Cheriya Arakkal Subi v. Kozhikode Corporation

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 30[TH] DAY OF NOVEMBER 2021 / 9TH AGRAHAYANA, 1943 RSA NO. 1039 OF 2009** **AGAINST THE ORDER/JUDGMENT IN AS 54/2005 OF III ADDITIONAL SUB** ## **COURT, KOZHIKODE** **OS 928/2001 OF ADDITIONAL MUNSIFF COURT-II ,KOZHIKODE** ## **APPELLANT/APPELLANT/PLAINTIFF:** CHERIYA ARAKKAL SUBI, W/O.HAMSAKOYA, AGED 34 YEARS, NAGARAM AMSOM DESOM, KOZHIKODE TALUK. BY ADVS. SRI.K.M.FIROZ SMT.M.SHAJNA ## **RESPONDENT/RESPONDENT/DEFENDANT:** KOZHIKODE CORPORATION, REP. BY ITS SECRETARY, NAGARAM AMSOM DESOM, KOZHIKODE TALUK. BY ADVS. V.KRISHNA MENON, SC THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 30.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.S.A No.1039 of 2009 2 K.BABU, J . -------------------------------------R.S.A No.1039 of 2009 --------------------------------------Dated this the 30[th] day of November, 2021 ## JUDGMENT The plaintiff in O.S.No.928/2001 on the file of the Additional Munsiff's Court-II, Kozhikode is the appellant in this Regular Second Appeal. The plaintiff instituted the original suit for injunction against the Kozhikode Corporation. 2. The plaintiff is the owner of the plaint schedule property. She is conducting a business in the building therein in the name and style 'New Deepson'. The buildings in the plaint schedule property are old. According to the plaintiff, she plastered the walls of the buildings with cement. She has not effected any alterations or repairs in the buildings. On 14.08.2001, the plaintiff received a notice from the defendant-Corporation requiring her to demolish and remove the buildings situated in the plaint schedule property. The plaintiff submitted a reply to the notice stating the true facts. Thereafter, the officials of the Corporation inspected the premises. 3 R.S.A No.1039 of 2009 On 23.11.2001, the plaintiff was served with a notice by the defendant-Corporation directing her to demolish and remove the buildings in the property. The notices sent by the defendantCorporation are not valid. Those notices have been issued at the instance of one Ummerkoya, who is living in inimical terms with the plaintiff in connection with the dispute relating to the lane leading to his property. 3. The defendant-Corporation resisted the suit contending that the suit is not maintainable in view of Sections 544 and 563 of the Kerala Municipalities Act, 1994 (for short 'the Act'). The defendant pleaded that the plaintiff demolished two buildings bearing Nos.20/281 and 20/282 situated in the plaint schedule property and constructed a new foundation and basement with granite stones in the place where the old buildings were situated extending the plinth area. The plaintiff also constructed pillars with bricks and roofing with concrete beams and slabs. The construction effected by the plaintiff was in violation of Rules 24(4) and 25(1) of the Kerala Municipal Building Rules, 1999. Therefore, the Secretary of the defendant-Corporation issued a notice under Sec.406(1) of R.S.A No.1039 of 2009 4 the Act. Thereafter, on consideration of the reply received from the plaintiff and having found the construction unauthorised, preliminary notice issued under Sec.406(1) was confirmed and final notice under Sec.406(3) was issued on 23.11.2001, directing the plaintiff to remove the unauthorised construction. The plaintiff has not preferred an appeal to the competent authority challenging the above referred order. The defendant has taken action as per the provisions of the Act. Therefore, the plaintiff is not entitled to the relief as prayed for in the plaint. 4. The Trial Court dismissed the suit holding that the suit is not maintainable in view of the bar contained in Sec.563 of the Act. 5. The plaintiff/appellant challenged decree and judgment passed by the Trial Court in A.S.No.54/2005 before the First Appellate Court which confirmed the finding of the Trial Court that the suit is not maintainable in view of the bar under Sec.563 of the Act. 6. After hearing both sides, this Court reformulated the substantial question of law as “whether the courts below went wrong in coming to the conclusion that the Civil Court has no R.S.A No.1039 of 2009 5 jurisdiction to try the suit”. 7. Heard Sri.K.M.Firoz, the learned counsel appearing for the appellant/plaintiff and the learned Standing Counsel for the respondent/defendant-Corporation. 8. The plaintiff is the owner in possession of the plaint schedule property, which she acquired by way of sale deed No.556/2000. The plaintiff is conducting business in the building in the property. 9. The case of the plaintiff is that as the buildings situated in the property were old, she did some plastering works on the walls of the buildings without making any structural alteration. 10. The challenge of the defendant-Corporation is that the plaintiff demolished the old buildings in the property and constructed a new building in violation of Rules 24(4) and 25(1) of the Kerala Municipal Building Rules, 1999. 11. The defendant-Corporation initiated proceedings under Sec.406 of the Act. The defendant initially served notice under Sec.406(1) of the Act to the plaintiff. She has filed her reply to the notice. Thereafter, after considering the reply received from the R.S.A No.1039 of 2009 6 plaintiff and based on the report of the local inspection, the preliminary notice issued under Sec.406(1) was confirmed and final notice under Sec.406(3) was issued to the plaintiff on 23.11.2001, directing her to remove the unauthorised construction. 12. The action taken by the defendant-Corporation as per Sec.406 of the Act comes under Chapter XVIII of the Act. 13. The Kerala Municipalities Act is a self-contained code. The action initiated by the defendant-Corporation under Sec.406 can be challenged in appeal as provided in Chapter XXIII of the Act. Section 563 of the Act bars the jurisdiction of the Civil Court in entertaining suit or other proceedings in respect of the action taken by or under the authority of the Secretary under any provisions comprised in Chapters XVII, XVIII and XIX. ## 14. Section 563 reads thus: “563. Jurisdiction of Civil Courts barred: 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.” ## 15. The question that falls for consideration is whether before exhausting the remedy provided under the Act, the plaintiff is R.S.A No.1039 of 2009 7 entitled to approach the Civil Court and seek a decree for a permanent prohibitory injunction. It is trite that when the Special Act affords an alternative remedy which is sufficient and adequate, the exclusion of the jurisdiction of the Civil Court is implied. The Constitution Bench of the Apex Court in M/s.Kamala Mills Ltd. V. State of Bombay (AIR 1965 SC 1942) has declared the law on this question. The question was again considered in Ram Swarup v. Shikar Chand and another (AIR 1966 SC 893) and later in Dhruv Green Field Ltd. v. Hukam Singh and others [(2002) 6 SCC 416]. In Dhruv Green Field the Apex Court in paragraph 10 held thus: “ 10. In the light of the above discussion, the following principles may be restated: (1) If there is express provision in any special Act barring the jurisdiction of a civil court to deal with matters specified thereunder the jurisdiction of an ordinary civil court shall stand excluded. (2) If there is no express provision in the Act but an examination of the provisions contained therein leads to a conclusion in regard to exclusion of jurisdiction of a civil court, the court would then inquire whether any adequate and efficacious alternative remedy is provided under the Act; if the answer is in the affirmative, it can safely be concluded that the jurisdiction of the civil court is barred. If, however, no such adequate and effective alternative remedy is provided then exclusion of the jurisdiction of the civil court cannot be inferred. (3) Even in cases where the jurisdiction of a civil court is barred expressly or impliedly, the court would nonetheless retain its jurisdiction to entertain and adjudicate the suit provided the order complained of is a nullity.” R.S.A No.1039 of 2009 8 ## 16. In Noushad v. Kayamkulam Municipality [2006 (2) KLT 319] ## in paragraph 10, this Court held thus: “10. It is clear from the above that Section 563 expressly bars entertaining of any suit by civil court challenging the propriety or legality of any action taken by or under the authority of the Secretary under the provisions comprised in Chapters XVII, XVIII, XIX of the Act or the rules and regulations made thereunder. Granting of approval for construction of the building and action for violation etc. under the Building Rules are contained in Chapter XVIII of the Act. Therefore, suit is prima facie not maintainable. Moreover, the issue raised in the suit is decided by this Court, in these proceedings and therefore suit is now barred by res judicata. Therefore, in exercise of jurisdiction under Article 227 of the Constitution, I dismiss the suit as one no longer maintainable based on the findings in this Writ Petition.” ## 17. In Thodupuzha Municipality v. Abraham Philip [2007 (4) KLT 972], this Court held that when the Special Act affords an alternative remedy which is sufficient and adequate, the exclusion of the jurisdiction of the Civil Court is implied. 18. In the present case, the action initiated by the defendantCorporation under Sec.406 of the Act, as stated above, comes under Chapter XVIII of the Act, which is appealable under provisions contained in Chapter XXIII. 19. The learned counsel for the appellant/plaintiff submitted that the plaintiff had preferred a statutory appeal to the authorities, which was not considered by them. The defendant-Corporation has R.S.A No.1039 of 2009 9 taken the specific stand in its written statement that the plaintiff had not preferred an appeal. No materials were produced by the appellant/plaintiff to establish that she had preferred an appeal as contended by the learned counsel. The Trial Court as well as the First Appellate Court recorded the finding that no appeal was preferred by the plaintiff. 20. The plaintiff failed to establish any other grounds to maintain a suit before the Civil Court challenging the action of the defendant-Corporation. Accordingly, the Courts below have rightly held that the suit was not maintainable in view of the bar contained in Sec.563 of the Act. The Regular Second Appeal lacks merits and it is dismissed. Sd/K.BABU, JUDGE KAS