No Remedy Under Article 227 For Orders Revisable U/S 115 CPC: Kerala High Court

The Kerala High Court recently held that an Original Petition filed under Article 227 of the Constitution is not the remedy in relation to an order which is revisable under Section 115 of the Civil Procedure Code. Justice A. Badharudheen while holding so, further observed that where there is an allegation of obstruction of natural right (to get light and air to the property) in a civil suit, it is the civil courts that would have jurisdiction over the same, and the Tribunal for Local Self Government cannot address such violation. The instant petition under Article 227 of the Constitution was filed against the order of Additional Munsiff Court in a suit for mandatory injunction by the plaintiff (first respondent herein) directing the defendant 1 (second respondent herein) and defendants 2 and 3 (Petitioners herein) to demolish a building which had been constructed without obtaining permit from the concerned Local Self Government Institution and without leaving sufficient set back and also by obstructing natural right to light and air of plaintiff by making such illegal constructions. The petitioners in the instant case, represented by Advocates V.G. Arun, V Jaya Ragi, Indulekha Joseph, and Neeraj Narayan, contended that it was settled in law that if a statute creates rights or obligations and provides for an exhaustive mechanism for enforcement of the same, the jurisdiction of the civil courts would be impliedly barred. The provisions Sections 406, 408 & 509 of the Kerala Municipality Act, 1994 r/w Rule 8 of the Tribunal for Local Self Government Institutions Rules, 1999 r/w section 41(h) of the Specific Relief Act were relied upon to argue that the suit is barred under Section 9 CPC. Reliance was placed on Thodupuzha Municipality v. Abraham Philip, wherein it was held that exclusion of jurisdiction of civil court is implied when the special act affords alternative remedy.On the other hand, the counsels for the respondents, Advocates Ram Mohan G., G.P. Shinod, Govind Padmanaabhan, and Ajit G. Anjarlekar, submitted that the first respondent/the plaintiff in the suit, does indeed have the option to elect either the forum provided under the special statute or before the civil court. Reliance was also placed on the Apex Court decision in South Delhi Municipal Corporation & Anr. v. M/S.Today Homes and Infrastructure Pvt. Ltd., wherein it was observed that jurisdiction of the civil courts cannot be completely taken away in spite of either an express or implied bar, and that civil courts shall have jurisdiction to examine a matter in which there is an allegation of non-compliance of the provisions of the statute or any of the fundamental principles of judicial procedure.It is here that the counsel for the petitioners pointed out the Section 406 of the the Kerala Municipality Act, 1994, whereunder the procedure to be followed in the case of construction made in violation of the statute and the building rules is stipulated, as per which the said procedure can be set in motion by an aggrieved person like an adjoining owner. The counsel argued that as per Section 271 (S) of the Kerala Panchayat Raj Act, 1994, an order passed under Section 406 of the Kerala Municipality Act, 1994 is amenable to an appeal before the Tribunal for Local Self Government Institutions. It is on this ground that the counsel for the petitioner argued that the jurisdiction of civil courts was impliedly barred. He further argued that according to Section 147 of the Kerala Municipal Building Rules, illegal constructions can be regularized and such a right would be curtailed if a decree of injunction for demolition is passed by the trial court and, thereby indicating that the Suit is not maintainable and the appropriate remedy for the plaintiff lies before the Tribunal for Local Self Government Institutions. The counsel also argued that where there were two reliefs claimed by the plaintiff/respondent - firstly, that of demolition of the building alleged to be constructed by the defendants in violation of the Kerala Municipal Building Rules, 1999 and without leaving set back as per the Rules and without plan and permit, and secondly that of seeking the demolition of construction in the property of the defendants and illegal fixtures which obstructed the natural right of the plaintiff to get light and air to the property of the plaintiff after closing the ventilators, it is the first relief alone which is to be read as the actual relief sought for, and which could be appropriately sought for before the Tribunal. Refuting the same, it was argued by the counsel for the respondents that Civil Courts shall have jurisdiction to examine a matter in which there is an allegation of non-compliance of the provisions of statute or any fundamental principles of judicial procedure and in such cases it could not be held that the jurisdiction of the civil courts completely taken away in spite of either an express or implied bar. It was ...

No Remedy Under Article 227 For Orders Revisable U/S 115 CPC: Kerala High Court

Navya Benny

Where there is allegation of obstruction of natural right, civil court's jurisdiction is not barred by special Act.

Tags