RFA 26/2007 BEFORE HON’BLE MR JUSTICE A.K.GOEL HION’BLE MR JUSTICE UJJAL BHUYAN JUDGMENT AND ORDER(ORAL) Geol, J :- This appeal has been preferred against the judgment and order dated 23.5.2007 passed by learned Civil Judge (Senior Division) No.3, Kamrup, Guwahati dismissing the suit of the appellant mainly on the ground that the jurisdiction of the civil court was barred. 2. The Assam State Electricity Board ( for short, hereafter referred to ’ASEB’) undertook construction of hydro electric power station in the district of Karbi Anglong on river Borapani. The execution of the work was entrusted to a contractor and thereafter to National Project Construction Corporation and f inally to the appellant on 25.3.1993. Since the project could not be completed a s contemplated and disputes arose between the ASEB and the appellant leading to filing of the suit by the appellant, the State of Assam issued an Ordinance on 6.1.1997 which was followed by the Bharat Hydro Power Corporation Limited (Ac quisition and Transfer of Undertaking) Act, 1996.( for short, the ’ Act’). Und er the Act, the Project was transferred and vested in the Board and the appella nt was entitled only to compensation to be determined as per the said Act. 3. The appellant challenged the said Act as violative of the rights o f the appellant under Articles 14 and 19(i)(g) and also on the ground that the same was beyond legislative competence of the State legislature. Learned Single Judge of this Court struck down the Act but the Division Bench of this Court in Assam State Electricity Board and Ors vs. Bharat Hydro Power Corporation Ltd. & Ors, 1998(4) GLT 87 reversed the view taken by the learned Single Judge and h eld the Act to be valid. The judgment of the Division Bench of this Court was af firmed by the Hon’ble Supreme Court in Bharat Hydro Power Corpn. Ltd and Ors vs . State of Assam and another, (2004) 2 SCC 553. 4. The claim of the appellant filed before the statutory Commission was adj udicated upon vide the report dated 14.9.2002 holding the appellant to be entit led to compensation of Rs.30.87 crores approximately with interest. The State o f Assam challenged the report of the Commission by filing an appeal under secti on 14(7) of the Act as well as a writ petition under Article 226 of the Constitu tion to the extent the grievance was beyond the scope of appeal. The report/aw ard of the Commission was partly modified vide judgment and order dated 29.3.20 04 in State of Assam vs. Bharat Hydro Power Corporation Ltd, reported in 2004 ( 1) GLT 510 . We have been informed that so far as the appellant is concerned, the said judgment has not been challenged. The State of Assam filed an appeal wh ich is said to be pending before the Hon’ble Supreme Court. 5. The appellant filed suit in the Court of the Civil judge (Senior Divisi on) No.3, Kamrup, Guwahati on 16.12.2004 seeking a decree for about Rs. 7 crores . The said amount relates to interest and expenses incurred by the appellant. T he State of Assam contested the suit inter alia on the ground that the jurisdi ction of the civil court was barred under section 9 of the Code of Civil procedu re and also on the ground that the subject matter of the suit was covered by th e statutory adjudication under the Act. The suit was also contested on merits an d counter claim was filed by the State of Assam claiming about Rs. 21 crores. 6. Following issues were framed - 1) Whether the suit is maintainable in law & fact ? 2) Whether there is cause of action for the suit? 3) Whether this court has territorial jurisdiction to entertain the suit ? 4) Whether the suit is barred u/s 9 of C.P.C.? 5) Whether the suit is barred by the principle of resjudicata ? 6) Whether the suit is barred by limitation ? 7) Whether the plaintiff have to realize Rs.6,91,47,201.70 from the Defendants and interest as claimed in the suit ? Issues on Counter claim : 8) Whether the counter-claim is maintainable ? 9) Whether the counter claim made by the defendants No.1 & 2 is Barred by limitation. 10.Whether the defendant No.1 is entitled to decree for realization Of Rs.21,31,48,065.82 ? and interest as claimed? 11. Whether the defendant No.2 is entitled to get a decree for Rs.26667.79 on counter claim and interest as claimed ? 12. To what relief/reliefs the parties are entitled to ? 7. Vide impugned order, the suit has been dismissed. Issue No.4 was taken up to be the main issue for consideration, which was a legal issue. The said issue was decided against the appellant mainly on the ground that6 under Sectio n 5(2) of the Act, the liability of the company could not be enforced against t he State government. 8. We have heard Mr GN Sahewalla, learned Senior counsel for the appell ant, Mr PK Khataniar, learned counsel appearing for the Respondent No.1 and Mr K R Surana, learned counsel for the Respondent No.2. 9. Learned senior counsel for the appellant submitted that the trial cou rt erred in relying upon section 5 of the Act for holding that the jurisdictio n of the civil court was barred. The civil court had the jurisdiction to deal wi th the claims which were held to be beyond the Act in the judgment of this Court dated 29.3.2004. 10. Learned counsel for the State of Assam and ASEB supported the impu gned order by submitting that under the Act, the right, title and interest of t he appellant got transferred and vested in the State . Under section 3 of the Act, all rights, liabilities and obligations specified in section 4 of the Act vested in the State Government. All assets of the company specified therein also got vested in the State Government, free from all liabilities and encumbrances. The liabilities of the State government specified therein are the liabilities of the company. The Board was declared under section 6(2) of the Act to be the owner of the undertaking. Section 7 made the State Government liable to pay th e amount fixed by the Commission to the Company and the amount was to be calcul ated as per section 8 of the Act. Thus, according to learned counsel for the re spondents, rights of appellant in relation to the undertaking and its dues were exhaustively governed by the Act. The appellant could not claim any right de ho rs the Act nor approach any other forum than that provided under the Act. 11. Question for consideration is whether civil Court jurisdiction is barred in view of special forum created under the Act which limits rights of the appel lant to compensation to be determined as per the Act. 12. As already noted, the Act was upheld by the Hon’ble Supreme Court . Und er the scheme of the statute, the appellant company was entitled only to the amo unt as may be determined as per statutory provision by the Commission to be appo inted under the Act. The authority to adjudicate upon the rights of the app ellant was exclusively conferred on the Commissioner under the Act. The Scheme o f the Act as contained in Sections 7,8,12 and 14 shows that rights and remedies of the Act are as her the said provisions and there is no right out side the sai d provisions. The said rights cannot be claimed before civil Court but only befo re the statutory forum. 13. Legal position as to exclusion of jurisdiction has been discussed in ter alia in Premier Automobiles vs. Kamlekar Shantaram Wadke, 1976 (1) SCC 496. There in workers of the employer filed suit for certain claims which amounted t o industrial disputes and fell under Section 2(k) of the Industrial Disputes A ct, 1947. It was held that since separate machinery had been created for adjudic ation, civil court jurisdiction was barred. Relevant discussion therein is repr oduced below : 9. It would thus be seen that through the intervention of the appropriate gover nment, of course not directly, a very extensive machinery has been provided for settlement and adjudication of industrial disputes. But since an individual aggr ieved cannot approach the Tribunal or the Labour Court directly for the redress of his grievance without the intervention of the Government, it is legitimate to take the view that the remedy provided under the Act is not such as to complete ly oust the jurisdiction of the civil court for trial of industrial disputes. If the dispute is not an industrial dispute within the meaning of Section 2(k) or within the meaning of Section 2-A of the Act, it is obvious that there is no pro vision for adjudication of such disputes under the Act. Civil courts will be the proper forum. But where the industrial dispute is for the purpose of enforcing any right, obligation or liability under the general law or the common law and n ot a right, obligation or liability created under the Act, then alternative foru ms are there giving an election to the suitor to choose his remedy of either mov ing the machinery under the Act or to approach the civil court. It is plain that he can’t have both. He has to choose the one or the other. But we shall present ly show that the civil court will have no jurisdiction to try and adjudicate upo n an industrial dispute if it concerned enforcement of certain right or liabilit y created only under the Act. In that event civil court will have no jurisdictio n even to grant a decree of injunction to prevent the threatened injury on accou nt of the alleged breach of contract if the contract is one which is recognized by and enforceable under the Act alone. 10. In Doe v. Bridges (1831)1 B & Ad 847 at page 859 are the famous and oft-quo ted words of Lord Tenterden, C.J. saying: Where an Act creates an obligation and enforces the performance in a specified manner, we take it to be a general rule that performance cannot be enforced in a ny other manner. This passage was cited with approval by the Earl of Halsbury, L.C. in Pasmore v. Oswaldtwistle Urban District Council 1898 AC 387 and by Lord Simonds in the ca se of Cutler v. Wandsworth Stadium Ltd 1949 AC 398. Classic enunciation of the law and classification of the cases in three classes was done by Willes, J. wit h the precision which distinguished the utterances of that most accomplished law yer, in the case of Wolverhampton New Waterworks Co. v. Hawkesford (1959) 6 CB (NS) 336 (vide the speech of Viscount Haldane in the case of Neville v. London Express , Newspaper, Ltd.) 1919 AC 368. The classes are enumerated thus: There are three classes of cases in which a liability may be established by sta tute. There is that class where there is a liability existing at common law, and which is only re-enacted by the statute with a special form of remedy; there, u nless the statute contains words necessarily excluding the common law remedy, th e plaintiff has his election of proceeding either under the statute or at common law. Then there is a second class, which consists of those cases in which a sta tute has created a liability, but has given no special remedy for it; there the party may adopt an action of debt or other remedy at common law to enforce it. T he third class is where the statute creates a liability not existing at common l aw, and gives also a particular remedy for enforcing it.... With respect to that class it has always been held, that the party must adopt the form of remedy giv en by the statute. 11. The judgment of the Court of Appeal which was affirmed by the House of Lords in Pasmore case is reported in Peebles v. Oswaldtwistle Urban District Council (1897) 1 QB 625. It was pointed out that the duty of a local authority, under Se ction 15 of the Public Health Act, 1875 to make such sewers as may be necessary for effectually draining their district for the purposes of the Act, cannot be e nforced by action for a mandamus, the only remedy for neglect of the duty being that given by Section 299 of the Act by complaint to the Local Government Board. Lord Esher, M.R. pointed out that the liability to make sewers was imposed by t he statute. There was no such liability before it. The case, therefore, comes wi thin the canon of construction that if a new obligation is imposed by statute, a nd in the same statute a remedy is provided for non-fulfilment of the obligation , that is the only remedy. Lopes, L.J. further succinctly pointed out that Secti on 15 did not create any duty towards any particular individual, and Section 299 gives a specific remedy for the benefit of the locality at large. Thus, it shou ld be noticed, that the obligation imposed by the statute did not result in crea tion of any right in favour of any particular individual. Earl of Halsbury, L.C. pointed out in his speech : The principle that where a specific remedy is given by a statute, it thereby de prives the person who insists upon a remedy of any other form of remedy than tha t given by the statute, is one which is very familiar and which runs through the law. The matter would be different if the obligation imposed under the statute brings into existence a right in favour of an individual but provides no remedy for it s enforcement. Supposing after providing for awarding of certain compensation in Chapter V-A of the Act there was no provision made in it like Section 10 or Sec tion 33-C the mere penal provision for violation of the obligation engrafted in Section 29 or Section 31 would not have been sufficient to oust the jurisdiction of the civil court for enforcement of the individual right created under Chapte r V-A. 12. The decision of the House of Lords in the case of Barraclough v. Brown 1897 AC 615 is very much to the point. The special statute under consideration there gave a right to recover expenses in a court of summary jurisdiction from a pers on who was not otherwise liable at common law. It was held that there was no rig ht to come to the High Court for a declaration that the applicant had a right to recover the expenses in a court of summary jurisdiction. He could take proceedi ngs only in the latter court. Lord Herschell after referring to the right confer red under the statute to recover such expenses from the owner of such vessel in a court of summary jurisdiction 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 t he statute which alone confers the right Lord Watson said : The right and the remedy are given uno flatu, and the one cannot be dissociated from the other. In other words if a statute confers a right and in the same breath provides for a remedy for enforcement of such right the remedy provided by the statute is an exclusive one. But as noticed by Lord Simonds in Cutler v. Wandsworth Stadium Lt d.(supra) from the earlier English cases, the scope and purpose of a statute a nd in particular for whose benefit it is intended has got to be considered. If a statute intended to compel mine owners to make due provision for the safety of the men working in their mines, and the persons for whose benefit all these rul es are to be enforced are the persons exposed to danger , there arises at common law a co-relative right in these persons who may be injured by its contravention . Such a type of case was under consideration before Lord Goddard, C.J. in the cas e of Solomons v. R. Gertzenstein Ltd (1954) 2 WLR 823. Lord Denning, M.R. relied upon the principles enunciated by Lord Tenterden in Doe v. Bridges (supra) appr oved in Pasmore case(supra) in the case of Southwark London Borough Council v. Williams (1971) 1 Ch 734. The celebrated and learned Master of the Rolls said: Likewise here in the case of temporary accommodation for those in need. It cann ot have been intended by Parliament that every person who was in need of tempora ry accommodation should be able to sue the local authority for it: or to take th e law into his own hands for the purpose. 14. Applying the above principle to the present case, we are of the view th at rights and remedies of the appellant are specially dealt with under the Act, which will exclude jurisdiction of civil Court. 15. The claim of the appellant that the civil court had jurisdiction to adj udicate upon the matter cannot be accepted. The adjudication by the Commission has already taken place in the manner as already noted and thereafter nothing su rvives which could be adjudicated upon by the civil court. While considering th e challenge to the report/award of the Commission in paragraph 74 of the judgmen t reported in 2004(1) GLT 510, this Court observed that 1996 Act was a code i n itself and rights and the liabilities of the properties were set out in the A ct, itself. This is also clear from the Scheme of the Act. Sections 7,8,12 and 14 are as under : 7. The State Government, for the right, title and interest of the c ompany which shall stand transferred to and vested in the State Government unde r section 3 or the Board under section 6, as the case may be, shall pay an amoun t to the company that may be fixed by the Commission considering the value of th e assets of the company after observing proper financial formalities. 8. The gross amount payable to the company shall be the aggregate value of a mounts specified below :- (a) if the company executed any work in the project ( to be quantified) af ter the date the company took over till vesting on the State Government, the va lue of such assets to be determined by the Commission to be appointed under this Act less the depreciation calculated in accordance with the Schedule; (b) the book value of all completed works in beneficial use pertaining to t he project and taken over by the State Government excluding the value of such w ork executed prior to handing over to the company less depreciation calculated i n accordance with the Schedule ; (c ) the book value of all works in progress taken over by the State Governm ent between the period of the Company’s taking over in April, 1994 till the app ointed day. (d ) the book value of all stores including spare parts procured by the comp any for the project taken over by the State Government and in case of used store s and spare parts, if taken over, such sums as may be determined by the Commiss ion ; ( e) the book value of all other fixed asserts in use on the appointed day e xcluding those existing on the date of handing over to the company less deprecia tion calculated ion accordance with the Schedule ; ( f) the book value of all plants and equipments existing the appointed day excluding those on the date of handing over to the company, if taken over by the State Government but no longer in use owing to wear and tear of obsolations to the extent such value has not been recorded in the books of accounts of the comp any less depreciation to be calculated in accordance with the Schedule ; (g) any amount paid actually by the company in respect of any contract referr ed to in clause(iii) of sub-section (1) of section 4 ; Provided that the State Government shall resume the possession of the a ssets transferred to the company in the month of April, 1994 without paying any consideration thereof. 12. (1) The net amount due to the company under the Act shall be paid by the St ate Government within six months from the date of receipt of assessment report from the Commission under sub-section(d) of section 14. (2) The net amount payable shall bear interest at the rate of 12% per a mount from the appointed day ; Provided that no interest shall be payable during any extension granted under proviso to sub-section (4) of section 14. 14.(1) The State Government shall, for the purposes of sections 7,8,9,10, 13,15 and 26, constitute, by order in writing, a Commission headed by a sitting or retired High Court Judge. (2) The State Government shall be at liberty to engage and obtain servic es from a person having adequate knowledge and experience in matters relating to accounts to assist the Commission to assess the net amount under this sectio n. (3) The Commission may call for the assistance of such Officers and staff of the State Government, the Board or the company as the Constitution may deem fit in assessing the net amount payable. (4) The Commission constituted under sub-section(1) shall complete the ass essment and submit the report within one year from the appointed day ; Provided that this period may be suitably extended by the State Government if the company fails to furnish or delays furnishing of accounts, information, particulars or documents as mentioned in section 15. (5) The Commission shall have the power to regulate its own procedure in all matters arising out of the discharge of its functions including the place or pl aces which it will hold its sitting and shall, for the purpose of making an inve stigation under this Act, have the same powers as are vested in a Civil Court un der the Code of Civil Procedure, 1908 in respect of the following matter, namely :- (a) the summoning and enforcing the attendance of any witness and examining him on oath ; (b) the discovery and production of any document or other material object p roduciable as evidence ; ( c ) the reception of evidence on affidavits ; (d) the issuing of any commission for the examination of witness ; (6) Any investigation before the Commission shall be deemed to be judicial proc eeding within the meaning of Sections 193 and 228 of the Indian Penal Code, 1960 and the Commission shall be deemed to be a Civil Court for the purposes of sect ion 195 and Chapter XXVI of the Code of Criminal Procedure, 1973. (7) A claimant who is dissatisfied with the decision of the Commission, may pr efer an appeal against such decision to the Gauhati High Court and such appeal s hall be heard and disposed of by not less than two Judges of that High Court. 16. Learned senior counsel for the appellant relied upon the following o bservations in paragraph 74 of the judgment of this Court dated 29.3.2004 which dealt with the claims of the appellant on merits, to submit that equitable rig hts could be determined by the civil court inspite of special remedy under the A ct : There is no manner of doubt that an equitable principle of law, as lai d down by the Apex Court, the company would be and may be entitled to interest from the date of amount is spent on creation of the assets of which the