Allowed

K.Venkatesh Bhat v. the Kasaragod Municipality,Rep.by Secy.

Kerala HC12 Jul 2011CRP/10/2005

Case brief

AI extract

What is this about?

Revision against orders barring a suit for damages against a municipality and a private individual for cutting coconut trees. The High Court held that allegations of malafide conduct and violation of natural justice in the plaint prevent an early decision on jurisdictional bar, remitting the case for trial.

What did the court decide?

The revision was allowed; impugned judgment and order were set aside; the suit was remitted to the trial court for trial and disposal with directions to expedite proceedings.

K.Venkatesh Bhat Vs the Kasaragod Municipality,Rep.by Secy. — Landlord and Tenant | Kerala HC (2011)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE THOMA P.JOSEPH

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TUESDAY, THE 12TH JULY 2011 / 21ST ASHADHA 1933

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CRP.No. 10 of 2005()

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AS.16/1999 of SUB COURT, KASARAGOD OS.82/1998 of ADDL.MUNSIFF COURT, KASARAGOD ....................

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REVN. PETITIONER(S): APPELLANT/PLAINTIFF:

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K. VENKATESH BHAT, S/O. DEVANNA BHAT, RESIDING AT ANANGOOR IN KASARAGOD VILLAGE AND POST, KASARAGOD TALUK.

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BY ADV. SRI.K.G.GOURI SANKAR RAI

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RESPONDENT(S): RESPONDENT/DEFENDANT

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1. THE KASARAGOD MUNICIPALITY, REPRESENTED BY ITS SECRETARY, KASARAGOD, P.O. KASARAGOD.

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2. K. KAMALAKSHA ACHARY, S/O. KORAGAPPA ACHARY, RESIDING AT ANANGOOR IN KASARAGOD VILLAGE AND POST, KASARAGOD TALUK.

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R1 BY ADVS. SRI.V.M.KURIAN, SRI.MATHEW B. KURIAN , SRI.K.T.THOMAS. R2 BY SRI.V.V.ASOKAN, SMT.S.AMINA.

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THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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tss

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THOMAS P JOSEPH, J.

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C.R.P.No.10 of 2005

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Dated this 12^th day of July, 2011

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ORDER

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What is called in question in this revision under Sec.115 of the Code of Civil Procedure (for short, "the Code”) is the legality, regularity and propriety of the judgment of learned Sub Judge, Kasaragod in A.S.No.16 of 1999 confirming dismissal of O.S.No.82 of 1998 of the Court of learned Munsiff, Kasaragod. Petitioner filed that suit for recovery of damages from respondents 1 and 2, the Municipality and a private person for cutting and removal of two coconut trees belonging to the petitioner. It would appear that there was a complaint from the second respondent that the said trees are standing in such a position that it is likely to endanger the life of himself and the members of his family. On that complaint, first respondent initiated proceeding and decided to cut the coconut trees. Petitioner preferred an appeal against the said order but according to the petitioner, he was not given copy of the impugned order, nor an opportunity for hearing. Instead, the Secretary of the first respondent informed him that the Council has decided to reject his appeal. Petitioner did not challenge the

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so-called decision of the Council in revision and instead, chose to file a suit for recovery of damages also since in the meantime the trees were cut and removed.

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Respondents 1 and 2 resisted the suit contending among other things that the suit is not maintainable in view of ouster of jurisdiction of Civil Court under Sec.563 of the Kerala Municipality Act (for short, "the Act”). That contention was raised as a preliminary issue, heard and found favour with the trial court as well as appellate court. That judgment/order are under challenge in this proceeding.

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Learned counsel for petitioner has raised two points – firstly, that in view of Sec.544 of the Act there is no bar of suit since petitioner complied with the statutory requirement of issuing notice to the first respondent and, secondly; even if Sec.563 of the Act were to be applied, the said provision has no application to the facts and circumstances of the case since petitioner has contended throughout in the plaint and in particular in paragraph 10 that action of the first respondent in ordering to cut down the trees and executing that order are against the provisions of statute and in violation of the fundamental principles of natural justice. Learned counsel

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contended that allegations in the plaint brought the suit out of ouster of jurisdiction under Sec.563 of the Act since even when there is an express bar for institution of the suit, it is open to the civil court to consider whether the statutory tribunal has either violated provisions of the Act or has acted in violation of fundamental principles of natural justice. Learned counsel has placed reliance on the decision in State of Kerala Vs. M/s. P.N.Ramaswami Iyer and Sons (AIR 1966 SC 1738) . It is also contended by learned counsel that at any rate, courts below did not consider whether cause of action as pleaded against the second respondent could be proceeded with notwithstanding the bar under Sec.563 of the Act.

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In response, it is argued by learned counsel for respondents 1 and 2 that notice of the complaint preferred by the second respondent (to the first respondent) was given to the petitioner who replied to that notice and the statutory authority has passed the order which petitioner challenged in appeal but failed. It is pointed out that yet another statutory remedy of filing a revision before the Government was not availed by petitioner. In such a situation, petitioner cannot be heard to say that provisions of the Act has been violated and that principles of

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natural justice has not been applied. It is contended that Sec.544 of the Act has no application. Learned counsel asserted that Sec.563 of the Act applied and hence the suit is not maintainable.

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I shall consider the argument advanced by learned counsel based on Sec.544 of the Act. No doubt the bar provided therein is only against institution of a suit against the municipality or any municipal authority or any officer or other employee of a municipality or against any person acting under the order or direction of a Municipal Authority or any officer or employee of a Municipality in respect of matters referred to therein without delivering notice to such authority/person and the notice should state explicitly the cause of action, nature of relief sought, amount of compensation claimed and the name and place of residence of the intending plaintiff and the plaint should contain a statement that such notice has been delivered. Sub rule (3) of the said provision required that every such suit shall be instituted within six months of the date on which cause of action arose or in cases of continuing injury or damage, during such continuance or within six months after the causing thereof.

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The argument of learned counsel regarding the sustainability of the suit based on Sec.544 of the Act is on the

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premise that the statutory notice contemplated therein has been delivered to the first respondent. I am afraid, that argument cannot stand on the face of Sec.563 of the said Act. That provision says that “no civil court shall have jurisdiction to entertain any suit, application or petition challenging the legality or propriety of any action taken by or under the authority of the Secretary under any provisions comprised in Chapters XVII, XVIII and XIX or the rules and regulations, if any, made thereunder”. It is not disputed that the action taken by the first respondent on the complaint of the second respondent in ordering cutting and removal of the trees and later executing that order are acts taken by or under the authority of the Secretary of the first respondent under the provisions of Chapters XVII, XVIII or XIX of the Act and the Rules and regulations made thereunder. In other words though Sec.544 of the Act saves certain suits on compliance of the statutory requirement mentioned therein, so far as Sec.563 of the Act is concerned, there is a total bar of suit and ouster of jurisdiction of the civil court in relation to matters coming under Chapters XVII, XVIII and XIX of the Act. As I stated, action of the first respondent in this case is purportedly done under Chapters XVII, XVIII or XIX of the Act. Hence

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Sec.544 of the Act which is a general provision has no application and instead, the specific provision under Sec.563 of the Act should apply.

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Then the next question is whether the courts below are justified in non suiting petitioner/plaintiff based on the bar accrued by Sec.563 of the Act. Various binding authorities on the point say that when a provision ousts the jurisdiction of the civil court, that provision has to be interpreted strictly. For, under Sec.9 of the Code any suit of a civil nature is within the cognizance of the civil court unless its cognizance is expressly or by necessary implication barred. It has also been held time and again that even when there is an express bar to the jurisdiction of civil court, when the statutory tribunal or authority has either not complied with the provisions of the Act or, acted in violation of the principles of natural justice it is within the power of the civil court to look into the matter and decide whether provisions of the Act has been complied or whether provisions of natural justice has been violated. In such circumstances the suit is maintainable. Whether the plaintiff is ultimately entitled to the reliefs prayed for is a different question. Therefore, when a suit proceeded on the premise that the statutory authority or tribunal

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has violated the provisions of the Act or has acted in violation of the fundamental principles of natural justice it cannot be said straight away, at the preliminary stage that the bar under Sec.563 of the Act applied. That is the principle laid down by the Supreme Court in the decision cited supra. Following that decision, this Court also held on a number of occasions, one being in Malabar P. & R. Co. Ltd. Vs. Tax Recovery Officer (1990(1) KLT 756) that exclusion of jurisdiction of the Civil Court is not to be rightly inferred and that even when there is an express ouster, the Civil Court can look into whether the provisions of the Act have not been complied or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.

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I have been taken through the averments in the plaint and in particular, paragraph 10 where petitioner has a specific case that first respondent has initiated action (to cut down trees in petitioner's property) in collusion with second respondent, caused unlawful loss to him, humiliated and caused damage to his reputation in the eyes of the public, proceedings initiated by the first respondent are opposed to the provisions of the Act and that there was no compliance with the provisions of the Act. It is

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further alleged in paragraph 10 that first respondent has not complied with the procedure known to law and natural justice in spite of being told that what first respondent does is illegal. It is alleged that first respondent has misused the authority vested in it and in any event has acted against provisions of the Act. First respondent was bound to act in accordance with the provisions of the Act but has acted against the principles of natural justice.

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From the allegation that first respondent has acted in collusion with second respondent and caused loss to the petitioner, one has to infer that petitioner has alleged lack of bonafides on the part of the first respondent. What is protected under the provisions of the Act are not malafide acts of the officials but, acts done in good faith or purported to be done in good faith under the provisions of the Act.

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It is not disputed before me that neither if the courts below has adverted to the above aspects of the matter and found whether on the face of the allegations in the plaint and in particular averments in paragraph 10 it could be said at the preliminary stage that the suit is not maintainable. No doubt, respondents/defendants have the option to resist the suit before going to trial, first being at the entry point under Order VII Rule

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11 of the Code when the plaint does not disclose a cause of action or when the suit appears to be barred by any provision of law, etc. The second option is under Order XIV of Rule 2 of the Code where, if a question of law affecting jurisdiction of the court is involved, it is open to the Court to decide that issue without reference to the facts of the case involved. Here, allegations contained in paragraph 10 of the plaint referred to disputed question of fact. It is not as if it is purely a question of law ousting the jurisdiction of the Court which can be raised as a preliminary issue under Order XIV, Rule 2 of the Code. I do not mean to say that because the plaint is artistically drafted to take it outside the provisions ousting jurisdiction of the Court, the issue regarding maintainability cannot be decided under Order XIV, Rule 2 of the Code. It was open to the first respondent to show, as against the averments in the plaint that there was no violation of the provisions of the Act or the principles of natural justice. But the first respondent as not produced the relevant file to controvert the relevant allegations in the plaint. I must also bear in mind contention of learned counsel for petitioner that what was served on petitioner, by the first respondent was not a copy of the complaint said to be preferred by the second

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respondent or notice on such complaint but, an order directing him to cut and remove the trees in question. I must also bear in mind the argument of learned counsel for petitioner that petitioner was not given a copy of the order allegedly passed by the first respondent and even in the appeal preferred by petitioner, he was not given an opportunity for a hearing. Instead, the first respondent merely intimated petitioner about the decision of the Council to reject the appeal. The question is whether, in view of the allegations contained in the plaint it could be said that maintainability of the suit can be decided as a preliminary issue under Order XIV, Rule 2 of the Code and placing reliance on Sec.563 of the Act, it could be said that the suit is not maintainable. I am inclined to say, it is not possible. The matter requires enquiry. In that view of the matter, I am inclined to hold that judgment/order under challenge suffers from an illegality which therefore cannot stand. But, I make it clear that I have not pronounced verdict on the question whether ultimately it is possible for the trial court to say having regard to the materials on record that the suit is not maintainable under Sec.563 of the Act on a finding that the provisions of the Act and principles of natural justice have been complied by the statutory

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authorities. I also make it clear that I have not gone into the question whether ultimately petitioner is entitled to the reliefs prayed for, be it against respondents jointly or against any of them severally. These are matters which the trial court has to decide after trial.

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Resultantly this civil revision is allowed. Judgment of learned Sub Judge, Kasaragod in A.S.No.16 of 1999 and order of learned Munsiff, Kasaragod in O.S.No.82 of 1998 are set aside and the suit is remitted to the trial court for trial and disposal, untrammelled by any observation contained therein; and based on the materials collected in the evidence. Trial court is directed to expedite trial and disposal of the case after giving both sides sufficient opportunity to adduce evidence in support of their contentions.

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(THOMAS P JOSEPH, JUDGE)

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Sbna/-

K.Venkatesh Bhat v. the Kasaragod Municipality,Rep.by Secy.

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K.Venkatesh Bhat v. the Kasaragod Municipality,Rep.by Secy.

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