RATUL MAHANTA versus NIRMALENDU SAHA

[2021] 8 S.C.R. 92

[2021] 8 S.C.R.

RATUL MAHANTA

NIRMALENDU SAHA

(Civil Appeal No. 4627 of 2021)

BAUGUST 10, 2021

[HEMANT GUPTA AND A. S. BOPANNA, JJ.]

Municipal Corporation:

Guwahati Municipal Corporation Act, 1971: ss. 341, 246,C247 and 248 – Bar of jurisdiction of civil court – Issue relating to acommon drain between two private individuals residing within thelimits of the Municipal Corporation – Held: Is not an issue regardingwhich specific bar is contemplated against approaching the civilcourt for relief – ss. 246, 247 and 248 though referred to theownership and the manner in which the drains connected toDmunicipal drain are to be used and the Commissioner is given theauthority to compel the owner of drain to permit another propertyowner to use the same, the said provisions cannot be consideredeither as an express or an implied bar on the civil court to entertaina suit relating to the declaration of an existing right to use of theEdrain – On facts, appellant is asserting about right which existedand is seeking to safeguard and continue to exercise such right –Case pleaded is not to the effect that any of them own the drain butthat the respondent is seeking to alter that position and thus, berestrained – Such relief is to be considered in the suit based on theevidence that would be tendered – Thus, such relief is not barredFunder any law - High Court wrongly rejected the plaint, when inthe instant facts there is neither express nor implied bar under anylaw, whereas Munsif was justified in passing the order holding thesuit to be maintainable – Thus, the order passed by the High Courtis set aside.G

Allowing the appeal, the Court

HELD: 1.1 bare perusal of Section 9 CPC indicates thatthe courts shall have jurisdiction to try all suits of civil natureexcepting suits of which their cognizance is either expressly orimpliedly barred. Though in the instant case, the issue had notH

arisen before the Munsif while considering an application underOrder VII Rule 11(d) of CPC, taking note of the fact that theHigh Court has invoked the said provision to consider as towhether the suit is barred and has thereafter held that the civilcourt has no jurisdiction and ordered rejection of plaint. Theperusal of Order VII Rule 11(d) CPC would indicate that therewould be bar for the civil court to entertain the suit, if such suitis barred either expressly or impliedly by any law. Further, OrderVII Rule 11(d) contemplates that from the statement containedin the plaint the suit should appear to be barred by any law, inwhich case the plaint shall be rejected. [Para 7][99-F-H; 100-A-D]

1.2 On perusal of the contents of Section 341 of the GuwahatiMunicipal Corporation Act, 1971, it indicates that no civil courtshall have jurisdiction to settle, decide or deal with any questionwhich is under that part wherein Section 341 is placed and isrequired to be settled, decided or dealt with by the Commissioner.The Part VI under which bar is imposed relates to Land,Buildings and Streets. Therefore, on the face of it, it indicatesthat the issue relating to common drain between two privateindividuals residing within the limits of the Municipal Corporationis not an issue regarding which specific bar is contemplatedagainst approaching the civil court for relief. [Para 11][101-E-G]1.3 The GMC Act no doubt makes provision to empowerthe Commissioner under certain circumstances to regulate themanner in which the use of the drain connected with the municipaldrain is to be used. The provisions to that effect are contained inSections 246, 247 and 248, in Part V of GMC Act. Perusal of thesaid provisions would indicate that the Commissioner isempowered by granting the authority under GMC Act to compelthe owner or joint owner of drain to permit person who is notthe owner of such drain to use that drain. In effect, theCommissioner is given the authority to create right in favour ofthe property owner to drain out the water through the drain ownedby any other property owner. In the instant case the appellant isnot seeking for creation of such right. The case as pleaded andnoticed indicates that the appellant is asserting about right which

Aexisted and is seeking to safeguard and continue to exercise suchright. The case pleaded is not to the effect that any of them ownthe drain but it is contended that it existed as the westernboundary of all the properties in the vicinity and the respondentis seeking to alter that position and is therefore to be restrained.Whether the appellant will succeed or not will depend on theBevidence that will be produced to support the pleading. [Para 12,13][101-G-H; 102-G-H; 103-A-B]

1.4 It is seen that Sections 246, 247 and 248 of the GMCAct though referred to the ownership and the manner in whichthe drains connected to municipal drain are to be used and theCCommissioner is given the authority to compel the owner of adrain to permit another property owner to use the same, the saidprovisions cannot be considered either as an express or animplied bar on the civil court to entertain suit relating to thedeclaration of an existing right to use of the drain. [Para 16][106-DE-F]

1.5 In fact, the existence of drain as claimed by theappellant in the plaint as on the date of purchase of the propertyand the same being used throughout is an issue which is to beproved based on the evidence that would be tendered in the suit.EThe provisions contained in Section 246, 247 and 248 of the GMCAct would be the provisions which would come to the aid of theappellant if ultimately the respondent establishes his ownershipright over the drain, despite the appellant proving the existenceof the drain. No doubt, the appellant could have also filed anapplication to the Commissioner seeking the relief to which theFCommissioner could exercise his authority but that would havearisen only if the appellant had conceded to the position that therespondent is the owner of the drain. Even in such circumstance,if relief was not made available to the appellant by theCommissioner and if he was dissatisfied with the manner in whichGsuch authority was exercised by the Commissioner it would stillhave been open to approach the court for relief. The Advocatefor respondent has in this regard contended that an appeal isprovided under Section 438 of GMC Act. However, it is notconsidered as an alternate and efficacious remedy in case ofthe present nature. The relief sought in the instant suit is in theH

nature of declaratory relief in an inter se dispute between theparties. The consideration by the statutory authority as providedunder GMC Act is of summary nature. Further, the appealprovided is in respect of any notice issued or action taken orproposed to be taken by the Commissioner, which in effectprovides the appeal remedy only to the owner of the drain againstwhom action is proposed. [Para 17][106-F-H; 107-A-D]

1.6 In the instant case, the averments contained in the plaintand the prayer made would disclose that the appellant is notseeking for creation of right over the drain owned by thedefendant nor is any issue raised with regard to the drain of GMC.But the case as put forth is that the property of the appellant, SDand the defendant are contiguous to one another which are shownas suit schedule ‘A’, ‘B’ and ‘C’ properties and on the westernside of the property starting from the appellant’s property, thereis drain, which is shown as the boundary and it facilitates thewater to flow into the GMC drain. Such relief is to be consideredin the suit based on the evidence that would be tendered.Therefore, such relief is not barred under any law. [Para 18][107-D-F]

1.7 It is clear that the High Court without taking note ofthese aspects of the matter has wrongly invoked the provisionscontained in Order VII Rule 11 (d) CPC to reject the plaint, whenin the instant facts there is neither express nor implied bar underany law. On the other hand, the Munsif was justified in passingthe order holding the suit to be maintainable. The order passedby the High Court is set aside. [Para 19, 20][107-F-H]

Shiv Kumar Chadha v. Municipal Corporation of Delhiand Others (1993) 3 SCC 161 : [1993] 3 SCR 522;Ramesh Gobindram v. Sugra Humayun Mirza Wakf(2010) 8 SCC 726 : [2010] 10 SCR 945 – referred to.

Case Law Reference[1993] 3 SCR 522referred toPara 15[2010] 10 SCR 945referred toPara 16

ACIVIL APPELLATE JURISDICTION: Civil Appeal No.4627 of2021.

From the Judgment and Order dated 06.06.2014 of the High Courtof Gauhati at Guwahati in C.R.P. No.128 of 2014.

Parthiv K. Goswami, Ms. Diksha Rai, Ms. Ragini Pandey, Advs.Bfor the Appellant.

Arunabh Chowdhury, Karma Dorjee, Ms. Barnali Chowdhury,Mrs. Pragya Baghel, Ms. Samtan Doma, Advs. for the Respondent.

The Judgment of the Court was delivered byCA. S. BOPANNA, J.

1. The appellant instituted title suit No.334 of 2011 in the Court oflearned Munsif No.2, Kamrup Guwahati against the respondent hereinseeking for declaration that on the western boundary of the suit Scheduleproperties A, and there is common public drain which can be usedDby the plaintiff. declaration is also sought to the affect that the publicdrain on the boundary of the suit Schedule ‘C’ property of the defendant,connected to the plaintiff’s property cannot be obstructed by thedefendant at any point of time. As an ancillary relief, the appellant hasalso sought for permanent injunction against the defendant so as to allowfree flow of water in the said drain upto the main GMC drain.E2. The respondent having appeared, disputed the claim put forthby the plaintiff on merits. In addition, the respondent raised the issue ofjurisdiction for the civil court to entertain the suit in view of the provisionscontained in the Guwahati Municipal Corporation Act, 1971 (‘GMC’Act for short). In the said suit, since the appellant had also prayed forFtemporary injunction, on consideration it was granted by the trial court,of course without reference to the objection regarding jurisdiction. Therespondent had therefore assailed the order of injunction by filing anappeal before the Lower Appellate Court under Section 96 (1) read withOrder 43 Rule 1 of the Civil Procedure Code (‘CPC’ for short). In theGsaid appeal, the respondent herein who was the appellant had contendedthat the order dated 30.09.2011 passed by the learned Munsif was notjustified since the issue relating to the maintainability of the suit vis-a-visthe provisions of the GMC Act barring the jurisdiction of the civil courtgoes to the root of the case. It was contended that the same was requiredto be considered and decided, before considering any other relief prayedH

in the suit. The lower appellate court in the said miscellaneous applicationNo.33/2011 through its order dated 21.09.2012 arrived at the conclusionthat the jurisdiction aspect is to be decided at the outset by the learnedMunsif. Therefore, without going into the merits, the lower appellatecourt remanded the matter by setting aside the order impugned in thesaid appeal for deciding the question of jurisdiction before consideringgrant of any other relief.

3. The appellant herein claiming to be aggrieved by the said orderpreferred revision petition in CRP No.260/2013 before the Gauhati HighCourt. The learned Judge while taking note of the rival contentions,through its order dated 29.08.2013 had agreed with the decision of thelower appellate court that the jurisdiction of the civil court to entertainthe suit was to be decided at the outset. The revision petition wasaccordingly disposed of. The parties were allowed to urge theircontentions in the court of the learned Munsif.

4. Pursuant thereto the learned Munsif has considered the issuerelating to jurisdiction and has by its order dated 16.11.2013 arrived atthe conclusion that the bar contemplated under the GMC Act does notapply to the fact situation, keeping in view the nature of the relief prayed.Accordingly, the learned Munsif has held that the civil court has jurisdictionto try the suit between the parties. The respondent herein claiming to beaggrieved by the said order dated 16.11.2013 preferred revision petitionin CRP No.128/2018 before the Gauhati High Court. The learned Judge,through the order dated 06.06.2014 has held that the jurisdiction of thiscivil court would stand ousted by implication and the party can claimrelief under the procedure prescribed under the GMC Act only. In thatbackground, the order dated 16.11.2013 impugned in the revision petitionwas set aside, the suit was held not maintainable and liberty was reservedto the appellant to ventilate his grievance under the relevant provisionsof the GMC Act, if so advised. Accordingly, the plaint in title suit No.334/2011 was ordered to be rejected. The appellant therefore claiming to beaggrieved by the order dated 08.04.2014 passed by the Gauhati HighCourt is before this Court in appeal.

5. Mr. Parthiv K. Goswami, learned counsel for the petitionerwhile assailing the order impugned has contended that the lower appellatecourt in the first instance and the High Court in the present round haveerred in arriving at the conclusion that the suit is not maintainable. It iscontended that the reasoning adopted by the High Court to consider the

Apresent case to be covered under Order VII Rule 11(d) of the CivilProcedure Code and to bar the civil suit is not justified. It is contendedthat there is no bar contemplated to approach the civil court for thenature of relief sought in the suit, either under the GMC Act or underany other law for the time being in force. In that regard, the learnedcounsel has referred to section 341 of the GMC Act which contemplatesBfor bar of jurisdiction and would point out that the same is restricted tothe relief under the part to which the bar is made applicable. In thatregard, reference is made to Part VI of the Act to contend that if at all,a civil suit is barred, it is only in respect of the nature of activities whichare stated in section 322 and the other provisions which appear in PartCVI of the Act. It is argued that the relief sought in the instant suit is inrespect of drain which had existed on the western side of the suitSchedule Properties and to protect the right of free flow of water whichhad been enjoyed from the time the plaintiff had purchased the property.Such right sought to be protected is within the domain of the civil court.It is contended that even though the provisions contained in section 246,D247 and 248 of the GMC Act, refer to the power of the Commissioner,any right available to the plaintiff under the said provisions can only be inaid of the relief to be sought by the plaintiff, but in any event cannot beconstrued as bar to maintain the suit. It is therefore contended that theorder passed by the High Court is not sustainable and the suit should beEallowed to be proceeded on its merit.

6. Mr. Arunabh Chowdhury, learned counsel for the respondentseeks to sustain the order passed by the High Court. The contention isthat the GMC Act contemplates bar against the civil court entertainingthe matters relating to the facilities which are to be considered by theFCommissioner, under the Act. Even assuming that section 341 of GMCAct contemplates an express bar only in respect of Part VI, the provisionscontained in section 246, 247 and 248 of the GMC Act provide the forumto property owner seeking for right relating to drain to approach theCommissioner, who shall decide the said issue. In that context, it iscontended that though section 341 is not made applicable to Part V, byGnecessary implication, the suit would stand barred. It is his contentionthat in this case the plaintiff is seeking for right in respect of the publicdrain and in such circumstance when the remedy is provided under theAct, the consideration of the same under the Common law does notarise. He contends that the High Court was justified in invoking theHprovision contained in Order VII Rule 11(d) of the Civil Procedure Code

to hold that the civil court did not have jurisdiction to entertain the instantsuit. In that view, the rejection of the plaint ordered is justified. Theappellant is not left without remedy and the alternate forum is allowedto be invoked. In such circumstance, the order impugned does not callfor interference.

7. In the background of the above contentions, the nature of thesuit and the relief prayed for therein requires to be noticed only to thelimited extent to arrive at conclusion as to whether the civil court hadjurisdiction to proceed with the suit or as to whether bar with regard tojurisdiction as provided in the GMC Act will apply. Before adverting tothat aspect, it is necessary to take note of the contents in para 9 of CPCwhich provides for exercise of jurisdiction by civil court. It reads ashereunder: -“9. The Courts shall (subject to the provisions herein contained)have jurisdiction to try all suits of civil nature excepting suits ofwhich their cognizance is either expressly or impliedly barred.

Explanation I-

suit in which the right to property or to an office is contested isa suit of civil nature, notwithstanding that such right may dependentirely on the decision of questions as to religious rites orceremonies.

Explanation II.-

For the purposes of this section, it is immaterial whether or notany fees are attached to the office referred to in Explanation I orwhether or not such office is attached to particular place.”

bare perusal of the same indicates that the courts shall havejurisdiction to try all suits of civil nature excepting suits of which theircognizance is either expressly or impliedly barred. In that background,though in the instant case, the issue had not arisen before the learnedMunsif while considering an application under Order VII Rule 11(d) ofCPC, taking note of the fact that the High Court has invoked the saidprovision to consider as to whether the suit is barred and has thereafterheld that the civil court has no jurisdiction and ordered rejection of plaint,it would be appropriate to take note of the provision contained in OrderVII Rule 11(d) which reads as hereunder: -

“Order VII Rule 11

Rejection of plaint - The plaint shall be rejected in the following

cases: -

(a) xx xx xx xx(b) xx xx xx xx(c) xx xx xx xx(d) where the suit appears from the statement in the plaint to bebarred by any law.

(e) xx xx xx xx(f) xx xx xx xx”

The perusal of the above noted provision would indicate that therewould be bar for the civil court to entertain the suit, if such suit isbarred either expressly or impliedly by any law. Further, Order VII Rule11(d) contemplates that from the statement contained in the plaint thesuit should appear to be barred by any law, in which case the plaint shallbe rejected.

8. In that backdrop, perusal of the plaint in the instant suit woulddisclose that the case pleaded by the appellant is that he along with oneEMr. Dhan Chandra Mahanta purchased ‘schedule ‘A’ property measuring15 lessas on 08.12.1997 from Mr. Sailendra Medhi and others. Mr. DhanChandra Mahanta relinquished his right in favour of the appellant. Theappellant has thus become the sole owner of the suit schedule ‘A’ property.It is contended that the sale deed indicates that the last part of the westernboundary contained water exhaust drain which was also passing alongFthe western boundary of the property belonging to Ms. Suwola Devi andwould join the public drain maintained by Guwahati Municipal Corporation(‘GMC’ for short). Another adjacent land owner purchased Schedule‘B’ property under sale deed dated 08.12.1997 wherein also the westernboundary traverses through the water drain which connected the publicGdrain of GMC.

9. It is further averred in the plaint that the respondent who ownsthe property on the southern side of the appellant’s property, hadpurchased the extent of 13 lessa under sale deed dated 24.04.1984 whereinthe western boundary is shown as public drain. Though the said commondrain had existed at the time of purchase and was being used, the

defendant is alleged to have blocked the same by dumping RCC materialand therefore the water had overflowed into the appellant’s property. Itis in that light, the appellant had prayed for the relief to declare that thewestern boundary of Schedule A, and properties contained commonpublic drain which can be used and the further prayer made in the plaintindicates that, injunction sought is for the peaceful enjoyment of thedrain facility to allow the free flow of water upto the main GMC drain.

10. The question therefore is as to whether the nature of therelief prayed in the plaint falls exclusively within the domain of the GMCAct and as to whether the case put forth and the relief prayed is barredby any provision contained in the GMC Act so as to disentitle the civilcourt to entertain the suit as contemplated under Section 9 of the CPC,if so, whether plaint of the present nature was liable to be rejected asenvisaged under Order VII Rule11(d) of CPC.

11. At the outset it is necessary to take note of Section 341 of theGMC Act which provides for the bar of jurisdiction of civil court whichreads as hereunder: -

“341- Bar of jurisdiction- Save as otherwise expressly providedno civil court shall have jurisdiction to settle, decide or deal withany question, which is by or under this part required to be settled,decided or dealt with by the Commissioner.”

On perusal of the contents, it indicates that no civil court shallhave jurisdiction to settle, decide or deal with any question which isunder that part wherein Section 341 is placed and is required to be settled,decided or dealt with by the Commissioner. The Part VI under which abar is imposed relates to Land, Buildings and Streets. Therefore, on theface of it, it indicates that the issue relating to common drain betweentwo private individuals residing within the limits of the MunicipalCorporation is not an issue regarding which specific bar is contemplatedagainst approaching the civil court for relief.

12. The GMC Act no doubt makes provision to empower theCommissioner under certain circumstances to regulate the manner inwhich the use of the drain connected with the municipal drain is to beused. The provisions to that effect are contained in Sections 246, 247and 248, in Part V of GMC Act. The said provisions read as hereunder:-

“246. Obligation of owner or joint owner of drain to allowthe uses of it to other: - Every owner of drain connected with

Aa municipal drain or other place set apart by the Commissionerfor drainage shall be bound to allow the use of it to other persons,or to admit other persons as joint owners, thereof, on such termsas may be prescribed under section 248.

247. How right of use of drain may be obtained by personBother than the owner:- Any person desiring to drain his premisesinto municipal drain through drain of which he is not an ownermay make private arrangement with the owner for permissionto use his drain, or may apply to the Commissioner for authority touse such drain.

C248. Commissioner may authority person other than theowner of drain to use the same or declare him to be ajoint user thereof:- (1) Where the Commissioner is of opinionwhether on receipt of an application or otherwise, that the mostconvenient means by which the owner or occupier of any premisescan drain such premises is through drain belonging to someDperson other than the said owner or occupier the Commissionershall, give the owner of the drain reasonable opportunity of statinghis objection thereto, and if no objection is raised or if the objectionappears to him invalid or insufficient, may, by an order in writingauthorise the said owner or occupier to use the drain or declareEthe said user to be joint owner thereof on such conditions asmay appear to him equitable with regard to the payment of rent orcompensation and to connecting the drain of the said premiseswith the communicating drain and to the responsibilities of theparties for maintaining, repairing, flushing and clearing the jointdrain. (2) In respect of the execution of any work under sub-Fsection (1) the person in whose favour the Commissioner’s orderis made shall be subject to the same restriction and liabilities asare specified in sub-section (4) of section 245.”

13. Perusal of the above noted provisions would indicate that theCommissioner is empowered by granting the authority under GMC ActGto compel the owner or joint owner of drain to permit person who isnot the owner of such drain to use that drain. In effect, the Commissioneris given the authority to create right in favour of the property owner todrain out the water through the drain owned by any other property owner.In the instant case the appellant is not seeking for creation of such right.HThe case as pleaded and noticed above indicates that the appellant is

asserting about right which existed and is seeking to safeguard andcontinue to exercise such right. The case pleaded is not to the effectthat any of them own the drain but it is contended that it existed as thewestern boundary of all the properties in the vicinity and the respondentis seeking to alter that position and is therefore to be restrained. Whetherthe appellant will succeed or not will depend on the evidence that will beproduced to support the pleading.

14. The point for consideration is as to whether the existence ofsuch provision in GMC Act would impliedly bar civil suit. For answeringthe said question, it would be appropriate to refer to the decision in thecase of Shiv Kumar Chadha v. Municipal Corporation of Delhi andOthers (1993) 3 SCC 161 which in fact was also taken note by thelearned Munsif. The relevant consideration made therein is as hereunder:-

“11. In the olden days the source of most of the rights and liabilitiescould be traced to the common law. Then statutory enactmentswere few. Even such enactments only created rights or liabilitiesbut seldom provided forums for remedies. The result was thatany person having grievance that he had been wronged or hisright was being affected, could approach the ordinary civil courton the principle of law that where there is right there is remedy— ubi jus ibi remedium. As no internal remedy had been providedin the different statutes creating rights or liabilities, the ordinarycivil courts had to examine the grievances in the light of differentstatutes. With the concept of the welfare State, it was realisedthat enactments creating liabilities in respect of payment of taxes,obligations after vesting of estates and conferring rights on classof citizens, should be complete codes by themselves. With thatobject in view, forums were created under the Acts themselveswhere grievances could be entertained on behalf of the personsaggrieved. Provisions were also made for appeals and revision tohigher authorities.

12. Then question arose as to where particular Act had createda right or liability and had also provided forum for enforcementof such right or for protection from enforcement of liability withoutany authority in law, whether citizen could approach court. Itmay be pointed out that many statutes have created certain rightsor liabilities and have also provided the remedial measures inrespect thereof. But such statutes have not touched the common

law rights of the citizen. But there are some statutes, which inpublic interest affect even the common law rights or liabilities ofthe citizen, which were in the nature of existing rights. Thedistinction between the two types of rights or liabilities is subtle innature but at the same time very vital.

B23. With the increase in the number of taxing statutes, welfarelegislations and enactments to protect class of citizens, trendcan be noticed that most of such legislations confer decision makingpowers on various authorities and they seek to limit or excludecourt’s power to review those decisions. The result is that thepower of the court under Section 9 of the Code is being denudedCand curtailed by such special enactments, in respect of liabilitiescreated or rights conferred. This Court in the judgments referredto above has upheld the ouster of the jurisdiction of the court onexamination of two questions — (1) whether the right or liabilityin respect whereof grievance has been made, had been createdDunder an enactment and it did not relate to pre-existing commonlaw right? (2) Whether the machinery provided for redressal ofthe grievance in respect of infringement of such right or impositionof liability under such enactment, was adequate and complete?The ouster of the jurisdiction of the court was upheld on the findingthat the rights or liabilities in question had been created by the ActEin question and remedy provided therein was adequate.

24. But the situation will be different where statute purports tocurb and curtail pre-existing common law right and purports tooust the jurisdiction of the court so far remedy against the orderspassed under such statute are concerned. In such cases, the courtsFhave to be more vigilant, while examining the question as towhether an adequate redressal machinery has been provided,before which the person aggrieved may agitate his grievance. Inthe case of Katikara Chintamani Dora v.GuntreddiAnnamanaidu [(1974) 1 SCC 567 : AIR 1974 SC 1069] this CourtGafter referring to the case of Addanki Tiruvenkata Thata DesikaCharyulu v. State of A.P. [AIR 1964 SC 807] observed: (SCC p.579, para 35)

“It was pertinently added that this exclusion of the jurisdiction ofthe civil court would be subject to two limitations. First, ‘the CivilCourts have jurisdiction to examine into cases where the provisions

of the Act have not been complied with or the statutory tribunalhas not acted in conformity with the fundamental principles ofjudicial procedure. The second is as regards the exact extent towhich the powers of statutory tribunals are exclusive’. The questionas to whether any particular case falls under the first or the secondof the above categories would depend on the purpose of the statuteand its general scheme, taken in conjunction with the scope of theenquiry entrusted to the tribunal set up and other relevant factors.”

It was held that suit for declaration that the decision of theSettlement Officer/Tribunal holding certain properties to be an‘estate’ under Section 3(2)(d) of the 1908 Act was void, wasmaintainable on the ground that the suit property was not an ‘inamvillage’. In Pyx Granite Co. Ltd. v. Ministry of Housing andLocal Government [(1960) AC 260] the appellants sought adeclaration of their common law right to quarry their land withoutthe need to obtain planning permission under the Town and CountryPlanning Act, 1947. In that connection it was said:

“The appellant-company are given no new right of quarrying bythe Act of 1947. Their right is common-law right and the onlyquestion is how far it has been taken away. They do not uno flatuclaim under the Act and seek remedy elsewhere. On the contrary,they deny that they come within its purview and seek declarationto that effect.”

25. In spite of the bar placed on the power of the court, orderspassed under such statutes can be examined on “jurisdictionalquestion”. To illustrate: special machinery has been providedfor removal of the encroachments from ‘public land’ underdifferent enactments in different States and the jurisdiction of thecourt has been barred in respect of the orders passed by suchspecial tribunals or authorities constituted under such Acts. Still asuit will be maintainable before court on plea that the land inquestion shall not be deemed to be public land within the meaningof the definition of ‘public land’ given in the Act in question, andas such provisions thereof shall not be applicable.”

15. Further, this Court in the case of Ramesh Gobindram vs.Sugra Humayun Mirza Wakf (2010) 8 SCC 726 while examining thebar of civil court as contemplated under Section 85 of the Wakf Act,

A1995 had drawn distinction that such power would apply only in respectof the issues arising under certain provisions of Act i.e., Section 6, 7 and83 of the Wakf Act, 1995 and had held that suit before civil courtwould be maintainable for other reliefs notwithstanding the creation ofthe Wakf tribunal under the Act, unless the dispute falls within the fourcorners of the powers vested in the Tribunal. Therefore, despite thereBbeing the bar of jurisdiction of the civil courts under the Act, as noted,except for the disputes arising to the limited extent all other issues wereheld to be maintainable before the civil court. The relevant considerationis as hereunder: -“8. Wakfs and matters relating thereto were for long timeCgoverned by the Wakf Act, 1954. The need for fresh legislationon the subject was, however, felt because of the deficienciesnoticed in the working of the said earlier enactment especiallythose governing the Wakf Boards, their power of superintendenceand control over the management of individual wakfs. RepeatedDamendments to the 1954 Act, having failed to provide effectiveanswers to the questions that kept arising for consideration,Parliament had to bring comprehensive legislation in the form ofthe Wakf Act, 1995 for better administration of wakfs and mattersconnected therewith or incidental thereto.”

E16. In the above circumstance, while adverting to the presentcase it is seen that sections 246, 247 and 248 though referred to theownership and the manner in which the drains connected to municipaldrain are to be used and the Commissioner is given the authority tocompel the owner of drain to permit another property owner to use thesame, the said provisions cannot be considered either as an express orFan implied bar on the civil court to entertain suit relating to the declarationof an existing right to use of the drain as asserted in the plaint.

17. In fact, the existence of drain as claimed by the appellant inthe plaint as on the date of purchase of the property and the same beingused throughout is an issue which is to be proved based on the evidenceGthat would be tendered in the suit. The provisions contained in Section246, 247 and 248 of the GMC Act would be the provisions which wouldcome to the aid of the appellant if ultimately the respondent establisheshis ownership right over the drain, despite the appellant proving theexistence of the drain. No doubt, the appellant could have also filed anHapplication to the Commissioner seeking the relief to which the

Commissioner could exercise his authority but that would have arisenonly if the appellant had conceded to the position that the respondent isthe owner of the drain. Even in such circumstance, if relief was notmade available to the appellant by the Commissioner and if he wasdissatisfied with the manner in which such authority was exercised bythe Commissioner it would still have been open to approach the court forrelief. The learned Advocate for respondent has in this regard contendedthat an appeal is provided under Section 438 of GMC Act. However, wedo not consider it as an alternate and efficacious remedy in case of thepresent nature. The relief sought in the instant suit is in the nature ofdeclaratory relief in an inter se dispute between the parties. Theconsideration by the statutory authority as provided under GMC Act isof summary nature. Further, the appeal provided is in respect of anynotice issued or action taken or proposed to be taken by the Commissioner,which in effect provides the appeal remedy only to the owner of thedrain against whom action is proposed.

18. Further as already noted, in the instant case the avermentscontained in the plaint and the prayer made would disclose that theappellant is not seeking for creation of right over the drain owned bythe defendant nor is any issue raised with regard to the drain of GMC.But the case as put forth is that the property of the appellant, Ms. SuwolaDevi and the defendant are contiguous to one another which are shownas suit schedule ‘A’, ‘B’ and ‘C’ properties and on the western side ofthe property starting from the appellant’s property, there is drain, whichis shown as the boundary and it facilitates the water to flow into theGMC drain. Such relief is to be considered in the suit based on theevidence that would be tendered. Therefore, such relief is not barredunder any law.19. In view of the above, it is clear that the High Court withouttaking note of these aspects of the matter has wrongly invoked theprovisions contained in Order VII Rule 11 (d) of the Civil ProcedureCode to reject the plaint, when in the instant facts there is neither expressnor implied bar under any law. On the other hand, the learned Munsifwas justified in passing the order dated 16.11.2013 in T.S. No. 334/2011holding the suit to be maintainable.

20. In the result, the order dated 06.06.2014 passed by the GauhatiHigh Court at Guwahati in CRP No.128/2014 is set aside. The plaint intitle suit No.334/2011 is restored to the file of the learned Munsif No.2

108SUPREME COURT REPORTS

AKamrup Guwahati. The parties herein shall appear before the learnedMunsif on 01.09.2021 as the first date for appearance without furthernotice, whereafter the suit shall be considered on its merits.

21. The appeal is accordingly allowed with no order as to costs.

22. Pending applications, if any, shall stand disposed of.B

Nidhi Jain

Appeal allowed.