IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 8TH JUNE 2010 / 18TH JYAISTHA 1932 CRP.NO. 596 OF 2009() -------------------------------- OS.490/2008 OF MUNSIFF COURT,MUVATTUPUZHA .................... REVN. PETITIONER(S): --------------------------------- VINCENT MATHEW(CORRECT NAME IS VINCENT MATHEW), S/O. MATHAI,ELLICKAL HOUSE, POTHANICADU KARA, POTHANICADU VILLAGE, MUVATTUPUZHA TALUK BY ADV. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN RESPONDENT(S): -------------------------- 1. POTHANICADU FARMER'S CO-OPERATIVE BANK LTD., POTHANICADU VILLAGE, POTHANICADU KARA IN KOTHAMANGALAM TALUK, REPRESENTED BY ITS MANAGING DIRECTOR SMT. POULLIN GEORGE, D/O. VARKEY, AENANICKAL HOUSE, POTHANICADU. 2. THE POTHANICADU GRAMA PANCHAYATH, REPRESENTED BY THE SECRETARY. ADV. SRI.PEEYUS A.KOTTAM FOR R1 SRI.BABU JOSEPH KURUVATHAZHA FOR R2 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08.06.2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== C.R.P. No.596 of 2009 ==================================== Dated this the 9th day of June, 2010 O R D E R Petitioner, obviously on the strength of a plan and permit obtained from the local authority started construction of a building in his property. Respondent No.1 which is a Co-operative Bank and which owned a building adjacent to the building being constructed by petitioner made a representation to the local authority (respondent No.2) on 06.10.2008 stating that proposed construction is not in accordance with the Building Rules (for short, “the Rules”) and that if the illegal construction is proceeded with, it will result in irreparable loss and injury to respondent No.1 and hence requested local authority (respondent No.2) to direct stoppage of construction. Since no action according to respondent No.1, was taken respondent No.1 moved this Court in W.P(C) No.32191 of 2008 impleading petitioner, respondent No.2, Additional Director (Vigilance), Panchayat Directorate, Trivandrum and others as parties. Prayer was to issue a writ of mandamus or other appropriate writ or direction and command respondent Nos.1 to 5 therein to take immediate action on the representation made by respondent No.1 and on enquiry if it found that C.R.P. No.596 of 2009 -: 2 :- respondent No.6 in the Writ Petition (petitioner herein) is carrying on illegal construction, take immediate steps to prevent such construction and demolish the construction already made by petitioner. That Writ Petition, I am told is pending. In the meantime under the impression that respondent No.2 is not taking effective steps on the representation respondent No.1 filed O.S. No.490 of 2008 in the court of learned Munsiff, Muvattupuzha seeking a decree for permanent prohibitory injunction restraining petitioner from making construction in plaint B schedule property in violation of the Rules and in such a way as to prevent free flow of air and light to the building in plaint A schedule belonging to respondent No.1 and also in such way as to affect privacy, safety and security of the building of respondent No.1 and the Bank functioning therein. There was also a prayer for mandatory injunction to direct petitioner to demolish and remove that part of construction made in plaint B schedule in violation of the Rules. The suit was resisted by petitioner on various grounds including that the civil court has no jurisdiction to entertain the suit. As per order of court below local authority was impleaded as additional defendant No.2 (respondent No.2 in this case.) Issue regarding jurisdiction was heard by the learned Munsiff as a preliminary issue and as per order dated 01.07.2004 learned Munsiff held that jurisdiction of the court is not ousted. That order is under challenge in this revision petition. Learned Senior C.R.P. No.596 of 2009 -: 3 :- Advocate for petitioner-defendant No.1 contend that in so far as the Kerala Panchayat Raj Act (for short, “the Act”) and the Rules which are made applicable to the Panchayat in question provides for ample remedy for demolition of structures constructed in violation of plan and permit or the Act and Rules and Respondent No.1 having already moved the local authority for the said purpose jurisdiction of the civil court is impliedly ousted. It is also the contention of learned Senior Advocate that respondent No.1 has elected a course of action by moving a petition before the local authority and hence also jurisdiction of the civil court is ousted and respondent No.1 cannot now choose a different Forum – the civil court. Learned Senior Advocate has placed reliance on the decisions in Thodupuzha Municipality v. Abraham Philip (2007 [4] KLT 972), Rajasthan Road Transport Corporation v. Mohar Singh (2008 [3] KLT 371 (SC) and Premier Automobiles v K.S. Wadke (AIR 1975 SC 2238). In response it is contended by learned counsel for respondent No.1 that representation made by it before local authority was only for staying further construction of building and not for demolition of the existing structures and that jurisdiction of civil court is not ousted either expressly or impliedly by any provision in the Act or the Rules. Learned counsel has placed reliance on the decision in C.R.P. No.596 of 2009 -: 4 :- Rajasthan SRTC v. Bal Mukund Bairwa (2009) 4 SCC 299). According to the learned counsel principle of election of Forum does not arise on the facts and circumstances of the case. 2. Before going into the question of jurisdiction of civil court it is necessary to refer to the averments in the plaint (Ext.R1 (b). It is stated in paragraph 3 of the plaint that petitioner has started with construction of a multi storied building very close to the building of respondent No.1 and that construction is in violation of provisions of the Act and the Rules. Details of the alleged violation are given in the said paragraph. In paragraph 4 it is stated that petitioner had submitted building plan before respondent No.2 for construction of the building. In paragraph 5 it is stated that petitioner has started construction of building in plaint B schedule in violation of the Rules, respondent No.1 raised objection but petitioner did not care for that objection. Hence respondent No.1 made a complaint to respondent No.2. Respondent No.2 was reluctant to take any action against petitioner in spite of a genuine complaint made by respondent No.1 and turned a Nelson's eye to that complaint. Respondent No.2 has not taken steps to prevent the alleged act. In paragraph 8 of the plaint it is stated that since construction in plaint B schedule property is without leaving adequate open space on its sides it is illegal and affected privacy, safety and C.R.P. No.596 of 2009 -: 5 :- security of the Bank situated in plaint A schedule. It is also stated that free flow of air and light to the building in plaint A schedule is affected by the illegal construction in plaint B schedule. That amounted to a violation of civil rights of respondent No.1 for enjoyment of its properties. 3. No doubt, the Act and the Rules provide for taking action against unauthorised or illegal construction. Section 235W of the Act states that if construction has commenced without obtaining permission of the Secretary or in contravention of decision of the Panchayat or is not in accordance with the plan or is in violation of permission granted it is within the power of Secretary to direct removal of such structure in the manner stated therein. Section 235X of the Act enables the Secretary to issue order stopping further construction. Section 235W(5) enables the Government, if construction, re-construction or alteration of the building is against provisions of the Act or the Rules to direct the Secretary of local authority to cause demolition of such construction or re-construction as the case may be. 4. Question is whether the said provisions expressly or impliedly ousted jurisdiction of the civil court. Section 9 of the Code enables civil court to entertain a suit of civil nature cognizance of which is not expressly or impliedly barred. Learned Senior Advocate has in all fairness concede that there is no provision in the Act and the Rules which expressly ousted C.R.P. No.596 of 2009 -: 6 :- jurisdiction of civil court but contended that provisions of the Act and Rules impliedly barred civil court from entertaining the suit. It is in that regard that reliance is placed on Thodupuzha Muncipality v. Abraham Philip (supra). That was a case where building owner against whom Exts.A9 to A12 notices and orders were issued by the local authority filed a suit for injunction to restrain the local authority from demolishing the building pursuant to the said orders. In the meantime plaintiff had also challenged the said orders before the statutory authority as referred to in the Act and Rules. Jurisdiction of civil court to entertain the suit was contested by the local authority. This Court referring to the decisions in Kamala Mills v. Bombay State (AIR 1965 SC 1942), Ram Swarup V. Shikar Chand (AIR 1966 SC 893), Shiv Kumar Chadha v. Municipal Corporation of Delhi (1993) 3 SCC 161) and Dhiru Green Field Ltd. V. Hukam Singh (2002) 6 SCC 416) held that civil court is not sitting in appeal over decision of the local authority (in issuing Ext.A9 to A12 orders) and that remedy of plaintiff was to challenge the said orders before proper authority under the Act and Rules. Accordingly it was held that suit is impliedly barred. It has to be remembered that there, challenge was to (Exts.A9 to A12) notices and the orders issued by local authority. Certainly, civil court was not sitting in appeal C.R.P. No.596 of 2009 -: 7 :- over correctness of the notices and order of local authority as the local authority was competent to issue such notices and orders. In such a situation jurisdiction of the civil court was only to the extent of considering whether notices and orders were without authority, in violation of statutory provisions and the principles of natural justice. To grant the relief prayed for, one had to overcome those notices and orders. It is in the circumstances that this Court held that civil court has no jurisdiction to entertain the suit. That decision or decisions relied on by this Court in that decision have no application to the facts of this case. Kamala Mills v. Bombay State's (supra) was a case where appellant-plaintiff sued for recovery of sales tax illegally collected by the taxing authorities. Section 13 of the Bombay Sales Tax Act expressly provided for refund of amount collected in excess of the amount actually due and proviso to Sec.13 of the Act provided period of limitation for claiming refund. Section 21 of that Act provided for appeal while Sec.22 provided for exercise of power of revision with the Government. Section 23A of that Act provided for rectification of mistakes. Section 20 of the Act stated that save as provided in Sec.20 no assessment made and no order passed under the Act or the rule made thereunder by the authorities referred to therein could be challenged in the civil court. It followed that excess amount C.R.P. No.596 of 2009 -: 8 :- which according to the appellant has collected as per order of the authority could not be challenged in the suit. In paragraph 14 of the decision the Supreme Court observed that Sec.20 of the said Act protected not only assessment properly or correctly made or but even assessment which is not valid. It is in the circumstances that civil court was found to have no jurisdiction to entertain the suit. Ram Swarup Shikar Chand ‘s case (supra) is a case dealing with U.P(Temporary) Control of Rent and Eviction Act. That Act stated that a landlord could sue for eviction of a tenant only on proof of grounds mentioned therein and with the specific permission of the District Magistrate. The District Magistrate refused to grant permission to the landlord. But landlord was successful in getting permission from the Commissioner in his revisional authority and on the strength of that authority sued the tenant for eviction. Trial court and appellate court found that permission obtained by the landlord was valid and ordered eviction. The High Court however held that permission obtained from Commissioner was illegal land hence the suit is not maintainable. The suit was dismissed. Matter was taken up before the Supreme Court. The Supreme Court referred to the relevant provisions of that Act and held that permission given by the District Magistrate or Commissioner was beyond challenge in the civil court in view of Sec.16 of the said Act and held that civil court had no authority to decide upon validity of C.R.P. No.596 of 2009 -: 9 :- permission granted by the Commissioner. In Shiv Kumar Chadha v. Municipal Corporation of Delhi (Supra) scope of Sec.9 of the Code was considered. It was held that a statute when created a right or liability and also provides a Forum for its enforcement ouster of jurisdiction of civil court can be upheld on the finding that rights and liabilities in question have been created by the Act without touching a pre-existing right under common law. It was held that 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 as remedy against the orders passed under such statute is concerned. In such cases 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. Dhiruv Green Field Ltd v. Kukam Singh’s case (supra) relates to the Punjab Village Common Lands (Regulation) Act where Sec.13 read with Sec.10A of that Act barred jurisdiction of the civil Court. These decisions have no application to the present case. 5. The Supreme Court in Raja Ram Kumar Bhargava v. Union of India (AIR 1988 SC 752) has dealt with jurisdiction of civil court under Sec.9 of the Code and the circumstances under which it is ousted expressly or by C.R.P. No.596 of 2009 -: 10 :- implication. It is held that when a right not pre-existing in common law is provided in the statute and that statute prescribes a remedy for enforcement of that right, then, in the absence of an express bar jurisdiction of civil court is not ousted in that the right is not created by the statute for the first time. On the other hand a right not existing in common law is provided in the statute and it provides for enforcement of that right, then, even in the absence of an exclusionary provision jurisdiction of civil court is ousted by necessary implication reason being that right is created by the statute and a machinery to enforce that right is also provided. In the present case right of an adjacent owner whether or not he has suffered damages on account of unauthorised construction to move the civil court to enforce the law in force is not a right created for the first time under the Act or the Rules. Instead, it is a right available to the adjacent owner in common law. That has been accepted by this Court in Saina v. Konderi (1984 KLT 428) and P.S.Saseendran v. Vishwambharan & Others (2003 (1) KLJ 265). 6. Yet another fact I must bear in mind is that in the present case challenge is not merely against violation of Rules. It is alleged by respondent No.1 that construction in plaint B schedule property affected security, privacy and safety of banking business conducted by respondent No.1 in plaint A C.R.P. No.596 of 2009 -: 11 :- schedule and that construction adversely affected free flow of air and light to the building in plaint A schedule. Learned Senior Advocate has a contention that such allegations are connected with the allegation that building is constructed not in accordance with the provision of the Act and the Rules. But on a reading of the plaint I am unable to accept that contention. Even if it is assumed that respondent No.1 is not able to prove that construction of building is in violation of the Act and Rules if he is able to show that construction has affected free flow of air and light to the building in plaint A schedule civil court has to consider whether construction in plaint B schedule is liable to be removed. I notice from paragraph 1 of the plaint that building of respondent No.1 plaint A schedule property has been in existence since 40 years. In that case civil court necessarily has to consider whether respondent No.1 has a right to get free flow of air and light laterally also by way of prescription under Section 15 or at least vertically as a natural right under Section 7 of the Indian Easements Act. These matters are not required to be decided by the authorities under the Act and the Rules. Therefore even if it is assumed that issue of construction of building being against the provisions of the Act and Rules is a matter for decision by the statutory authority, it is well within the power of the civil court to entertain the suit on allegations of infringement of right for free flow of air and light. Hence C.R.P. No.596 of 2009 -: 12 :- contention that suit is impliedly barred cannot be accepted. 7. Next contention is that by the doctrine of election respondent No.1 having elected to seek redressal of his grievance before the statutory authorities he cannot turn round and choose a different Forum – the civil court. Reference is made to the representation dated 6.10.2006. Learned counsel for respondent No.1 has given to me for perusal a photocopy of that representation addressed to the Secretary of respondent No.2 where request is to pass appropriate orders to stay further constructions in plaint B schedule. There is no request for demolition of structure already put up. I also find from the copy of Writ Petition referred to above that it is alleged by respondent No.1 that Panchayat authorities are siding with petitioner in the matter of unauthorised construction in plaint B schedule. In the plaint it is averred by respondent No.1 that in spite of complaint (representation dated 6.10.2006 preferred to the local authority) no action has been taken by the local authority to redress grievance of respondent No.1. Therefore it is a case where respondent No.1 does not pursue his remedy before the statutory authorities for the reason that he does not expect to get relief from the said authorities. 8. As regards the contention based on the doctrine of election of Forum learned Senior Advocate placed reliance on the decisions in Premier Automobiles v. K.S. Wadke and C.R.P. No.596 of 2009 -: 13 :- Rajasthan RTC v. Mohar Singh (supra). In the former case the Supreme Court quoted from Neville v. London “Express” Newspaper (1919 AC 368) thus: “There are three classes of cases in which a liability may be established by statute. 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, unless the statute contains words necessarily excluding the common law remedy, the 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 statute 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. The third class is where the statute creates a liability not existing at common law, 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 given by the statute”. Rajastrhan RTC v. Mohar Singh’s case (supra) was a case where jurisdiction of the civil court to entertain a dispute which was otherwise required to be dealt with under the Industrial Disputes Act or connected law was considered. Doctrine of election is based on principle of estoppel. This Court in C.R.P. No.596 of 2009 -: 14 :- Canara Bank v. Thankappan (1989 [2] KLT 74) considered the question whether a Bank having resorted to the remedy of revenue recovery for realisation of amount and failed in that attempt could institute a civil suit for recovery of the amount. Overruling the decision in Maniyan v. Federal Bank (1988 [2] KLT 922) which took the view that by the doctrine of election Bank is precluded from filing a civil suit the Division Bench held that principle of estoppel by election would arise only in cases where the two courses of action available are mutually exclusive and the opposite party on the faith of representation by conduct or otherwise has acted to his detriment or has adopted a course of action which otherwise he would not have resorted to. Applying that principle I am not able to find that on account of respondent No.1 making representation before Secretary of respondent No.2 requesting for stay of further construction in plaint B schedule property either petitioner or respondent No.2 has changed their position or acted to their detriment. Learned Senior Advocate would contend that it is on account of the said representation that petitioner was dragged into this Court and he had to suffer loss on account of that. But that is not a change of position for applying the principle. As such the contention that by electing to make representation before the local authority respondent No.1 has forfeited his right to move the civil court C.R.P. No.596 of 2009 -: 15 :- cannot be accepted. I do not find reason to interfere with the finding of court below that it has jurisdiction to entertain the suit. Civil Revision Petition fails. It is dismissed. Interlocutory Application No.3267 of 2009 shall stand dismissed. THOMAS P. JOSEPH, JUDGE. vsv