M. HARIHARASUDHAN versus R. KARMEGAM AND ORS.

[2019] 13 S.C.R.

M. HARIHARASUDHAN

R. KARMEGAM AND ORS.

(Civil Appeal No. 8069 of 2019)

OCTOBER 17, 2019

[MOHAN M. SHANTANAGOUDAR AND

AJAY RASTOGI, JJ.]

Tamil Nadu Property (Prevention of Damage and Loss)CAct, 1992:

ss. 7, 10 and 14 – Whether the Act excludes the jurisdictionof civil court – High Court by impugned order held that thoughthere is no express bar on civil jurisdiction, but since the Act andthe Rules framed thereunder provide particular method of claimingDcompensation for damages to the property, all other methods forclaiming compensation were excluded by implication – Appeal toSupreme Court – Held: claim for compensation under the Act isonly in the nature of an additional remedy – It is evident from theprovisions of the Act that it does not oust the jurisdiction of civilcourt either expressly or by necessary implication – s.14 recognizesEthe concurrent jurisdiction of the Civil Court to entertain suit fordamages – Tamil Nadu Property (Prevention of Damage and Loss)Act, 1992 – Jurisdiction.

Allowing the appeal, the Court

FHELD : 1. The question of ouster of the jurisdiction of thecivil court by specially constituted tribunals, not to be readilyinferred unless the conditions as under are satisfied. Where thestatute gives finality to the orders of the special Tribunals thecivil courts’ jurisdiction must be held to be excluded if there isadequate remedy to do what the civil courts would normally do inGa suit. Where there is no express exclusion, the examination ofthe remedies and the scheme of the particular Act to find out theintendment becomes necessary and the result of the inquiry maybe decisive. In the latter case it is necessary to see if the statutecreates special right or liability and provides for the

determination of the right or liability and further lays down thatall questions about the said right and liability shall be determinedby the Tribunals so constituted, and whether remedies normallyassociated with actions in civil courts are prescribed by the saidstatute or not. [Para 6] [448-E-G; 449-B-C]

Dhulabhai v. State of Madhya Pradesh[1968] 3 SCR662 – followed.

2. Additionally, it is important to note that the Tamil NaduProperty (Prevention of Damage and Loss) Act, which was enactedin 1992, initially only pertained to damage and loss caused topublic property. The Act was amended vide the Tamil Nadu PublicProperty (Prevention of Damage and Loss) Act, 1994, which waspublished in the Tamil Nadu Government Gazette Extraordinaryon 09.08.1994, to provide compensation in respect of propertyother than public property as well. The Rules framed under theAct came into force on 09.04.1994, that is to say, prior to theamendment of the Act. Though certain amendments weresubsequently made to the Rules, vide G.O. Ms. No. 1285, Home(Court IV) dated 24.10.1994, it appears that the State Governmenthas committed an oversight in amending the Rules, and has failedto provide any procedure for the claiming and assessment ofdamages with respect to property other than public property. Abare reading of the Rules in their entirety thus makes it clearthat the State Government has committed an oversight inamending the Rules appropriately to bring them in consonancewith the amended enactment, and to facilitate the appropriateenforcement of the same. [Para 9] [453-B-D, G]

3. Even if it is assumed that the Rules broadly provide aprocedure to claim compensation for damage or loss to public aswell as private property, the scheme of the Act does not envisageouster of jurisdiction of the civil court. [Para 10] [453-H; 454-A]

4. Reading the Rules expansively, not literally, it is evidentthat the Act, along with the Rules, provides for the award ofcompensation in two ways. Firstly, it may be awarded at the endof the trial for any offence punishable under the Act, or may beordered to be paid out of the fine imposed upon the accused.

AThis is similar to the power of the criminal court to awardcompensation under Section 357 of the Cr.P.C. Secondly,compensation may be awarded upon an application as envisagedunder Section 10, after summary inquiry as envisaged underthe Rules. This is somewhat similar to the summary procedureenvisaged under the Consumer Protection Act, 1986 for claimingBcompensation thereunder. This would indicate that the Act andRules provide specific remedy to claim compensation for lossand damage to property. [Para 11]

5. It is evident that s.7 clearly recognises the possibility ofa civil suit instituted subsequent to the criminal proceedingsCunder the Act, relating to the same matter, where if the Courttrying the civil suit is awarding compensation, it is required totake into account any sum paid or recovered as compensationunder Section 7 of the Act. It does not stand to reason that theAct would permit the subsequent filing of civil suit while

Dexcluding the concurrent jurisdiction of the civil court. Moreover,even the summary remedy of claiming compensation envisagedunder Section 10 of the Act, read with the Rules, does not precludethe filing of suit for damages. Section 14 clearly provides thatthe Act is in addition to, and not in derogation of, any other law inforce for the time being. It further mandates that nothing containedEin the Act shall exempt any person from any proceeding by wayof investigation or otherwise which might be instituted againsthim apart from under the Act. “Law” in force would include thecommon law, under which the tortious remedy of damages maybe claimed, which remedy can only be pursued in civil court.FThus, it is evident that the Act, by way of Section 14, clearlyrecognises the concurrent jurisdiction of the civil court toentertain suit for damages. Section 3 of the ConsumerProtection Act, 1986 is similar to Section 14 of the Act, whichprovides that the 1986 Act is in addition to and not in derogationof other laws in force. [Paras 13 and 14]GPioneerUrban Land and Infrastructure Ltd. v. Unionof India[2019] 8 SCC 416 ;State of Karnataka v.Vishwabharathi House Building Coop. Society(2003)2 SCC 412 : [2003] 1 SCR 397 ;Indian Medical

Association v. V. P. Shantha(1995) 6 SCC 651 : [1995]5 Suppl. SCR 110 – relied on.

6. Section 14 of the Act, being in addition to and not inderogation of the provisions of other laws in force, permits anaggrieved person to approach the civil court for relief if he sodesires, instead of availing of the remedy envisaged under Section10 of the Act. Clearly, claim for compensation under the Act isonly in the nature of an additional remedy which may be pursuedin place of filing civil suit for the same relief. [Para 14]

7. Moreover, it is clear that since claim for compensationunder Section 10 may only be determined by way of summaryproceedings, it does not stand as complete substitute to theremedies that may be pursued in civil court and determinedthrough full-fledged trial, even though certain powers of thecivil court are conferred upon the prescribed authoritydetermining claim for compensation under the Act. Thus, theAct does not stand in place of and preclude claim for damagesunder the common law as may fall for determination before civilcourt in civil suit. The Act does not oust the jurisdiction of thecivil court either expressly or by necessary implication.[Paras 15 and 16]

Case Law Reference

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 8069of 2019.

From the Judgment and Order 29.03.2019 of the Madurai Benchof Madras High Court in A.S. (MD) No. 143 of 2018.

V. Giri, Veera Kathirawan, Sr. Advs., Muthu Saran, M. P.Parthiban, A. S. Vairawan, Hardik Gautam, Advs. for the Appellant.

G. Sivabalamurugan, Adv. for the Respondents.

AThe Judgment of the Court was delivered byMOHAN M. SHANTANAGOUDAR, J.

1. Leave granted.

2. The instant appeal arises from the final judgment and orderBdated 29.03.2019 passed by the Madurai Bench of the High Court ofMadras in A.S. (M.D.) No. 143 of 2018 allowing the appeal filed by theunsuccessful defendants in O.S. No. 186 of 2016 (the Respondentsherein), wherein the suit for damages filed by the Appellant herein hadbeen decreed by the First Additional District Judge, Madurai, vide orderdated 03.04.2018.C

3. The short question in this appeal is whether the suit for damagesfiled by the Appellant is maintainable in light of the Tamil Nadu Property(Prevention of Damage and Loss) Act, 1992 (in short “the Act”), whichdepends on whether the Act excludes the jurisdiction of the civil court.In this respect, the brief facts of the case as alleged by the Appellant areDas follows:

3.1 The Appellant runs hotel at Madurai. He had purchased aplot of land adjacent to plot owned by his father, where he startedconstruction in 2014. The Appellant’s father filed O.S. No. 783 of 2014against Respondent No. 1 for the relief of injunction, since RespondentENo. 1 had started putting up construction in front of the Appellant’sproperty obstructing free access to the property of the Appellant’s father.Though an order for maintaining the status quo was passed in the saidsuit, Respondent No. 1 completed his construction regardless. Later,aggrieved by the filing of the suit, Respondent No. 1, along with someFhenchmen, damaged certain construction materials on the Appellant’sproperty, causing damage to the tune of Rs. 2.27 lacs. The Appellantresultantly lodged the first information before the police and crimecame to be registered against Respondent No. 1, who later furtherdamaged the show-case glass at the Appellant’s hotel by pelting stonesat it and damaged its automatic glass door by driving car into the hotel.GRespondent Nos. 2 and 3 trespassed into the hotel and took away cashof more than Rs. 1 lac. The Appellant spent Rs. 73,000/- on medicalexpenses for his injured employees, and subsequently filed O.S. No. 186of 2016.

3.2 The Trial Court decreed the suit, i.e. O.S. No. 186 of 2016,holding that the Appellant was entitled to damages of Rs. 18,28,941/-with interest at the rate of 9% p.a. from the date of filing of the suit tillthe date of realization, with proportionate costs. The maintainability ofthe suit was not an issue before the Trial Court.

3.3 The High Court, in appeal, framed points for considerationwith respect to the maintainability of the suit, non-joinder of necessaryparties, and the accrual of the cause of action. Though it was held thatthe suit was not bad for non-joinder of necessary parties and was notprematurely filed, the decree was set aside solely based on the findingthat the suit was not maintainable. The High Court found that there wasno express bar on civil jurisdiction in the Act. However, it held that sincethe Act specified particular method for claiming compensation fordamage to property in Sections 10 and 11 of the Act, as well as Rule 4 ofthe Tamil Nadu Property (Prevention of Damage and Loss) Rules, 1994(in short “the Rules”), all other methods for claiming compensation wereexcluded by implication, and thus the jurisdiction of the civil court wasimpliedly barred. Aggrieved, the Appellant filed the instant appeal.4. Learned Senior Counsel Mr. V. Giri, appearing for the Appellant,argued that though the High Court had correctly held that there was noexpress bar on the jurisdiction of the civil court, it erred in holding thatthe Act impliedly ousted the jurisdiction of the civil court—in fact, theprovisions thereof indicate that such jurisdiction exists concurrently withthe remedies provided under the Act.

4.1 Learned Senior Counsel first referred to Section 7(4) of theAct, which provides that compensation ordered by the Court to be paidunder Section 7 shall be accounted for at the time of awardingcompensation in subsequent civil suit relating to the same matter. Hecontended that Section 7(4) thus recognizes the possibility of civil suitbeing filed, and thus impliedly recognizes the jurisdiction of the civil courtto award compensation. He also submitted that the scheme of Section 7was near verbatim reproduction of Section 357 of the Code of CriminalProcedure, 1973 (in short the “Cr.P.C.”), which pertains to the power ofa criminal court to order the payment of compensation, but also accountsfor the filing of subsequent civil suit for compensation.

4.2 Secondly, our attention was drawn to Section 14 of the Act,which saves proceedings instituted outside of the Act, to argue that the

Ajurisdiction of the civil court was also saved under Section 14. LearnedSenior Counsel stressed that ouster of the jurisdiction of the civil court isnot to be readily inferred, referring to the decision of the ConstitutionalBench of this Court in Dhulabhai v. State of Madhya Pradesh, 1968(3) SCR 662.

B5. Learned Counsel for the Respondents, on the other hand, arguedthat the Act and Rules constituted self-contained code and ousted thejurisdiction of the civil court by necessary implication. He submitted thatthe Rules create specific authority for the determination and paymentof compensation, and thus the decision in Dhulabhai (supra) wouldsquarely apply, where it was also held that the jurisdiction of the civilCcourt must be held to excluded when there is an adequate and sufficientremedy specifically provided in statute which would normally beassociated with actions in civil court. He further argued that the schemeof the Act and Rules would be rendered redundant if the jurisdiction ofthe civil court to award compensation were to be recognized.

6. It has not been disputed that there is no express bar under theAct on the jurisdiction of the civil court to entertain suit for damages.As set out above, all we need to determine is whether the jurisdiction ofthe civil court is barred by necessary implication. The principles laiddown in Dhulabhai (supra) are pertinent in this regard. While dealingEwith the question of ouster of the jurisdiction of the civil court by speciallyconstituted tribunals, this Court concluded that such ouster was not to bereadily inferred unless the conditions set out by the Court were satisfied.For the purposes of determining the question before us, we need onlyrefer to the following conditions laid down by this Court in Dhulabhai(supra):F

“… (1) Where the statute gives finality to the orders of thespecial Tribunals the civil courts’ jurisdiction must be held to beexcluded if there is adequate remedy to do what the civil courtswould normally do in suit.Such provision, however, does notexclude those cases where the provisions of the particular ActGhave not been complied with or the statutory Tribunal has notacted in conformity with the fundamental principles of judicialprocedure.

(2) Where there is an express bar of the jurisdiction of the court,an examination of the scheme of the particular Act to find the

adequacy or the sufficiency of the remedies provided may berelevant but is not decisive to sustain the jurisdiction of the civilcourt.

Where there is no express exclusion the examination of theremedies and the scheme of the particular Act to find out theintendment becomes necessary and the result of the inquiry maybe decisive. In the latter case it is necessary to see if the statutecreates special right or liability and provides for thedetermination of the right or liability and further lays down that allquestions about the said right and liability shall be determined bythe Tribunals so constituted, and whether remedies normallyassociated with actions in civil courts are prescribed by the saidstatute or not.

(7) An exclusion of the jurisdiction of the civil court is not readilyto be inferred unless the conditions above set down apply.”

(emphasis added)

6.1 Thus, essentially, we must determine whether the Act providesan adequate final remedy to what the civil court would normally do in asuit, such that the jurisdiction of the civil court must necessarily be inferredto have been ousted. The scheme of the Act and Rules must be examinedin this light.

7. Section 1 of the Act deals with the short title and commencement,and Section 2 deals with definitions. Importantly, sub-section (4) defines“property” as any movable or immovable property or machinery ownedby, or in possession of, or under the control of any person, including theentities listed under clauses (a) to (j) of the sub-section, for instance, theCentral and State Government, any local authority, and any institution,concern, or undertaking. Sections 3, 4 and 5 lay out offences punishableunder the Act, while Section 6 pertains to the grant of bail.

7.1 Section 7, which is central to our controversy, meritsreproduction:

“7. Order to Pay Compensation.—(1) When imposing asentence of fine for an offence under this Act, the Court maywhen passing judgment, order the whole or any part of the finerecovered to be applied—

(a) in defraying expenses properly incurred in the prosecution;(b) in the payment, to any person, of compensation for any loss orinjury caused by the offence;

(c) in replacing or as the case may be, restoring to the previousstate, the property including any road, bridge, navigable channel,Bnatural or artificial.

(2) If the fine is imposed in case which is subject to appeal, nosuch payment shall be made before the period allowed forpresenting the appeal has elapsed, or, if an appeal be presented,before the decision of the appeal.

(3) An order under this section may also be made by an AppellateCourt or by the High Court when exercising its powers of revision.

(4) At the time of awarding compensation in any subsequent civilsuit relating to the same matter, the Court shall take into accountany sum paid or recovered as compensation under this section.

(5) Save as otherwise provided, when Court imposes sentence,of which fine does not form part, the Court may, when passingjudgment, order the accused person to pay, by way ofcompensation, such amount as may be specified in the ordertothe person who has suffered any loss or injury by reason of theact for which the accused person has been so sentenced.”

(emphasis added)

7.2 Evidently, Section 7(1) provides that where the Court tryingany offence punishable under the Act imposes sentence of fine afterFconviction, it may order such fine to be partly or wholly applied, interalia, for the payment of compensation for any loss or injury caused bythe offence, as mentioned in clause (b). Sub-section (5), at the sametime, provides that if Court is imposing sentence under the Actcomprising only imprisonment, the Court may order the accused toseparately pay compensation to the aggrieved party.

7.2.1 It is relevant to note at this stage itself that Section 8 specifiesthat offences under the Act cannot be tried by any Court inferior to thatof Chief Metropolitan Magistrate or Sessions Court.

7.2.2 As per Section 7(3), an order under Section 7, which wouldHinclude orders both under sub-sections (1) and (5), may also be made by

an Appellate Court or the High Court in the exercise of the power ofrevision. Most crucial, however, is sub-section (4), which specificallyprovides that in subsequent civil suit relating to the same matter, if thecivil court is awarding compensation, it shall take into account any sumpaid or recovered as compensation under Section 7 of the Act.

7.3 Moving on, Section 9 provides that notwithstanding anythingcontained in the Act, where an offence punishable under this Act hasbeen committed during any procession, assembly, meeting, agitation,demonstration or any other activity organised by political party orcommunal, language or ethnic group, the Court shall presume that theoffence has also been committed by such party or group, which shall beliable to pay compensation for damage or loss caused to any property, inaccordance with the provisions of this Act and the rules made thereunder.

7.4 Section 10(1) pertains to claims for compensation for damageand loss, which can be made by the person affected by the damage orloss, or by an officer empowered by any authority specified in clauses(a) to (j) of Section 2(4). Sub-section (2) provides that every applicationfor claiming compensation shall be in such format as may be prescribed.

7.5 Section 11(1) provides that every claim for compensation fordamage or loss caused to property shall be made to the authority as maybe prescribed. Sub-section (2) provides the factors to be considered bythe prescribed authority while determining the quantum of compensation,and sub-section (3) provides that such authority shall have to followprescribed procedure while deciding the application. Sub-section (4) givesthe prescribed authority the powers of civil court as provided in theCode of Civil Procedure, 1908 (in short “the CPC”) for the purpose oftaking evidence on oath, enforcing the attendance of witnesses, discoveryand production of documents and material objects, and for such otherpurposes as may be prescribed.

7.6 Section 12 of the Act provides that the prescribed authorityunder Section 11 may, after determining the compensation to be awarded,issue certificate for the amount to the Collector, who shall recover thesame in the same manner as an arrear of land revenue. Section 12-Adeals with the manner of appeal against an order under Section 11,providing that an appeal may be made to such authority as may beprescribed. Sub-section (2) specifically provides that the decision of theappellate authority shall be final and shall not be called into question in

Aany Court of law. Section 13 confers power on the State Government tomake rules under the Act.

7.7 Section 14 is the savings provision. Since much revolves aroundthis provision as well, we reproduce it below:

“14. Saving.—The provisions of this Act shall be in addition to,Band not in derogation of, any other law for the time being in forceand nothing contained herein shall exempt any person from anyproceeding by way of investigation or otherwise which might, apartfrom this Act, be instituted against him.”

7.8 Section 15, the last provision of the Act, repeals the TamilCNadu Public Property (Prevention of Destruction and Loss) Act, 1982.

8. The Rules have been framed by the State Government in theexercise of powers under Section 13 of the Act. Rule 3 lays down whomay claim compensation for damage or loss to property owned by, or inthe possession or under the control of, an authority specified in clausesD(a) to (j) of Section 2(4), and in what manner. Importantly, Rule 4 setsout the Commissioner for Revenue Administration, or any authorityauthorised by him, as competent to decide compensation claims madeunder Rule 3. Sub-rule (2) provides that the decision of the competentauthority as to the quantum of compensation for damage or loss causedEto public property shall be final and not be questioned in any Court oflaw. Sub-rule (3) lays down certain additional factors to be consideredwhile determining compensation for damage or loss caused to publicproperty.

8.1 Rules 5 to 10 deal with various aspects of the procedure ofFinquiry, including rectification of defects, filing of the written statement,notice to parties, issue of summons, and the appearance of legalpractitioners if required. Rule 11 gives the power to the inquiring authorityto inspect the damaged property, while Rule 12 allows the production ofdamaged movable property before the authority. Rule 13 deals with travelexpenses of the inquiring authority. Rule 14 provides for the summaryGexamination of any person required. Rule 15 states that the inquiringauthority has to get recorded memorandum of the substance of theevidence of each witness. Rule 16 provides that the inquiring authoritymay take assistance from persons having special knowledge with respectto any matter relevant to the inquiry. Rules 17 to 19 require the inquiring

authority to frame record of points to be decided, maintain brief diaryof the proceedings of the inquiry, and record his findings concisely oneach point and record reasons for such findings. Rule 20, pertaining tothe application of the CPC, was omitted by G.O. Ms. No. 1285, Home(Court IV), dated 24.10.1994. Rule 21, the last rule, deals with the mannerof recovery of compensation.

9. Additionally, it is important to note that the Act, which wasenacted in 1992, initially only pertained to damage and loss caused topublic property. The Act was amended vide the Tamil Nadu PublicProperty (Prevention of Damage and Loss) Act, 1994, which waspublished in the Tamil Nadu Government Gazette Extraordinary on09.08.1994, to provide compensation in respect of property other thanpublic property as well. The Rules framed under the Act came intoforce on 09.04.1994, that is to say, prior to the amendment of the Act.Though certain amendments were subsequently made to the Rules, videG.O. Ms. No. 1285, Home (Court IV) dated 24.10.1994, it appears thatthe State Government has committed an oversight in amending the Rules,and has failed to provide any procedure for the claiming and assessmentof damages with respect to property other than public property. Forinstance, as already discussed, Rule 3, which prescribes the authority toclaim compensation, continues to deal only with applications forcompensation with respect to public property. Similarly, Rule 4(1), whichprescribes the authority before whom compensation is to be claimed,does not clarify as to before whom an application should be made toclaim damages for loss caused to private property. At the same time,Rule 4(2) states that the assessment of compensation for damage orloss caused to public property shall be final, without any mention of thefate of damages with respect to private property. So also, Rule 4(3)takes care of the assessment of compensation for damage or loss causedto public property, and does not deal with how damages are to be assessedin case of private property. bare reading of the Rules in their entiretythus makes it clear that the State Government has committed an oversightin amending the Rules appropriately to bring them in consonance withthe amended enactment, and to facilitate the appropriate enforcementof the same.

10. However, even if we assume that the Rules broadly provide aprocedure to claim compensation for damage or loss to public as well as

Aprivate property, we find force in the contention of learned Senior Counselfor the Appellant that the scheme of the Act does not envisage ouster ofjurisdiction of the civil court.

11. As mentioned supra, reading the Rules expansively, not literally,it is evident that the Act, along with the Rules, provides for the award ofBcompensation in two ways. Firstly, it may be awarded at the end of thetrial for any offence punishable under the Act, or may be ordered to bepaid out of the fine imposed upon the accused. This is similar to thepower of the criminal court to award compensation under Section 357of the Cr.P.C. Secondly, compensation may be awarded upon anapplication as envisaged under Section 10, after summary inquiry asCenvisaged under the Rules. This is somewhat similar to the summaryprocedure envisaged under the Consumer Protection Act, 1986 (in short“the 1986 Act”), for claiming compensation thereunder. This wouldindicate that the Act and Rules provide specific remedy to claimcompensation for loss and damage to property. It was on this basis thatDlearned Counsel for the Respondents submitted that the civil court couldnot be said to have concurrent jurisdiction to decide suit for damages.12. Such an argument, however, deserves to be rejected. We firstturn our attention to the aspect of award or provision of compensationby the criminal court under Section 7 after trial for any offence underEthe Act. It is evident that the provision clearly recognises the possibilityof civil suit instituted subsequent to the criminal proceedings under theAct, relating to the same matter, where if the Court trying the civil suit isawarding compensation, it is required to take into account any sum paidor recovered as compensation under Section 7 of the Act. It does notstand to reason that the Act would permit the subsequent filing of civilFsuit while excluding the concurrent jurisdiction of the civil court.

13. Moreover, even the summary remedy of claiming compensationenvisaged under Section 10 of the Act, read with the Rules, does notpreclude the filing of suit for damages. Section 14 of the Act is importantin this regard, which clearly provides that the Act is in addition to, andGnot in derogation of, any other law in force for the time being. It furthermandates that nothing contained in the Act shall exempt any personfrom any proceeding by way of investigation or otherwise which mightbe instituted against him apart from under the Act. “Law” in force wouldinclude the common law, under which the tortious remedy of damagesHmay be claimed, which remedy can only be pursued in civil court.

Thus, it is evident that the Act, by way of Section 14, clearly recognisesthe concurrent jurisdiction of the civil court to entertain suit for damages.

14. In this regard, it would be useful to refer to Section 3 of the1986 Act, similar to Section 14 of the Act, which provides that the 1986Act is in addition to and not in derogation of other laws in force:

“3. Act not in derogation of any other law.—The provisions ofthis Act shall be in addition to and not in derogation of the provisionsof any other law for the time being in force.”

14.1 This provision has been considered on multitude of occasionsby this Court to affirm that the remedy available before consumer foramay only be one of several concurrent remedies available to an aggrievedperson. For instance, even recently, this Court in PioneerUrban Landand Infrastructure Ltd. v. Union of India (W.P. (C) No. 43/2019,decided on 09.08.2019) observed that remedies to flat allottees undervarious statutes such as the 1986 Act, the Real Estate (Regulation andDevelopment) Act, 2016, and the Insolvency and Bankruptcy Code, 2016are concurrent. However, for our purposes, we may limit ourselves toexamine the effect of Section 3 of the 1986 Act on the jurisdiction of thecivil court. The following discussion in State of Karnataka v.Vishwabharathi House Building Coop. Society, (2003) 2 SCC 412,serves us adequately, where this Court explained that the 1986 Act doesnot supplant the jurisdiction of the civil court:

“46. By reason of the provisions of Section 3 of the Act, it isevident that remedies provided thereunder are not in derogationof those provided under other laws. The said Act supplementsand not supplants the jurisdiction of the civil courts or otherstatutory authorities.

53. … Furthermore, primarily the jurisdiction of the forums/Commissions is to grant damages. In the event, complainantfeels that he will have better and effective remedy in civilcourt as he may have to seek for an order of injunction, heindisputably may file suit in an appropriate civil court or maytake recourse to some other remedies as provided for in otherstatutes.”

(emphasis added)

A14.2 We may also refer to the following observations made bythis Court in its earlier decision in Indian Medical Association v. V.P.Shantha, (1995) 6 SCC 651, where, while concluding that consumerfora were competent to deal with complaints regarding deficiency inservice by way of medical negligence, it was observed as follows:

B“37. … In complaints involving complicated issues requiringrecording of evidence of experts, the complainant can be askedto approach the civil court for appropriate relief. Section 3 of theAct which prescribes that the provisions of the Act shall be inaddition to and not in derogation of the provisions of any other lawfor the time being in force, preserves the right of the consumer toC”approach the civil court for necessary relief…

(emphasis added)

14.3 There is no doubt in our minds that similar proposition holdsthe field even with respect to the Act at hand. Section 14 of the Act,Dbeing in addition to and not in derogation of the provisions of other lawsin force, permits an aggrieved person to approach the civil court forrelief if he so desires, instead of availing of the remedy envisaged underSection 10 of the Act. Clearly, claim for compensation under the Act isonly in the nature of an additional remedy which may be pursued inplace of filing civil suit for the same relief.

15. Moreover, it is clear that since claim for compensation underSection 10 may only be determined by way of summary proceedings, itdoes not stand as complete substitute to the remedies that may bepursued in civil court and determined through full-fledged trial, eventhough certain powers of the civil court are conferred upon the prescribedFauthority determining claim for compensation under the Act.

16. Upon an evaluation of the entire scheme of the Act and Rules,and looking to the tests laid down by Dhulabhai (supra), we are thus ofthe considered opinion that the Act does not stand in place of and precludea claim for damages under the common law as may fall for determinationGbefore civil court in civil suit. In this view of the matter, we findourselves drawn to the irresistible conclusion that the Act does not oustthe jurisdiction of the civil court either expressly or by necessaryimplication, and that the High Court has erred in allowing the appealfiled by the Respondents herein by holding that the suit filed by theAppellant was not maintainable.H

M. HARIHARASUDHAN v. R. KARMEGAM AND ORS.[MOHAN M. SHANTANAGOUDAR, J. ]

17. As mentioned supra, the Trial Court, upon holding that the suitis maintainable, proceeded to decree the suit on merits. The appealbefore the High Court, filed under Section 96 of the CPC, was decidedonly on the preliminary point pertaining to the maintainability of the suit.In view of our finding that the suit is maintainable, the matter has to beremitted to the High Court for hearing the first appeal on merits.

18. Accordingly, the appeal is allowed, and consequently, thejudgment of the High Court is set aside. The matter is remitted to theHigh Court for deciding the first appeal being A.S. (MD) No. 143 of2018 on merits.

Kalpana K. Tripathy

Appeal allowed.