http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 16

PETITIONER:

SHIV KUMAR CHADHA ETC. ETC.

Vs.

RESPONDENT:

MUNICIPAL CORPORATION OF DELHI AND ORS.

DATE OF JUDGMENT04/05/1993

BENCH:

SINGH N.P. (J)

BENCH:

SINGH N.P. (J)

VENKATACHALLIAH, M.N.(CJ)

SAWANT, P.B.

CITATION:

1993 SCR (3) 522 1993 SCC (3) 161

JT 1993 (3) 238 1993 SCALE (2)772

ACT:

%

Code of Civil Procedure, 1908:

Section 9-Civil Court's jurisdiction- Ouster when.

Delhi Municipal Corporation Act, 195:

Sections 343,347E-Suits in connection with orders passed or

proceedings initiated for demolition of constructions-

Maintainability of-Directions of Supreme Court.

Code of Civil Procedure, 1908:

Order 39, Rule 3, proviso Temporary injunction-Granting of-

When-Court's duty-Reasons for grant of injunction-Mandatory

to record-Supreme Court's directions.

HEADNOTE:

In respect of some private dispute between two neighbors a

writ application was filed in the High Court. On the

material produced in the case it was treated as a Public

Interest Litigation and the High Court was to rind out a

solution in respect (if unauthorised constructions alleged

to have been made by different owners/occupiers/builders

without sanctioned plans or by making deviations from the

sanctioned plans. The High Court wanted to ensure that such

unauthorised constructions were not perpetuated on the basis

of interim orders of injunction passed by the Civil Courts-.

The High Court disposed of the petition holding that the

owners/ occupiers/builders were to be given liberty to file

fresh building plans and that the Municipal Corporation was

to examine such building plans in accordance with law and

that the Corporation was to seal and to demolish those

constructions which were beyond the compoundable limits.

The High Court also directed that no civil suit would 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. The High Court directed further that person

aggrieved by an order of sealing or demolition had the right

to file an appeal to the Appellate Tribunal under the Delhi

Municipal Corporation Act, 1957.

522

523

Against the High Court's order the present appeals were

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 16

filed by special leave.

On the question, "whether the jurisdiction of the Court has

been statutorily barred in respect of suits in connection

with the orders passed or proceedings initiated for

demolition of constructions, which have been made without

sanction or by deviating from the sanctioned plans",

allowing the appeals, this Court,

HELD:1.1. With the increase in the number of taxing

statutes, welfare legislations and enactments to protect a

class of citizens,a trend can be noticed that most of such

legislations confer decision making powers on various

authorities and they seek to limit or exclude Court's power

to review those decisions. The result is that the power of

the Court under section 9 of the Code is being denuded and

curtailed by such special enactments, in respect of

liabilities created or rights conferred. The ouster of the

jurisdiction of the Court is 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.

(535-D-F)

1.2.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 agitate his grievance. (535-G)

1.3.In spite of the bar placed on the power of the Court,

orders passed under such statutes can be examined on

"jurisdictional question". A suit will be-maintainable.

(536-F)

Katikara Chiniamani Dora v. Guatreddi Annamanaidu, AIR 1974

SC 1069; Desika Charyutttu v. State of Andhra Pradesh, AIR

1964 SC 807; PYX Granite Co. Ltd. v. Ministry of Housing and

Local and Government, 1960 A.C. 260 and Anisminic Ltd. v.

Foreign Compensation Commission, 1969 2 AC 147, relied on.

Wolverhampton New Waterworks Co. v. Hawkesford, [1859] 6

524

C.B. (N.S.) 336; Neville v. London "Express" Newspaper

Limited. [1919] Appeal Cases 368; Baraclough v. Brown,

[1897] Appeal Cases 615; Secretary of State v. Mask & Co.,

AIR 1940 P.C. 105; Firm Seth Radha Kishan v. Administrator.

Municipal committee, Ludhiana, AIR 1963 SC 1547; Finn of

Illuri Subbayya Chetty and Sons v. State of Andhra Pradesh,

AIR 1964 SC 322; M/s. Kamala Mills Ltd. v. State of Bombay,

AIR 1965 SC 1942; Ram Swarup and Ors. v. Shikar Chand, AIR

1966 SC 893; State of Kerala v. M/s. N. Ramaswami Iyer and

sons, AIR 1966 SC 1738; Rain Gopal Reddy v. Additional

Custodian Evacuee Property, Hyderabad, [1966]3 SCR 214;

Custodian of Evacuee Property, Punjab & Ors. v. Jafran

Begum, [1967]3 SCR 736; Dhulabhai v. Stale of Madhya

Pradesh, AIR 1969 SC 78; The Premier Automobiles Ltd. v.

Kamlaker Shantarm Wadke, AIR 1975 SC 2238=[1976] 1 SCC 496;

Bata Shoe Co. Ltd. v. Jabalpur Corporation, AIR 1977 SC 955=

[1977] 2 SCC 472; Munshi Ram v. Municipal Commitee,

Chheharta, AIR 1979 SC 1250= [1979]3 SCC 83; Rain Singh v.

Grain Panchayat, Mehal Kalan, AIR 1986 SC 2197=[1986]4 SCC

364; Raja Ram Kumar Bhargava v. Union of India, AIR 1988 SC

752= [1988] SCC 681 and Sushil Kumar Mehta v. GobindRam

Bohra, [1990] 1 SCC 193, referred to.

1.4. The Delhi Municipal Corporation Act purports to

regulate the common law right of the citizens to erector

construct buildings of their choice. This right existed

since time immemorial. But with the urbanisation and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 16

development of the concept of planned city, regulations,

restrictions, on such common law right have been imposed.

But as the provisions of the Act intend to regulate and

restrict a common law right, and not any right or liability

created under the Act itself, it cannot be said that the

right and the remedy have been given unoflatu e.g. "in the

same breath". (537-E)

1.5. In spite of the bar prescribed under sub-sections (4)

and (5) of section 343 and section 347E of the Corporation

Act over the power of the Courts, under certain special

circumstances,the Court can examine, whether the dispute

falls within the ambit of the Act. But once the Court is

satisfied that either the provisions of the Act are not

applicable to the building in question or the basic

procedural requirements which are vital in nature, have not

been followed, it shall have jurisdiction, to enquire and

investigate while protecting the common law rights of the

citizens. (537-C)

1.6. The regulations and bye-laws in respect of buildings,

are meant to

525

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. (538-C)

1.7. The Court should not ordinarily entertain a suit in

connection with the proceedings initiated for demolition by

the Commissioner, in terms of section 343 (1) (of the

Corporation Act. The Court should direct the persons

aggrieved to pursue the remedy before the Appellate Tribunal

and then before the Administrator in accordance with the

provisions of the said Act. (538-D)

1.8. The Court should entertain a suit questioning the

validity of an order passed under section 343 of the Act,

only if the Court is of prima facie opinion that the order

is nullity in the eyes of law because of any "jurisdictional

error" in exercise of the power by the Commissioner or that

the order is outside the Act. (538-E)

2.1. A party is not entitled to an order of injunction as a

matter of right or course. Grant of injunction is within

the discretion of the Court and such discretion is to he

exercised in favour of the plaintiff only if it is proved to

the satisfaction of the Court that unless the defendant is

restrained by an order of injunction, an irreparable loss or

damage will be caused to the plaintiff during the pendency

of the suit. (538-H)

2.2.The purpose of temporary injunction is, to maintain the

status quo. The Court grants such relief according to the

legal principles- ex debite justitiae. Before any such

order is passed the Court must be satisfied that a strong

prima facie case has been made out by the plaintiff

including on the question of maintainability of the suit and

the balance of convenience is in his favour and refusal of

injunction would cause irreparable injury to him. (539B)

2.3. 'The Court should be always willing to extend 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. (539-

1))

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 16

526

2.4. Power to grant injunction is an extra-ordinary power

vested in the Court to he 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 he affected by the order so passed. (539-E)

2.5. In spite of the statutory requirement, in order 39,

Rule 3 the Courts have been passing orders of injunction

before issuance of notices or hearing the parties against

whom such orders are to operate without recording the

reasons for passing such orders. It is said that if the

reasons for grant of injunction are mentioned, a grievance

can be made by the other side that Court has prejudged the

issues involved in the suit. This is a misconception about

the nature and the scope of interim orders. Any opinion

expressed in connection with an interlocutory application

has no bearing and shall not affect any party,, at the stage

of the final adjudication. Apart from that now in view of

the proviso to Rule 3 of Order 39, there is no scope for any

argument. When the statute itself requires reasons to he

recorded, the Court cannot ignore that requirement by saying

that if reasons are recorded, it may amount to expressing an

opinion in favour of the plaintiff before hearing the

defendant (539-H, 540-H)

2.6. Proviso to Rule 3 of Order39 of the Code, attracts the

principle, that if a statute requires a thing to he done in

a particular manner, it should be done in that manner or not

all.

Taylor v. Taylor, (1875)1 Ch. D. 426; Nazir Ahmed v.

Emperor, AIR 1936 PC 253 and Ramachandra Keshar Adke v.

Gavind Joti Chavare, AIR 1975 SC

915, relied on.

2.7. Whenever a Court considers it necessary in the

facts and circumstances of a particular case to pass an

order of injunction without notice to other side, it must

record the reasons for doing so and should take into

consideration, while passing an order of injunction, all

relevant factors, including as to how the object of granting

injunction itself shall be defeated if an exparty order is

not passed. But any such exparty order should be in force

up to a particular date before which the plaintiff should be

required to serve the notice on the defendant concerned.

(541-C)

Supreme Court Practice 1993, Vol. 1, at page 514, referred

to.

527

2.8.The Court should first direct the plaintiff to serve a

copy of the application with a copy of the plaint along with

relevant documents on the counsel for the Corporation or any

competent authority of the Corporation and the order should

be passed only after hearing the parties. (541-F)

2.9.If the circumstances of a case so warrant and where the

Court is of the opinion, that the object of granting the

injunction would be defeated by delay, the Court should

record reasons for its opinion as required by proviso to

Rule 3 of Order 39 of the Code, before passing an order for

injunction. The Court must direct that such order shall

operate only for a period of two weeks, during which notice

along with copy of the application, plaint and relevant

documents should be served on the competent authority or the

counsel for the Corporation. Affidavit of service of notice

should be filed as provided by proviso to Rule 3 of Order 39

aforesaid. If the Corporation has entered appearance, any

such ex parte order of injunction should be extended only

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 16

after hearing the counsel for the Corporation. (541-H, 542-

A)

2.10.While passing an exparte order of injunction the Court

shall direct the plaintiff to give an undertaking that he

will not make any further construction upon the premises

till the application for injunction is finally heard and

disposed of. (512-C)

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2531-33 of

1993.

From the Judgment and Order dated 19.2.1991 of the Delhi

High Court in C.W.P. No. 3499 of 1989.

R.M. Bagai, V. Shekhar, Ms. Bina Gupta and Ms. Monika Mohil

for the Appellants.

Kapil Sibal, Ranjit Kumar and R.P. Sharma for the

Respondents.

The Judgment of the Court was delivered by

N.P. SINGH. J. Special leave granted.

These appeals have been filed against an order passed by the

Delhi High Court directing the Municipal Corporation of

Delhi (hereinafter referred to as "the Corporation") to

issue appropriate notices to the owners/occupiers/builders

of the building where illegal constructions have been made.

A liberty has been given to

528

the owners/occupiers/builders to file fresh buildings plans

with the Corporation in conformity with the existing bye-

laws. The building plans as filed are to be examined in

accordance with the law. The Corporation has been directed

that if it finds that the constructions are beyond the

compoundable limits, 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 Interest Litigation and by the impugned

order the High Court has purported to find out a solution in

respect of unauthorised constructions alleged to have been

made by different owners/ occupiers/builders in the

different parts of the city without sanctioned plans or by

making deviations from the plans which had been sanctioned.

The Court has also purported to ensure that such

unauthorised constructions are not perpetuated on the basis

of interim orders of injunction passed by Civil Courts.

It cannot be disputed that by the impugned order the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 16

jurisdiction of any Court in Delhi to entertain any suit in

connection with demolition of any part of any building

which, according to the Corporation, is unauthorised and

illegal has been ousted.

The Delhi Municipal Corporation Act, 1957 (hereinafter

referred to as "the Corporation Act") has made provisions

for the constitution of the Corporation and has prescribed

the procedure for election of the councillors, levy of

taxes, sanitation and public health. Chapter XVI contains

provisions regarding erection of buildings within the

Corporation area. Section 331 defines the expression "to

erect a building". Section 332 says that" no person shall

erect or commence to erect

529

any building or execute any of the works specified in

section 334 except with the previous sanction of the

Commissioner". The relevant part of section 343 is as

follows:-

"343. Order of demolition and stoppage of buildings and

works in certain cases and appeal

....................................

(2)Any person aggrieved by an order of the Commissioner made

under sub-section (1) may prefer an appeal against the order

to the Appellate Tribunal within the period specified in the

order for the demolition of the erection or work to which it

relates.

(3)Where an appeal is preferred under sub-section(2)against

an order of demolition, the Appellate Tribunal may, subject

of the provisions of sub-section (3) of section 347 C, stay

the enforcement of that order on such terms, if any, and for

such period, as it may think fit:

Provided that where the erection of any building or

execution of any work has not been completed at the time of

the making of the order of demolition, no order staying the

enforcement of the order of demolition shall be made by the

Appellate Tribunal unless security, sufficient in the

opinion of the said Tribunal has been given by the appellant

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

530

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 order directing the sealing of such erection or work

or of the premises in which such erection or work is being

carried or has been completed. A further appeal has been.

provided under section 347D to the Administrator against the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 16

order of the Appellate Tribunal. Section 347E says:-

"347E. Bar of jurisdiction of courts.

(1) After the commencement of section 7 of the Delhi

Municipal Corporation (Amendment) Act, 1984, no court shall

entertain any suit, application or other proceedings in

respect of any order or notice appealable under section 343

or section 347B and no such order or notice shall be called

in question otherwise then by preferring an appeal under

these sections.

(2)Notwithstanding anything contained in sub-section (1),

every suit, application or other proceeding pending in any

court immediately before the commencement of section (7) of

the Delhi Municipal Corporation (Amendment) Act, 1984, in

respect of any order or notice appealable under section 343

or section 347B, shall continue to be dealt with and

disposed of by that court as if the said section had not

been brought into force."

Because of sub-sections (4) and (5) of section 343 and

section 347E aforesaid the stand of the Corporation is that

the Courts have been debarred from entertaining suits,

applications or proceedings for injunction, against any

order or notice for demolition and the order of demolition

passed by the Commissioner, subject to appeals before the

Appellate Tribunal and Administrator shall be deemed to be

final and conclusive.

In spite of several pronouncements of this Court during the

last four decades, the question as to whether the

jurisdiction of the Court has been statutorily barred in

respect of suits in connection with the orders passed or

proceedings initiated for demolition of constructions, which

have been made without sanction or by deviating from the

sanctioned plans, has to be answered.

531

Section 9 of the Code of Civil Procedure, (hereinafter

referred to as "the Code") says that Courts shall have

jurisdiction to try all suits of civil nature "except suits

of which their cognizance is either express Iyor impliedly

barred".According to the Corporation once the jurisdiction

of the Court to try a suit in which the validity of any

order passed under the provisions of the Corporation Act or

the notice issued thereunder has been specifically barred

and an 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. Provisions were also made for

appeals and revision to higher authorities.

Then a question arose as to where a particular Act had

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 16

created a right or liability and had also provided a forum

for enforcement of such right or for protection from

enforcement of a liability without any authority in law,

whether a citizen could approach a Court. It may be pointed

out that many statutes have created certain rights or

liabilities and have also provided the remedial measures in

respect thereof. But such statutes have not touched the

common law rights of the citizen. But there are some

statutes, which in public interest affect even the common

law rights or liabilities of toe citizen, which were in the

nature of existing rights. The distinction between the two

types of rights or liabilities is subtle in nature but at

the same time very vital.

In one of the earliest case of Volverhampton New Waterworks

Co. v.

Hawkesford, (1859) 6 C.B. (N.S.) 336, Willes, J, said:-

"There are three classes of cases in which a liability may

be

532

established founded upon a statute. One is, where there was

a liability existing at common law, and that liability is

affirmed by a statute which gives a special and peculiar

form of remedy different from the remedy which existed at

common law: there, unless the statute contains words which

expressly or by necessary implication exclude the common-law

remedy, and the party suing has his election to pursue

either that or the statutory remedy. The second class of

cases is, where the statute gives the right to sue merely,

but provides no particular form of remedy: there, the party

can only proceed by action at common law. But there is a

third class, viz. where a liability not existing at common

law is created by a statute which at the same time gives a

special and particular remedy for enforcing it. The present

case falls within this latter class, if any liability at all

exists. The remedy provided by the statute must be

followed, and it is not competent to the party to pursue the

course applicable to cases of the second class."

The same view was reiterated by the House of Lords in

Neville v. London "Express" Newspaper Limited, (1919) Appeal

Cases 368. In Barraclough v. Brown, (1897) AC 615, it was

said:-

"I do not think the appellant can claim to recover by virtue

of the statute, and at the same time insist upon doing so by

means other than those 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."

533

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 16

48, affect the validity of an Act of the

Indian Legislature which creates an obligation

and provides an exclusive Code for its

determination such an obligation is not

covered by sub s. (2) of Section 32."

In connection with the imposition of Terminal Tax on salt

under the Punjab Municipal Act. In Firm Seth Radha Kishan

v. Administrator, Municipal committee. Ludhiana, AIR 1963

SC 1547, it was said that where a statute created a

liability and provided a remedy, party aggrieved should

pursue the remedy provided under the Act. A Constitution

Bench of this Court in Firm of Illuri Subbaya Chetty and

Sons v. State of Andhra Pradesh, AIR 1964 SC 322, considered

the provisions of Madras General Sales Tax Act and the

exclusion of the jurisdiction of the Civil Court. It was

pointed out that there was an express and unambiguous

prohibition and no suit could be entertained by a Civil

Court. In connection with the Bombay Sales Tax Act the same

view was reiterated by a Constitution Bench of this Court in

M/s. Kamala Mills Ltd. v. State of Bombay AIR 1965 SC 1942.

In Ram Swarup and ors. v. Shikar chand, AIR 1966 SC 893, a

Constitution Bench examined the bar on the jurisdiction of

the Civil Court in connection with the House and TenantsU.P.

(Temporary) control of Rent and Eviction Act, and came to

the conclusion that a special statute had excluded the

jurisdiction in clear and unambiguous words and it had

provided an adequate and satisfactory alternative remedy to

a party. That may be aggrieved by the relevant order and as

such the jurisdiction of the Civil Court had been ousted.

This very question was examined in State of Kerala v. MI s

N. Ramaswami Iyer and sons, AIR 1966 SC 1738, in connection

with the Travancore-Cochin General Sales Tax Act and it was

held that the jurisdiction of the Civil Court would be

deemed to have been excluded because the legislature had set

up a special tribunal to determine the question relating to

rights or liabilities. which had been created by the

statute. Again in connection with the provisions of the

Evacuee Property Act, in Ram Gopal Redd), v. Additional

Custodian Evacuee Property Hyderabad, [1966] 3 SCR 214 and

Custodian of Evacuee Property Punjab & Ors. v. Jafran Begum,

[1967] 3 SCR 736, it was held that complete machinery for

adjudication of all claims had been provided under the Act

and there being a bar on the jurisdiction of any court, the

Act over-rides other laws, including Section 9 of the Code

of Civil Procedure and there was no scope for the Civil

Court to entertain any suit.

The Constitution Bench in Dhuilabhai v. State of Madya

Pradesh, AIR 1969

534

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 16

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 to try and

adjudicate upon an industrial dispute, if it concerned

enforcement of certain right or liability created only under

the Act. " The jurisdiction of the Civil Court in

connection with the levy of octroi duty under the C.P. and

Barar Municipalities Act, 1922 was examined by this Court in

Bata Shoe Co. Ltd. v. Jabalpur Corporation, AIR 1977 SC 955

1 9771 2 SCC 472, and held it was barred.

Whether the Court can hear and determine suits relating to

levy of professional tax under the Punjab Municipal Act,

1971 was examined in the case of Munshi Ram v. Municipal

Committee. Chheharta, AIR 1979 SC 1250 = [1979] 3 SCC 83,

and it was held:-

Where a Revenue Statute provides for a person aggrieved by

an assessment thereunder, a particular remedy to be sought

in a particular forum, in a particular way, it must be

sought in that forum and in that manner, and all other

forums and modes of seeking it are excludes."

It was pointed out in Ram Singh v. Gram Panchayat,

MehalKalan, AIR 1986 SC 2197 = [1986] 4 SCC 364, that when

by a special statute rights have been created and

jurisdiction of the Court has been barred then the

jurisdiction of the

535

Court to try such suits has been taken away. In the case of

Raja Ram Kumar Bhargava v. Union of India, AIR 1988 SC 752 =

[1988] 1 SCC 68 1, it was said:-

"... Wherever a right, not preexisting in common-law is

created by a statute and that statute itself provided a

machinery for the enforcement of the right, both the right

and the remedy having been created uno flatu and a finality

is intended to the result of the statutory proceedings,

then, even in the absence of an exclusionary provision the

civil courts'jurisdiction is impliedly barred."

The jurisdiction of Civil Court to entertain a suit for

ejectment was examined in Sushil Kumar Mehta v. GobindRam

Bohra, [1990] 1 SCC 193, and it was held that the Rent

Control Act was a complete Code and the jurisdiction to try

a case for ejectment was exclusive under that Act.

With the increase in the number of taxing statutes, welfare

legislations and enactments to protect a class of citizens,

a trend can be noticed that most of such legislations confer

decision making powers on various authorities and they seeks

to limit or exclude Court's power to review those decisions.

The result is that the power of the Court under section 9 of

the Code is being denuded and curtailed 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 16

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 agitate his grievance. In the case of

katikara Chintamani Dora v. Guatreddi Annamanaidu, AIR 1974

SC 1069, this Court after referring to the case of Desika

Charyulu v. State of Andhra Pradesh, AIR 1964 SC 807,

observed:-

536

"It was pertinently added that this exclusion of the

jurisdiction of the Civil Court would be subject to two

limitations. First, 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 principles of judicial

procedure. The second is as regards the exact extent to

which the powers of statutory tribunals are exclusive. The

question as to whether any particular case falls under the

first or the second of the above categories would depend on

the purpose of the statute and its general scheme, taken in

conjunction with the scope of the enquiry entrusted to the

tribunal set up and other relevant factors."

It was held that a suit for declaration that "the decision

of the Settlement Officer/Tribunal holding certain

properties to be an 'estate' under section 3(2) (d) of the

1908 Act was void, was maintainable on the ground that the

suit property was not an'inam village'. In Pyx Granite Co.

Ltd. v. Ministry of Housing and Local Government, [1960]

A.C. 260, the appellants sought a declaration of their

common law right to quarry their land without the need to

obtain planning permission under the Town and Country

Planning Act, 1947. In that connection it was said:-

"The appellant company are given no new right

of quarrying by the Act of 1947. Their right

is a common law right and the only question is

how far it has been taken away. They do not

uno flatu claim under the Act and seek a

remedy elsewhere. On the contrary, they deny

that they come within its purview and seek a

declaration to that effect."

In spite of the bar placed on the power of the Court. orders

passed under such statutes can be examined on

"jurisdictional question". To illustrate-, a special

machinery has been provided for removal of the encroachments

from public land' under different enactments in different

states and the jurisdiction of the Court has been barred in

respect of the orders passed by such special tribunals or

authorities constituted under such Acts. Still a suit will

be maintainable before a Court on a plea that the 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

537

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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 16

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 or contrary to the sanction or in

contravention of any condition subject to which such

sanction had been accorded, the Commissioner can make an

order directing that such erection or work shall be

demolished. Any person aggrieved by an order has been given

a right to prefer an appeal before the Appellate Tribunai

and thereafter to the Administrator. Subject to any order

passed by the Appellate Tribunal and the Administrator, the

order for demolition shall be deemed to be final and

conclusive.

According to us, it cannot be urged that the provisions of

the Act have created any right or liability and for

enforcement thereof remedy has been provided under the Act

itself. The Act purports to regulate the common law right

of the citizens to erect or construct buildings of their

choice. This right existed since time immorial. But with

the urbanisation and development of the concept of planned

city, regulations, restrictions, on such common law right

have been imposed. But as the provisions of the Act intend

to regulate and restrict a common law right, and not any

right liability created under the Act itself, it cannot be

said that the right and the remedy have become given uno

flatu e.g. "in the same breath". Most of the cases of this

Court referred to above related to statutes creating rights

or liabilities and providing remedies at the same time. As

such the principles enunciated therein, shall not be fully

applicable in the present case. In spite of the bar

prescribed under sub-sections (4) and (5) of section 343 and

section 347E of the Corporation Act over the power of the

Courts, under certain special circumstances, the Court can

examine, whether the dispute falls within the ambit of the

Act. But once the Court is satisfied that either the

provisions of the Act are not applicable to the building in

question or the basic procedural requirements which are

vital in nature, have not been followed, it shall have

jurisdiction, to enquire and investigate while protecting

the common law rights of the citizens. Can a Court hold a

suit to be not maintainable, although along with the plaint

materials are produced to show that the building in question

is not within the Corporation limits, or that the

constructions were made prior to coming into force of the

relevant provisions of

538

the Act? We are conscious of the fact that persons who make

unauthorised constructions by contravening and violating the

building bye-laws or regulations often run to Courts, with

pleas mentioned above, specially that no notice was issued

or served on them, before the Corporation has ordered the

demolition of the construction.

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-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 16

laws in respect of buildings, are meant to serve the public

interest. But at the same time it cannot be held that in

all circumstances, the authorities entrusted with the

demolition of unauthorised constructions, have exclusive

power, to the absolute exclusion of the power of the Court.

In some special cases where "jurisdictional error" on the

part of the Corporation is established, a suit shall be

maintainable. According to us,

(1)The Court should not ordinarily entertain a suit in

connection with the proceedings initiated for demolition, by

the Commissioner, in terms of section 343 (1) of the

Corporation Act. The Court should direct the persons

aggrieved to pursue the remedy before the Appellate Tribunal

and then before the Administrator in accordance with the

provisions of the said Act.

(2)The Court should entertain a suit questioning the

validity of an order passed under section 343 of the Act.

only if the Court is of Prima facie opinion that the order

is nullity in the eyes of law because of any "jurisdictional

error" in exercise of the power by the commissioner or that

the order is outside the Act.

TEMPORARY INJUNCTION

It need not be said that primary object of filing a suit

challenging the validity of the order of demolition is to

restrain such demolition with the intervention of the Court.

In such a suit the plaintiff is more interested in getting

an order of interim injunction. It has been pointed out

repeatedly that a party is not entitled to an order of

injunction as a matter of right or course., Grant of

injunction is within the discretion of the Court and such

discretion is to be exercised in favour of the plaintiff

only if it is proved to the satisfaction of the Court that

unless the defendant is restrained by an order of

injunction, an irreparable loss or damage will be caused

539

to the plaintiff during the pendency of the suit. The

purpose of temporary injunction is, thus, to maintain the

status quo. The Court grants such relief according to the

legal principles--ex debite justitiae. Before any such

order is passed the Court must be satisfied that a strong

primafacie case has been made out by the plaintiff including

on the question of maintainability of the suit and the

balance of convenience is in his favour and refusal of

injunction would cause irreparable injury to him.

Under the changed circumstance with so many cases pending in

Courts, once an interim order of injunction is passed, in

many cases, such interim orders continue for months; if not

for years. At final hearing while vacating such interim

orders of injunction in many cases, it has been discovered

that while protecting the plaintiffs from suffering the

alleged injury, more serious injury has been caused to the

defendants due to continuance of interim orders of

injunction without final hearing. It is a matter of common

knowledge that on many occasions even public interest also

suffers in view of such interim orders of injunction,

because persons in whose favour such orders 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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 16

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 said

rule saying that "where it is proposed to grant an

injunction without giving notice of the application to the

opposite party, the Court shall record the reasons for its

opinion that the object of granting the injunction would be

defeated by delay......

It has come to our notice that in spite of the aforesaid

statutory requirement, the Courts have been passing orders

of injunction before issuance of notices or hearing the

parties against whom such orders are to operate without

recording the reasons for passing such orders. It is said

that if the reasons for grant of injunction

540

are mentioned, a grievance can be made by the other side

that Court has prejudged the issues involved in the suit.

According to us, this is a misconception about the nature

and the scope of interim orders. It need not be pointed out

that any opinion expressed in connection with an

interlocutory application has no bearing and shall not

affect any party, at the stage of the final adjudication.

Apart from that now in view of the proviso to Rule 3

aforesaid, there is no scope for any argument. When the

statute itself requires reasons to be recorded, the Court

cannot ignore that requirement by saying that if reasons are

recorded, it may amount to expressing an opinion in favour

of the plaintiff before hearing the defendant.

The imperative nature of the proviso has to be judged in the

context of Rule 3 of Order 39 of the Code. Before the

Proviso aforesaid was introduced, Rule 3 said "the Court

shall in all cases, except where it appears that the object

of granting the injunction would be defeated by the delay,

before granting an injunction, direct notice of the

application for the same to be given to the opposite party".

The proviso was introduced to provide a condition, where

Court proposes to grant an injunction without giving notice

of the application to the opposite party, being of the

opinion that the object of granting injunction itself shall

be defeated by delay. The condition so introduced is that

the Court "shall record the reasons" why an ex parte order

of injunction was being passed in the facts and

circumstances of a particular case. In this background, the

requirement for recording the reasons for grant of ex parte

injunction, cannot be held to be a mere formality. This

requirement is consistent with the principle, that a party

to a suit, who is being restrained from exercising 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 16

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 that Court

must record reasons before passing such order. If it is

held that the compliance of the proviso aforesaid is

optional and not obligatory, then the introduction of the

proviso by the Parliament shall be a futile exercise and

that part of Rule 3 will be

541

a surplusage for all practical purpose. Proviso to Rule 3

of Order 39 of the Code, attracts the principle, that if a

statute requires a thing to be done in a particular manner,

it should be done in that manner or not all. This principle

was approved and accepted in well-known cases of Taylor v.

Taylor. (1875) 1 Ch. D. 426, Nazir Ahmed v. Emperor, AIR

1936 PC 253. This Court has also expressed the same view in

respect of procedural requirement of the Bombay Tenancy and

Agricultural Lands Act in the case of Ramachandra Keshav

Adke v. Govind Joti Chavare, AIR 1975 SC 915.

As such whenever a Court considers it necessary in the facts

and circumstances of a particular case to pass an order of

injunction without notice to other side. It must record the

reasons for doing so and should take into consideration,

while passing an order of injunction, all relevant factors,

including as to how the object of granting injunction itself

shall be defeated if an ex parte order is not passed. But

any such ex parte order should be in force upto a particular

date before which the plaintiff should be required to serve

the notice on the defendant concerned. In the Supreme Court

Practice 1993, Vol. 1, at page 514, reference has been made

to the views of the English Courts saying:-

"Exparte injunctions are for cases of real urgency where

there has been a true impossibility of giving notice of

motion....

An ex parte injunction should generally be until a certain

day, usually the next motion day. . . ."

Accordingly we direct that the application for interim

injunction should be considered and disposed of in the

following manner:-

(i)The Court should first direct the plaintiff to serve a

copy of the application with a copy of the plaint along with

relevant documents on the counsel for the Corporation or any

competent authority of the Corporation and the order should

be passed only after hearing the parties.

(ii)If the circumstances of a case so warrant and where the

Court is of the opinion, that the object of granting the

injunction would be defeated by delay, the Court should

record reasons for its opinion as required by proviso to

Rule 3 of order 39 of the Code, before passing an order for

injunction. The Court must direct that such order shall

operate only for a period of two weeks, during which notice

along

542

with copy of the application, plaint and relevant documents

should be served on the competent authority or the counsel

for the Corporation. Affidavit of service of notice should

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 16

be filed as provided by proviso to Rule 3 of order 39

aforesaid If the Corporation has entered appearance, any

such exparte order of injunction should be extended only

after hearing the counsel for the Corporation.

(iii)While passing an ex parte order of injunction the Court

shall direct the plaintiff to give an undertaking that he

will not make any further construction upon the premises

till the application for injunction is finally heard and

disposed of.

In the result, the appeals are allowed to the extent

indicated above. In the circumstances of these cases, there

shall be no order as to costs.

VPR. Appeals allowed.

787