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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

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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

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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))

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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

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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

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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

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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

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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

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             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

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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

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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.

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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-

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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.

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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

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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

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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