Eastern Tea Estate Private Ltd. vs Municipal Board of Silchar and Another

G. Mehrotra, C.J.—This is a revision u/s 115 CPC by the Plaintiff-Petitioner against the appellate order of the Subordinate Judge, Silchar refusing an interim injunction to the Plaintiff. Necessary facts are that the Municipal Board, Silchar issued a notice to the Petitioner u/s 158 of the Assam Municipal Act, 1950 - Assam Act XV of 1957 (hereinafter called ''the Act'') asking him to remove certain encroachments on the allegation that they have been made by the Petitioner on the municipal land. The Petitioner applied to the Sub-divisional Magistrate for appointment of a surveyor and to measure the land as his contention was that there was no encroachment on the municipal land. On the direction of the Additional Deputy Commissioner the survey proceedings and the demarcation of the land were started.

Before, however, this could be finalised the Plaintiff brought the present suit on the 3rd October 1962 for declaration of his title over the land and for injunction restraining the Municipal Board from demolishing the constructions which the Board had threatened by issuing the notice u/s 158 and thereafter applying to the Magistrate u/s 159 of the Act for an order of removal of the constructions. Along with the suit the Petitioner prayed for an interim injunction restraining the Municipal Board from demolishing the constructions. An interim injunction was granted but after hearing the parties the Munsiff set aside the interim order of injunction. On appeal to the Subordinate Judge, the order of the Munsiff was affirmed. It is against this order that the present petition has been filed.

The Munsiff held that on the perusal of the original record of the encroachment case he did not find anything done by the Defendants in contravention of any provisions of law laid down by the Assam Municipal Act which can create a very, special circumstance to justify interference by him by way of injunction. Further he remarked that it is a well settled rule that it is not the practice of Courts to interfere with corporate bodies unless they are manifestly abusing their powers. The Munsiff thus rejected the prayer for interim injunction on the ground that there was no justification for an interference by him in the circumstances of the case as proceedings were pending before the Magistrate u/s 159 of the Act and further that unless there is an abuse of power by the Board, the public body''s action should not be interfered with.

When the matter went up in appeal the Subordinate Judge dismissed the appeal and affirmed the finding of the Munsiff on the ground that the proceedings before the Magistrate u/s 159 were in the nature of criminal proceedings and in view of the provision of Section 56(e) of the Specific Relief Act no injunction could be granted for stay of criminal proceedings by the civil Court. The decision of the Subordinate Judge has been assailed before me.

The Respondents have taken a preliminary point that no revision lies. The appellate Court had jurisdiction to entertain an appeal and even if the appellate Court had wrongly interpreted any provision of law no revision would lie.

The contention of the Petitioner is that if the point of law raised relates to jurisdiction then the Court cannot by wrongly deciding that point assume jurisdiction and thus this Court can u/s 115, CPC examine the correctness of a point which relates to jurisdiction.

The contention of the Petitioner is that the Court below has held that as there was a criminal proceeding pending before the Magistrate, the civil Court had no jurisdiction to issue an injunction. If this proposition of law is erroneous then it affects the jurisdiction of the Court. In my opinion there is no force in the preliminary objection raised by the opposite parties.

Coming to the merits the contention of the Petitioner is that the Subordinate Judge has erred firstly in holding that the proceedings u/s 159 before the Magistrate were criminal proceedings and secondly that there was a prayer for staying the proceedings pending before the Magistrate. Whether the proceedings u/s 159 are of a criminal nature or of a civil nature is not necessary to decide. The injunction claimed by the Petitioner was not for restraining the criminal Courts from proceeding with the application u/s 159. It was only for restraining the Board from demolishing the constructions and thus it cannot be said that the civil Court had no jurisdiction to issue the in function prayed for and there was any bar u/s 56(e) of the Specific Relief Act to the grant of such an injunction.

Section 158 of the Act reads as follows:

Section 158. Any person who without the permission of the Board,

(a) encroaches upon any public road or house-gully or upon any public drain, sewer, aqueduct, water-course or ghat by making any excavation or by erecting any wall, fence, rail, post, projection or other obstruction, or by depositing any moveable property thereon, or

(b) takes up or alters the pavements or other material, fences or posts on any public road, shall, for every such offence. be liable to a fine not exceeding two hundred rupees and to a further fine not exceeding twenty-five rupees for every day during which the encroachment continues.

Section 159 reads as follows:

Section 159. The Board may issue a notice requiring any person to remove any building which he may have built or any fence, rail, post or other obstruction or encroachment which he may have erected, on any public road, housegull, public drain, sewer, aqueduct, watercourse, ghat or any land vested in the Board; and, if such person fails to comply with such, requisition within forty-eight hours of the receipt of the same the Magistrate may, on the application of the Board, order that such obstruction or encroachment be removed; and thereupon the Board may remove an such obstruction or encroachment and the expenses thereby incurred shall be paid by the person who erected the same.

It will appear from the perusal of these two sections that the Muncipal Board has got power to issue notice to a person who encroached upon the Municipal land for removal and if he fails to carry out the notice, an order of removal can be obtained from the Magistrate. But if a person comes with the plea that the constructions are not on the municipal land, then the matter can only be decided by the civil Court and such a suit can be brought even before an application for an order has been made u/s 159. As soon as a notice has been issued by the Board asking the Petitioner to remove his constructions, a cloud has been cast on his title and he can always bring a suit in the civil Court for declaration of his title and for injunction restraining the Board from giving effect to the notice by removing the construction.

In proceedings u/s 159 the Magistrate is not competent to decide the question of title to the property and thus the pendency of any proceedings u/s 159 is no bar to the bringing of a suit. If there is no bar to the bringing of a suit for declaration of title and for injunction, I find it difficult to see how there can be a bar to issue an interim injunction. The question where a prayer is made for stay of the proceedings may stand on a different footing. It cannot be said that the civil Court had no jurisdiction to issue an injunction asked for.

Mr. Medhi for the opposite parties contends that the proceedings u/s 159 of the Act are in the nature of judicial proceedings. Reliance is placed in support of this proposition on the case of Parama Singh v. Shillong Municipal Board AIR 1964 Gau 80. In that case petition was filed in this Court under Article 226 of the Constitution against an order of the Magistrate directing removal of certain constructions. It was urged that the proceedings u/s 159 of the Act were in the nature of judicial proceedings and as such the order without giving an opportunity to the Petitioner to defend his case and show cause was void. It was held by this Court that the principles of natural justice were violated inasmuch as no notice was given to the Petitioner.

The case does not lay down that if there is a question of title raised, the Magistrate was competent to decide that matter and further that the decision by the Magistrate will be final. Even assuming that the proceedings are judicial proceedings, there is no bar to the Petitioner bringing a suit for declaration of his right even though such a proceeding is pending, and as I have already pointed out, it is not a case where an injunction is sought for the stay of judicial proceedings but interim stay has been asked for and there is a relief of permanent injunction in the suit itself.

It was then urged that although the order of the appellate Court is not very clear still the Courts below only failed to exercise the discretion having regard to the fact that another judicial proceeding was pending relating to the same matter. It is urged that as no demolition could take place without an order by the Magistrate and the proceedings were pending before a competent authority, the Petitioner could not say that there was any danger of demolition so as to justify issue of an injunction. As I have already indicated, the Subordinate Judge has based his decision on the ground that he had no jurisdiction to issue such an injunction and he has not refused injunction on the ground that the circumstances do not justify an apprehension on the part of the Petitioner that the demolition is going to take place.

Even apart from it, it cannot be said that the real danger will only be if armed with an order the Municipal Board actually demolishes the constructions. When a notice is issued and as a consequence of failure of the Petitioner to carry out the notice steps are being taken to obtain an order from the Magistrate, there is sufficient cloud cast on the title of the Petitioner and if he brings a suit for permanent injunction, it cannot be said that mere existence of a proceeding u/s 159 of the Act where the Court cannot finally decide the question of title, will be bar to the issue of any interim injunction.

I, therefore, allow this petition and quash the order of the Courts below vacating the interim injunction. No order as to costs or this petition.