS No.40), i.e. part of the suit property. Due to
these errors, the names of the Plaintiffs were not included in the revenue records
including the property card as owners of the property, though the possession of
the property was taken over by, and remained with, the Plaintiffs. The Plaintiffs
claim that the tenants / occupants of the suit property were paying rent to the
Plaintiffs. So also, there were some eviction proceedings launched against
tenants / occupants which resulted into decrees of possession in favour of the
Plaintiffs. Electricity Bills stand in the name of the Plaintiffs. Eventually,
proceedings for acquisition of the suit property were initiated by the State
Government through Additional Collector, under the Maharashtra Slum Areas Act,
1971 (“Slum Act”). It is the Plaintiffs' case that without taking any notice of the
Plaintiffs' objections, a final notification under Section 14(1) of the Slum Act was
issued by the State Government showing Defendant No.1 as the owner of the
property. It is the Plaintiffs' case that the Plaintiffs were, thus, deprived of their
rights by deliberately referring to wrong records. It is submitted that the Plaintiffs
had also executed a rectification deed rectifying the mistakes in the description
and areas of land conveyed by the indenture of conveyance dated 23 December
1974. It is the Plaintiffs case that the land was acquired by the authorities
fraudulently and in collusion with interested persons by falsely showing it as
belonging to Defendant No.1, only to favour such interested persons. Being
aggrieved by the declaration of, and decision to acquire, the suit property as
slum area, the Plaintiffs filed an appeal, being Appeal No.20 of 2003. The appeal
was dismissed by the Maharashtra Slum Tribunal. The order of the Tribunal was
challenged before this Court in a writ petition, being Writ Petition No.2584 of
2004. The petition was dismissed by a learned Single Judge of this Court. In the
Plaintiffs' challenge to that order before the Division Bench, whilst dismissing the
appeal, liberty was reserved unto the Plaintiffs to agitate their grievances relating
to the title of the land in appropriate civil proceedings. Apart from initiating
various revenue proceedings for amending the revenue records by inclusion of
their names therein, the Plaintiffs have asserted their ownership of the suit
property and on that basis, challenged the acquisition in the present suit.
4 On these facts, the question is whether the jurisdiction of this Court
to entertain the suit and grant the reliefs claimed therein is barred by any law,
particularly Section 42 of the Slum Act. The argument of the Defendants including
the State is that the reliefs prayed for by the Plaintiffs in the present suit inter alia
pertain to a challenge to a slum re-development scheme undertaken under the
Slum Act in respect of the suit property, which relief cannot be claimed in view of
a specific bar in that behalf contained in Section 42 of the Slum Act. It is
submitted that the plea of ownership would at the most be maintenable against
Defendant No.1, but the effective reliefs, which are claimed against the State,
seeking cancellation of the acquisition and return of the suit property, cannot be
considered by this Court in view of the bar. Secondly, it is submitted that apart
from the express bar under Section 42, the Slum Act being an acquisition law,
providing its own machinery for seeking redressal against grievances in
connection therewith, by necessary implication, the power of civil courts to take
cognizance of such grievances under Section 9 of the Code of Civil Procedure
stands excluded. Learned Counsel for the Defendants rely on several judgments
in support of their contentions. It is also submitted that the Plaintiffs having
exhausted their remedy under Article 226 of the Constitution, cannot claim the
reliefs again by filing the present suit. It is submitted that the constitutional
validity of Sections 14 and 17 of the Slum Act has already been upheld by the
Court and not open to any challenge.
5 Section 42 of the Slum Act, as of the date of the suit, provided as
follows :
“42. Bar of Jurisdiction Save as otherwise expressly provided
in this Act, no civil court shall have jurisdiction is 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.”
By Maharashtra Act 11 of 2012, with effect from 19 June 2012, the
words “Appellate Authority, Competent Authority, Grievance Redressal
Committee” have been substituted for the words “Administrator, Competent
Authority”.
6 Section 42, as is plain from its language, ousts the jurisdiction of
the civil court in respect of all matters which the authorities named therein are
empowered to determine by or under the Act. Exceptions, if any, must be found in
the Slum Act itself, as this ouster is subject to what is otherwise expressly
provided therein. Section 42 has a second part, which prohibits grant of any
injunction in respect of any action taken or to be taken in pursuance of any power
conferred by or under the Slum Act.
7 Let us first consider if on the terms of Section 42, the present suit is
barred or granting of any particular relief claimed in the suit (i.e. injunction) is
prohibited. The matters which the authorities named in Section 42 are
empowered to determine are the following : The competent authority, upon a
complaint from any person or report from its officer, police, etc. is empowered to
order demolition of any structure, which is unauthorised or illegal in terms of
Sections 3Z-1 and 3Z-2 of the Slum Act. It is also empowered to declare any area
or buildings in any area to be a slum area under Section 4 of the Slum Act. The
competent authority has also power to execute any work of improvement under
Section 5 and to require occupiers of premises within such area to vacate the
premises or require improvement of buildings unfit for human habitation and of
areas which are source of danger to public health, respectively, under Sections
5A, 5B and 5C of the Slum Act. It may also direct restrictions on erection of
buildings in slum areas except with its prevision permission under Section 8. The
competent authority also has power to order demolition of buildings unfit for
human habitation in pursuance of Section 9 of the Slum Act. With the previous
approval of the State Government, the competent authority is empowered to
entrust to any agency recognised by it the work of execution of any improvement,
clearance of redevelopment work or maintenance or repairs, etc. under Section
10A. The competent authority is also empowered to declare any slum area to be
a clearance area under Section 11 of the Act and make a clearance order under
Section 12. It has power to redevelop such clearance area under Section 14. So
also, the competent authority has powers to determine compensation payable to
any person having interest in any such acquired land under the Act, decide the
apportionment of such compensation and order payment thereof, respectively,
under Sections 17, 18 and 19 of the Act. The competent authority may also grant
permissions for institution of suits or proceedings under Section 22 of the Act.
The competent authority also has power to determine rent of any building in any
slum area. It has various other miscellaneous powers of entry, inspection, etc.
under Chapter 7 of the Slum Act. Appeals by persons aggrieved by any notice,
order or direction issued or given by the competent authority lie before the
Appellate Authority under Section 35 of the Act. So also, appeals by persons
aggrieved by notices, orders or directions of the Appellate Authority or appeals
for the purpose of resolving disputes in relation to matters about eligibility of a
slum dweller or his entitlement, etc. lie before the Grievance Redressal
Committee constituted by the State Government under Section 35(1)(a) of the
Slum Act. The decisions of this Grievance Redressal Committee have been made
final by virtue of sub-section (5) of Section 35. The Tribunal appointed under
Section 2(i) of the Act is empowered to determine questions in respect of
expenses to be recovered as arrears of land revenue and disputes in respect of
such claims, under Section 44 of the Slum Act. These are the only matters which
the authorities named under Section 42 are empowered to determine. Apart from
these named authorities, there are other authorities including the Slum
Rehabilitation Authority as well as the State Government who are empowered to
exercise powers and determine various matters under the Slum Act. The first part
of Section 42 does not apply to these powers or matters. For example, the Slum
Rehabilitation Authority appointed under Section 3A of the Act is empowered to
exercise various functions and perform duties under sub-section (3) of Section
3A, namely, formulation of schemes for rehabilitation of slum areas and getting
the same implemented and doing of all acts and things as may be necessary for
achieving the object of rehabilitation of slums. So also, the State Government is
empowered to acquire land to enable the Authority to execute any work of
improvement or to redevelop any slum area or any structure in such area. The
first part of Section 42 does not apply to any of these matters to be decided by
these authorities, though no court or authority can grant any injunction in respect
of any action taken or to be taken in respect of these matters by virtue of second
part of Section 42. In other words, though jurisdiction of the civil court is not
barred in respect of any of these latter matters, no injunction can be granted by
any civil court in respect of those.
8 On this analysis, let us consider the present suit and the reliefs
which it asks for. The present suit, in the first place, seeks a declaration of
ownership of the suit property. Secondly, it seeks recovery of possession of the
suit property on the basis of such declaration. Thirdly, it prays for a declaration
that the acquisition of the suit property under the Slum Act is vitiated by fraud and
liable to be struck down. Lastly, it seeks a permanent injunction restraining the
Defendant State as well as the former owner of the suit property and the society
of slum-dwellers and occupants from interfering with the use, occupation and
enjoyment of the suit property by the Plaintiffs. None of these matters are to be
decided by the Competent Authority, Appellate Authority, Grievance Redressal
Committee or Tribunal under the Slum Act. As regards the injunction prayed for in
the suit, the same is merely consequential upon the Plaintiffs' ownership and
possession of the suit property claimed in the suit. It does not seek to directly
affect any action taken or to be taken in pursuance of any power conferred by or
under the Slum Act. In the event the Plaintiffs' ownership and possession are
decreed by the Court and the acquisition is struck down, and possession
restored to the Plaintiffs, the Plaintiffs would be entitled to the permanent
injunction prayed for in the suit. No exception, thus, can be taken to any of the
prayers in the suit on the plain terms of Section 42.
8 Learned Counsel for the Defendants rely on the judgments of this
Court in the cases of Housing Development and Improvement India Pvt. Ltd.
Vs. Narendra L. Aswani & Others1
, Lokhandwala Infrastructure Pvt. Ltd. Vs.
Dhobighat Compound Rahiwasi Seva Sangh and others2
, and Naresh
Lachmandas Aswani Vs. Haridas alias Hardas Lachmandas3
in support of
their contention that the suit is barred under Section 42. In the case of Housing
Development & Improvement India Pvt. Ltd. (supra), an injunction was claimed
in respect of disposal of, or creation of third party rights in, premises in the
buildings which were under construction in an SRA project. The ad-interim
injunction granted by the learned Single Judge was set aside by the Appeal
Court. In that case, there was no challenge to the notice issued by the Slum
Authority as well as the acquisition notification. The prayer for injunction directly
interfered with the possession and third party rights to be created in buildings
which were being constructed under an LOI issued by the Slum Authority for an
SRA project sanctioned under the Slum Act. When this matter came up before a
1 Appeal (L) No.797 of 2011
2 Notice of Motion No___of 2011 in Suit (Lodg.) No.813 of 2011
3 Suit No.808 of 2011
learned Single Judge (Dhanuka, J.) for consideration of interim relief, after the
ad-interim injunction was rejected by the Appeal Court, the learned Judge in
Naresh Lachmandas Aswani (supra), specifically held that prayers (a) to (c),
and (e) to (h), which inter alia dealt with the title of the Plaintiff and cancellation
of various documents executed by the Defendant in breach of that title, were very
much within the jurisdiction of the Civil Court and it was only the prayer for
delivery of possession which was barred, since LOI was already issued in
respect of the Slum Rehabilitation Scheme, which was being implemented on the
property. The suit, in that case, was, however, dismissed by the learned Single
Judge on the ground of bar of limitation. Even in Lokhandwala Infrastructure
(supra), this Court held that having regard to the powers, duties and functions of
the Authority, it was clear that the Authority was not empowered to determine
private rights or liabilities as between the Slum dwellers and the developer vis-avis
any development agreement entered into between them for redevelopment of
any slum. The court held that whether or not such development agreement is
binding on the parties thereto, whether or not any party has breached such
development agreement, and whether or not the party complaining of such
breach is entitled to specific performance of the development agreement, all of
which were matters arising for the determination in that suit, were not matters
which the Authorities under the Slum Act were empowered to decide. This Court
further held that as for the particular relief, namely, permanent or temporary
injunction restraining Defendant No.26 from carrying on any development or
directly or indirectly preventing it from acting as a developer of the particular
Slum Rehabilitation Scheme, which the Authority authorized it to do, whether or
not such relief can be granted would be considered on merits at the hearing of
the suit or the Notice of Motion, as the case may be. But such consideration did
not reflect on the jurisdiction of this Court to entertain the suit as a whole. The
Court might entertain the suit and yet not grant the particular relief, if it
considered the same to be barred under Section 42 of the Slum Act.
10 The main dispute in the present suit is between the Plaintiffs and
Defendant No.1, on the one hand, concerning the title of the suit property. This
dispute is clearly out of bounds for the authorities under the Slum Act. It is for
determination of private rights as between two rival claimants, which the
authorities under the Act are not empowered to determine. On the other hand,
the suit is also between the purported owner of the property and the acquiring
authority, alleging fraud on the part of the latter. Even this dispute does not lie
before any of the authorities named in Section 42.
11 Secondly, as this Court held in Lokhandwala Infrastructure,
whether a particular relief, whether of permanent or temporary injunction, can or
cannot be granted, does not reflect on the jurisdiction of the Court to entertain
the suit as a whole. This Court may entertain the suit and yet not grant any
particular relief amongst the many reliefs claimed in the suit on account of a legal
bar, in this case under Section 42 of the Slum Act.
11 Let us now consider the other argument of the Defendants that the
Slum Act, which is designed to enable the State to acquire land to serve a public
purpose, being a complete code, an aggrieved person may only resort to
remedies provided thereunder and by implication, cognizance cannot be taken by
civil courts of such grievances. Learned Counsel for the Defendants rely on
Supreme Court judgments on the civil court's jurisdiction to go into the questions
of validity or legality of acquisition notifications under the Land Acquisition Act in
support of their contentions. In the first place, having regard to the specific
mandate of Section 42 which bars particular suits and reliefs, it is difficult to
conceive of a general bar in resorting to remedies in connection with matters
which are covered by the Slum Act. Secondly, it is also important to ask whether
the aggrieved person is given any remedy in respect of the particular action
taken or matter decided under the Act, when one considers the bar in connection
with such action or matter. Insofar as matters such as demolition of unauthorised
or illegal dwellings or structures, or penal liabilities in connection therewith are
concerned, the remedies lie before the Competent Authority and from its orders
before the Appellate Authority and the Grievance Redressal Committee. Insofar
as various other powers to be exercised by the Competent Authority, which are
noted above, are concerned, there is a similar grievance redressal mechanism
provided for in the Act. As for the other matters, namely, matters to be determined
in pursuance of powers exercised by the Slum Rehabilitation Authority as well as
the State Government, the Act does not provide for any remedy. Can it then be
said that these matters are beyond the reach of civil courts though they cannot
be redressed under the provisions of the Act. After all the thrust of the arguments
in support of such bar is that the Act, being a complete code (which includes
remedies for acts done thereunder), only remedies provided thereunder can be
resorted to and general remedies otherwise available under law are barred. All
that this means is that where the Act provides particular remedies, other
remedies under ordinary law must be taken to be barred.
13 Our Court in Qari Mohammed Zakir Hussain vs. Municipal
Corporation of Greater Mumbai4
, whilst construing the relevant provisions of
the Slum Act, namely, Sections 37, 40, 41 and 42, in the context of a similar plea
of bar of jurisdiction held as follows :
“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
4 2002(2) Bom.C.R.93
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 (A.I.R. 1940 Privy Council 105), State of Kerala vs.
N. Ramaswamy Iyer & Sons), A.I.R. 1966 S.C. 1738, (Firm
Seth Radhakishan (deceased) represented by Harikishan v.
Administrative Municipal Committee, Ludhiana), A.I.R. 1963
S.C. 1547, as well as decision of Kerala High Court in
(Secretary, K.S.E.B., Trivandrum v. M. Sainaba), A.I.R. 1990
Kerala 50.
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.”
14 Learned Counsel for the Defendants cited Supreme Court
judgments under the Land Acquisition Act to contend that no challenge before a
civil court lies even if the acts are mala fide or in patent breach of the law. I am
afraid none of these judgments supports what the Defendants contend. In State
of Bihar vs. Dhirendra Kumar5
, after a declaration duly published under Section
6 of the Land Acquisition Act, 1894, the possession of the land was taken over by
the State and handed over to the Housing Board. Steps were taken thereafter by
the Board to eject encroachers on the acquired land. The Respondent before the
Supreme Court filed a title suit and asked for a temporary injunction. The Court
held that the provisions of the Land Acquisition Act were designed to acquire land
by the State exercising the power of eminent domain to serve a public purpose.
5 1995 AIR 1955
The Court examined the provisions of the Land Acquisition Act and held the Act
to be a complete code meant to serve a public purpose and accordingly, held the
remedy to be barred by implication under Section 9 of the CPC. The respondent's
title suit in that case was against the State. What the respondent wanted the
Court to do was to allow the respondent to retain the land despite acquisition
thereof by the State after following due process under the Land Acquisition Act.
Whether the land is needed for a public purpose or not and whether it is
therefore liable to be acquired, are not matters which are open to a civil court to
inquire into. The purpose of acquisition, whether public or not, the suitability of
the land for such purpose, etc. are matters inquired into and decided by the
authorities named under the Land Acquisition Act. The Act contains its own
mechanism for such inquiries. These are not matters open to challenge before
any civil court. This ratio is not applicable to the facts of our case. Here, there is
no challenge per se to the merits of the decision to acquire the land from the
standpoint of its suitability or coverage under the relevant provisions of the Slum
Act. What is alleged here is that the acquisition is fraudulent. Despite the record
showing the Plaintiffs' title, the Plaintiffs submit, the land was acquired by falsely
showing it as belonging to Defendant No.1 only to favour some interested
persons who wanted to illegally grab the property in the name of development.
The requisite averments are to be found inter alia in paragraphs 47 to 49 of the
plaint. Secondly, it is alleged by the Plaintiffs that the acquisition was in breach of
the provisions of the Slum Act, i.e. without following those provisions. If that is so,
it is a matter of trial. It cannot be said that the jurisdiction of this Court is barred.
15 Even in the case of S.P. Subramanya Shetty vs. Karnataka State
Road Transport Corporation6
, the controversy concerned a plea to denotify the
acquired land under Section 48 of the Land Acquisition Act on the ground that the
land owner was willing to give a portion of the land free of cost. On that basis, he
filed a civil suit for an injunction to restrain the State from interfering with his
possession. The Supreme Court held that the acquisition notification had become
final and proceedings had attained finality and the Court could not issue a
mandatory injunction to the State to denotify the acquired land under Section 48.
6 AIR 1997 SC 2076
Again, this controversy and observations of the Court in connection therewith
have no bearing on the facts of our case.
16 In V. Chandrasekaran vs. Administrative Officer7
, the Supreme
Court was considering appeals from orders passed on writ petitions. The writ
petitioners had challenged a notification issued by the State under Section 6 of
the Land Acquisition Act on the ground that the inquiry preceding it was not
conducted fairly and their objections under Section 5A were not dealt with
properly. The subject land was purchased by the petitioners after the notification
was issued under Section 4. The Court held that the petitioners had acquired no
title and had no locus to challenge acquisition proceedings. The Court further
observed that it was a settled position that once the land is vested in the State,
free from all encumbrances, it cannot be divested and restored to tenure
holders / interested persons. That was in the context of the plea that it must be so
restored if the land was not used for the purpose for which it was acquired. The
Court held that once the land is acquired and vests in the State, it is not the
concern of the land owner, whether the land is being used for the purpose for
which it was acquired or for any other purpose. The owner merely has the right to
receive compensation for the land after it vests in the State. The law stated by
the Supreme Court in V. Chandrasekaran is not germane to decide our case.
17 In Commissioner, Bangalore Development Authority vs. Brijesh
Reddy8
, the respondents before the Court had filed a suit for permanent
injunction against the State after the property was acquired under the relevant
State acquisition law. The respondents were subsequent purchasers of the
property and claimed to be in possession. When originally possession of the
respondents' predecessor in title was sought to be interfered with by the
acquiring body, he had filed a suit, which was eventually dismissed with liberty to
file a fresh suit. After they were put in possession by the predecessor, the
respondents filed their own suit referred to above. The question before the court
was whether a civil court had jurisdiction to entertain that suit. The trial court
7 JT 2012 (9) SC 260
8 2013 ALL SCR 2685
rejected the suit as not maintenable since the acquisition proceedings had ended
with passing of an award and handing over of possession. The impugned order
of the High Court remanded the matter to the trial court on the ground that the
plaintiffs were not given an opportunity to adduce evidence that their vendor was
in possession which entitled them for grant of permanent injunction from evicting
them from the acquired property without due process of law. The Supreme Court
set aside the impugned order on the ground that the acquisition of the land being
completed long ago, the suit for injunction was barred. The Court, whilst
discussing the reasons, observed as follows :
“13) It is clear that the Land Acquisition Act is a complete
Code in itself and is meant to serve public purpose. By
necessary implication, the power of civil Court to take
cognizance of the case under Section 9 of CPC stands
excluded and a Civil Court has no jurisdiction to go into the
question of the validity or legality of the notification under
Section 4, declaration under Section 6 and subsequent
proceedings except by the High court in a proceeding under
Article 226 of the Constitution. It is thus clear that the civil
Court is devoid of jurisdiction to give declaration or even
bare injunction being granted on the invalidity of the
procedure contemplated under the Act. The only right
available for the aggrieved person is to approach the High
Court under Article 226 and this Court under Article 136 with
self imposed restrictions on their exercise of extraordinary
power.”
It is clear from the above statement of law that what is barred is the
jurisdiction to go into the validity and legality of the notification under Section 4,
declaration of Section 6 and subsequent proceedings. Once these provisions are
gone through, it is not open to question the steps taken thereunder outside the
machinery of the Land Acquisition Act except by approaching the writ court. That
still leaves out cases where the acquisition is without following these provisions
or taking steps thereunder or where the acquisition is vitiated by a fraud
practised by the authorities under the State. The bar excluding the jurisdiction of
civil courts does not operate in cases where the plea is of nullity, which goes to
the root of the matter. A fraudulent act or an act ultra vires the law providing for it,
are nullities where despite even an express bar of jurisdiction the civil courts can
interfere.
18 I can do no better to affirm this than simply quote what the Supreme
Court said in Dhruv Green Field Ltd. vs. Hukam Singh9
. The Court stated the
law thus :
“9. The question, when and in what circumstances, can a suit of
civil nature be said to be barred by a special statute, is no longer
res Integra. In Kamala Mills Ltd. v. State of Bombay, AIR (1965)
SC 1942, a sevenjudge Bench of this Court laid down the
principle thus:
"The question about the exclusion of the jurisdiction of
civil courts either expressly or by necessary implication must be
considered, in every case, in the light of the words used in the
statutory provision on which the plea is rested, the scheme of the
relevant provisions, their object and their purpose. (AIR p.1951,
para 30)
Whenever a plea is raised before a civil court that its
jurisdiction is excluded either expressly or by necessary
implication to entertain claims of a civil nature, the Court
naturally feels inclined to consider whether the remedy afforded
by an alternative provision prescribed by a special statute is
sufficient or adequate. Where the exclusion of the civil court's
jurisdiction is expressly provided for, the consideration as to the
scheme of the statute in question and the adequacy or the
sufficiency of remedies provided for by it may be relevant, it
cannot however, be decisive.
But when exclusion is pleaded as a matter of necessary
implication, such considerations would be very important, and, in
conceivable circumstances, might even become decisive. If a
statute creates a special right or a liability and provides for the
determination of the right and liability to be dealt with by
tribunals specially constituted in that behalf, and it further lays
down that all questions about the said right and liability shall be
determined by the tribunals so constituted, it is pertinent to
enquire whether remedies, normally associated with actions in
civil courts are prescribed by the said statute or not.” (AIR p.
1952, para 32)
9 (2002) 6 SCC
That judgment was followed in Rama Swarup v. Shikar Chand,
AIR 1966 SC 893. There Gajendragadkar, CJ. speaking for a
Constitution Bench of this Court formulated the following tests:
"The two tests, which are often considered relevant in
dealing with the question about the exclusion of civil courts'
jurisdiction are (a) whether the special statute which excludes
such jurisdiction has used clear and unambiguous words
indicating that intention, and (b) does that statute provide for an
adequate and satisfactory alternative remedy to a party that may
be aggrieved by the relevant order under its material provisions.
Applying these tests the inference is inescapable that the
jurisdiction of the civil courts is intended to be excluded. (AIR p.
896, para 12)
The bar excluding the jurisdiction of civil courts cannot
operate in cases where the plea raised before the civil court goes
to the root of the matter and would, if upheld, lead to the
conclusion that the impugned order is a nullity.
10. In the light of the above discussion, the following
principles may be restated:
(1) If there is express provision in any special Act barring
the jurisdiction of a civil court to deal with matters specified
thereunder the jurisdiction of an ordinary civil court shall stand
excluded.
(2) If there is no express provision in the Act but an
examination of the provisions contained therein lead to a
conclusion in regard to exclusion of jurisdiction of a civil court,
the court would then inquire whether any adequate and
efficacious alternative remedy is provided under the Act; if the
answer is in the affirmative, it can safely be concluded that the
jurisdiction of the civil court is barred. If, however, no such
adequate and effective alternative remedy is provided then
exclusion of the jurisdiction of civil court cannot be inferred.
(3) Even in cases where the jurisdiction of a civil court is
barred expressly or impliedly, the court would nonetheless retain
its jurisdiction to entertain and adjudicate the suit provided the
order complained of is a nullity.”
19 As I have noted above, the present suit being based on a plea of
fraud against the State in a matter of acquisition under the Slum Act and also on
a plea of ultra vires, the suit is clearly maintenable on the pleadings of the
Plaintiffs. As of today, there is no evidence to either sustain or decline the pleas
of fraud and ultra vires. The matter is argued on a demurrer, based on pleadings
and admitted documents on record. There is no case for dismissing the suit for
want of jurisdiction. The preliminary issue is, thus, answered in the negative.
20. The Notices of Motion may now be taken up for consideration of
interim relief by the learned Judge taking Motions.
(S.C. Gupte, J.)
civil courts does not operate in cases where the plea is of nullity, which goes to
the root of the matter. A fraudulent act or an act ultra vires the law providing for it,
are nullities where despite even an express bar of jurisdiction the civil courts can
interfere.
18 I can do no better to affirm this than simply quote what the Supreme
Court said in Dhruv Green Field Ltd. vs. Hukam Singh9
. The Court stated the
law thus :
“9. The question, when and in what circumstances, can a suit of
civil nature be said to be barred by a special statute, is no longer
res Integra. In Kamala Mills Ltd. v. State of Bombay, AIR (1965)
SC 1942, a sevenjudge Bench of this Court laid down the
principle thus:
"The question about the exclusion of the jurisdiction of
civil courts either expressly or by necessary implication must be
considered, in every case, in the light of the words used in the
statutory provision on which the plea is rested, the scheme of the
relevant provisions, their object and their purpose. (AIR p.1951,
para 30)
Whenever a plea is raised before a civil court that its
jurisdiction is excluded either expressly or by necessary
implication to entertain claims of a civil nature, the Court
naturally feels inclined to consider whether the remedy afforded
by an alternative provision prescribed by a special statute is
sufficient or adequate. Where the exclusion of the civil court's
jurisdiction is expressly provided for, the consideration as to the
scheme of the statute in question and the adequacy or the
sufficiency of remedies provided for by it may be relevant, it
cannot however, be decisive.
But when exclusion is pleaded as a matter of necessary
implication, such considerations would be very important, and, in
conceivable circumstances, might even become decisive. If a
statute creates a special right or a liability and provides for the
determination of the right and liability to be dealt with by
tribunals specially constituted in that behalf, and it further lays
down that all questions about the said right and liability shall be
determined by the tribunals so constituted, it is pertinent to
enquire whether remedies, normally associated with actions in
civil courts are prescribed by the said statute or not.” (AIR p.
1952, para 32)
9 (2002) 6 SCC
That judgment was followed in Rama Swarup v. Shikar Chand,
AIR 1966 SC 893. There Gajendragadkar, CJ. speaking for a
Constitution Bench of this Court formulated the following tests:
"The two tests, which are often considered relevant in
dealing with the question about the exclusion of civil courts'
jurisdiction are (a) whether the special statute which excludes
such jurisdiction has used clear and unambiguous words
indicating that intention, and (b) does that statute provide for an
adequate and satisfactory alternative remedy to a party that may
be aggrieved by the relevant order under its material provisions.
Applying these tests the inference is inescapable that the
jurisdiction of the civil courts is intended to be excluded. (AIR p.
896, para 12)
The bar excluding the jurisdiction of civil courts cannot
operate in cases where the plea raised before the civil court goes
to the root of the matter and would, if upheld, lead to the
conclusion that the impugned order is a nullity.
10. In the light of the above discussion, the following
principles may be restated:
(1) If there is express provision in any special Act barring
the jurisdiction of a civil court to deal with matters specified
thereunder the jurisdiction of an ordinary civil court shall stand
excluded.
(2) If there is no express provision in the Act but an
examination of the provisions contained therein lead to a
conclusion in regard to exclusion of jurisdiction of a civil court,
the court would then inquire whether any adequate and
efficacious alternative remedy is provided under the Act; if the
answer is in the affirmative, it can safely be concluded that the
jurisdiction of the civil court is barred. If, however, no such
adequate and effective alternative remedy is provided then
exclusion of the jurisdiction of civil court cannot be inferred.
(3) Even in cases where the jurisdiction of a civil court is
barred expressly or impliedly, the court would nonetheless retain
its jurisdiction to entertain and adjudicate the suit provided the
order complained of is a nullity.”
19 As I have noted above, the present suit being based on a plea of
fraud against the State in a matter of acquisition under the Slum Act and also on
a plea of ultra vires, the suit is clearly maintenable on the pleadings of the
Plaintiffs. As of today, there is no evidence to either sustain or decline the pleas
of fraud and ultra vires. The matter is argued on a demurrer, based on pleadings
and admitted documents on record. There is no case for dismissing the suit for
want of jurisdiction. The preliminary issue is, thus, answered in the negative.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
SUIT NO. 2862 OF 2008
Abdul Sattar Haji Usman & Anr.
vs.
The Archbishop of Bombay & Ors
CORAM : S.C. GUPTE, J.
PRONOUNCED ON : 12 APRIL 2016
Citation: 2017(2) ALLMR 260
The suit seeks declaration of ownership of the Plaintiffs and
Defendant No.3 of a plot of land and challenges acquisition of the plot by the
State Government under the Maharashtra Slum Areas Act, 1971 as vitiated by
fraud and prays for directions to the State to restore possession of the plot to the
Plaintiffs and Defendant No.3.
2. By an order dated 5 December 2011, and as amended by an order
dated 4 January 2016, the following issue was framed as a preliminary issue, on
the application of Defendant No.5.
“(a) Whether Defendant No.5 proves that the present suit is
barred by virtue of Section 42 of the Maharashtra Slum
Areas (Encroachment and Improvement) Act 1971?”
The parties have chosen not to lead any evidence and instead
argued the preliminary issue on the pleadings and admitted documents on
record. (By a Notice of Motion, Defendant Nos.4 and 5 sought leave to lead
evidence on the preliminary issue. By an order of 8 December 2015, that
application was rejected by this Court, holding inter alia that the questions
involved were pure questions of law and parties had agreed to argue the matter
on the basis of the averments in the plaint and provisions of law.) This order
disposes of the preliminary issue.
3. The Plaintiffs' case may be briefly stated as follows :
By an agreement dated 21 December 1960, Defendant No.1, who
originally owned the land bearing CTS Nos.40, 40/1, 129 at Vile Parle in Mumbai
admeasuring about 3695.70 sq.mtrs. agreed to sell the land to Haji Usman Haji
Abdul Karim, the father of the Plaintiffs. Haji Usman Haji Abdul Karim died
intestate on 25 November 1966 leaving behind him the Plaintiffs, Defendant No.3
and one Hajrabai Haji Usman as his only legal heirs according to the Sunni
Muslim law. By a registered conveyance dated 23 December 1974, Defendant
No.1 conveyed the suit land together with structures standing thereon to the
Plaintiffs, Defendant No.3 and Hajrabai Haji Usman, after obtaining the requisite
permission from the Charity Commissioner, State of Maharashtra. Defendant
No.1 also authorised the Plaintiffs to collect all income of the suit property and
pay all outgoings. It is the case of the Plaintiffs that since a large number of
properties were purchased under the indenture of conveyance with different
survey and CTS Nos., certain errors had crept in the schedule of properties
appended to the conveyance. These errors included a wrong mention of the area
of Survey No.40, Hissa No.1 (CTS No.40), i.e. part of the suit property. Due to
these errors, the names of the Plaintiffs were not included in the revenue records
including the property card as owners of the property, though the possession of
the property was taken over by, and remained with, the Plaintiffs. The Plaintiffs
claim that the tenants / occupants of the suit property were paying rent to the
Plaintiffs. So also, there were some eviction proceedings launched against
tenants / occupants which resulted into decrees of possession in favour of the
Plaintiffs. Electricity Bills stand in the name of the Plaintiffs. Eventually,
proceedings for acquisition of the suit property were initiated by the State
Government through Additional Collector, under the Maharashtra Slum Areas Act,
1971 (“Slum Act”). It is the Plaintiffs' case that without taking any notice of the
Plaintiffs' objections, a final notification under Section 14(1) of the Slum Act was
issued by the State Government showing Defendant No.1 as the owner of the
property. It is the Plaintiffs' case that the Plaintiffs were, thus, deprived of their
rights by deliberately referring to wrong records. It is submitted that the Plaintiffs
had also executed a rectification deed rectifying the mistakes in the description
and areas of land conveyed by the indenture of conveyance dated 23 December
1974. It is the Plaintiffs case that the land was acquired by the authorities
fraudulently and in collusion with interested persons by falsely showing it as
belonging to Defendant No.1, only to favour such interested persons. Being
aggrieved by the declaration of, and decision to acquire, the suit property as
slum area, the Plaintiffs filed an appeal, being Appeal No.20 of 2003. The appeal
was dismissed by the Maharashtra Slum Tribunal. The order of the Tribunal was
challenged before this Court in a writ petition, being Writ Petition No.2584 of
2004. The petition was dismissed by a learned Single Judge of this Court. In the
Plaintiffs' challenge to that order before the Division Bench, whilst dismissing the
appeal, liberty was reserved unto the Plaintiffs to agitate their grievances relating
to the title of the land in appropriate civil proceedings. Apart from initiating
various revenue proceedings for amending the revenue records by inclusion of
their names therein, the Plaintiffs have asserted their ownership of the suit
property and on that basis, challenged the acquisition in the present suit.
4 On these facts, the question is whether the jurisdiction of this Court
to entertain the suit and grant the reliefs claimed therein is barred by any law,
particularly Section 42 of the Slum Act. The argument of the Defendants including
the State is that the reliefs prayed for by the Plaintiffs in the present suit inter alia
pertain to a challenge to a slum re-development scheme undertaken under the
Slum Act in respect of the suit property, which relief cannot be claimed in view of
a specific bar in that behalf contained in Section 42 of the Slum Act. It is
submitted that the plea of ownership would at the most be maintenable against
Defendant No.1, but the effective reliefs, which are claimed against the State,
seeking cancellation of the acquisition and return of the suit property, cannot be
considered by this Court in view of the bar. Secondly, it is submitted that apart
from the express bar under Section 42, the Slum Act being an acquisition law,
providing its own machinery for seeking redressal against grievances in
connection therewith, by necessary implication, the power of civil courts to take
cognizance of such grievances under Section 9 of the Code of Civil Procedure
stands excluded. Learned Counsel for the Defendants rely on several judgments
in support of their contentions. It is also submitted that the Plaintiffs having
exhausted their remedy under Article 226 of the Constitution, cannot claim the
reliefs again by filing the present suit. It is submitted that the constitutional
validity of Sections 14 and 17 of the Slum Act has already been upheld by the
Court and not open to any challenge.
5 Section 42 of the Slum Act, as of the date of the suit, provided as
follows :
“42. Bar of Jurisdiction Save as otherwise expressly provided
in this Act, no civil court shall have jurisdiction is 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.”
By Maharashtra Act 11 of 2012, with effect from 19 June 2012, the
words “Appellate Authority, Competent Authority, Grievance Redressal
Committee” have been substituted for the words “Administrator, Competent
Authority”.
6 Section 42, as is plain from its language, ousts the jurisdiction of
the civil court in respect of all matters which the authorities named therein are
empowered to determine by or under the Act. Exceptions, if any, must be found in
the Slum Act itself, as this ouster is subject to what is otherwise expressly
provided therein. Section 42 has a second part, which prohibits grant of any
injunction in respect of any action taken or to be taken in pursuance of any power
conferred by or under the Slum Act.
7 Let us first consider if on the terms of Section 42, the present suit is
barred or granting of any particular relief claimed in the suit (i.e. injunction) is
prohibited. The matters which the authorities named in Section 42 are
empowered to determine are the following : The competent authority, upon a
complaint from any person or report from its officer, police, etc. is empowered to
order demolition of any structure, which is unauthorised or illegal in terms of
Sections 3Z-1 and 3Z-2 of the Slum Act. It is also empowered to declare any area
or buildings in any area to be a slum area under Section 4 of the Slum Act. The
competent authority has also power to execute any work of improvement under
Section 5 and to require occupiers of premises within such area to vacate the
premises or require improvement of buildings unfit for human habitation and of
areas which are source of danger to public health, respectively, under Sections
5A, 5B and 5C of the Slum Act. It may also direct restrictions on erection of
buildings in slum areas except with its prevision permission under Section 8. The
competent authority also has power to order demolition of buildings unfit for
human habitation in pursuance of Section 9 of the Slum Act. With the previous
approval of the State Government, the competent authority is empowered to
entrust to any agency recognised by it the work of execution of any improvement,
clearance of redevelopment work or maintenance or repairs, etc. under Section
10A. The competent authority is also empowered to declare any slum area to be
a clearance area under Section 11 of the Act and make a clearance order under
Section 12. It has power to redevelop such clearance area under Section 14. So
also, the competent authority has powers to determine compensation payable to
any person having interest in any such acquired land under the Act, decide the
apportionment of such compensation and order payment thereof, respectively,
under Sections 17, 18 and 19 of the Act. The competent authority may also grant
permissions for institution of suits or proceedings under Section 22 of the Act.
The competent authority also has power to determine rent of any building in any
slum area. It has various other miscellaneous powers of entry, inspection, etc.
under Chapter 7 of the Slum Act. Appeals by persons aggrieved by any notice,
order or direction issued or given by the competent authority lie before the
Appellate Authority under Section 35 of the Act. So also, appeals by persons
aggrieved by notices, orders or directions of the Appellate Authority or appeals
for the purpose of resolving disputes in relation to matters about eligibility of a
slum dweller or his entitlement, etc. lie before the Grievance Redressal
Committee constituted by the State Government under Section 35(1)(a) of the
Slum Act. The decisions of this Grievance Redressal Committee have been made
final by virtue of sub-section (5) of Section 35. The Tribunal appointed under
Section 2(i) of the Act is empowered to determine questions in respect of
expenses to be recovered as arrears of land revenue and disputes in respect of
such claims, under Section 44 of the Slum Act. These are the only matters which
the authorities named under Section 42 are empowered to determine. Apart from
these named authorities, there are other authorities including the Slum
Rehabilitation Authority as well as the State Government who are empowered to
exercise powers and determine various matters under the Slum Act. The first part
of Section 42 does not apply to these powers or matters. For example, the Slum
Rehabilitation Authority appointed under Section 3A of the Act is empowered to
exercise various functions and perform duties under sub-section (3) of Section
3A, namely, formulation of schemes for rehabilitation of slum areas and getting
the same implemented and doing of all acts and things as may be necessary for
achieving the object of rehabilitation of slums. So also, the State Government is
empowered to acquire land to enable the Authority to execute any work of
improvement or to redevelop any slum area or any structure in such area. The
first part of Section 42 does not apply to any of these matters to be decided by
these authorities, though no court or authority can grant any injunction in respect
of any action taken or to be taken in respect of these matters by virtue of second
part of Section 42. In other words, though jurisdiction of the civil court is not
barred in respect of any of these latter matters, no injunction can be granted by
any civil court in respect of those.
8 On this analysis, let us consider the present suit and the reliefs
which it asks for. The present suit, in the first place, seeks a declaration of
ownership of the suit property. Secondly, it seeks recovery of possession of the
suit property on the basis of such declaration. Thirdly, it prays for a declaration
that the acquisition of the suit property under the Slum Act is vitiated by fraud and
liable to be struck down. Lastly, it seeks a permanent injunction restraining the
Defendant State as well as the former owner of the suit property and the society
of slum-dwellers and occupants from interfering with the use, occupation and
enjoyment of the suit property by the Plaintiffs. None of these matters are to be
decided by the Competent Authority, Appellate Authority, Grievance Redressal
Committee or Tribunal under the Slum Act. As regards the injunction prayed for in
the suit, the same is merely consequential upon the Plaintiffs' ownership and
possession of the suit property claimed in the suit. It does not seek to directly
affect any action taken or to be taken in pursuance of any power conferred by or
under the Slum Act. In the event the Plaintiffs' ownership and possession are
decreed by the Court and the acquisition is struck down, and possession
restored to the Plaintiffs, the Plaintiffs would be entitled to the permanent
injunction prayed for in the suit. No exception, thus, can be taken to any of the
prayers in the suit on the plain terms of Section 42.
8 Learned Counsel for the Defendants rely on the judgments of this
Court in the cases of Housing Development and Improvement India Pvt. Ltd.
Vs. Narendra L. Aswani & Others1
, Lokhandwala Infrastructure Pvt. Ltd. Vs.
Dhobighat Compound Rahiwasi Seva Sangh and others2
, and Naresh
Lachmandas Aswani Vs. Haridas alias Hardas Lachmandas3
in support of
their contention that the suit is barred under Section 42. In the case of Housing
Development & Improvement India Pvt. Ltd. (supra), an injunction was claimed
in respect of disposal of, or creation of third party rights in, premises in the
buildings which were under construction in an SRA project. The ad-interim
injunction granted by the learned Single Judge was set aside by the Appeal
Court. In that case, there was no challenge to the notice issued by the Slum
Authority as well as the acquisition notification. The prayer for injunction directly
interfered with the possession and third party rights to be created in buildings
which were being constructed under an LOI issued by the Slum Authority for an
SRA project sanctioned under the Slum Act. When this matter came up before a
1 Appeal (L) No.797 of 2011
2 Notice of Motion No___of 2011 in Suit (Lodg.) No.813 of 2011
3 Suit No.808 of 2011
learned Single Judge (Dhanuka, J.) for consideration of interim relief, after the
ad-interim injunction was rejected by the Appeal Court, the learned Judge in
Naresh Lachmandas Aswani (supra), specifically held that prayers (a) to (c),
and (e) to (h), which inter alia dealt with the title of the Plaintiff and cancellation
of various documents executed by the Defendant in breach of that title, were very
much within the jurisdiction of the Civil Court and it was only the prayer for
delivery of possession which was barred, since LOI was already issued in
respect of the Slum Rehabilitation Scheme, which was being implemented on the
property. The suit, in that case, was, however, dismissed by the learned Single
Judge on the ground of bar of limitation. Even in Lokhandwala Infrastructure
(supra), this Court held that having regard to the powers, duties and functions of
the Authority, it was clear that the Authority was not empowered to determine
private rights or liabilities as between the Slum dwellers and the developer vis-avis
any development agreement entered into between them for redevelopment of
any slum. The court held that whether or not such development agreement is
binding on the parties thereto, whether or not any party has breached such
development agreement, and whether or not the party complaining of such
breach is entitled to specific performance of the development agreement, all of
which were matters arising for the determination in that suit, were not matters
which the Authorities under the Slum Act were empowered to decide. This Court
further held that as for the particular relief, namely, permanent or temporary
injunction restraining Defendant No.26 from carrying on any development or
directly or indirectly preventing it from acting as a developer of the particular
Slum Rehabilitation Scheme, which the Authority authorized it to do, whether or
not such relief can be granted would be considered on merits at the hearing of
the suit or the Notice of Motion, as the case may be. But such consideration did
not reflect on the jurisdiction of this Court to entertain the suit as a whole. The
Court might entertain the suit and yet not grant the particular relief, if it
considered the same to be barred under Section 42 of the Slum Act.
10 The main dispute in the present suit is between the Plaintiffs and
Defendant No.1, on the one hand, concerning the title of the suit property. This
dispute is clearly out of bounds for the authorities under the Slum Act. It is for
determination of private rights as between two rival claimants, which the
authorities under the Act are not empowered to determine. On the other hand,
the suit is also between the purported owner of the property and the acquiring
authority, alleging fraud on the part of the latter. Even this dispute does not lie
before any of the authorities named in Section 42.
11 Secondly, as this Court held in Lokhandwala Infrastructure,
whether a particular relief, whether of permanent or temporary injunction, can or
cannot be granted, does not reflect on the jurisdiction of the Court to entertain
the suit as a whole. This Court may entertain the suit and yet not grant any
particular relief amongst the many reliefs claimed in the suit on account of a legal
bar, in this case under Section 42 of the Slum Act.
11 Let us now consider the other argument of the Defendants that the
Slum Act, which is designed to enable the State to acquire land to serve a public
purpose, being a complete code, an aggrieved person may only resort to
remedies provided thereunder and by implication, cognizance cannot be taken by
civil courts of such grievances. Learned Counsel for the Defendants rely on
Supreme Court judgments on the civil court's jurisdiction to go into the questions
of validity or legality of acquisition notifications under the Land Acquisition Act in
support of their contentions. In the first place, having regard to the specific
mandate of Section 42 which bars particular suits and reliefs, it is difficult to
conceive of a general bar in resorting to remedies in connection with matters
which are covered by the Slum Act. Secondly, it is also important to ask whether
the aggrieved person is given any remedy in respect of the particular action
taken or matter decided under the Act, when one considers the bar in connection
with such action or matter. Insofar as matters such as demolition of unauthorised
or illegal dwellings or structures, or penal liabilities in connection therewith are
concerned, the remedies lie before the Competent Authority and from its orders
before the Appellate Authority and the Grievance Redressal Committee. Insofar
as various other powers to be exercised by the Competent Authority, which are
noted above, are concerned, there is a similar grievance redressal mechanism
provided for in the Act. As for the other matters, namely, matters to be determined
in pursuance of powers exercised by the Slum Rehabilitation Authority as well as
the State Government, the Act does not provide for any remedy. Can it then be
said that these matters are beyond the reach of civil courts though they cannot
be redressed under the provisions of the Act. After all the thrust of the arguments
in support of such bar is that the Act, being a complete code (which includes
remedies for acts done thereunder), only remedies provided thereunder can be
resorted to and general remedies otherwise available under law are barred. All
that this means is that where the Act provides particular remedies, other
remedies under ordinary law must be taken to be barred.
13 Our Court in Qari Mohammed Zakir Hussain vs. Municipal
Corporation of Greater Mumbai4
, whilst construing the relevant provisions of
the Slum Act, namely, Sections 37, 40, 41 and 42, in the context of a similar plea
of bar of jurisdiction held as follows :
“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
4 2002(2) Bom.C.R.93
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 (A.I.R. 1940 Privy Council 105), State of Kerala vs.
N. Ramaswamy Iyer & Sons), A.I.R. 1966 S.C. 1738, (Firm
Seth Radhakishan (deceased) represented by Harikishan v.
Administrative Municipal Committee, Ludhiana), A.I.R. 1963
S.C. 1547, as well as decision of Kerala High Court in
(Secretary, K.S.E.B., Trivandrum v. M. Sainaba), A.I.R. 1990
Kerala 50.
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.”
14 Learned Counsel for the Defendants cited Supreme Court
judgments under the Land Acquisition Act to contend that no challenge before a
civil court lies even if the acts are mala fide or in patent breach of the law. I am
afraid none of these judgments supports what the Defendants contend. In State
of Bihar vs. Dhirendra Kumar5
, after a declaration duly published under Section
6 of the Land Acquisition Act, 1894, the possession of the land was taken over by
the State and handed over to the Housing Board. Steps were taken thereafter by
the Board to eject encroachers on the acquired land. The Respondent before the
Supreme Court filed a title suit and asked for a temporary injunction. The Court
held that the provisions of the Land Acquisition Act were designed to acquire land
by the State exercising the power of eminent domain to serve a public purpose.
5 1995 AIR 1955
The Court examined the provisions of the Land Acquisition Act and held the Act
to be a complete code meant to serve a public purpose and accordingly, held the
remedy to be barred by implication under Section 9 of the CPC. The respondent's
title suit in that case was against the State. What the respondent wanted the
Court to do was to allow the respondent to retain the land despite acquisition
thereof by the State after following due process under the Land Acquisition Act.
Whether the land is needed for a public purpose or not and whether it is
therefore liable to be acquired, are not matters which are open to a civil court to
inquire into. The purpose of acquisition, whether public or not, the suitability of
the land for such purpose, etc. are matters inquired into and decided by the
authorities named under the Land Acquisition Act. The Act contains its own
mechanism for such inquiries. These are not matters open to challenge before
any civil court. This ratio is not applicable to the facts of our case. Here, there is
no challenge per se to the merits of the decision to acquire the land from the
standpoint of its suitability or coverage under the relevant provisions of the Slum
Act. What is alleged here is that the acquisition is fraudulent. Despite the record
showing the Plaintiffs' title, the Plaintiffs submit, the land was acquired by falsely
showing it as belonging to Defendant No.1 only to favour some interested
persons who wanted to illegally grab the property in the name of development.
The requisite averments are to be found inter alia in paragraphs 47 to 49 of the
plaint. Secondly, it is alleged by the Plaintiffs that the acquisition was in breach of
the provisions of the Slum Act, i.e. without following those provisions. If that is so,
it is a matter of trial. It cannot be said that the jurisdiction of this Court is barred.
15 Even in the case of S.P. Subramanya Shetty vs. Karnataka State
Road Transport Corporation6
, the controversy concerned a plea to denotify the
acquired land under Section 48 of the Land Acquisition Act on the ground that the
land owner was willing to give a portion of the land free of cost. On that basis, he
filed a civil suit for an injunction to restrain the State from interfering with his
possession. The Supreme Court held that the acquisition notification had become
final and proceedings had attained finality and the Court could not issue a
mandatory injunction to the State to denotify the acquired land under Section 48.
6 AIR 1997 SC 2076
Again, this controversy and observations of the Court in connection therewith
have no bearing on the facts of our case.
16 In V. Chandrasekaran vs. Administrative Officer7
, the Supreme
Court was considering appeals from orders passed on writ petitions. The writ
petitioners had challenged a notification issued by the State under Section 6 of
the Land Acquisition Act on the ground that the inquiry preceding it was not
conducted fairly and their objections under Section 5A were not dealt with
properly. The subject land was purchased by the petitioners after the notification
was issued under Section 4. The Court held that the petitioners had acquired no
title and had no locus to challenge acquisition proceedings. The Court further
observed that it was a settled position that once the land is vested in the State,
free from all encumbrances, it cannot be divested and restored to tenure
holders / interested persons. That was in the context of the plea that it must be so
restored if the land was not used for the purpose for which it was acquired. The
Court held that once the land is acquired and vests in the State, it is not the
concern of the land owner, whether the land is being used for the purpose for
which it was acquired or for any other purpose. The owner merely has the right to
receive compensation for the land after it vests in the State. The law stated by
the Supreme Court in V. Chandrasekaran is not germane to decide our case.
17 In Commissioner, Bangalore Development Authority vs. Brijesh
Reddy8
, the respondents before the Court had filed a suit for permanent
injunction against the State after the property was acquired under the relevant
State acquisition law. The respondents were subsequent purchasers of the
property and claimed to be in possession. When originally possession of the
respondents' predecessor in title was sought to be interfered with by the
acquiring body, he had filed a suit, which was eventually dismissed with liberty to
file a fresh suit. After they were put in possession by the predecessor, the
respondents filed their own suit referred to above. The question before the court
was whether a civil court had jurisdiction to entertain that suit. The trial court
7 JT 2012 (9) SC 260
8 2013 ALL SCR 2685
rejected the suit as not maintenable since the acquisition proceedings had ended
with passing of an award and handing over of possession. The impugned order
of the High Court remanded the matter to the trial court on the ground that the
plaintiffs were not given an opportunity to adduce evidence that their vendor was
in possession which entitled them for grant of permanent injunction from evicting
them from the acquired property without due process of law. The Supreme Court
set aside the impugned order on the ground that the acquisition of the land being
completed long ago, the suit for injunction was barred. The Court, whilst
discussing the reasons, observed as follows :
“13) It is clear that the Land Acquisition Act is a complete
Code in itself and is meant to serve public purpose. By
necessary implication, the power of civil Court to take
cognizance of the case under Section 9 of CPC stands
excluded and a Civil Court has no jurisdiction to go into the
question of the validity or legality of the notification under
Section 4, declaration under Section 6 and subsequent
proceedings except by the High court in a proceeding under
Article 226 of the Constitution. It is thus clear that the civil
Court is devoid of jurisdiction to give declaration or even
bare injunction being granted on the invalidity of the
procedure contemplated under the Act. The only right
available for the aggrieved person is to approach the High
Court under Article 226 and this Court under Article 136 with
self imposed restrictions on their exercise of extraordinary
power.”
It is clear from the above statement of law that what is barred is the
jurisdiction to go into the validity and legality of the notification under Section 4,
declaration of Section 6 and subsequent proceedings. Once these provisions are
gone through, it is not open to question the steps taken thereunder outside the
machinery of the Land Acquisition Act except by approaching the writ court. That
still leaves out cases where the acquisition is without following these provisions
or taking steps thereunder or where the acquisition is vitiated by a fraud
practised by the authorities under the State. The bar excluding the jurisdiction of
civil courts does not operate in cases where the plea is of nullity, which goes to
the root of the matter. A fraudulent act or an act ultra vires the law providing for it,
are nullities where despite even an express bar of jurisdiction the civil courts can
interfere.
18 I can do no better to affirm this than simply quote what the Supreme
Court said in Dhruv Green Field Ltd. vs. Hukam Singh9
. The Court stated the
law thus :
“9. The question, when and in what circumstances, can a suit of
civil nature be said to be barred by a special statute, is no longer
res Integra. In Kamala Mills Ltd. v. State of Bombay, AIR (1965)
SC 1942, a sevenjudge Bench of this Court laid down the
principle thus:
"The question about the exclusion of the jurisdiction of
civil courts either expressly or by necessary implication must be
considered, in every case, in the light of the words used in the
statutory provision on which the plea is rested, the scheme of the
relevant provisions, their object and their purpose. (AIR p.1951,
para 30)
Whenever a plea is raised before a civil court that its
jurisdiction is excluded either expressly or by necessary
implication to entertain claims of a civil nature, the Court
naturally feels inclined to consider whether the remedy afforded
by an alternative provision prescribed by a special statute is
sufficient or adequate. Where the exclusion of the civil court's
jurisdiction is expressly provided for, the consideration as to the
scheme of the statute in question and the adequacy or the
sufficiency of remedies provided for by it may be relevant, it
cannot however, be decisive.
But when exclusion is pleaded as a matter of necessary
implication, such considerations would be very important, and, in
conceivable circumstances, might even become decisive. If a
statute creates a special right or a liability and provides for the
determination of the right and liability to be dealt with by
tribunals specially constituted in that behalf, and it further lays
down that all questions about the said right and liability shall be
determined by the tribunals so constituted, it is pertinent to
enquire whether remedies, normally associated with actions in
civil courts are prescribed by the said statute or not.” (AIR p.
1952, para 32)
9 (2002) 6 SCC
That judgment was followed in Rama Swarup v. Shikar Chand,
AIR 1966 SC 893. There Gajendragadkar, CJ. speaking for a
Constitution Bench of this Court formulated the following tests:
"The two tests, which are often considered relevant in
dealing with the question about the exclusion of civil courts'
jurisdiction are (a) whether the special statute which excludes
such jurisdiction has used clear and unambiguous words
indicating that intention, and (b) does that statute provide for an
adequate and satisfactory alternative remedy to a party that may
be aggrieved by the relevant order under its material provisions.
Applying these tests the inference is inescapable that the
jurisdiction of the civil courts is intended to be excluded. (AIR p.
896, para 12)
The bar excluding the jurisdiction of civil courts cannot
operate in cases where the plea raised before the civil court goes
to the root of the matter and would, if upheld, lead to the
conclusion that the impugned order is a nullity.
10. In the light of the above discussion, the following
principles may be restated:
(1) If there is express provision in any special Act barring
the jurisdiction of a civil court to deal with matters specified
thereunder the jurisdiction of an ordinary civil court shall stand
excluded.
(2) If there is no express provision in the Act but an
examination of the provisions contained therein lead to a
conclusion in regard to exclusion of jurisdiction of a civil court,
the court would then inquire whether any adequate and
efficacious alternative remedy is provided under the Act; if the
answer is in the affirmative, it can safely be concluded that the
jurisdiction of the civil court is barred. If, however, no such
adequate and effective alternative remedy is provided then
exclusion of the jurisdiction of civil court cannot be inferred.
(3) Even in cases where the jurisdiction of a civil court is
barred expressly or impliedly, the court would nonetheless retain
its jurisdiction to entertain and adjudicate the suit provided the
order complained of is a nullity.”
19 As I have noted above, the present suit being based on a plea of
fraud against the State in a matter of acquisition under the Slum Act and also on
a plea of ultra vires, the suit is clearly maintenable on the pleadings of the
Plaintiffs. As of today, there is no evidence to either sustain or decline the pleas
of fraud and ultra vires. The matter is argued on a demurrer, based on pleadings
and admitted documents on record. There is no case for dismissing the suit for
want of jurisdiction. The preliminary issue is, thus, answered in the negative.
20. The Notices of Motion may now be taken up for consideration of
interim relief by the learned Judge taking Motions.
(S.C. Gupte, J.)
No comments:
Post a Comment