CORPORATION OF CALCUTTA Vs. DHANAPATI BANERJEE

JUDGEMENT

(1.) AFTER hearing the learned Advocates for the parties I think that the learned Lower Appellate Court did wrong in holding that the suit as framed by the opposite party in this Rule was maintainable before a Civil Court. The petitioner gave a demolition notice to the opposite party alleging that they had made some unauthorised constructions. Against the said notice the opposite party made objection and the Deputy Commissioner by his order dated 19. 2. 1976 held that the alleged constructions were unauthorised and also directed the opposite party that such unauthorised construction should demolished. Aggrieved by the said order passed by the Deputy commissioner, the opposite party filed Title Suit No. 168 of 1976 before, the 4th Court of the learned Munsif at Alipore, 24-Parganas challenging the said demolition order. A preliminary objection" was taken by the Corporation of Calcutta in the said' suit regarding the maintainability of the suit and the learned Munsif by his order dated 10th of August, 1981 held that he had no jurisdiction to try the suit and ordered that the plaint be returned to the filing lawyer for presentation to the proper forum. Against the said order an appeal being misc. Appeal No. 512 of 1981 was preferred by the opposite parties before the learned Additional District Judge, 14th Court, at Alipore, 24-Parganas which was ultimately allowed by the learned Additional district Judge on 24. 4. 1982- holding that Civil Court had jurisdiction to entertain the suit as filed by the plaintiff. Against the said order by the Appellate Court the Corporation of Calcutta has moved this court in revision and obtained the present Civil Rule.

(2.) MR. P. K. Ghosh, learned Advocate appearing on behalf of the Corporation of Calcutta with Mr. Barin Banerjee, learned Advocate has submitted before me that in view of the provisions of Section 414a of the Calcutta Municipal Act, 1951 an appeal lay before the building Tribunal against the said order of demolition passed by the deputy Commissioner and there was an express bar provided under the said Act regarding the jurisdiction of the Civil Court to try suit of the present nature under Section 391 (g) of the said Act and as such the opposite parties should have preferred an appeal instead of filing a suit and Mr. Ghosh also submitted a written argument in support of his contentions. Mr. Ghose in his said written argument contended inter alia, that where the statute has provided a remedy and a forum in respect of grievances arising out of the rights and liabilities created by or under the statute, the party aggrieved must first exhaust the statutory remedy. After doing that he may challenge the order of the statutory Tribunal in the Civil Court on the ground that the said Tribunal has acted illegally or in excess of its jurisdiction or in abuse of its jurisdiction, in a sense, the principles which govern the writ of Certiorari would be application of the Civil Court. Mr. Ghose further contended in his said written argument that in the absence of any pleading in the plaint as to the non-compliance of any fundamental provision of statute which renders the demolition order illegal the instant suit is not maintainable in law. The learned additional District Judge wrongly held that the Civil Court had jurisdiction to try the instant suit. At this state for considering the question of maintainability of the suit, the court can only look into the pleadings and nothing else. The question whether the alleged demolition notice had been served upon the opposite party or not, is a question of fact which could be well agitated before the statutory Tribunal and that question could be decided by the said Tribunal as well. The learned additional District Judge should not have assumed jurisdiction in such a case where the party sought to by-pass the statutory Tribunal in order to agitate a question of fact in a civil suit.

(3.) MR. Ghose further contended in his written argument that the appellate Tribunal, which in this case is the Building Tribunal, can certainly set aside an order of demolition if it is proved that the demolition notice was not given. The Tribunal is also empowered to take evidence as the Tribunal has been clothed with all the powers of the Civil Court and competent to take evidence orally and also empowered to grant stay of operation of the order appealed against. In support of his said contention Mr. Ghose referred to the well-known decision in Secretary of State v. Mask and: Company reported in AIR 1940, Privy Council 105 where Their Lordships were pleased to observe inter alia, as follows :