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Judgment
Punnayya
This revision petition is directed against the order passed by the Additional Chief Judge, City Civil Court, Hyderabad in CMA. No. 84/74. The Commissioner of police issued a notification No. 4/934/74 dated 20-4-1974 u/s 21 (1) (b) of the Hyderabad City Police Act prohibiting parking of lorries, contract carriages, vans and Motor cars (1) from Afzalgunj Cross-roads to Rang Mahal Road upto R.T.C. Bus-stand Gowliguda. (2) between Akbrajah Bazar and New Bridge, and (2) Afzalgunj Cross Roads to Gowliguda Road upto Chaman and directing that they may be parked at the terminus provided for them by the Hyderabad Municipality at the Jail Garden.
On 12-6-1974 an erratum was issued. In view of the issuance of erratum, the previous notification should be deemed to have been issued u/s 21 (1) (c) instead of section 21 (1) (b).
Aggrieved with the said notification some of the operators of the private carriers, and contract carriages formed themselves into Action Committee for protection of Stand and they filed the suit O.S. No, 912/74 on their behalf and also in a representative capacity on behalf of other motor-operators having their stand at Afzalgunj in the Court of the Assistant Judge, City Civil Court, Hyderabad for declaration that the said notification is arbitrary illegal and without authority of law and to issue permanent injunction restraining the defendants therein from enforcing the said notification.
They also filed I.A.No. 1055/74 for temporary injunction restraining the defendants from interfering with parking of the lorries, contract carriages vans and motor-cars of the plaintiffs and similar users in the suit area till the disposal of the suit.
The learned 4th Assistant Judge, City Civil Court granted therein injunction exparte and issued notice to the defendant who is the respondent in the I.A. mentioned above. The respondents contested the petition. After taking into consideration the documents filed in the I.A. and the contentions raised before him, the learned 4th Assistant Judge dismissed the I.A. 1055/74 holding that the petitioners have not made out prima facie case and the balance of convenience is not in their favour and he vacated the interim injunction already granted.
Aggrieved with the order dismissing the I.A. No. 1055/74, the petitioners preferred appeal I.C.M.No. 84/1974 before the Chief Judge, City Civil Court, Hyderabad.
The Additional Chief Justice after hearing both sides allowed the C.M.A. setting aside the order passed in I.A. No. 1055/74.
Aggrieved with the judgment of the learned Additional Chief Judge, the respondents preferred this revision petition.
The learned Government pleader contents that the lower appellate Court failed to consider that the respondents have not made out any prima fade case, as the notification issued by the Commissioner u/s 21 (1) (c), is valid and legal and the Commissioner has the power u/s 21(1) (e) to issue the said notification and the finding that it is the Transport Authority that has the power to shift the Bus stand u/s 68 (2) (c) and (s) of the Motor Vehicles Act is perverse and is irrelevant. He further contends that His Lordship Venkataramasastry, J., has already given a decision in W.P. 4328/74 dated 12-8-1974 that the notification issued by the Commissioner u/s 21 (1) (c) is valid and legal and the Commissioner has the power to issue the notification u/s 21 (1) (c) of the Hyderabad city Police Act. He also contends that the suit is not only not containable in view of the fact that the notification issued by the Commissioner of Police was already held by His Lordship Venkatarama Sastry J., as valid and legal but also not maintainable on the ground that nO permission from the Court was obtained by the respondent to file the suit, in a representative capacity as required under order 1 Rule (8) C.P.C. He further contends that merely because the operators and the respondents have been parking there vehicles since several years, it cannot be said that they have acquired any right to park their vehicles. He finally contends that the area in the Jan Garden has been levelled and topped by bitumen and is surrounded by a compound wall with wide gave provided for ingress and egress of the vehicles and the facilities worlds be farmer improved in the days to come and me notification is absolutely necessary to remove the obstruction caused by these vehicles to the tree flow of traffic and inconvenience to the general members of the public.
It is true that the respondents did not obtain permission of the Court for filing the suit in a representative capacity under order 21 Rule 8 C.P.C. at the time of the institution of the suit. But on that account it cannot be said that the sun is not maintainable as the record discloses that the Court ordered publication.
Ordinarily plaintiffs should obtain leave from the Court under Order 1 Rule 8 CPC to file a suit in a representative capacity. But if the Court orders publication, it should be deemed that the Court has granted permission for tiling such a suit subject to the objection received. Further the plaintiffs in such suit are entitled to apply for such leave and take such further action as is required by Order 1 Rule 8 even during the pendency of the suit.
For this legal position, I am fortified with the rulings in Mohammad v. Kunhi Kutti Ali AIR, 1929 Mad 451 and Hubli Panjarapole and Others Vs. Saraswatevva Bayappa Kala Ghatki, In the former decision, the Madras High Court held that an express order granting permission is not necessary for a suit filed under order 1 Rule 8 and if the Court orders publication of a notice, it should be deemed to have granted permission subject to objections received and where an objection that no permission was granted was taken on appeal, the Court may infer such permission from the proceedings of the Court.
In the latter case, the Bombay High Court held that ordinarily the leave has to be and should be obtained under Order 1 and 8 at the time of the institution of the suit. But the suit should not be dismissed only on the ground that the requisite leave has not been obtained under Order 1 Rule 8 at the commencement of the proceeding and it could be open to a party to apply for such leave and to take such further action as is required by Order 1 Rule 8 even during the pendency of the suit.
In view of this legal position, the suit cannot be said to be not maintainable on the mere ground that leave was not obtained at the time of the institution of the suit. I am, therefore, not able to accept the contention of the learned Government Pleader on this aspect.
Sri Narasimhachari, learned counsel for the respondents, vehemently contends that the notification issued by the Commissioner is illegal and invalid, since the Commissioner is not empowered u/s 21(1) (c) to prohibit parking of lorries, carriages, vans and motor cars in the existing stand and giving direction that they should be shifted to park at Malakpet stand constructed specially for this purpose by the Municipality without providing any amenities like canteen and offices for bus operators. The learned counsel submits that the words ''regulating the conditions'' mentioned in section 21(1) (c) apply only to the moving vehicles at the existing stand and at any rate they do not deal with the prohibiting of the vehicles at the stand which they have been using for parking since more than 50 years. He further contends that it is the. Transport Authority that has the power to shift the Bus Stand u/s 68(2) (r) and (s) of the Motor Vehicles Act and as such the notification issued by the Commissioner is not valid.
Section 21(1) (c) of the Hyderabad City Police Act reads as follows-
The Commissioner of City Police, Hyderabad from time to time, make rules not inconsistent with this Act in respect of the following. Such rules shall, in case of clauses (b) and (c), be subject to the control of the Government and with regard to the remaining clauses sanction of the Government shall be obtained prior to the enforcement of rules:-
a) ................
b) .........................
c) regulating the conditions under which vehicles may be parked in public streets and public places, and the use of public streets as temporary halting places for cattle and vehicles.
A careful reading of section 21(1) (c) makes it clear that the Commissioner is given power to make rules for regulating the traffic in public streets, and public places. Under clause (c) the Commissioner has the power to make rules not only for regulating the conditions under which vehicles may be parked in public streets and public places, but also for regulating the use of the public streets as temporary halting places for vehicles.
Where, by the use of the public streets as temporary halting places inconvenience is experienced for free flow of the traffic, the Commissioner is empowered to prohibit such use of public streets as temporary halting places for vehicles and such a power is included in the power of regulating the use of public streets as temporary halting places for vehicles as mentioned in section 21(1) (c). In other words, in exercising the power to regulate use of public streets as temporary baiting places for vehicles, the Commissioner can also prohibit the use of such public streets as temporary halting places for vehicles if free flow of traffic is being obstructed and inconvenience is being experienced by the public due to such parking of vehicles.
But the learned counsel for the respondents contends that a power to regulate does not include power to prohibit. In support of his contention he relied upon a passage in the judgment of His Lordship Mathew, J., in Himatlal v. Police Commissioner Ahamadabad AIR 1973 S.C. 98 In para 52 His Lordship observed as follows:-
A power to regulate does not normally include a power to prohibit (See Municipal Corporation of the City of Toronto v. Virgo 1896 A.C. 88 and Attorney General for Ontario v. Attorney General for the Dominion 1896 A.C. 348.
But His Lordship again observed in the same para in the second column as follows:-
I am not saying that a power to regulate can never include the power to prohibit.
When His Lordships himself states that it cannot be said that a power to regulate can never include the power to prohibit, it cannot be held that the commissioner''s power u/s 21(1) (c) to regulate the use of public streets as temporary halting places for vehicles does not include his power to prohibit the use of public streets as temporary halting places for vehicles in case of hardship being experienced by the public with regard to traffic.
Further our learned brother Venkatramasastry, J. had occasion to consider the validity of the very notification which is the subject-matter of this revision petition in W.P. 4328/1974 and held that "under section 21 of the Hyderabad City Police Act, it is open to the Commissioner of Police to make rules for regulating the traffic of all kinds in public streets or public places and to regulate the use of streets and public places by persons walking, driving, cycling or accompanying or leading cattle with a view to prevent danger, inconvenience or obstruction to the public. This is subject to the control of the Government. Under sub-section (2) the said rule shall be published in the Gazette. The provisions of this section have been followed and the publication in the Gazette has been made. The Commissioner has, therefore, followed the provisions of law and made the notification and it cannot, therefore, be questioned, on account of lack of jurisdiction ....".
Thus it is clear that the Commissioner has the power to issue the impugned notification u/s 21 (1) (c) and the notification is therefore valid and legal. Hence, I find no force in the contention of the learned counsel for the respondents on this aspect.
Sri Narasimhachari thinks that the notification contemplates the shifting of the bus stand of Afzalgunj Cross Roads and strongly contends that the Transport Authority alone is competent to make a notification for shifting of the bus stand, but not the Commissioner.
But the notification marked as Ex. A-2 by the trial Court has nothing to do with the shifting of the bus stand at Afzalgunj Cross Roads. It is true that in the first sentence of the notification the words "bus stand" are mentioned. But if the entire notification is read it is absolutely clear that it relates to the prohibition of parking of lorries, contract carriages, vans and motor-cars (1) from Afzalgunj Cross Roads to Rang Mahal upto R.T.C Bus stand, Gowliguda, (2) between Akbarjah Bazar and new Bridge, and (3) Afzalgunj Cross Roads to Gowliguda Road upto Chaman. When the impugned notification has nothing to do with the shifting of Bus stand of Afzalgunj cross Roads the contention of the learned counsel is devoid of substance. Hence, the decision in Municipal Council, Bhopal Vs. Sindhi Sahiti Multipurpose Transport Co-op. Society Ltd. and Another, or the decision in T.B. Ibrahim v. Regional Transport Authority AIR 1953 S.C. 59 need, not be considered since they deal with the cases of shifting of "Bus stands"
The respondents contend that they have been making use of the stand for parking their vehicles since 50 years and they are entitled to park their vehicles in the existing stand and they have, therefore, acquired a right by long user for parking their vehicles at the existing stand and their right to park their vehicles cannot be interfered with.
Admittedly the respondents have been paying taxes to the Municipality for parking their vehicles at the existing stand. Their use of the stand is, therefore, permissive. Further, the question of acquition of right for parking their vehicles on a Highway does not arise at all. Hence the claim of the respondents is undoubtedly untenable. The Commissioner is, therefore, entitled to remove them from parking their vehicles at the stand mentioned in the notification.
From the facts and circumstances stated above, it is clear that the respondents have not even a semiblance of right to keep their vehicles at the stand and hence they have no right to question the validity of the notification. When the respondents have not made out prima facie existence of any right in their favour and when the notification is valid and legal, I have to hold that the respondents have not made out prima facie case. If inconvenience to the public at large is taken into consideration, it cannot be said that balance of convenience is in favour of the respondents. In the absence of existence of right, the question of injury much less irreparable injury does not arise at all.
The principles governing the granting of injunction under Order 39 Rule 1 C.P.C. are well settled. The applicant seeking injunction should make out prima facie the existence of a right and its infringement as the first condition. As the second condition, he should show that the balance of convenience is in his favour: The third condition is that irreparable injury will accrue to him if the injunction is not granted. The existence of a prima facie case is not by itself sufficient. The applicant should further show that balance of convenience is in his favour and that irreparable injury would be caused if injunction is not granted. Temporary injunction should not be granted on the balance of convenience atone without there being a prima facie case of the applicant. To make out a prima facie case for temporary injunction, it is not required that the plaintiff should establish his title. But it is enough if he can show that he has a fair question to raise as to the existence of the right alleged and that the property in the meantime should be preserved in status quo. It does not follow, however, that whenever a prima facie case is made out showing a fair question for trial, an injunction must be issued. The question of irreparable injury and balance of convenience must also be considered.
From my above findings, that the notification issued by the Commissioner is valid and legal and the respondents have no right at all for parking their vehicles at the existing stand and they cannot claim as of right for parking their vehicles at the existing stand on the mere ground that they have been parking them at the stand since 50 years, it is clear that the respondents have not satisfied the requirements viz., prima facie case and balance of convenience which are essential for the grant of temporary injunction.
But the question is whether the revision petitions is maintainable. Sri Narasimhachari contends that the revision petition is not maintainable even if the decision of the Lower Appellate Court is not according to law since the Lower Appellate Court cannot be said to have committed jurisdictional error.
It is well established that every error of law or every error of fact cannot be revised by the High Court u/s 115 C.P.C. The revisional jurisdiction of the High Court is confined to the four corners of the powers giver in section 115 of the Code Viz ; (1) the lower Court has exercised its jurisdiction not vested in it by law, or (2) has failed to exercise jurisdiction so vested or (3) has exercised its jurisdiction illegally or with material irregularity. The powers of the High Court in revision are not available for correction of errors of law.
This proposition of law is stated and restated time and again by the Supreme Court in Manindra Land and Building Corporation Ltd. Vs. Bhutnath Banerjee and Others, Ratilal Balabhai Nazar Vs. Ranchhodbhai Shankarbhai Patel and Another, D.L.F., Housing and Construction Company (P.) Ltd., New Delhi Vs. Sarup Singh and Others, The Managing Director (MIG) Hindustan Aeronautics Ltd. and Another, Balanagar Vs. Ajit Prasad Tarway, Shaik Jaffar Shaik Mahmood and Others Vs. Mohd. Pasha Hakkani Saheb and Others,
Hence it is necessary for me to examine whether the learned Additional Chief Judge has committed any jurisdictional error.
A perusal of the judgment of the lower appellate Court discloses that it has not adverted to or examined the question whether the appellate before it have made out a prima facie case with reference to the Commissioner''s power u/s 21 (1) (c) and the notification issued thereunder, while the trial Court has given a specific finding that notification issued by the Commissioner u/s 21 (1) (c) is intended to regulate the parking of vehicles which is with in the power of the Commissioner and hence the plaintiffs have not made out a prima facial case and the balance of convenience is also not in favour of the plaintiffs, as the inconvenience caused to the public is larger if the inconvenience of the limited number of) the plaintiffs is compared with inconvenience caused to the public.
The Additional Chief Judge framed a point whether the order of the lower Court in vacating the interim suspension order is correct in view of the circumstances of the case.
The lower Appellate Court did not examine whether the Commissioner has the power to issue the impugned notification u/s 21 (1) (c) and whether the notification is valid or not and whether the appellants before it have any right to claim the parking of their vehicles at the existing stand in order to find out whether the appellant before it have made out prima facie case.
For setting agide the order of the trial Court, the lower Appellate Court was influenced by two considerations viz, that the Commissioner issued the impugned notification without considering difficulties and inconveniences of the bus operators inspite of the fact that a memorandum was submitted by them on 20-5-1964 to the Commissioner and secondly, the amenities like canteen, rest rooms and offices for the operators were not provided so far by the Municipal Corporation at the proposed bus stand at Malakpet, though Government accepted the recommendation of the Advisory Board for providing the said amenities of the proposed bus stand and inspite of it, the Commissioner issued the notification.
The Learned Chief Judge relying on the above circumstances alone held that the findings of the trial Court in vacating the injunction are not correct.
These considerations are undoubtedly irrelevant and cannot constitute grounds for the grant of temporary injunction under Order 39 Rule 1 C.P.C. I have already narrated above the principles that have to be followed for granting temporary injunction. I have also shown above how the lower Appellate Court has not considered them. When the lower Appellate Court failed to follow these well established principles of law, which relate to the question of jurisdiction cannot it be said that the Court acted illegally or with material irregularity? It is true that order 39 Rule 1 C.P.C., vests the Court with the jurisdiction to grant temporary injunction. But in exercising jurisdiction conferred on it by Order 39 Rule 1 C.P.C., the Court is bound to follow the well established principles of law. Where these principles of law have prescribed conditions under which the Court shall exercise its jurisdiction and where the Court acts in disregard of them, it should be deemed to have acted illegally or with material irregularity in the exercise of its jurisdiction. This is exactly what the lower Appellate Court has done in this case. As stated above, the lower Appellate Court has not at all taken into consideration the facts that the respondents have no prima facie case and the balance of convenience is not in their favour and it has lost sight of the fact that temporary injunction cannot be granted if the respondents failed to make out a prima facie case. Thus the lower Appellate Court acted in disregard of these well settled principles of law.
Hence, I have no hesitation to held that the lower Appellate Court acted illegally or with material irregularity in the exercise of its jurisdiction.
Further, the judgment of the lower Appellate Court reveals that the Additional Chief Judge appears to have accepted the contention raised by the counsel for the appellants that the Transport Authority should have to make due notification u/s 68 (2) (r) and (s) of the Motor Vehicles Act, but not the Commissioner since the impugned notification, according to him, relates to the shifting of the bus stand.
I have already given finding that the impugned notification does not relate to shifting of Afzalgunj Bus stand and it relates to the prohibition of parking of vehicles at the stand mentioned in the notification. Hence it is the Commissioner that has the power to issue the notification under Sec. 21 (1) (c) and the question that the Transport Authority is competent to issue notification u/s 68 (2) (r) and (s) does not arise at all. Thus, the learned Judge misdirected herself in thinking that the notification issued by the Commissioner is for shifting of the Afzalgunj Bus stand. The learned Judge evidently travelled beyond the scope of the notification which is the subject-matter of the suit. In such a case, I have to hold that the lower Appellate Court exercised jurisdiction not vested in it by law.
As the learned Additional Chief Judge exercised jurisdiction not vested in her and also acted illegally or with material irregularity, the order passed by the lower Appellate Court is vitiated by error of jurisdiction. Thus I reject the contention of the learned Counsel for the respondents on the question of maintainability of the revision petition. I, therefore, hold that the revision petition is maintainable. In view of my findings I find merits in the revision petition. 1, therefore, set aside the judgment of the lower appellate Court passed in C. M. A. No. 84/74 and dismiss the I.A. No. 1055/74. In the result, the revision petition is allowed with costs.