1. These Miscellaneous First Appeals are instituted by the original defendant, namely, the Commissioner, Corporation of the City of Bangalore, against the orders passed on I. As. I and III in the two suits, namely, 0. S. 1575/80-9663/1980 and 0. S. 1579/1980 - 10419/1980, dated 9-12-1980 by the III Additional City Civil Judge, Bangalore.
2. The facts germane for the decision of the question at issue in these two appeals are these :
In respect of premises bearing Nos. 771 to 774, 0. T. C Road, Chickpet, Banglore, notices under S. 322(1) of the Karnataka Municipalities Act, 1976 (hereinafter r6feffOd to as the Act), were issued by the Commissioner, Corporation of the City of Bangalore, to owners and occupiers requiring them to demolish the buildings and to keep the premises clean. In premises Nos. 772 and 773, the occupiers Kapoorchand Brothers Private Limited, who are the tenants in the building, filed 0. S. 1575/1980 for permanent injunction against the defendant-Corporation from demolishing the premises as per the aforesaid notice. Similar suit was instituted by Shashikanth S. Javeri, tenant in respect of premises bearing No. 774. These two premises form part of the same building located in 0. T. C. Road, Chickpet, Bangalore. On instituting the suits on 2-8-1980, applications were filed in both suits for temporary injunction under 0. 39, Rr, 1, 2 and 7 read with S. 151, C. P. C., for grant of ex parte temporary injunction in terms of the plaint prayer. Emergent notices were ordered on 4-8-1980 by the trial Court. The defendant entered appearance. After hearing the counsel, the learned Munsiff, before whom the original suits were pending, granted temporary injunction restraining the defendant-Corporation from demolishing or damaging the building until further orders and adjourned the suits to enable the defendant to file written statements and objections to I. A. I. in each suit.Thereafter, the defendant - filed applications, I. A. III in each suit, under 0. 39, R. 4 read with S. 151, C. P. C., for vacating the temporary injunction order. The learned City Civil. Judge, clubbed. these two matters together and heard the counsel and by a common order dated 9-12-1980 confirmed the temporary injunction order already issued in each suit on 4-8-1980. Aggrieved by the said order, the above two appeals are instituted before this Court.
3. The learned Advocate General, appearing for the appellant-Corporation in the two cases, vehemently contended that the trial Court was not justified in not vacating the injunction order already issued. According to him the suits themselves were not prima facie maintainable under law. Moreover, a writ petition of the building owner in W. P. No. 13509/1980 was rejected by a single Judge and the appeal instituted was subsequently withdrawn. Therefore he submitted that prima facie the suits were barred by general principles of res judicata. Hence he submitted that the appeals were entitled to succeed. He further submitted that the learned City Civil Judge failed to appreciat6 that the decision of the appropriate and competent authority in regard to the condition of the building was not a justiciable issue before the Civil Court.
4. As against that the learned counsel appearing for respondents-plaintiffs argued supporting the common order passed by the learned City Civil Judge.
5. The points, therefore, that arise for my consideration in these appeals are :
(1) Whether the two suits are not prima facie tenable in law?
(2) Whether the two suits are barred by general principles of res judicata?
(3) Whether there are grounds to interfere with the discretionary order passed by the trial Court?
6. Point No. 1: The learned Advocate General invited my attention to the fact that if the plaintiffs were aggrieved by the order passed by the Commissioner, Corporation of the City of Bangalore, they had a right of appeal to the Standing Committee and to the Corporation and the decision of the Standing Committee and Corporation became final and. as such by necessary implication the jurisdiction of the Civil Court in that behalf was barred.
7. The notice of the Commissioner in issued under sub-secon (1) of S. 322 of the Act to demolish the old buildings and keep the premises clean. There is no doubt that an appeal to the Standing Committee is provided for against such an order under Section 444 of the Act. - Sub-section (2) of Section 444 of the Act states:
'If, on any such appeal, the Standing Committee reverses or substantially modifies any action taken or proposed to be taken by the Commissioner or any order passed by him, he may, within sixty days of the date of such decision refer the matter to the Corporation, and pending the decision of the Corporation on such reference, the Commissioner shall not be bound to give effect to the decision of the Standing Committee.' Sub-section 0) of S. 444 of the Act states:
'The decision of the Standing Committee or where the matter has -been referred to the Corporation as aforesaid, the decision of the Corporation shall be final.' Relying on these provisions, the learned, Advocate General submitted that there was a special provision in the City of Bangalore Municipal Corporation Act itself and as such the suits were not maintainable in the Civil Court as by necessary implication the jurisdiction of the Civil Court was barred.
8. In this connection, the learned counsel for respondents-plaintiffs in these two cases submitted that the right of a party to institute a suit is an inherent right vested in every person and he should not be tightly deprived of that valuable right. It is true that the Supreme Court of India in the case of Ganga Bai v. Vijay Kumar : 3SCR882 , speaking through justice Chandrachud has observed (at p. 1129 of AIR):
'There is a basic distinction between the tight of suit and the right of appeal. There is an inherent right in every person to bring a suit of a civ'I, nature, but the right of appeal inheres in no one and therefore an appeal for its maintainability must have the clear authority of law.'
The Supreme Court has further postulated certain propositions where the jurisdiction of the Civil Court is barred by necessary implication, in a contingency like the present one, in the case of Dhulabhai etc. v. State of Madhya Pradesh : 3SCR662 . A Bench of the Supreme Court consisting of the then Chief Justice Hidaytullah, R. S. Bachawat, C. A. Vaidialingam, K. S. Hegde and A. N. Grover, JJ. speaking through Chief Justice Hidaytullah has laid down the following principles regarding exclusion of jurisdiction of Civil Court thus (at pp- 89, 90 of A14):
'(1) Where the statute gives a -finality to the orders of the Special Tribunals the Civil Courts jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Court would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure.
(2) Where there is an express bat 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 riot 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 the said statute or not.
(3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals.
(4) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit.
(5) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected, a suit lies.
(6) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it in a relevant enquiry.
(7) An exclusion of jurisdiction of the Civil Court is not readily to be inferred- ualess the conditions above set down apply.' On the facts of the present case . we ar-: concerned with the propositions Nos. I and 7. These propositions have been affiftned in a later decision of the Supreme Court in the case of Bata Shoe Co. Ltd. v.. Jabalpur Corporation : 3SCR182 .
9. The learned Advocate General relying on the affirmation of proposition No. 1 above made in the later case submitted before me that since the statute narriely, The Karnataka Municipal Corporations Act, 1976 by Section 444(3) makes the decision of the Standing Committee or the Corporation, as the case may be, final in an appeal against an order passed by the Commissioner of the Corporation, by necessary implication the jurisdiction of the Civil Court is barred. The learned counsel for respondents, however, invited my attention to the very proposition, namely, proposition No. 1 reproduced above where it is stated 'such provision, however, does not exclude those 'cases where the provisions of the particular Act have not been complied with or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure'. He submitted that the Commissioner of the Corporation in the in instant case has not complied with the fundamental principles of judicial procedure, in issuing the order, inasmuch as he has not given any opportunity by issuing a show cause notice to the present respondents-plaintiffs before passing the order to demolish the building. As such they submitted that a suit is maintainable as is made clear under proposition No. 1 reproduced above.
10. This Court by a Division Bench decision consisting of Govinda Bhat and Sadanandaswamy, JJ. has ruled in the case of Mary M. D'Souza v. Municipal Commissioner, Mangalore City Municipality ((1968) 1 Mys LJ 90) thus :
'Though the Act does not contemplate the giving of any opportunity to the owner or the occupier to show cause against the order for demolition proposed to be issued under S. 213(2) of the Mysore Municipalities Act, since such action affects the fundamental rights of citizens, the authority taking action thereunder is, ordinarily when there is no imminent danger, under a duty to observe the rule of natural justice.'
Similar are the views expressed in Lalbhai Tricamlal v. Municipal Commissioner for the City of Bombay (ILR (1909) 33 Bom, 334) wherein it is observed thus:
'Under certain circumstances the safety of the public must be considered in priority to the right of private individuals, as in the case of imminent danger, but where there is no suggestion of imminent danger, the person affected is entitled to be heard as a matter of common justice.'
See also Cheetham v. The Mayor and C. of The State of Manchester, (1875) 10 CP 249.
In the instant case, obviously the notice a issued under sub-section (1) of S. 322 which is analogous to S. 2 of the Mysore Municipalities Act. The observation made by the Division Bench applies on all fours to facts of the present case. There was no imminent danger to the building- on the facts of the present case, because, manifestly the notice is issued under sub-section (1) of S. 322. Hence, it was obligatory on the part of the Commissioner to issue a show cause notice and comply with the principles of natural justice, before passing the impugned order. He has not done so. Therefore as is explained in the proposition No. 1, above, a suit is maintainable.
11. The learned Advocate General, however, submitted that after receipt of the order the party could have represented to the Commissioner, if they had any grievance. That does not satisfy the principles of natural justice which require a show cause notice to be issued before passing an order. If an authority is required; it is be found in the case of S. L. Kapoor v. Jagmohan (AIR 1991 SC 136) wherein it is observed in para 16 of the judgment thus :
'In our view, the requirements of natural justice are met only if opportunity to represent is given in view of proposed action. The demands of natural justice are not met even if the very person proceeded against has furnished the information on which the action is based, if it is furnished in a casual way or for some other purpose. (See also paras 21 and 22 of the Judgment).
12. This Court by a Division Bench decision in the case of Muniyallappa v. Krishnamurthy B. M. : AIR1977Kant137 , speaking through Chief Justice Govinda. Bhat, has observed at page 393 thus:
'It is a fundamental requirement of our system of law that all Tribunals or Authorities vested with the power to adjudicate upon the rights of parties affecting their rights to life or property, shall, comply with the Rules of Natural Justice. This basic requirement is not an empty formality. Violation of the Rules of Natural Justice renders the decision void even where the law provides for an appeal. In Ridge v. Baldwin, the House of Lords held that a decision given without regard to the principles of Natural Justice is void. In General Medical Council v. Spackman, (1943) AC 6627, Lord Wright said:
'If the principles of natural justice, an violated in respect of any decision, it in indeed, immaterial whether the same decision would have been arrived at in the absence of the departure from the essential principles of justice. The decision must be declared to be no decision.' Admittedly on the facts of this case no show cause notice was issued before action was taken.
13. In the view that I have taken a further arguments of the learned Advocate General, that if prima facie the suit is not maintainable the application for temporary injunction is also not maintainable (vide Smith v. Inner London Education, Authority, (1978) 1 All ER 411) does not survive for consideration.
14. Point No. 2: The learned Advocate General next argued that the present suits are barred prima facie by the general principles of res judicata as a writ petition for the same relief instituted at W. P. 13509/80 was rejected and the appeal against it at W. A. Nos. 1656 and 1759/1980 was withdrawn.
15. There cannot be any doubt for the proposition that general principles of rec judicata do apply, if a writ petition for the same purpose is dismissed. This Court in the case of T. N. Perumal Reddy v. State of Karnataka (ILR (1980) 2 Kant 774) reviewing the decisions of the Supreme Court has observed:
'That general principles of res judicata do apply if an earlier writ petition for the same relief had been dismissed.'
This is what is observed in para 20 of the above judgment:
'Thus, it is obvious that the general principles of res judicata ('Prangnyaya') derive their strength even from our own ancient common law and it is, as stated above, well settled that the general principles of res judicata, apart from the technical rules as contemplated in Section 11 of the Code of Civil Procedure, apply to proceedings before the Court.'
The learned counsel for respondents-plaintiffs, however, invited my attention to the fact that when the writ petition was dismissed by the single Judge, the present tenants were not parties to the writ petition at all. They further invited my attention to the order passed in appeal which reads:
'Writ appeal is dismissed as withdrawn. It is made clear that this shall not in any way prejudice adjudication of the rights of the parties in 0. S. 1575/80, 0. S. 1579/80 and 0. S. 1576/80, on the file of the first Munsiff, Bangalore.'
Thus, there is no substance in the contention that the order passed in the writ petition operates as res judicata and the suits are not maintainable as barred by general principles of rer, judicata.
16. Adverting to the last point, namely that the Court cannot question the finding of the competent authority that the building is in a dangerous condition, that does not loom large on the facts of these cases. Since the Commissioner has not followed the procedure in issuing the order, the Court if it is satisfied on that point can set aside that order without going into the question whether the building is such as to require any demolition. Moreover it is settled law that the discretion given to any authority must not be arbitrary (Gangjibhoy Poonja v. Municipal Corporation for the City of Bombay), (1899) 1 Born LR 754 at p. 764, wherein it is observed that the Court is in the first instance entitled to enquire whether the discretion has been exercised. Discretion has to be exercised first in coming to the conclusion as to the state of the structure and then in fixing upon the appropriate remedy. It is sufficient exercise of his discretion in deciding what structures are dangerous if he appoints a competent person to report to him what structures are dangerous. But if a notice is issued based on the representation of such a person it is open to the owner to prove that that person has not exercised his discretion or has been actuated by improper motives in prescribing steps to be taken. Though it is true that a Munsiff sitting under the Rent Control Act, in a summary proceeding cannot go behind the finding of a competent municipal authority holding that the building is dilapidated, (vide (1971) .2 Mys LJ 18), a Civil Court in a regularly instituted suit is not deprived of jurisdiction to enquire into the matter, in a proper case as stated above. That is, however, a matter for the Court to decide during the trial.
17. In the result, Iam satisfied that there is no substance in the contentions raised before me. The trial Court has exercised its discretion in a legal and proper way.
18. Hence, for the foregoing reasons, the appeals fail and are dismissed. No costs.
19. Appeals dismissed.