9911796707
TMI Blog1993 (5) TMI 174X X X X Extracts X X X X X X X X Extracts X X X X ..... then to seal the same and to demolish thereafter. The appellants have no grievance so far as the aforesaid part of the order is concerned. They have sought interference of this Court with the other part of the order, where it has been said that no civil suit will be entertained by any court in Delhi in respect of any action taken or proposed to be taken by the Corporation with regard to the sealing and/or demolition of any building or any part thereof. Any person aggrieved by an order of sealing or demolition which is passed shall, however, have the right of filing an appeal to the Appellate Tribunal under the Municipal Act. The Appellate Tribunal is the only forum which has the jurisdiction to grant interim relief. The other part of the order in respect of which objection has been taken is where the Court has directed the Corporation to approach those courts which have already issued injunction for variation and vacation of the injunction orders in the light of the said order. Initially a writ application was filed in respect of some private dispute between two neighbours. In due course on the material produced by one party or the other it was treated as a Public Interes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant for not proceeding with such erection or work pending the disposal of the appeal. (4)No Court shall entertain any suit, application or order proceeding for injunction or other relief against the Commissioner to restrain him from taking any action or making any order in pursuance of the provisions of this section. (5)Subject to an order made by the Administrator on appeal under section 347 D, every order made by the Appellate Tribunal on appeal under this section, and subject to the orders of the Administrator and the Appellate Tribunal on appeal. the order of demolition nude by the Commissioner shall be final and conclusive . Section 344 vests power in the Commissioner to stop the construction of the building where the erection of such building or execution of any work has been commenced or is being carried on either without sanction or contrary to sanction so granted or in contravention of any condition subject to which sanction has been accorded. Under section 345A, the Commissioner at any time, before or after making an order of demolition under section 343 or of the stoppage of the erection of any building or execution of any work under section 343, can make an or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... internal remedy has been provided for redressal of the grievances of the persons concerned, there is no scope for Court to entertain a suit. In the olden days the source of most of the rights and liabilities could be traced to the common law. Then statutory enactments were few. Even such enactments only created rights or liabilities but seldom provided forums for remedies. The result was that any person having a grievance that he had been wronged or his fight was being affected, could approach the ordinary Civil Court on the principle of law that where there is a right there is a remedy-ubi jus ibi remedium. As no internal remedy had been provided in the different statutes creating rights or liabilities, the ordinary Civil Courts had to examine the grievances in the light of different statutes. With the concept of the Welfare State, it was realised that enactments creating liabilities in respect of payment of taxes obligations after vesting of estates and conferring rights on a class of citizens, should be complete codes by themselves. With that object in view, forums were created under the Acts themselves where grievances could be entertained on behalf of the persons aggrieved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prescribed by the statute which alone confers the right. It was further pointed out The right and the remedy are given uno flatu, and the one cannot be dissociated from the other. In the well-known case of Secretary of State v. Mask Co., AIR 1940 Privy Council 105, this question was considered in connection with Sea Customs Act (1878). It was said:- It is settled law that the exclusion of the jurisdiction of the Civil Courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principle of judicial procedure. But having enunciated the general principle in respect of ouster of the jurisdiction of the Civil Court it was said:- But, in their Lordships' opinion, neither Sec, 32 nor the principle involved in the decision in 401 A 48, affect the validity of an Act of the Indian Legislature which creates an obligation and provides an exclusive Code for its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt to entertain any suit. The Constitution Bench in Dhuilabhai v. State of Madya Pradesh, AIR 1969 SC 78, said:- Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not. In connection with the Industrial Disputes Act, in The Premier Automobiles Ltd. v. Kamlakar Shantaram Wadke. AIR 1975 SC 2238 = [1976] 1 SCC 496, it was pointed out that the Civil Court will have no jurisdiction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by such special enactments, in respect of liabilities created or rights conferred. This Court in the judgments referred to above has upheld the ouster of the jurisdiction of the Court on examination of two questions (1) Whether the right or liability in respect whereof grievance has been made, had been created under an enactment and it did not relate to a pre-existing common law right? (2) Whether the machinery provided for redressal of the grievance in respect of infringement of such right or imposition of a liability under such enactment, was adequate and complete? The ouster of the jurisdiction of the Court was upheld on the finding that the rights or liabilities in question had been created by the Act in question and remedy provided therein was adequate. But the situation will be different where a statute purports to curb and curtail a pre-existing common law right and purports to oust the jurisdiction of the Court so far remedy against the orders passed under such statute are concerned. In such cases, the courts have to be more vigilant, while examining the question as to whether an adequate redressal machinery has been provided, before which the, person aggrieved may agi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... land in question shall not be deemed to be public land within the meaning of the definition of public land given in the Act in question, and as such provisions thereof shall not be applicable. In the case of Anisminic Lid. v. Foreign Compensation Commission, (1969) 2 AC 147, a wide interpretation has been given to the word 'jurisdiction' by the House of Lords. It was pointed out that in many cases where although the Tribunal has jurisdiction to enter upon an enquiry, it has done or failed to do something in the course of such enquiry which is of such a nature that its decision becomes a nullity. By mere reference to different provisions of the Corporation Act it shall appear that the Act does not create any right or liability. Chapter XVI of the Act only purports to regulate the erection of the buildings within the Corporation area, so that erections of the buildings within the Corporation area are systematic, planned and do not adopt the character of mushroom growth. In view of the Provisions of the Act, whenever it is discovered that erection of any building or execution of any work has been commenced or is being carried or has been completed, either without sanction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontravening and violating the building bye-laws or regulations often run to Courts, with pleas mentioned above, specially that no notice was issued or served on them, before the Corporation has ordered the demolition of the construction. It is well-known that in most of the cities building regulations and bye-laws have been framed, still it has been discovered that constructions have been made without any sanction or in contravention of the sanctioned plan, and such constructions have continued without any intervention. There cannot be two opinions that the regulations and bye- laws in respect of buildings, are meant to serve the public interest. But at the same time it cannot be held that in all circumstances, the authorities entrusted with the demolition of unauthorised constructions, have exclusive power, to the absolute exclusion of the power of the Court. In some special cases where jurisdictional error on the part of the Corporation is established, a suit shall be maintainable. According to us, (1)The Court should not ordinarily entertain a suit in connection with the proceedings initiated for demolition, by the Commissioner, in terms of section 343 (1) of the Corpora ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are passed are interested in perpetuating the contraventions made by them by delaying the final disposal of such applications. The court should be always willing to extent its hand to protect a citizen who is being wronged or is being deprived of a property without any authority in law or without following the procedure which are fundamental and vital in nature. But at the same time the judicial proceedings cannot-be. used to protect or to perpetuate a wrong committed by a person who approaches the Court. Power to grant injunction is an extraordinary power vested in the Court to be exercised taking into consideration the facts and circumstances of a particular case. The Courts have to be more cautious when the said power is being exercised without notice or hearing the party who is to be affected by the order so passed. That is why Rule 3 of Order 39 of the Code requires that in ail cases the Court shall, before grant of an injunction, direct notice of the application to be given to the opposite party, except where it appears that object of granting injunction itself would be defeated by delay. By the Civil Procedure Code (Amendment) Act, 1976, a proviso has been added to the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing a right which such party claims to exercise either under a statute or under the common law, must be informed why instead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party who invokes the jurisdiction of the Court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the Court about the gravity of the situation and Court has to consider briefly these factors in the ex parts order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the Court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance there of will not vitiate the order so passed. But same cannot be said in respect of the proviso to Rule 3 of Order 39. The Parliament has prescribed a particular procedure for passing of an order of injunction without notice to the other side, under exceptional circumstances. Such ex parte orders have far reaching effect, as such a conditions has been imposed ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
