Union of India and Another vs M. Kothandam and others.

M.N. Chandurkar, J.—All these petitions raise a common question as to the jurisdiction of the Principal Subordinate Judge of Pondicherry

to entertain and decide applications under S. 33 (3)(a) of the Pondicherry Town and Country Planning Act 1969 (hereinafter referred to as the

Act). Under S. 33(1) of the Act, the Planning Authority under the Act is required to publish a public notice in the official Gazette and in a local

newspaper of the approval of the Development Plan immediately after the Development plan has been approved by the Government. Under sub-

S.(2) thereof, the development plan comes into operation from the date of publication of the said notice in the official gazette. Sub-S.(3) thereof

enables a person aggrieved by the plan to make an application to the Court within thirty days of the coming into operation of the said plan

questioning the validity of the same or of any provisions contained therein. That sub-section also provides as to the grounds on which that plan can

be challenged.

Sub-S.(3) of S. 33 reads as follows:--

...(3) (a) After the coming into operation of the Development Plan, any person aggrieved by it may make an application to the Court within thirty

days of the coming into operation of the said plan questioning the validity of the same or any provisions contained therein on the following grounds-

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(i) that it is not within the powers conferred by this Act; or

(ii) that any requirement of this Act, or any rules made thereunder have not been complied with in relation to the making of the Development Plan.

(b) The Court after allowing an opportunity of being heard to the Planning Authority, the Board and the Government --

(i) may stay, until the final determination of the proceedings, the operation of any provisions contained therein so far as it affects any property of the

applicant; and

(ii) if satisfied that the development/plan or any provision contained therein is not without the powers of this Act, or that the interest of the applicant

has been substantially prejudiced by a failure to comply with any requirement of the Act or Rules, may quash the plan or any provision contained

therein generally or in so far as it affects any property of the applicant.

Sub-S.(4) of S. 33 expressly provide that the approved plan cannot be questioned in any manner, in any legal proceedings whatsoever except

under the provisions of sub-S.(3).

The respondents in all these revision petitions filed applications under S. 33 (3) of the Act, before the Principal Subordinate Judge, Pondicherry,

challenging the development plan on several grounds. Several objections have been raised to show that the Development Plan was invalid and

unenforceable. The prayer was that the Notification dated 6-3-1982 made under S. 33 should be set aside. Having regard to the objections as to

the jurisdiction of the Principal Subordinate Judge to entertain these applications it is not necessary to refer to the various grounds on which the

Development Plan was challenged. It is, however, sufficient to state that the learned Judge took the view that the respondents-applicants were

substantially prejudiced by the failure of the Union of India and the Pondicherry Planning Authority to comply with the requirements of the Act and

the Rules for want of public notice under Ss. 31(1) and S. 33(1) read with R.41(2) of the Rules. The learned Judge proceeded to quash the plan

and the provisions contained therein in so far as it affected the property of the present respondents. The learned Judge has explicitly referring to the

power under S. 33(3)(b) of the Act.

In these revisions which are really petitions filed under S. 227 of the Constitution of India, the learned counsel, before going into the merits of the

order of the learned Principal Subordinate Judge, has however, raised two contentions which, if decided in favour of the applicants would make it

unnecessary to go into the merits of the order of the learned Principal Subordinate Judge. His contentions are--(i) that the Principal Subordinate

Judge had no jurisdiction under the Act to entertain the applications filed by the present respondents; and (ii) that the planning Board which is the

authority under the Act to make the Development Plan has not been added as a party. Having regard to the view which I am inclined to take on

the first contention, it is also not necessary to refer to the second contention.

The argument of the learned counsel for the petitioners is that under S. 33(3)(a) , the aggrieved person can make an application to the Court

within thirty days of the coming into operation of the Development Plan.

''Court'' is defined in S. 2(10) of the Act as follows:--

''Court'' means a principal civil court of original jurisdiction and includes any other court empowered by the Government to perform the functions of

the Court under this Act within the pecuniary and local limits of its jurisdiction.

Therefore, according to the learned counsel, the ''court'' referred to in S. 33(3) can be only the principal Civil Court of original jurisdiction.

Under the provisions of the Pondicherry Civil Courts Act, 1966, the principal civil court of original jurisdiction is the court of the District Judge

in the District, S. 14 of the said Act reads as follows--

...(1) The Court of the District Judge shall be the Principal Civil Court of Original jurisdiction in the district within the meaning of any law relating to

procedure for the time being in force and the Subordinate Judge''s Court and the Munsif''s court shall be subordinate to it.

(2) Subject to the other provisions of this Act and any other law for the time being in force and to the general superintendence and control of the

High Court, the general control over all civil courts under this Act shall be vested in the District Judge.

S. 3 of the Act provides for courts and their number and jurisdiction and reads as follows:-

(1) There shall be the following courts in the Union territory (which shall be a district for the purposes of this Act), namely:--

(a) the Court of the District Judge,

(b) the Subordinate Judge''s courts, and

(c) the Munsif''s courts.

(2) Appointments to the posts of District Judge, Subordinate Judge and Munsif shall be made by the Government in accordance with rules made

under Art. 309 of the Constitution.

Provided that appointment to the post of District Judge shall be made after consultation with the High Court.

(3) The Number of Subordinate Judge''s Courts and Munsif court shall be fixed and may from time to time, be altered by the Government.

(4) (a) The local limits of the jurisdiction of the court of the District Judge shall extend to the entire Union Territory.

(b) The local limits of the jurisdiction of a Subordinate Judge''s court and a Munsif''s court shall be such as the Government may, by notification, in

the official Gazette specify;

Provided that the Government may, by like notification, alter the jurisdiction of any court under this clause from time to time.

Ss. 3 and 14 of the Pondicherry Civil Courts Act, therefore, clearly show that the Subordinate Judges Court is not the same as the court of the

District Judge and it is the Court of the District Judge which alone is constituted as the Principal Court of original jurisdiction in the District by the

said Act, The local limits of jurisdiction of the Court of District Judge under S. 3 extends to the entire Union territory. The local limits of the

jurisdiction of the Subordinate Judge''s Court and the Munsif''s court have to be fixed by the Government by Notification in the official Gazette.

Having regard to the definition of ''Court'' in S. 2(10) of the Act and the constitution of the Court of the District Judge as the principal Civil

Court of Original Jurisdiction, it is obvious that the application under S. 33(3)(a) has to be made only to the Court of the District Judge. The

Subordinate Judge who is subordinate to the District Judge cannot, therefore, have any jurisdiction to entertain an application under S.33 of the

Act. On this short ground, in my view, the orders of the Subordinate Judge are liable to be set aside.

The learned counsel appearing on behalf of the respondents, however, contends that the objection as to jurisdiction was not taken before the

Subordinate Judge and the petitioners in this Court must also show that the Subordinate Judge''s court was not empowered by the Government to

perform the function of the principal Civil Court of original jurisdiction as contemplated by the inclusive part of the definition of ''Court'' in S. 2(10).

In any case, according to the learned counsel for the respondents, if the order of the Subordinate Judge was to be set aside, the applications filed

by the respondents should be forwarded to the District Judge for disposal, according to law. It is not possible to accept any of these contentions. It

is for the respondents to show that the court in which they filed the application has jurisdiction to decide them. It is not for the present petitioners to

show that the Subordinate Judge''s court was vested with jurisdiction to decide the application under S. 33. Since they have shown that the

Subordinate Judge had no jurisdiction under the Act, it is for the respondents to show that they had filed the application in the appropriate court

with jurisdiction.

It is also difficult to appreciate how the applications which have been filed in a Court which lacks jurisdiction under the Act could be remitted to

the District Court. The applications having been filed in a court without jurisdiction, the only appropriate order in such a case would be to quash

the entire proceedings as well as the order made on those applications. It is for the respondents to decide what course they should follow hereafter

if they want to pursue the objections which they have raised in the applications made to the Court which has no jurisdiction. There is no question of

remitting the applications to any other Court. In the result, all these revision petitions are allowed. The orders of the Principal Subordinate Judge

are quashed. The applications must stand rejected. There will, however, be no order as to costs.