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Super Steels Vs. Ahmedabad Municipal Corporation, Astodia - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Case NumberLetters Patent Appeal No. 153 of 1980
Judge
Reported inAIR1981Guj230; (1981)0GLR665
ActsBombay Provincial Municipal Corporations Act, 1949 - Sections 260; Code of Civil Procedure (CPC), 1908 - Sections 9
AppellantSuper Steels
RespondentAhmedabad Municipal Corporation, Astodia
Appellant Advocate G.P. Vyas, Adv.
Respondent Advocate Deepak Trivedi, Adv. for; G.N. Desai, Adv.
Cases ReferredDhulabhai v. State of M. P.
Excerpt:
.....a statute commits an error of fact which is a jurisdictional fact, his decision is always liable to be questioned in civil court, except where the jurisdiction of the civil court is ousted by clear terms of the statute or by necessary implications (vide: the owner of the premises aggrieved by the said notice and order had filed a suit in the city civil court, ahmedabad, for a declaration 'that the said notice and the said order were bad in law and void and for consequential relief of permanent injunction restraining the corporation from enforcing the said order. the contention urged before the learned single judge in the said appeal was that the demolition order was vague and having been passed without application of mind was bad......at the instance of the original plaintiff of civil suit no. 978 of 1975 on the file of the learned city civil judge, ahmedabad, is directed against the order of the learned single judge of this court dismissing the first appeal of the plaintiff being first appeal no. 38 of 1980 against the judgment and order of the city civil judge dismissing the suit of the plaintiff, as the learned single judge found himself unable to enter into and adjudicate upon the only and the material issue whether the premises in question were in existence before the bombay provincial municipal corporations act, 1949 became applicable.2. the reason of the inability of the learned city civil judge to enter into and adjudicate upon the material issue was, in his opinion, the observation of the learned single judge.....
Judgment:

B.K. Mehta, J.

1. This appeal, at the instance of the original plaintiff of Civil Suit No. 978 of 1975 on the file of the learned City Civil Judge, Ahmedabad, is directed against the order of the learned single Judge of this Court dismissing the First Appeal of the plaintiff being First Appeal No. 38 of 1980 against the Judgment and order of the City Civil Judge dismissing the suit of the plaintiff, as the learned single Judge found himself unable to enter into and adjudicate upon the only and the material issue whether the premises in question were in existence before the Bombay Provincial Municipal Corporations Act, 1949 became applicable.

2. The reason of the inability of the learned City Civil Judge to enter into and adjudicate upon the material issue was, in his opinion, the observation of the learned single Judge of this Court in an unreported decision in First Appeal No. 828 of 1973 decided on 12/13th July, 1977 by our learned brother N. H. Bhatt J.

3. At the time of hearing of this appeal, the learned Advocate appearing on behalf of the appellant, urged that the learned City Civil Judge was in error and for that matter the learned single Judge of this Court was also in error in confirming his order that the Civil Court could not have decided the question, whether the premises in dispute existed before the Bombay Provincial Municipal Corporations Act, 1949 (hereinafter referred to as 'the said Act') was made applicable inasmuch as the exercise of the jurisdiction by the competent Court under S. 260 of the said Act would depend upon the adjudication of that collateral fact. In other words, it was submitted that the question whether the premises in dispute were in existence before the said Act was put on the statute book and made applicable was a jurisdictional fact and any erroneous decision thereon is always subject to judicial scrutiny. In submission of the learned Advocate for the appellant, the learned City Civil Judge has read more than what was warranted in the earlier decision of the learned Judge of this Court in First Appeal No. 828 of 1973.

4. On behalf of the respondent-Corporation this contention is sought to be repelled by urging that the plaintiff ought to have led evidence before the competent Authority to justify his contention that the Act did not apply to the premises in question since they were in existence prior to the coming into force of the said Act and in so far as the plaintiff has failed to adduce any evidence in that behalf, it was not open to him to agitate this question before the Civil Court.

5. We are afraid that the contention urged on behalf of the respondent-Cor1poration is too specious to be adhered to. It is settled position of law which is riot required to be supported by citation of any decisions since it is clear on the matter of principle as well as authorities that if a Tribunal or an officer acting under a statute commits an error of fact which is a Jurisdictional fact, his decision is always liable to be questioned in Civil Court, except where the jurisdiction of the Civil Court is ousted by clear terms of the statute or by necessary implications (Vide: Raza Textile Ltd. v. 1. T. O. Ranipur, AIR 1973 SC, 1362). This court has, In Municipal Corporation of the City of Ahmedabad v. Patel Prabhudas Dhanjibhai (1960) 1 Guj LR 94, held that S. 260 of the Bombay Provincial Mmicipal Corporations Act was not of retrospective nature but prospective in its operation and any proceeding in respect of a default under the provisions of the Bombay Municipal Boroughs Act, 1925 can only be continued under the provisions of that Act provided that such provisions of the Act fall within the scope of Appendix IV of the Bombay Provincial Municipal Corporations Act of 1949 and are saved under its S. 493 or Appendix IV. The learned single Judge (Shelat J.) further held that a notice issued under S. 260 of the 1949 Act in respect of the constructions made prior to the said Act coming into operation was not a valid and legal notice. In other words, the proceedings which can be initiated by the Corporation under S. 260 for purposes of the demolition of the unauthorised structure are competent only in respect of the structures which have been constructed after the Corporations Act came into force. This will be undoubtedly a jurisdictional fact inasmuch as the notice under S. 260 would be competent provided it is established that the premises are in existence prior to the application of the said Act. If, therefore, the competent Authority purporting to act under S. 260 decides in fact either in favour of the Corporation for initiation and continuation of the proceedings for demolition of unauthorised structures or in favour of citizens for discharge of notice,, the decision of the said authority would invest the authority with the jurisdiction to continue or not to continue the proceedings, and if in course of deciding that jurisdictional fact, the competent -Authority goes wrong, the citizen has always a right to agitate that question by challenging the decision for demolition in Civil Court. The learned City Civil Judge, however, found himself unable to go into this question since he was bound by the decision of this Court in First Appeal No. 828 of 1973 decided on 12th/13th July, 1977. The learned single Judge in that appeal was concerned with a notice dated Oct. 17, 1970 for demolition of unauthorised structure issued by the Deputy Town Planning Officer under S. 260(1)(a) of the said Act and the consequent order of Nov. 14, 1970 passed under S. 260(2) of the said Act. The owner of the premises aggrieved by the said notice and order had filed a suit in the City Civil Court, Ahmedabad, for a declaration 'that the said notice and the said order were bad in law and void and for consequential relief of permanent injunction restraining the Corporation from enforcing the said order. The owner came in appeal being aggrieved with the order of the City Civil Court dismissing the said suit as the learned City Civil Judge was of the opinion that the suit was not tenable. A number of contentions was advanced before the learned single Judge in the course of hearing of the appeal. Contention No. 3 is material for the purposes of this appeal since in the course of discussion of that contention the learned Judge has made some observations which the learned City Civil Judge in the present case found as denying jurisdiction to the Civil Court to try an issue whether the Act applied to the premises in dispute or not. The contention urged before the learned single Judge in the said appeal was that the demolition order was vague and having been passed without application of mind was bad. The learned single Judge, while dealing with this contention, has recorded as under:

8. All that he had stated was that the three rooms were old and the Act did not apply. Even if we interpret this layman's reply liberally and hold that there was an implicit specific contention advanced on behalf of the appellant, there is ample material on the record to show that the authority concerned had, before it the concrete evidence, evidencing otherwise Thus, there was sufficient material before the concerned authority to show that what the appellant was contending before it in the form of his structures being more than 22 years old was a clear hoax. The executive officers assigned with the duty of discharging quasi-judicial functions are not expected to write elaborate judgments as is done by the legally trained persons. All that is required is that there should be reasonable material before the Court subsequently to examine the question of application or non-application of mind to enable the Court to hold that all relevant facets were adverted to by the authority and a decision had been arrived at fairly and reasonably. It was up to the appellant and the appellant alone to convince this Court that the said order had been passed without any application of mind.

As a matter of fact, considerable evidence was led before the learned trial Judge, much of it unnecessarily, about the existence of the structure at the site. It was not within the domain of the learned Judge to decide himself whether the structures were 25 years old or not. All that he had to decide was whether the quasi-judicial authority had applied its mind to that contention of the appellant and whether there was any material of probative value before that authority to arrive at the conclusion it reached ........

The emphasised part of this observation of the learned single Judge has been read by the learned City Civil Judge in the present suit as exclusion of the Civil Court's jurisdiction. It is no doubt true that the learned Judge has said that the question of existence of the structure at the site was not within the domain of the learned Judge but that observation was made in the context of the contention, whether the authority had applied the mind or not. The learned single Judge was not concerned with the question whether the Civil Court has jurisdiction or not. It cannot be urged as has been sought to be done here before us, by the learned Advocate for the respondent-Corporation that the Civil Court has no jurisdiction whatsoever to go into the question as to whether the said Act was applicable to the structure in dispute since it was constructed before the Corporations Act was made applicable. We are afraid this is too specious a contention to which we should readily agree to, obviously for two reasons: In the first place, exclusion of jurisdiction of Civil Court is not readily to be inferred unless the finality is attached to the orders of special authorities or tribunals or where there is a bar of jurisdiction of the Court by an express provision or by necessary implications. Even such provision as to the finality or exclusion does not exclude the jurisdiction of Civil Court where the provisions of a particular Act have not been complied with or a statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure and where the special remedy does not ensure full and complete relief as available in Civil Court (Vide: Dhulabhai v. State of M. P. AIR 1969 SC 78). Secondly, in any view of the matter, any error committed by the Tribunal or an authority under the statute on a fact which would invest it or him with the jurisdiction is always subject to judicial scrutiny in the ordinary Civil Court. Unless, therefore, the jurisdiction of Civil Court is ousted by express terms or by necessary implication, it would be wrong on the part of the learned City Civil Judge to read this observation as tantamount to saying that the jurisdiction of the Civil Court is completely barred. We are, therefore, of the opinion that the learned City Civil Court Judge and for that matter the learned ,single Judge of this Court were in error :in dismissing the suit without inquirying into the material question raised at issue No.1 on the ground of want of jurisdicition.

6. The result is that this appeal must be allowed and the order of the City Civil Court as confirmed in First Appeal No. 38 of 1980 by this Court should be set aside and the matter should go back to the City Civil Court for disposal on merits. The City Civil Court is directed to dispose of the suit as expeditiously as possible. Appeal is allowed accordingly and the costs of this appeal will be the costs in the cause of the suit.

7. Appeal allowed.


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