CRP PD/858/2002 of S.T.SUNDRAM Vs VEERATESWARAN on 2 December 2002

:ORDER

The Civil Revision Petition is filed under Article 227 of theConstitution of India against the suit in O.S.No.26 of 2002 on the file of theAdditional District Judge, Karaikkal.

2. The facts of the case are as follows:

The petitioner being the owner of the land in T.s.Nos.161, 164, 165and 166 in ward No.F, Block No.38 at Nehru street, Karaikkal town obtained anapproved plan No.604/Kpa/98 dated 17.3.1999 from the respondents 2 and 3 forputting up a Kalyana Mandapam. In accordance with the approved plan, thepetitioner had actually completed the construction of the Kalyana Mandapameven in the year 2001. The first respondent is residing at D.No.219, Churchstreet, Karaikkal and the Kalyana Mandapam has been put up at Door No.58,Nehru Street, which is on the north east of the first respondent's property.The petitioner by sale deed dated 18.6.2001 purchased the property bearing oldDoor No.218 lying immediately on the north of Door No.219 owned by the firstrespondent and on the west of the Kalyana Mandapam put up by him.

3. It is the further case of the petitioner that there is a litigation between the first respondent and vendor, the owner of the old DoorNo.218 and the litigation is still pending and as a power of attorney holderof the vendor, the petitioner is looking after the litigation. Enraged by thepurchase of the suit property by the petitioner, the first respondent with amala fide intention sent telegrams dated 22.10.2001 and 24.10.2001 to therespondents 2 and 3 to the effect that the Kalyana Mandapam has been put up inviolation of the approved plan and requested the respondents 2 and 3 to takesuitable action under the provisions of the Pondicherry Town and CountryPlanning Act, 1969, (hereinafter referred to as "the Act, 1969") against thepetitioner. The second respondent by letter dated 24.10.2001 replied to thefirst respondent that there is no violation in putting up the construction ofthe Kalyana Mandapam by the petitioner.

4. It is the further case of the petitioner that suppressing the above facts, the first respondent filed a writ petition in W.P.No.1859 of 2002before this Court for issuance of a writ of mandamus to direct the respondents2 and 3 to remove the illegal construction put up in violation of the planningpermit and rules and regulations. That writ petition was disposed of by thisCourt on 31.1.2002 by directing the third respondent to inspect the premisesand dispose of the representation made by the first respondent within four

weeks from the date of receipt of copy of the order. Pursuant to the ordermade by this Court, the third respondent sent a communication on 26.3.2002 tothe first respondent informing about the action to be taken. However, thefirst respondent, filed a suit in O.S.No.26 of 2002 before the AdditionalDistrict Judge, Karaikkal for a mandatory injunction directing the respondents2 and 3 to remove the construction alleged to be in deviation of approved planand obtained an order of interim injunction in I.A.No.80 of 2002 restrainingthe respondents 2 and 3 from giving "no objection certificate" for running theKalyana Mandapam and also obtained an order for appointment of an Advoc atecommissioner in I.A.No.81 of 2002 to inspect the Kalyana Mandapam and file areport. Since the petitioner is aggrieved by the orders so passed and alsoaggrieved of filing of the civil suit before the Additional District Court,Karaikkal, filed the present civil revision petition.

5. Mr.R.Thiagarajan, learned Senior Counsel appearing for thepetitioner has contended that the suit as filed before the Civil Court is notmaintainable in law in view of the bar of Civil Court's jurisdiction underSection 75 of the Act, 1969. The Civil Court has no jurisdiction to entertainthe suit. He further contended that the interim orders passed in I.A.Nos.80and 81 of 2002 viz., appointment of Commissioner and interim order ofinjunction restraining the respondents 2 and 3 from giving "no objectioncertificate" to the petitioner for running the Kalyana Mandapam would amountto injuncting the statutory authorities from performing their statutoryfunction. When the authorities under the Act sanctioned the planning permitin accordance with the provisions of the Act, 1969 and the construction hasbeen carried out by the petitioner by scrupulously following the sanctionedplan, an advocate commissioner, who is not well informed about thetechnicalities cannot by his inspection alone find out whether there isviolation of the terms of the sanctioned plan without being equipped with thebasic materials for that purpose. He contended that the averments in theaffidavit filed in support of the writ petition filed before this Court hasbeen transformed into plaint and the present civil suit has been filed, whichis nothing but gross abuse of process of law, in the sense, having approachedthis Court under Article 226 of the Constitution of India rightly, havingobtained an order in the writ petition directing the statutory authorities toinspect the construction put up by the petitioner and take appropriate actionunder the provisions of the Act, 1969, the first respondent abused the processof law by filing civil suit with the same allegations. If there is anyviolation of the sanctioned plan, the respondents 2 and 3, the statutoryauthorities are empowered to take action against the petitioner. Further, byfiling writ petition, the first respondent caused to be issued a command fromthis Court by way of mandamus. The authorities, respondents No.2 and 3 arebound to take action against the petitioner if any violation is found in theconstruction. The authorities so empowered by the statute and further issuedwith the command of this Court in the writ petition having found that there isno violation in putting up of the construction, did not take any action. Evenassuming that the respondents 2 and 3 failed to take any action on havingfound that there are violations in spite of their statutory duty and in spiteof the direction of this Court, it would be proper for the first respondent toapproach this Court for ventilating his grievance. Without doing so, with a mala fide intention and abuse of process of law, approached the Civil Courtwhich has no jurisdiction to entertain a suit, having regard to Section 75 ofthe Act, 1969 and obtained an interim order, which order has also been passedin total violation of the mandatory provisions of Order 39 Rules 2 and 3 ofthe Civil Procedure Code. He further contended that the very institution ofthe suit is a clear abuse of process of law and has been filed in utterviolation of Section 75 of the Act, 1969. The Additional District court hasalso erred miserably in entertaining the suit and granted exparte interiminjunction in total violation of the provisions of the Act, 1969 and totalviolation of the mandatory provisions of Order 39 Rules 1 and 2 of the CivilProcedure Code.

6. On the other hand, Mr.Sethuratnam, learned Senior Counsel

6. On the other hand, Mr.Sethuratnam, learned Senior Counsel appearing for the first respondent has contended that the first respondent wasforced to file the suit because of the inaction on the part of the respondents2 and 3. Section 75 of the Act, 1969 is not applicable. Even assuming forthe sake of argument that the said provision is applicable, the question ofmaintainability has to be decided by the trial Court. The trial Court'sjurisdiction cannot be assumed to be ousted. The trial Court has everyjurisdiction to decide even the question of maintainability. However, inrespect of the granting of the interim order, he has not made out any argumentas to whether the same is in accordance with the Order 39 of the CivilProcedure Code.

7. Mr.T.Murugesan, learned Government Pleader appearing for the second and third respondents on instructions submitted that there isabsolutely no violation whatsoever in putting up of the Kalyana Mandapam bythe petitioner. Immediately after receipt of the telegram by the firstrespondent and even after the disposal of the writ petition by this Court, theauthorities, respondents No.2 and 3 have inspected the premises and found thatthere is no violation and hence the contention of the first respondent thatthe respondent authorities have not taken action as contemplated under the Actfor violation of building construction by the petitioner is totallymisconceived.

8. Mr.R.Thiagarajan, learned Senior Counsel in his reply has submitted that the petitioner has constructed the Kalyana Mandapam inaccordance with the sanctioned plan. Even assuming that there are certainviolations for which the authorities, respondents 2 and 3 are empowered totake action by way of imposing fine and it is for the authorities under theAct to take action. For that purpose, the first respondent cannot file a suitand totally injunct the petitioner from enjoying the property, which he hasput up with heavy investment.

9. I heard the arguments of the learned counsel on either side and perused the material on record.

10. It is true that the Pondicherry Town and Country Planning Act isa Code by itself. Section 75 of the Act, 1969 provides that " Save asotherwise expressly provided under the Act, every order passed or directionissued by the Government or Board or notice issued by planning authoritiesunder this Act shall be final and shall not be questioned in any suit or otherlegal proceeding. This Court in CHENNAI METROPOLITAN DEVELOPMENT AUTHORITYVS. ABDUR REHMAN reported in 2002(2) CTC 230, while considering pari materiaprovision Section 101 of Tamil Nadu Town and Country Planning Act, 1971, whichprovides that " any decision or order of the Tribunal or the Government or theplanning authority or other authority or any other officer under this Act,shall subject to any appeal or revision for review provided under this Act befinal and shall not be liable to be questioned in any Court of law", has heldthat the Civil Court shall have jurisdiction to try all suits of civil natureexcept suits cognizance of which is either expressly or impliedly barred.

11. The exclusion of jurisdiction of the Civil Court in respect ofthe special provisions has been considered by the Supreme Court in severalcases. The Constitution Bench in the case of DHULABHAI VS. STATE OF MADHYAPRADESH reported in AIR 1969 SUPREME COURT 78 has laid down the followingprinciple regarding the exclusion of the jurisdiction of the Civil court:1. Where the statute gives a finality to the orders of the specialtribunals the civil courts' jurisdiction must be held to be excluded if thereis adequate remedy to do what the civil court would normally do in a suit.Such provision, however does not exclude those cases where the provisions ofthe particular Act have not been complied with or the statutory tribunal hasnot acted in conformity with the fundamental principles of judicial procedure.2. Where there is an express bar of the jurisdiction of the court, anexamination of the scheme of the particular Act to find the adequacy or thesufficiency of the remedies provided may be relevant but is not decisive tosustain the jurisdiction of the civil court. Where there is no expressexclusion the examination of the remedies and the scheme of the particular Actto find out the intendment becomes necessary and the result of the inquiry maybe decisive. In the latter case it is necessary to see if the statute createsa special right or a liability and provides for the determination of the rightor liability and further lays down that all questions about the said right andliability shall be determined by the tribunals so constituted, and whetherremedies normally associated with actions in civil courts are prescribed bythe said statute or not.(3) Challenge to the provisions of the particular Act as ultra virescannot be brought before Tribunals constituted under that Act. Even the HighCourt cannot go into that question on a revision or reference from thedecision of the Tribunals.(4) When a provision is already declared unconstitutional or theconstitutionality of any provision is to be challenged, a suit is open. Awrit of certiorari may include a direction for refund if the claim is clearlywithin the time prescribed by the Limitation Act but it is not a compulsoryremedy to replace a suit.

(5) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected, a suit lies.

(6) Questions of the correctness of the assessment apart from itsconstitutionality are for the decision of the authorities and a civil suitdoes not lie if the orders of the authorities are declared to be final orthere is an express prohibition in the particular Act. In either case thescheme of the particular Act must be examined because it is a relevantenquiry.

(7) An exclusion of jurisdiction of the Civil Court is not readily tobe inferred unless the conditions above set down apply."

12. The scheme of the Act provided for constitution of the planningboard and notifying planning area, constitution and appointment of planningauthorities, the terms of office and meetings of the planning authorities.The Act provided for procedure for approval and preparation of developmentplan and control of the development and use of the land. The Act alsoprovided for provision for revocation of the permission to develop the landand imposition of penalty for the development of the land, otherwise than inconformity with the Act. It further provided power to the authorities requireremoval of unauthorised development. Hence, the entire scheme of the Act isfor the purpose of development of the area and the granting of permission forthe purpose of developing the land i.e., granting of planning permission forputting up construction and taking action against violation or irregularitiesand the Act also provides for appeal provision to appellate authority by theaggrieved person. Hence, so far as the application for planning permission,refusal and any order passed thereon can be adjudicated under the provisionsof the Act. However, a third party, who is being aggrieved by the actiontaken by the authorities under the Act cannot have recourse under t he Act asper the Scheme of the Act and as such, it cannot be said that he cannot moveCivil Court for ventilating his grievance against the statutory authorities.

13. It is very well settled that the normal rule of law is that civilCourts have jurisdiction to try all suits of civil nature except those ofwhich cognizance by them is either expressly or impliedly excluded as providedunder Section 9 of the Code of Civil Procedure but such exclusion is notreadily inferred and the presumption to be drawn must be in favour of theexistence rather than exclusion of jurisdiction of the civil Courts to trycivil suit. The test adopted in examining such a question is (i) whether thelegislative intent to exclude arises explicitly or by necessary implication,and (ii) whether the statute in question provides for adequate andsatisfactory alternative remedy to a party aggrieved by an order made underit. Where a statute gives finality to the orders of the special tribunalsjurisdiction of the civil Courts must be held to be excluded if there isadequate remedy to do what the civil Courts would normally do in a suit. Suchprovision, however, does not exclude those cases where the provisions of theparticular Act have not been complied with or the statutory Tribunal has notacted in conformity with the fundamental principles of judicial procedure.

14. But so far as the present case is concerned, as stated in thesummation of facts, the first respondent has moved this Court by invoking theextraordinary jurisdiction of this Court under Article 226 of the Constitutionof India under same set of allegations that the petitioner herein has violatedthe conditions under which the petitioner was granted building permission andthe authorities under the Act has not taken any action against the petitionerby exercising their power under the Act and even the representation made bythe first respondent herein has not been considered and disposed of. On theabove allegations, this Court has directed the respondents 2 and 3 to considerthe representation made by the first respondent and take action thereon. Ifat all the first respondent is aggrieved that the action taken by thestatutory authorities, the respondents 2 and 3 is not in accordance with theprovisions of the Act or aggrieved that the second and third respondents havein total disregard to the order passed by this Court in the writ petition havenot taken any action for the alleged violation or aggrieved against theinaction on the part of the second and third respondents, proper course to thepetitioner is to move this Court to have redressal in the procedure known tolaw. The tactics adopted by the petitioner to file a c ivil suit on the verysame set of grounds on the premise that in spite of the order passed by thisCourt in the writ proceedings, the authorities have not taken any actioncannot be considered as a proper course and nothing but abuse of process oflaw and in a way disgrace or lower the authority of this Court. It is alsomanifestly clear that the intention of the first respondent is only to put thepetitioner in a stalemate condition by obtaining an order from any Court oflaw and the so called violation pointed out in the affidavit filed in supportof the writ petition or in the plaint before the Additional District Judge,Karaikkal is not a bona fide reason. The process of Court must be used bonafide and properly and must not be misused or abused. It is the duty of theCourt to prevent improper use of its machinery. The Court has to consider thejurisdiction of the Court as a means of oppression and process of thelitigation is free from vexatiousness. This Court has held in the case ofUNION OF INDIA VS. R.KARTHIKAI RAJAN AND OTHERS reported in 1999-3- LAWWEEKLY 471 that when the facts and the basis of the claim are identical, thenthe filing of the suit is clear case of abuse of process of Court. Hence, theconduct of the first respondent having approached this Court by way of writpetition and obtained an order against the respondents 2 and 3 and thereuponfor the very same grounds and the very same allegations, filing a suit beforethe Civil Court is nothing but the abuse of process of law. It is not thecase of the petitioner that he is not left with any other remedy. If at allhis grievance is genuine, he would have very well taken the matter to thisCourt as to the inaction on the part of the respondents No.2 and 3. TheAdditional District Judge also without considering the averments contained inthe plaint that the first respondent has already invoked the jurisdiction ofthis Court under Article 226 of the Constitution of India and obtained anorder against respondents No.2 and 3 has mechanically granted the order ofinterim injunction restraining the respondents 2 and 3 from granting "noobjection certificate". The said order has also been granted in total

violation of the mandatory provisions of Order 39 Rules 1 and 2 of C.P.C. Thetrial Court did not even think of granting of injunction order as granted byit would tantamount to injuncting the statutory authorities from doing theirstatutory function. Useful reference can be had to the judgment of this Courtin the case of RT.REV DR. V.DEVASAHAYAM, BISHOP IN MADRAS CSI AND ANOTHER VS.D.SAHAYADOSS reported in 2002 (1) LAW WEEKLY 672. Hence, I am of the viewthat the interim order passed is in violation of the mandatory provisions,without recording any reasons for granting such an interim order and theaction of the petitioner in moving the Civil Court is a blatant abuse ofprocess of Court resulting in miscarriage of justice and it is imminentlysatisfy the parameters for invoking the jurisdiction under Article 227 of theConstitution of India.

15. In the result, the Civil revision petition is allowed quashingthe interim orders granted by the Additional District Judge, Karaikkal inI.A.Nos.80 and 81 of 2002 in O.S.No.26 of 2002. Further as I am satisfiedthat the suit in O.S.No.26 of 2002 is an abuse of process of Court, I orderthat the said suit shall be struck off and expelled from the file ofAdditional District Judge, Karaikkal. Consequently, the connected C.M.P. isclosed. The petitioner is entitled to his costs.

Index:YesWebsite: YesuskTo1. The Additional District Judge,Karaikkal,2. The Record Keeper,V.R.Section,High Court,Madras.