Appeal Nos
2531 33 of 1993
From the Judgment and Order dated 1921991 of the Delhi High Court in CWP No 3499 of 1989
RM Bagai V Shekhar Ms Bina Gupta and Ms Monika Mohil for the Appellants
Kapil Sibal Ranjit Kumar and RP Sharma for the Respondents
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 ownersoccupiersbuilders of the building where illegal constructions have been made
A liberty has been given to 528 the ownersoccupiersbuilders 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 andor 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 occupiersbuilders 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 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       2Any 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
3Where an appeal is preferred under sub section2against 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
4No 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
5Subject 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 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
2Notwithstanding 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 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 vs Hawkesford   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 vs London Express Newspaper Limited 1919 Appeal Cases 368
In Barraclough vs Brown  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 vs 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 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 section 2 of Section 32 In connection with the imposition of Terminal Tax on salt under the Punjab Municipal Act
In Firm Seth Radha Kishan vs Administrator Municipal committee
Ludhiana   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 vs State of Andhra Pradesh   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 Ms Kamala Mills Ltd vs State of Bombay  In Ram Swarup and ors
vs Shikar chand   a Constitution Bench examined the bar on the jurisdiction of the Civil Court in connection with the House and TenantsUP 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 vs MI s N Ramaswami Iyer and sons   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 vs Additional Custodian Evacuee Property Hyderabad  and Custodian of Evacuee Property Punjab  Ors
vs Jafran Begum   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 vs 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 or not In connection with the Industrial Disputes Act in The Premier Automobiles Ltd vs Kamlakar Shantaram Wadke     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 CP and Barar Municipalities Act 1922 was examined by this Court in Bata Shoe Co Ltd vs Jabalpur Corporation  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 vs Municipal Committee
Chheharta AIR 1979 SC 1250   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 vs Gram Panchayat MehalKalan     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 vs Union of India   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 vs GobindRam Bohra   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 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 vs Guatreddi Annamanaidu   this Court after referring to the case of Desika Charyulu vs 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 OfficerTribunal holding certain properties to be an estate  under section 32 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 vs Ministry of Housing and Local Government  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
vs Foreign Compensation Commission   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
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 eg 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 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 1The 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
2The 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
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 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 vs Taylor  Nazir Ahmed vs 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 vs Govind Joti Chavare  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 iThe 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
iiIf 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 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
iiiWhile 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
Appeals allowed


Summary:
The Kerala Forest Act 1961 regulates preservation of forests and forest produce
Section 2f i defines forest produce which includes wood oil
The respondents in Crl
Appeals Nos
420422 of 1993 were found manufacturingin possession of sandalwood oil
Proceedings under section 52 1 of the Act were initiated against them
They filed applications under section 482 Cr
PC before the High Court challenging the jurisdiction of the trial court on the premise that sandalwood oil was not wood oil as defined under section 2f i of the Act The High Court allowed the case of the respondents and quashed the complaint
Subsequently in another case involving the same controversy a Division Bench of the High Court held that sandalwood oil was a forest produce within the meaning of section 2f i of the Act
The State and tile accused challenged the respective judgments in the appeals by special leave
It was contended on behalf of the accused that sandalwood oil is not a forest produce inasmuch as there is a distinction between wood oil and sandalwood oil wood oil is a natural produce of forest directly derived as an exudation from living trees in the forest whereas sandalwood oil is a bye product from sandalwood by industrial process utilising the heart wood and 497 498 roots of sandalwood trees removed from the forest as a raw material
The State contended that extraction of sandalwood oil even by mechanical process would nonetheless be a wood oil and that since the word timber  defined under section 2 k of the Act includes sandalwood  being a forest produce the oil extracted therefrom would also he within the meaning of the word wood oil 
On the question whether sandalwood oil is a forest produce within the meaning of section 2f i of the Kerala Forest Act 1961
Allowing the appeals of the State and dismissing the other appeal this Court HELD 11 Sandalwood oil is wood oil within the meaning of s2f i of the Kerala Forest Act 1961
Therefore it is a forest produce
507 G  Mohammed Ali vs Forest Range Officer  overruled Khushboo Enterprises vs Forest Range Officer  approved
Kangundi Industrial Works
Kuppam vs The Govt
of AP  disapproved
12 Sandalwood is forest produce
Even its roots are also included as forest produce
They are also timber within the meaning of section 2k of the Act
504 D 13 Forest produce as defined in s2 f of the Act whether found in or brought from a forest or not is a forest produce which include that is to say the enumerated items in clauses 1 and ii
Wood oil is one of the enumerated items as are roots of sandalwood and rose wood
502 E 21 The word wood oil used in the Act will require purposive interpretation drawing the context in which the words are used and its meaning will have to be discovered having regard to the intention and object which legislature seeks to subserve
The purposive interpretation would aid conservation of sandal wood a valuable forest wealth prevent illicit felling and transportation of them and makes the manufacturers of sandalwood oil 499 accountable to the possession of sandalwood trees or chips or roots etc
506C D Municipal Corporation of Greater Bombay vs Indian Oil Corporation   State of Bombay  Ors
vs The Hospital Mazdoor Sabha  Ors  and State of Madhya Pradesh vs M V Narasimhan 1197512 SCC relied on
22 The Legislature does not intend to restrict the word wood oil  nor are there any compelling circumstances in the Act to give restricted meaning that only oil derived from Dipterocarpus trees would be wood oil
The literal interpretation if given acceptance would lead to manifest frustration of the purpose of the Act
506 D Aditya Mills vs Union of India 1988 4SCC315 and Babu Manmohan Das Shah  Ors
vs Bishun Das   referred to
Rathi Khandsari Udyog and Ors vs State of UP  Ors 19852SCC 485 inapplicable
Craies on Statute law
Seventh Edition referred to
Stedman s Medical Dictionan 23rd Edition Concise Chemical and Technical Dictionary Fourth edition Scientific Treatises  Vol 6 by Ernest Guenther Cyclopaedia of India and of Eastern and Southern Asia  by Edward Balfour Materia Medica of India and their Therapeutics  by RN Khori Pharma cographia Indica by William Dymock and Medical Plants of India and Pakistan  by JF Dastru referred to
23 The expert opinion is only an opinion evidence on either side and does not aid in interpretation
506 E 31 Forest produce defined under section 2f of the Act is an inclusive definition
It is settled law that the word include  is generally used as a word of extension
When used in an interpretation clause it seeks to enlarge the meaning of the words or phrases occurring in the body of the statute
504 D 32 The word include  in the definition under section 2f would show that it did not intend to exclude what
was ordinarily and in common parlance to be spoken of wood oil
The expression being technical and being part of an 500 inclusive definition has to be construed in its technical sense but in an exhaustive manner it cannot be restricted in such a manner so as to defeat the principal object and purpose of the Act 505 H 506 A Kishan Lal vs State of Rajasthan  and South Gujarat Roofing Tiles Manufacturers Assn
 Anr
vs State of Gujarat and Anr
   referred to
Fatesang Gimba Vasava  Ors vs State of Gujarat  Ors  distinguished
The process by which the oil is extracted is not decisive as oil may be extracted by natural process of exudation or it may be extracted by subjecting to chemical or mechanical process
The purpose for which the oil is used is also not decisive
506 B 5
The trial court has jurisdiction to proceed with the trial
It is for the trial court to find whether the offence as amputed to the accused has been made out at the trial
507 G