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 further argued that since the order of the Civil Court was a revisable order, the instant original petition would fail as a revision ought to have been filed.

The Court in this case considered three questions to be of seminal importance: firstly, which orders are revisable under Section 115 of CPC; secondly, whether a revisable Order can be put under challenge by invoking Article 227 of the Constitution; and thirdly, whether the jurisdiction of the civil court is totally excluded either by express provisions in a special statute providing alternate remedy or by way of implied ouster, since no express bar in the special statute.

While addressing the first two questions and holding that the Original Petition is not maintainable on the ground that it would not be the appropriate remedy with respect to revisable orders under Section 115 of the CPC, the Court also made an observation:

"power of revision under Section 115 shall not be available to challenge all orders which are not appealable on the ground that the same would cause a failure to justice or cause irreparable injury to the party against whom it was made and revision would lie only against an order, if it had been made in favour of the party applying for revision would have finally disposed the suit or other proceedings".

The Court remarked that had the challenge regarding maintainability to the Suit been allowed, it would have finally disposed of the suit. As the instant Order is revisable, the appropriate remedy would have been revision. 

As regards the question as to whether jurisdiction of the civil court would be expressly or impliedly barred by a special statute, in light of the equally efficacious remedy before the Tribunal for Local Self Government Institutions, the Court placed reliance on the Apex Court decision in Kamala Mills Ltd. v. State of Bombay, which had laid down important principles as to when the jurisdiction of civil courts would be barred in light of the provisions of a special statute.

In that case, the Apex Court had laid down that where there is express provision in any special Act barring the jurisdiction of a civil court to deal with matters specified thereunder the jurisdiction of ordinary civil court would stand expressly barred; where there is no such express provision, but a perusal of provisions in the statute would show that civil court jurisdiction is barred, the court would inquire whether any adequate and efficacious alternative remedy is provided under the special statute and if so, it would be so barred. If there is no such adequate and effective remedy, the jurisdiction of the civil court would not be barred. 

It was on this ground that the Court observed that, since the allegation of infringement of natural right was also alleged in the Suit, the grievance of the plaintiff could not be addressed by the Tribunal for Local Self Government Institutions and in such a Suit, the jurisdiction of the civil court could not be said to be impliedly barred and the civil court would have the jurisdiction to proceed with the Suit.

The Court further observed that even if the Municipality or the Government intended to regularize an illegal construction, the civil court could separately consider the prayer to undo such constructions which obstructs the natural right of persons. In view of the Court, such violations cannot be regularized.

Case Title: Shibu & Anr v. Sreekumaran & Anr. 

Citation: 2022 LiveLaw (Ker) 443

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