Jojy George Koduvath.

Introduction.

‘Ubi jus ibi remedium’ is a fundamental principle of law. This principle lays down that where there is a right, there is a remedy; that is, there is no wrong without a remedy. Section 9 CPC is casted in enforcement of this principle. The jurisdiction of the Civil Court under Section 9 is a plenary one. It directs civil courts to try all suits of civil nature, unless barred by statute, either expressly or by necessary implication.

Section 9 of CPC reads as under:

• 9. Courts to try all civil suits unless barred—The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.

Suits of a Civil Nature or Civil Suits – Examples

• Suits relating to Property rights (for recovery, injunction, declaration, etc.)
• Right to Easement
• Right to get Damages, suffered – for illegal acts
• Not be evicted otherwise than by due process of law
• Contract – specific performance, damages for breach
• Right to Worship
• Right to Salary
• Right to elect, or be elected
• Right to act as director/office-bearer, after election
• Rights against wrong expulsion from a club
• Get remedied, nuisance

There are two types of Rights Enforced by Courts

• Common-law rights
• Rights arise from Enacted Acts or Bylaws.

All Rights of Civil Nature are Not Recognized as Enforceable ‘Civil Rights’ – Examples

• Privacy –(not nuisance)
• Caste questions
• Purely religious rites, ceremonies
  • What Mantra, be said – in a temple.
  • Which passage from Bible, be read – in a church.
  • What type of prayer in a religious institution

Almost all Civil Rights are Common Law Rights – Examples

• Property rights – recovery, injunction
• Use public way
• Easement
• Damages, salary
• Worship
• Right against, wrong expulsion from club
• Right to act as director, after election
• Not be evicted otherwise than due process

Rights arises from Acts or Bylaws – Examples

• Election rights- vote, candidate (under Acts or Bylaws);
• Right to Ration under Ration Supply Laws.
• Education laws,
• Licensing Liquor Shop
• Free Medicine laws,
• Co- operative society,
• Compensation on land acquisition in the manner stated in the  Act,
• Survey of Lands.

Important Legal Propositions on Jurisdiction of Civil Courts Under Sec. 9

• 1.When Right or Liability exists at common law, and is re-enacted by the statute with a special forum for efficacious remedy and civil court remedy is expressly barred, there will be an implied bar for civil courts.
  • Eg. Bylaws of a society provides for efficacious redressal of remedies on wrongful expulsion from a club and the bye laws states that the decisions of that authority is final.
• 2. When Right or Liability exists at common law, and is re-enacted by the statute with a special forum for efficacious remedy and civil court remedy is not expressly barred, there will be an election of forum (that special forum or civil courts).
• Municipal law provides for leaving a particular distance from the boundary so that no nuisance of obstructing light be caused to a neighbor by the building construction (a right exists in common law).
• 3. New rights conferred by enacted laws (not pre-existing in common law) also provides the machinery for enforcement of such right or liability or for adjudication of disputes, then, even in the absence of an exclusionary provision, the jurisdiction of the civil court will be stood barred by necessary implication.
  • (Raja Ram Kumar Bhargava (Dead) By LRs v. Union of India, (1988) 1 SCC 681; Quoted in South Delhi Municipal Corporation v. Today Homes and Infrastructure Pvt.  Ltd.  2019-4 CivCC 150 (SC); 2019-3 CurCC 370(SC); 2019-11 Scale 33).
• 4. Noncompliance of fundamental principles of law – civil courts will have jurisdiction. Despite express bar, if the decision of the authority under challenge is in:
  • (i)    non-compliance of fundamental principles of law (like, natural justice),
  • (ii)   non-compliance of fundamental principles of any statute or
  • (iii)  without jurisdiction (like, Village Officer takes decision where the Collector has to).
  • (iv) where the plea of illegality raised before the Civil Court goes to the root of the matter and would, if upheld, lead to the conclusion that the impugned order is a nullity (Ram Swamp v. Shikar Chand, AIR 1966 SC 893).
    • See notes below – Alternative remedy not to operate as a bar in certain contingencies and Civil Court can Examine ‘Non-compliance of Law’ (not ‘Erroneous’ Orders).

The fundamentals of these principles are laid down in the following two decisions:

• 1. Wolverhampton New Waterworks Co. v. Hawkesford, [1859] 6 C. B. (NS) 336: 28 LJ CP 242: 141 ER 486. It is observed as under:
  • “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 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 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.”
• 2. It is observed by Lord Thankerton in The Secretary of State vs Mask and Co., AIR 1940 PC 105, as under:
  • “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.”
• (See: Titaghur Paper Mills Co. Ltd. v. State of Orissa, (1983) 2 SCC 433;
• South Delhi Municipal Corporation Vs. Today Homes and Infrastructure Pvt. Ltd., 2019-11 SCALE 33;
• Zenith Steel Tubes and Industries Ltd Vs. Sicom Litd. AIR 2008  SC 451;
• Devinder Singh Vs. State of Haryana, AIR 2006 SC 2850;
• Mafatlal Industries Limited Vs. Union Of India, 1997-5 SCC 536;
• Pandurang Ramchandra Mandlik Vs. Shantibai Ramchandra Ghatge, AIR 1989 SC 2240)

Dhulabhai v. State of MP, AIR 1969 SC 78

Hidayatullah, J., in Dhulabhai v. State of MP, observed, as to ouster of jurisdiction of the civil courts, as follows:

• (1) Where the Statute gives a finality to the orders of the special tribunals the Civil Courts’ jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.
• (2) Where there is an express bar of the jurisdiction of the Court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the Civil Court.
• Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the Statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in Civil Courts are prescribed by the said Statute or not.
• (3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals.
• (4) When a provision is already declared unconstitutional. or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit.
• (5) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected a suit lies.
• (6) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is a relevant enquiry.
• (7) An exclusion of the jurisdiction of the Civil Court is not readily to be inferred unless the conditions above set down apply.

These propositions are emphasised further in several Supreme Court decisions including the following:

• Premier Automobiles Limited v. Kamalakar Shantharam Wadke, (1995) 5 SCC 75,
• Rajasthan State Road Transport Corpn. v. Krishna Kant, AIR 1995 SC 1715,
• Mafatlal Industries Ltd. v. Union of India, (1997) 5 SCC 536.

In Premier Automobiles Ltd. v. Kamlakur Shantaram Wadke, (1995) 5 SCC 75; (1976) 1 SCR 427, it was held that if a dispute was not industrial dispute, not does it relate to enforcement of any right under the Industrial Dispute Act, the remedy lies only in the civil court. If the dispute arises out of the right or liability under the general common law and not under the Act, the jurisdiction of the civil court is always alternative, leaving it to the election of the suitor to choose his remedy for the relief which is competent to be granted in a particular remedy. If the dispute relates to the enforcement of a right or obligation of the Act, the only remedy available to the suitor is to get an application adjudicated under the Act. In that view, it was held that the civil suit was not maintainable. (See: Vatticherukuru Village Panchayat v. Nori Vekatrama Deekshithulu, 1991 SCR (2) 531; 1991 SCC Supl. (2) 228)

Effective alternate remedy, Court refuses relief

It is observed in Commissioner of Income Tax v. Chhabil Dass Agarwal, 2014-1 SCC 603, that if the High Court is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere, it can refuse to exercise its jurisdiction. In Assistant Commissioner (CT) LTU, Kakinada v. Glaxo Smith Kline Consumer Health Care Limited, AIR 2020 SC 2819,  it is pointed out by our Apex Court that when  the aggrieved person has an effective alternate remedy available in law, normally, the courts will not entertain a Writ petition.

See also:

• Rashid Ahmed v. Municipal Board, Kairana, AIR 1950 SC 163.
• G. Veerappa Pillai v. Raman & Raman Ltd., AIR 1952 SC 192;
• CCE v. Dunlop India Ltd., (1985) 1 SCC 260;
• C.A. Abraham v. ITO, (1961) 2 SCR 765: AIR 1961 SC 609;
• First IT Officer, Salem v. Short Brothers (P) Ltd. (1966) 60 ITR 83(SC);
• L. Hirday Narain v. Income Tax Officer, Bareilly, (1970) 78 ITR 26 (SC);
• State of U.P. v. Indian Hume Pipe Co. Ltd. (1977) 2 SCC 724;
• Munshi Ram v. Municipal Committee, Chheharta, (1979) 3 SCC 83;
• Titaghur Paper Mills Co. Ltd. v. State of Orissa, (1983) 2 SCC 433;
• H.B. Gandhi v. Gopi Nath and Sons, 1992 Supp (2) SCC 312;
• Mafatlal Industries Ltd. v. Union of India, (1997) 5 SCC 536;
• Whirlpool Corpn. v. Registrar of Trade Marks, (1998) 8 SCC 1;
• Tin Plate Co. of India Ltd. v. State of Bihar, (1998) 8 SCC 272;
• Ramendra Kishore Biswas v. State of Tripura, (1999) 1 SCC 472;
• Shivgonda Anna Patil v. State of Maharashtra, (1999) 3 SCC 5;
• Sheela Devi v. Jaspal Singh, (1999) 1 SCC 209,  AIR 1999 SC 2859
• A. Venkatasubbiah Naidu v. S. Chellappan, (2000) 7 SCC 695;
• Karnataka Chemical Industries v. Union of India, (2000) 10 SCC 13;
• Punjab National Bank v. O.C. Krishnan, (2001) 6 SCC 569);
• National Insurance Co. Ltd. v. Nicolletta Rohtagi, (2002) 7 SCC 456;
• Sadhana Lodh v. National Insurance Co. Ltd. (2003) 3 SCC 524;
• Satya Pal Anand v. State of M.P. and Ors. ((2016)10 SCC 767;
• Maharashtra Chess Assn. v. Union of India, 2019 SCC Online SC 932.

Alternative remedy not to operate as a bar in certain contingencies

Our Apex Court further observed in M/S Radha Krishan Industries v. The State of Himachal Pradesh, 2021 SCC OnLine SC 334, that alternative remedy would not operate as a bar in certain contingencies observed. It is pointed out that the exceptions to the “rule of alternate remedy” include where, the statutory authority has:

• not acted in accordance with the provisions of the law or
• acted in defiance of the fundamental principles of judicial procedure; or
• has resorted to invoke provisions, which are repealed; or
• where an order has been passed in violation of the principles of natural justice.

Their Lordships quoted the following from Harbanslal Sahnia v Indian Oil Corpn. Ltd. (2003) 2 SCC 107:

• “7. So far as the view taken by the High Court that the remedy by way of recourse to arbitration clause was available to the appellants and therefore the writ petition filed by the appellants was liable to be dismissed is concerned, suffice it to observe that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies:
  • (i) where the writ petition seeks enforcement of any of the fundamental rights;
  • (ii) where there is failure of principles of natural justice; or
  • (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. (See: Whirlpool Corpn. v. Registrar of Trade Marks,(1998) 8 SCC 1 .)
• The present case attracts applicability of the first two contingencies. Moreover, as noted, the appellants’ dealership, which is their bread and butter, came to be terminated for an irrelevant and non-existent cause. In such circumstances, we feel that the appellants should have been allowed relief by the High Court itself instead of driving them to the need of initiating arbitration proceedings.”

Appeal from “Caesar to Caesar’s wife” – non-efficacious

In Ram and Shyam Co. vs. State of Haryana, (1985) 3 SCC 267, the Supreme Court has noticed that if an appeal is from “Caesar to Caesar’s wife” the existence of alternative remedy would be a mirage and an exercise in futility (referred to in Commissioner of Income Tax v. Chhabil Dass Agarwal, 2014-1 SCC 603; Shauntlabai Derkar v. Maroti Dewaji Wadaskar  2014-1 SCC 602).

Courts have wide discretionary powers in issuing Writs

It is pointed out in Commissioner of Income Tax v. Chhabil Dass Agarwal, 2014-1 SCC 603, that various Constitution Benches of the Apex Court have held that though Article 226 confers a very wide powers in the matter of issuing writs on the High Court, the remedy of writ absolutely discretionary in character.

• See: K.S. Rashid vs. Income Tax Investigation Commission, AIR 1954 SC 207;
• Sangram Singh vs. Election Tribunal, Kotah, AIR 1955 SC 425;
• Union of India vs. T.R. Varma, AIR 1957 SC 882;
• State of U.P. vs. Mohd. Nooh, AIR 1958 SC 86 and
• K.S. Venkataraman and Co. (P) Ltd. vs. State of Madras, AIR 1966 SC 1089

Jurisdiction of Civil Courts and High Courts

High Courts and the Supreme Court invoke their writ jurisdiction, primarily, for the enforcement of the fundamental rights. They also invoke the same in proper cases where
failure of principles of natural justice is pleaded in Governmental or Official acts and where the impugned orders or proceedings are wholly without jurisdiction or the vires of an Act (See: Whirlpool Corpn. v. Registrar of Trade Marks,(1998) 8 SCC 1; Harbanslal Sahnia v Indian Oil Corpn. Ltd. (2003) 2 SCC 107.)

It is pointed out in Bharat Coking Coal Limited v. Amr Dev Prabha, (2020)16 SCC 759, that a person seeking writ relief must satisfy the court that the right which he is seeking is one in public law and not merely contractual.

If disputed questions of fact, Courts decline jurisdiction in a writ petition

It is observed in M/S Radha Krishan Industries vs The State Of Himachal Pradesh, 2021 SCC OnLine SC 334, that where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition; and it is pointed out that this principle have been consistently upheld by the Apex Court in Seth Chand Ratan v Pandit Durga Prasad, (2003) 5 SCC 399, Babubhai Muljibhai Patel v Nandlal Khodidas Barot, (1974) 2 SCC 706 , and Rajasthan SEB v. Union of India, (2008) 5 SCC 632, etc.

In Satya Pal Anand v. State of MP, (2016) 10 SCC 761 it is held that the fact whether the compromise deed entered into by the appellant was voluntary and at his own volition or under duress, is essentially a question of fact. That cannot be adjudicated in writ jurisdiction. It is held further that the remedy of writ cannot be used for declaration of private rights of the parties or enforcement of their contractual rights and obligations. It is also pointed out in this decision that this would subserve the twin requirements. Firstly, to avoid an exposition on matters and questions which do not arise for our consideration in the fact situation of the present case at this stage; and secondly, also provide an opportunity to the parties to pursue all contentions and other remedies as may be permissible in law.

See Blog (Click): Does Alternate Remedy Bar Civil Suits and Writ Petitions?

If sufficient grounds, extraordinary jurisdiction under Art. 226 invoked

The Supreme Court has pointed out in U.P. State Spinning Co. Ltd. v. R.S. Pandey, (2005) 8 SCC 264, that the Constitution confers on all the High Courts a very wide power in the matter of issuing writs. However, the remedy of writ is an absolutely discretionary remedy and the High Court has always the discretion to refuse to grant any writ if it is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere. The Court, in extraordinary circumstances, may exercise the power if it comes to the conclusion that there has been a breach of principles of natural justice or procedure required for decision has not been adopted.

However, as pointed out in Commissioner of Income Tax v. Chhabil Dass Agarwal, 2014-1 SCC 603, the High Court must not interfere if there is an adequate efficacious alternative remedy available to the petitioner and he has approached the High Court without availing the same unless he has made out an exceptional case warranting such interference or there exist sufficient grounds to invoke the extraordinary jurisdiction under Article 226.

• See also: Union of India v. T.R. Verma AIR 1957 SC 882;
• State of U.P. vs. Mohammad Nooh, AIR 1958 SC 86;
• Titaghur Paper Mills Co. Ltd. vs. State of Orissa, (1983) 2 SCC 433;
• Harbanslal Sahnia vs. Indian Oil Corpn. Ltd., (2003) 2 SCC 107;
• State of H.P. vs. Gujarat Ambuja Cement Ltd., (2005) 6 SCC 499);
• U.P. State Spinning Co. Ltd. v. R.S. Pandey, (2005) 8 SCC 264.

Non-entertainment of writ (when exists alternative remedy) is a self-imposed rule only

It is further observed in Commissioner of Income Tax v. Chhabil Dass Agarwal, 2014-1 SCC 603, that it is a settled law that non-entertainment of petitions under writ jurisdiction by the High Court when an efficacious alternative remedy is available, is a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. Undoubtedly, it is within the discretion of the High Court to grant relief under Article 226 despite the existence of an alternative remedy.

• (Also See: Thansingh Nathmal v. Supdt. of Taxes, AIR 1964 SC 1419;
• Nivedita Sharma vs. Cellular Operators Assn. of India, (2011) 14 SCC 337;
• U.P. State Spinning Co. Ltd. v. R.S. Pandey, (2005) 8 SCC 264).

Breach of principles of natural justice or procedure

It is also observed in Commissioner of Income Tax v. Chhabil Dass Agarwal, 2014-1 SCC 603, that the Court, in extraordinary circumstances, may exercise the power in the following instances:

1. where the statutory authority has not acted in accordance with the provisions of the enactment in question, or
2. in defiance of the fundamental principles of judicial procedure, or
3. has resorted to invoke the provisions which are repealed, or
4. when an order has been passed in total violation of the principles of natural justice,

• See also:
• N.T. Veluswami Thevar vs. G. Raja Nainar, AIR 1959 SC 422;
• Municipal Council, Khurai vs. Kamal Kumar, (1965) 2 SCR 653;
• Trimbak Gangadhar Telang v. Ramchandra Ganesh Bhide, AIR 1977 SC 1222;
• Siliguri Municipality vs. Amalendu Das, (1984) 2 SCC 436;
• S.T. Muthusami vs. K. Natarajan, (1988) 1 SCC 572;
• Rajasthan SRTC vs. Krishna Kant, (1995) 5 SCC 75;
• Kerala SEB vs. Kurien E. Kalathil, (2000) 6 SCC 293;
• A. Venkatasubbiah Naidu vs. S. Chellappan, (2000) 7 SCC 695;
• L.L. Sudhakar Reddy vs. State of A.P., (2001) 6 SCC 634;
• Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha vs. State of Maharashtra, (2001) 8 SCC 509;
• Pratap Singh vs. State of Haryana, (2002) 7 SCC 484;
• GKN Driveshafts (India) Ltd. vs. ITO, (2003) 1 SCC 72;
• Union of India v. Guwahati Carbon Ltd. 2012 (11) SCC 651.

Contention as to Bar of Civil Court Jurisdiction – Not Accepted

In Vatticherukuru Village Panchayat v. Nori Vekatrama Deekshithulu, 1991 SCR (2) 531; 1991 SCC Supl. (2) 228, our Apex Court referred the following decisions where it was found (in spite of the contentions as to express or implied bar under statutes) that the civil courts would have jurisdiction:

1. Jyotish Thakur v. Tarakant. Jha, [1963] Suppl. 1 SCR 13

• Under sec. 27 of regulation III of 1872 provided that in respect of transfer of ryoti interest in contravention of the regulation revenue courts would not take cognizance of such a transfer. It was contended that by necessary implication the civil suit was not maintainable. In that context it was held that provisions therein were not intended to be exhaustive to bar the relief in Civil Court. 

2. Sri Athmanathawami Devasthanam v. K. Gopalaswami Aiyangar, [1964] 3 SCR 763

• The question was whether the civil suit to recover damages and for ejectment of the ryoti lands belonging to the temple was barred. The findings were that the lands were ryoti lands and that the tenant acquired the occupancy rights, but the lease was granted in excess of 5 years. It was contended that it was a transfer without permission of the Endowment department. While upholding that the lands were ryoti lands and the tenant acquired occupancy rights, this Court disagreeing with the High Court, held that there was no transfer and that the tenant is liable to pay the arrears of rent and the suit was maintainable. 

3. Sri Vedagiri Lakshmi Narasimha Swami Temple v. Induru Pattabhirami Reddy, [1967] 1 SCR 280

• The contention raised was that sec. 93 of the Madras Hindu Religious and Charitable Endowments Act, 1951 was a bar to maintain suit for rendition of accounts and recovery thereof against the ex-trustees. This Court repelled the contention and held that the suit for rendition of accounts was not expressly or by necessary implication barred the jurisdiction of the civil court under s. 93. 

4. Shree Raja Kandregula Srinivasa Jagannadha Rao Panthulu Bahadur Garu v. State of Andhra Pradesh, [1970] 2 SCR 714

• It was conceded that the question whether Kalipathnam village is an Inam estate was to be adjudicated before the tribunals appointed under the Rent Reduction Act. It was contended that the tribunals have no jurisdiction to decide the validity of the notification reducing the rent by operation of s. 8(1) thereof. It was held that there was no statutory prohibition to determine the nature of the land contemplated by the Rent Reduction Act. Accordingly the suit was held to be maintainable. 

5. Dr. Rajendra Prakash Sharma v. Gyan Chandra & Ors.,[1980] 3 SCR 207

• It was found that under s, 7 of the Administration of Evacuee Property Act, 1950, no proceedings were taken to declare the suit house as on evacuee property. No notification under sub-s. (3) of 7 was published in the gazette. Under those circumstances it was held that s. 46 did not bar the civil suit. 

6. Anne Besant National Girls High School v. Dy. Director of Public Instruction & Ors. [1983] 1 SCC 200

• The Civil Court has jurisdiction to examine whether action or decision of an administrative authority was ultra vires the relevant rules of Grant-in-Aid Code and Rule 9 (vii) was held to be ultra vires. Accordingly the suit was held to be maintainable.

7. Raja Ram Kumar Bhargava(dead) by Lrs. v. Union of India, [1988] 2 SCR 352

• Two questions were raised, firstly the validity of the assessment and secondly recovery of the tax paid under Excess Profit Tax Act, 1940. On the first question it was held that the suit was not maintainable. On the second question, without going into the technicalities of the maintainability of the suit, this Court granted the relief.

8. Pabbojan Tea Co., etc. v. The dy. Commissioner Lakhimpur, etc.[1968] 1 SCR 260

• The questions were whether the workmen were ordinary unskilled labour or skilled labour; whether the jurisdiction of the authorities under s. 20 of the Minimum Wages Act, 1948 is exclusive and whether the jurisdiction of the Civil Court was barred. This court held that the authorities did not hold any inquiry nor received any evidence for determining that issue. No proper hearing was given to the parties to tender evidence. Section 20 is not a complete Code as there was no provision for appeal or revision against the orders passed under s.20(3). There was no further scrutiny by any higher authority against the imposition of penalty. The Act in terms does not bar the employers from instituting a suit. In those circumstances, it was held that the legislature did not intend to exclude the jurisdiction of the civil court.

9. K. Chintamani Dora & Ors. v. G. Annamnaidu & ors. [1974] 2 SCR 655

• The decree originally granted became final. Subsequently it was sought to be reopened in a later suit. Under those circumstances the civil suit was held to be maintainable notwithstanding the provisions contained under the Estate Abolition Act.

‘Ubi Jus Ibi Remedium’

In South Delhi Municipal Corporation v. Today Homes, 2019-4 Civ CC 150 (SC); 2019-3 Cur CC 370(SC); 2019-11 Scale 33) it is held as under:

• “11. Any person having a grievance that he had been wronged or his right has been affected can approach a civil court on the principle of ‘ubi jus ibi remedium’ – where there is a right, there is a remedy. As no internal remedy had been provided in different statutes creating rights or liabilities, the ordinary civil courts had to examine the grievances in the light of those statutes. With the advent of a ‘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 (Shiv Kumar Chadha v. Municipal Corporation of Delhi, (1993) 3 SCC 161).
• 12. Wherever a right or liability, not pre-existing in common law is created by a statute and that statute itself provides a machinery for enforcement of such right or liability, both the right/liability 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 jurisdiction of the civil court is impliedly barred. (Raja Ram Kumar Bhargava (Dead) By LRs v. Union of India, (1988) 1 SCC 681).”
• (Quoted in Kirpa Ram v. Surendra Deo Gaur, 2020 6 KLT 574 (SC).

Civil Court can Examine ‘Non-compliance of Law’; not ‘Erroneous’ Orders

Even when a tribunal is provided for reddressal of remedies, the civil courts will have jurisdiction to examine the allegation of non-compliance of the provisions of the statute or of any of the fundamental principles of judicial procedure. If the challenge is only as to the ‘erroneous’ character of the order, other than ‘jurisdictional error’, the suit will not be maintainable. (South Delhi Municipal Corporation v. Today Homes and Infrastructure Pvt.  Ltd.  2019-4 CivCC 150 (SC); 2019-3 CurCC 370(SC); 2019-11 Scale 33).

When an order is passed by a statutory Land-Tribunal violating a mandatory provision, the order will be illegal, without jurisdiction and a nullity. The civil courts which are courts of “general jurisdiction” can decide whether a tribunal or authority exercising statutory jurisdiction has acted in excess or beyond the statutory powers. The civil courts can interfere when the order of the statutory tribunal or authority is really not an order under the Act conferring jurisdiction on it. In other words, if a tribunal abuses its power or does not act under the Act but in violation of its provisions (Firm Seth Radha Kishan v. Ludhiana Municipality AIR 1963 SC 1547), the jurisdiction of the civil court will not be excluded. The ultimate decision can be challenged, in spite of finality and exclusionary clauses (or provision for appeal/revision), since the jurisdiction had been assumed by the tribunal, where it did not exist, and the decision was not a decision under the Act, but a nullity. (Muhammad Haji v. Kunhunni Nair, AIR  1993 Ker 104).

See Blog: Pecuniary & Subject-Matter Jurisdiction of Civil Courts, And Place of Filing Civil Suits

Construction in Violation of Municipal Building Regulation

In K. Ramdas Shenoy v. Chief Officer, Town Municipal Council, Udipi, AIR 1974 SC 2177, the Apex Court held as follows:

• “An illegal construction of a cinema building materially affects the right to of enjoyment of the property by persons residing in the residential area. The Municipal Authorities owe a duty and obligation under the statute to see that the residential areas is not spoilt by unauthorized construction. The scheme is for the benefit of the residents of the locality. The Municipality acts in aid of the scheme. The rights of the residents in the area are invaded by an illegal construction of a cinema building. It has to be remembered that a scheme in residential area means planned orderliness in accordance with the requirements of the residents. If the scheme is nullified by arbitrary acts in excess and derogation of the powers of the Municipality the courts will quash orders passed by Municipalities in such cases.”

A person who is affected by neighbour’s illegal construction which is in infraction of a Municipal regulation will have the locus to maintain a suit for perpetual injunction. The Kerala High Court, in Saina v. Konderi, AIR 1984 Ker 170, turned down the argument that the matters concerning violation of the Municipal Rules are entirely rest in the look-out of the local authority. It was observed that unless, by express words or by necessary implication, he is debarred (Sec. 9 CPC) from doing so, the civil court would have jurisdiction if there was violation of Building Rules. Finally, it is held that the law recognises a citizen’s right to institute a suit with a view to ensure effective implementation of the Municipal regulations, such as the Buildings Rules, even in the absence of a specific personal injury to the person suing. The High Court quoted Lord Wright in (1868) 4 Ex. 43 where it was said:

• “If you have an infringement of a legal right there is a right of action without actual damage being proved….  Where you have an interference with a legal right, the law presumes damage.”

Referring the Kerala decision, it is observed in Sindhu Education Society v. Municipal Corporation of City of Ulhasnagar, AIR 2001 Bom 145 and in Fatima v. Village Panchayat of Merces, AIR 2000 Bom 444, that the citizens will have the right to enforce Rules through Court if the Municipal Corporation fails to perform its duty and that courts in India has the duty to see that the law is obeyed and not violated.

(See also: Babulal Shivlal Upadhye v. Yadav Atmaram Joshi, 1994-2 Bom CR 583; 1994-2 MahLR 869; 1994-1 MhLJ 256; D.  Thomas v. N.  Thomas1999-2 MLJ 260;Musstt Anjira Khatoon Hazarika v. Tapan Kumar Das: 2015-1 GauLR 133.)

Andhra Pradesh High Court held in Bhagwan Das v. Harish ChetwalIt, as quoted in Sarada Bai v. Shakuntala Bai, AIR 1993 AP 20, as under:

• “The pronouncement of the Supreme Court in K.R. Shenoy v. Udipi Municipality emboldens us to take a view at variance with the one expressed by a Division Bench of this Court in Kamalamma v. Subba Rao and so hold that an individual, be he a neighbour or one of a class of persons where the infraction of a right is involved and complained of, is certainly clothed with a right to invoke the jurisdiction of a Civil Court not only to enforce the obligations and duties was on the concerned authorities, but also subject the individual or class of individuals to conform to the obligations of the statute.
• If that be so, it presents no difficulty in answering one of the questions raised in this case, viz., whether it would be competent for the neighbour, namely, the petitioners herein to enforce the obligation cast on the Municipal Corporation to remove the structures constructed in contravention of the statutory provisions; and to seek a direction against an individual, plaintiff herein to conform to the obligation laid down in Chapter XII of the Act and to demolish any construction made in contravention thereof, either by way of a civil proceeding or seeking mandamus under Article 226 of the Constitution. The answer is quite apparent and it is in the affirmative.”

Utilisation of Public Land by the Government or Governmental Agencies

In Bangalore Medical Trust Vs. B.S. Muddappa, (1991) 4 SCC 54, the Apex Court posed the question arose this case as under:

• “The question really is whether an open space reserved for a park or play ground for the general public, in accordance with a formally approved and published development scheme in terms of the Act, can be allotted to a private person or a body of persons for the purpose of constructing a hospital? Do the members of the public, being residents of the locality, have a right to object to such diversion of the user of the space and deprivation of a park meant for the general public and for the protection of the environment?”

The Court held as under:

• “Any such act would be contrary to the legislative intent and inconsistent with the statutory requirements. Furthermore, it would be in direct conflict with the constitutional mandate to ensure that any State action is inspired by the basic values of individual freedom and dignity and addressed to the attainment of a quality of life which makes the guaranteed rights a reality for all the citizens.
• Reservation of open spaces for parks and play grounds is universally recognised as a legitimate exercise of statutory power rationally related to the protection of the residents of the locality from the ill effects of urbanisation.”

In Virender Gaur and others Vs. State of Haryana, (1995) 2 SCC 577, our Apex Court held that the Government could not sanction the lease in favour of private party since the municipal land was earmarked for open space for public use, i.e., protection or preservation of hygienic conditions of the local residents. The Court observed as under:

• “Shri D. V. Sehgal, learned senior counsel, again contended that two decades have passed by and that, therefore, the municipality is entitled to use the land for any purpose. We are unable to accept the self destructive argument to put a premium on inaction.
• The land having been taken from the citizens for a public purpose, the municipality is required to use the land for the protection or preservation of hygienic conditions of the local residents in particular and the people in general and not for any other purpose. Equally acceptance of the argument of Shri V. C. Mahajan encourages pre-emption action and conduct, deliberately chartered out to frustrate the proceedings and to make the result fiat accompli. We are unable to accept the argument of flat accompli on the touch stone of prospective operation of our order. “

In Dr. G.N. Khajuria Vs. Delhi Development Authority, (1995) 5 SCC 762, the Supreme Court was asked to pronounce on the validity of allotting a apace of a park for functioning a nursery school. The Court found that the action was misuse of power, and it was in contravention of law. The Court held as under:

• “8. We, therefore, hold that the land which was allotted to respondent No. 2 was part of a park. We further hold that it was not open to the DDA to carve out any space meant for park for a nursery school. We are of the considered view that the allotment in favour of respondent No.2 was misuse of power, for reasons which need not be adverted. It is, therefore, a fit case, according to us, where the allotment in favour of respondent No. 2 should be cancelled and we order accordingly. The fact that respondent No. 2. has put up up some structure stated to be permanent by his counsel is not relevant, as the same has-been one on a plot of land allotted to it in contravention of law. As to the submission that dislocation from the present site would cause difficulty to the tiny tots, we would observe that the same has been advanced only to get sympathy from the Court inasmuch as children, for whom the nursery school is meant, would travel to any other nearby place where such a school would be set up either by respondent No. 2 or by any other body.”

Fraud Unravels Everything – Acquisition Proceedings were Quashed

The General principle is that even when a land acquired by State was utilised by it for private commercial purpose, there is no provision in law, which enables the prior owner of the land to reclaim same. It is laid down in a catena of decisions. It include the following:

• Indore Development Authority vs Manoharlal, AIR 2020 SC 1496
• V Chandrasekaran  Vs. Administrative Officer, 2012-12 SCC 133
• Sulochana Chandrakant Vs. Pune Munipl Trapt, 2010-8 SCC 467
• Northern Indian Glass Indts Vs. Jaswant Singh, 2003-1 SCC 335
• Gov of A P Vs. Syed Akbar, 2005-1 SCC 558
• State of Kerala Vs. M Bhaskaran Pillai, 1997-5 SCC 432
• C Padma Vs. Dty Secretary Govt of T N, 1997-2 SCC 627

But, the Supreme Court quashed the acquisition proceedings and ordered to return the lands to to its owners in two important cases. They are:

• Uddar Gagan Properties Limited vs. Sant Singh, (2016) 11 SCC 378, and
• Royal Orchid Hotels Limited vs. G. Jayarama Reddy, (2011) 10 SCC 608.

In Uddar Gagan Properties Limited vs. Sant Singh, (2016) 11 SCC 378, the appellant company entered into collusive agreements with some of the farmers/owners whilst the acquisition proceedings were under way. Pointing out that the acquisition in that case was not completed and the title did not vest in the State, the Apex Court found that the entire administrative action could be held to be vitiated by fraud and there was colourable exercise of power. The land was ordered to be returned to the original land owners. The Apex Court held as under:

• “14. There could be no objection to acquisition of land for a compelling public purpose nor to regulated development of colonies, but entertaining an application for releasing of land in favour of the builder who comes into picture after acquisition notification and release of land to such builder tantamounts to acquisition for a private purpose. It amounts to transfer of resources of poor for the benefit of the rich. It amounts to permitting profiteering at the cost of livelihood and existence of a farmer. This is against the philosophy of the Constitution and in violation of guaranteed fundamental rights of equality and right to property and to life. What cannot be done directly cannot be done indirectly also.“

In Royal Orchid Hotels Limited vs. G. Jayarama Reddy, (2011) 10 SCC 608, also the Apex Court found the entire exercise of acquisition was fraudulent and colourable exercise of power. The State Government had sought to acquire land for establishing a golf cum hotel resort. After issuance of the declaration, the project was thrown away for want of finance and enlisted the participation of a private builder, one Dayanand Pai, who made available the necessary funds. Negotiation with Pai had been started even before the State took possession of the land. The Court found that the acquisition itself was to secure the land to Pai. It was found to be a fraudulent and colourable exercise of power. The Court observed that fraud unravels everything and there was diversion of the public purpose. The acquisition proceedings were quashed and the land was returned to the original land owners.

See Blog: Land Acquired Cannot be Returned – Even if it is Not Used for the Purpose Acquired

Liquor Shop causing Public Nuisance

The question that required consideration in D.  Thomas v. N.  Thomas, 1999-2 MLJ 260 was whether the civil court had jurisdiction to entertain suit for permanent prohibitory injunction restraining defendants from conducting a liquor shop for apprehended injury of public nuisance to the residents of locality. The plaintiffs filed the suit in representative capacity under Order 1, Rule 8 of the CPC. The defendants resisted the suit on the ground that it was barred under Sec. 56 of Tamil Nadu Prohibition Act. In this decision the court held as under:

• “Under Specific Relief Act, a suit to prevent the nuisance is maintainable under Secs. 38 and 39. Plaintiff is also entitled to file a suit for perpetual prohibitory and mandatory injunction from causing any nuisance. Nuisance is an act of omission which is an interference with, disturbance of or annoyance to a person in the exercise or enjoyment of (a) a right belonging to him as a member of the public, when it is a public nuisance, or (b) his ownership or occupation of land or of some easement, quasi-easement, or other right used or enjoyed in connection with land, when it is a private nuisance.
•  Whether it is public or private, it is common law right and the suit to prevent the occurrence of nuisance is also a suit of civil nature. So the enforcement of such civil right can be had through court.”
• “Plaintiffs are not claiming any right under Tamil Nadu Prohibition Act and what want to enforce is only a common law right. I do not find any prohibition under Tamil Nadu Prohibition Act that the common law right to prevent a nuisance is taken away by any other provisions of Prohibition Act. Plaintiffs are not claiming any right by virtue of statute which creates a right for do they want enforcement of such a right created by statute. To prevent a person from committing nuisance is all along a common law right and that could be enforced de hors the enactment of Tamil Nadu Prohibition Act.”

Forum for Enforcement of Right like Avoidance of Nuisance

It was held in Saraswathi v. Lachanna (1994)1 SCC 611, while considering bar of suit, that the court had to see where a particular act creates a right and also provides a forum for enforcement of such right and bars the jurisdiction of the civil court, then ouster of the civil court jurisdiction had to be upheld. But the situation will be different where the statute neither creates the right in question nor provides any remedy or having created any right or liability no forum for adjudication of any dispute arising out or such right or liability is provided. In such a situation, the ouster of the civil courts jurisdiction is not to be easily inferred.

In D.  Thomas v. N.  Thomas, 1999-2 MLJ 260, a suit filed in representative capacity under O.1, Rule 8 of the CPC, it was observed that prevention of nuisance is not a matter to be decided by authorities under the Act and that for considering location of shop, certain guidelines were given under Rule 18. Though they were not exhaustive, it was clear that authorities under Prohibition Act could not adjudicate private rights of a citizen. So long as plaintiffs were not claiming right under the Act, nor the right to prevent nuisance was created under the Act, there could not be bar under Sec. 9 of Code of Civil Procedure read with Sec. 56 of Tamil Nadu Prohibition Act.

Religious Rights and Civil Remedies under Sec. 9 CPC

Courts in India are not barred from adjudicating and pronouncing upon religious matters. It was the practice from time immemorial. The Religion did not overpower the administrators any time. Kings or secular courts heard all disputes including those related to religious matters. It continued during the Mugal/Muslim administration period also. Ecclesiastical Courts did not exist any time.

From the beginning of the established court hegemony in India, disputes concerning the religious matters were dealt with by the courts.

It is observed in Queen Empress v. Ramzan. (1885) 7 ILR All – 461 as under:

• “I am unable to accept this view, because, if it is conceded that the decision of this case depends (as I shall presently endeavour to show it does depend) upon the interpretation of the Muhammadan Ecclesiastical Law, it is to my mind the duty of this Court, and of all Courts subordinate to it, to take judicial notice of such law”. (Quoted in Most. Rev. P.M.A. Metropolitan v. Moran Mar Marthoma, AIR 1995 SC 2001)

In Chariar v. Sri Kristna Tata Chariar, (1888) I.L.R. 11 M. 450 it is held as under:

• “The claim is for a specific pecuniary benefit to which plaintiffs declare themselves entitled on condition of reciting certain hymns.
• There can exist no doubt that the right to such benefits is a question which the Courts are bound to entertain, and cannot cease to be such a question, because claimed on account of some service connected with religion. If, to determine the right to such pecuniary benefit, it becomes necessary to determine incidentally the right to perform certain religious services, we know of no principle which would exonerate the Court from considering and deciding the point”. Approved in Krishname v. Krishnasamy, (1879) ILR 2 Mad. 62. (Quoted in Most. Rev. P.M.A. Metropolitan v. Moran Mar Marthoma, AIR 1995 SC 2001)

In Nafar Chandra Chatterjee v. Kailash Chandra Mondal, AIR 1921 Cal – 328 it was held by Sir Ashutosh Mookerjee as under:

• “Where there were no Ecclesiastical Courts, there was nothing to prevent civil courts from holding that Pujari has been removed from his office on valid grounds.”
• “There is manifestly nothing wrong in principle that the holder of a spiritual office should be subject to discipline and should be liable to deprivation for what may be called misconduct from an ecclesiastical point of view or for flagrant and continued neglect of duty….. It is plain that although so far as Hindus are concerned, there is now no State Church and no ecclesiastical court, there is nothing to prevent civil courts from determining questions such as those raised in the present litigation and from holding that the Pujari has been removed from his office on valid grounds.”(Quoted in Most. Rev. P.M.A. Metropolitan v. Moran Mar Marthoma, AIR 1995 SC 2001)

In U.W. Baya vs. U. Zaw Ta. AIR 1914 Lower Burma 178 (1) where a question arose as to which was the forum where an action for violation of religious rights could be brought, it was held as under,

• “there are, therefore, no ecclessiastical authorities in Lower Burma. Section 9, Civil P.C. enacts that the courts shall subject to the provisions herein contained, have jurisdiction to try all suits of a civil nature excepting suits of which the cognizance is either expressly or impliedly barred. This is a suit of a civil nature. It is a claim of certain lands and manuscripts.
• The civil courts, in our opinion, clearly have jurisdiction to decide the suit and should do so”. (Quoted in Most. Rev. P.M.A. Metropolitan v. Moran Mar Marthoma, AIR 1995 SC 2001)

In Sri Sinha Ramanuja Jeer v. Sri Ranga Ramanuja Jeer, (1962) 2 SCR 509 our Apex Court observed as under:

• “Prima facie suits raising questions of religious rites and ceremonies only are not maintainable in a civil Court, for they do not deal with legal rights of parties. But the explanation to the section accepting the said undoubted position says that a suit in which the right to property or to an office is contested is a suit of civil nature notwithstanding that such right may depend entirely on the decision of a question as to religious rites or ceremonies. It implies two things, namely, (i) a suit for an office is a suit of a civil nature; and (ii) it does not cease to be one even if the said right depends entirely upon a decision of a question as to the religious rites or ceremonies.”

Article 25 of the Constitution of India Guarantees the Freedom of Religion

Apart from Section 9 of the CPC, Article 25 of the Constitution of India guarantees the freedom of conscience and the right freely to profess, practice and propagate religion to every person.

Article 25 reads as under:

• “25. Freedom of conscience and free profession, practice and propagation of religion
• (1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.
• (2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law –
  •        (a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
  •        (b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.
•        Explanation I – The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion.
•        Explanation II – In sub clause (b) of clause reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.”

In S.P. Mittal v. Union of India, AIR 1983 SC 1, it was held that Art. 25 would receive a wide interpretation.

In Most Rev. P.M.A. Metropolitan v. Moran Mar Marthoma, AIR 1995 SC 2001, it is observed that not only because it is claim to an office but also because there is no other forum where such dispute can be resolved. If a dispute arises whether a particular religious shrine has ceased to be so due to its anti-religion activities then the followers of that religion or belief and faith cannot be denied the right to approach the court. It is pointed out that Explanation I in Sec. 9 CPC is not restrictive of the right or matters pertaining to religion. It only removes the doubt to enable the courts to entertain suits where dispute about religious office is involved. The right to religion having become fundamental right, it would include the right to seek declaration that the Church was Episcopal.

Court may refrain from adjudicating upon Purely Religious Matters

In Most. Rev. P.M.A. Metropolitan v. Moran Mar Marthoma, AIR 1995 SC 2001, it is cautioned that the court may refrain from adjudicating upon purely religious matters as it might be handicapped to enter into the hazardous, hemisphere of religion. It held further as under:

• “Maintainability of the suit should not be confused with exercise of jurisdiction. Nor is there any merit in the submission that Explanation I could not save suits where the right to property or to an office was not contested or where the said right depended on decisions of questions as to religious faith, belief, doctrine or creed. The emphasis on the expression ‘is contested’ used in Explanation I is not of any consequence. It widens the ambit of the Explanation and include in its fold any right which is contested to be a right of civil nature even though such right may depend on decisions of questions relating to religious rights or ceremonies. But from that it cannot be inferred that where the right to office or property is not contested it would cease to be a suit cognisable under Section 9.”

It is held further as under:

• “’Religion is the belief which binds spiritual nature of men to super-natural being’. It includes worship, belief, faith, devotion etc. and extends to rituals. Religious right is the right of a person believing in a particular faith to practice it, preach it and profess it. It is civil in nature. The dispute about the religious office is a civil dispute as it involves disputes relating to rights which may be religious in nature but are civil in consequence. Civil wrong is explained by Salmond as a private wrong. He has extracted Blackstone who has described private wrongs as, ‘infringement or privation of the private or civil rights belonging to individuals, considered as individuals, and are thereupon frequently termed civil injuries’. Any infringement with a right as a member of any religious order is violative of civil wrong. This is the letter and spirit of Explanation I to Section 9.”

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