C.R.P No. 4154 of 2001 was preferred by the Chennai Metropolitan Development Authority against the interm order of injunction passed by the City Civil Court on the main plea that the suit filed against them is barred under Section 101 of the Tamil Nadu Town and Country Planning Act, 1971 (hereinafter referred to as the Act). It was submitted on behalf of the petitioner at that time that in spite of this specific bar, about 700 suits are filed against the notices issued under the Act and interim orders obtained without reference to the maintainability of the suits. It was further submitted that in lieu of ex parte orders passed by various City Civil Courts, their whole object of providing an orderly planned development of the urban land is being defeated.

2. In the light of the above submission, a suo motu revision was taken by (sic) against those suits pending and the records were called for by an order dated 21.12.2001 Notices to the counsel appearing on behalf of the plaintiffs in those suits were ordered to be given on 8.3.2002 and the matter was since adjourned for hearing the counsel and ultimately, it was heard on 28.3.2002

3. The main question that arises for consideration is whether the action taken by the Chennai Metropolitan Development Authority is liable to be challenged in a civil court. Section 101 of the Act reads as follows:

“101. Bar of jurisdiction of Courts. — Any decision or order of the Tribunal or the Government or the planning authority or other authority or of any officer under this Act shall subject to any appeal or revision or review provided under this Act, be final and shall not be liable to be questioned in any Court of Law.”

A plain reading of the Section leaves no room for doubt that a decision or order of the planning authority shall no be liable to be questioned in any court of law. The argument of the counsel on the side of the respondents is twofold. Firstly, a notice issued under the Act is neither an order nor a decision appealable or revisable and therefore, they will not come within the purview of Section 101. Secondly, it is contended that the development of the building had been carried out more than three years earlier and therefore, they are excluded from the purview of the Act.

4. For a better appreciation of these submissions, it is necessary to go through the relevant provisions of the Act. ‘Development’ has been defined under Section 2(13) as to mean not only the carrying out of the works contemplated as per the plan, but shall include the carrying out of building or other operation in or over the land or the making of a material change in the use of any building or land. The proviso to this section excludes the temporary repair work. Section 49 of the Act deals with the application for permission. Any one intending to carry out any development in a land or building shall have to make an application in writing to the appropriate planning authority for permission in such form and containing such particulars and accompanied by such documents as may be prescribed. An appeal to the Director is provided for against the refusal to grant permission under Section 76 of the Act. A further appeal to the Tribunal under Section 77 and a revision to the District Court under Section 78 are provided for under the Act.

5. If any development of land or building is carried out without the permission or if it is done unauthorisedly or done in contravention of such permission, Section 56 empowers the removal of such unauthorised development by the competent authority. Before taking any decision, the appropriate planning authority has to serve a notice on the owner requiring him within a minimum of one month period to take such steps as may be specified in the notice. If the notice requires the discontinuance of any use of land or building, a notice shall be served on the occupier also. The said notice issued under Section 56 read with Section 85 (for restoration) of the Act states that on inspection made on a particular date, it was found that there was no approved plan and even after request for production of the approved plan, it has not been complied with and therefore, the owner is requested to stop the work immediately and on complying with the request within three days from the date of receipt of the notice, legal action will be taken. A further notice in Form-1 under Section 56 read with Section 85 is given requiring the demolition of the construction put up unauthorisedly without planning permission and after referring to the ‘stop work’ notice. The owner is called upon to restore the land to its original state and on his failure to do so within 30 days, action will be followed under Section 56(5) of the Act. Sub-section (3) of Section 56 says that any person aggrieved by such notice may apply for permission under Section 49 of the Act for retention of the land or any building or works for the continuance of any use of the land or building to which the notice relates.

6. Sub-section (4) says that on such application under Section 49, a notice issued under Section 56(1) shall not be issued in effect, pending the final determination of the application. Section 57 of the Act empowers to stop unauthorised development by issuing a notice. Section 79 says that any person aggrieved by any decision or order under Section 49 or Section 54 may apply to the prescribed authority. The Director is empowered to call for and examine the records of any officer subordinate to him on application, and the Government is also empowered to call for and examine the records of the Director under Section 80. The Director is empowered to suspend any decision or order pending the revision and Sub-section (2) says that no order shall be passed without an opportunity being given to the concerned. Section 81 provides for a review. Section 82 empowers the execution of the orders passed under appeal, revision or review.

7. By a reading of these provisions, it is clear that for an orderly planned development of the town and in the public interest, a clear scheme has been evolved under various provisions of the Act in reference to the development contemplated under the Act. Section 101 bars the jurisdiction of the court in clear terms in reference to the decision or order of the Tribunal or the Government or the planning authority or any other authority under the Act.

8. Therefore, any suit covering the issues raised relating to the activities coming under the Act is expressly barred to be entertained by the civil court. Section 9 of the Code of Civil Procedure also, in clear terms, says that no suit shall lie if it is expressly or impliedly barred by any other enactment. Therefore, it follows that in all cases relating to the development activity as defined under the Act, the civil court shall not have any jurisdiction. The Act provides for a notice, an appeal, a revision and a review by the authorities concerned. If the civil courts have entertained a suit of a nature which comes within the provisions of the Act, the said suit is clearly not maintainable. The plaint ought not to have been entertained in those cases.

9. Now, we will see whether the notices issued in these cases come under the provisions of the Act.

10. Section 56 of the Act empowers the authorities to require removal of unauthorised development in the following cases:

(a) when development of land or building has been carried out without permission;

(b) in contravention of any permission;

(c) after revocation of permission;

(d) in contravention of the modification of permission.

The notice shall require, in cases specified under clauses (a) to (c), to restore the land to its original condition and in cases of (b) or (d), to secure compliance of the permission. The notice can also require under Sub-section (2), the demolition or alteration of any building work with discontinuance of any use of land or building. Therefore, the notice contemplated under Section 56 of the Act is not a mere notice of information, but it is a decision required to be taken if the condition under Sub-section (1) of Section 56 is fulfilled. It also empowers the action that has to be called upon to be made in the said notice, including demolition etc. The notice is preceded by the decision that the ingredient of Section 49, Section 50, Section 54, Section 56 and Section 57 are satisfied as the violations get attracted. Sub-section (2) to Section 49 states the method of giving effect. Sub-section (5) to Section 49 provides for the consequential action. Therefore, the argument of the counsel on behalf of the respondents that there is no decision so as to bar the jurisdiction of the court cannot be sustained.

11. However, if an application is made for permission under Section 49 as per Sub-section (3), then the notice shall not have any effect pending determination of the application as per Sub-section (4). Section 80 of the Act provides for a revision by the Director on application, to call for and examine the records of any officer subordinate to him. The said provision is also available to the Government to call for and examine the records of the Director. Sub-section (3) empowers the Director or the Government to suspend the execution of the decision or order pending disposal of the revision.

12. The Tamil Nadu Town and Country Planning Act, 1971 provides for the planned and orderly development and use of urban land, and in order to achieve the said object, it has provided for a scheme and machinery for the control of development and use of the land. Section 49 begins with a prohibition as to the carrying out of development of any land except as otherwise provided for, and only after making an application in writing to the appropriate planning authority for permission. The duration of permission is provided for under Section 50. The removal comes only on the failure as per the Act. Section 56 empowers to remove the unauthorised development. As against the refusal to grant permission under Section 49, an appeal is provided for under Section 79 of the Act. A revision is provided for against the proceedings taken under Section 80 of the Act. The remedies are available against any decision and the proceedings under the Act. The provisions give sufficient safeguards and opportunity to the concerned either to explain, comply or move a revision. Section 56(1) itself provides for one month's time to take such steps. The person aggrieved has a choice to apply for permission and get the matter postponed till the final determination or file a revision against such a decision.

13. On the contrary, it is common knowledge that in spite of these specific provisions, buildings are put up in violation of the Act and civil remedies are resorted to, defeating the whole purpose. The authorities are to wait helplessly only to see the lengthy civil proceedings being dragged on. The fact that there are seven hundred cases on the removal of unauthorised development alone shows the enormous burden or the deadlock created in the functioning of the Act. The whole scheme is set at naught by side-stepping the available remedies under the Act.

14. Section 9 of the Code of Civil Procedure says that the civil court shall have jurisdiction to try all suits of civil nature excepting suits of which their cognizance is either expressly or impliedly barred. In the present cases, the civil court's jurisdiction is expressly barred by Section 101 read with Section 49, Section 56 and Section 80 of the Act.

15. In this context, the judgment of the Supreme Court in Shiv Kumar Chadha v. Municipal Corporation Of Delhi [1993 (3) S.C.C 161 can be referred to. The Delhi High Court in that case directed the Municipal Corporation of Delhi to issue appropriate notices to the owners/occupiers/builders of the buildings where illegal constructions have been made with liberty to file fresh building plans with the Corporation by the owners etc. The Corporation was directed by the High Court if it finds that the constructions are beyond the compoundable limits, then to seal the same and demolish it thereafter. The High Court further directed that no civil suit will be entertained by any court in Delhi in respect of any action taken or proposed to be taken by the Corporation with regard to the ceiling and or demolition of any building or any part thereof. Their Lordships, after considering elaborately on the jurisdictional aspect of the civil court vis-a-vis the special enactment, have observed as follows:

“According to us,

(1) The court should not ordinarily entertain a suit in connection with the proceedings initiated for demolition, by the Commissioner, in terms of Section 343(1) of the Corporation Act. The court should direct the persons aggrieved to pursue the remedy before the appellate tribunal and then before the administrator in accordance with the provisions of the said Act.

(2) The court should entertain a suit questioning the validity of an order passed under Section 343 of the Act, only if the court is of the prima facie opinion that the order is nullity in the eyes of law because of any “jurisdictional error” in exercise of the power by the Commissioner or that the order is outside the Act.”

(emphasis added)

Their Lordships held that the court can examine whether the dispute falls within the ambit of the Act, like for example, if materials are produced along with the plaint to show that the building in question is not within the Corporation limit, or that the constructions were made prior to the coming into force of the relevant provisions of the Act. The court has to look into these jurisdictional questions carefully before entertaining a civil suit, the cognizance of which is specifically barred under Section 101 of the Act. With regard to the grant of temporary injunction also, their lordships issued the following directions:

“(i) The court should first direct the plaintiff to serve a copy of the application with a copy of the plaint along with the relevant documents on the counsel for the Corporation or any competent authority of the Corporation and the order should be passed only after hearing the parties.

(ii) If the circumstances of a case so warrant and where the court is of the opinion, that the object of granting the injunction would be defeated by delay, the court should record reasons for its opinion as required by proviso to Rule 3 of Order 39 of the Code, before passing an order for injunction. The court must direct that such order shall operate only for a period of two weeks, during which notice along with copy of the application, plaint and relevant documents should be served on the competent authority or the counsel for the Corporation. Affidavit of service of notice should be filed as provided by proviso to Rule 3 of Order 39 aforesaid. If the Corporation has entered appearance, any such ex parte order of injunction should be extended only after hearing the counsel for the Corporation.

(iii) While passing an ex parte order of injunction the court shall direct the plaintiff to give an undertaking that he will not make any further construction upon the premises till the application for injunction is finally heard and disposed of.”

(emphasis added)

16. In Anwar v. First Additional District Judge, Bulandshahr (A.I.R 1986 S.C 1785 = 99 L.W 87 (S.N)), the Supreme Court held that the jurisdiction of the State Government (hearing authority under Section 68(d) of the M.V Act) is exclusive in character and it is not open to a civil court to issue an order of injunction restraining the hearing authority from proceeding with the case and exercising his statutory functions. Whenever statute uses the expression that a decision of an authority will be final, the jurisdiction of the civil court to go into the correctness or otherwise of the question is taken away. Where the statute gives finality to the orders of a Special Tribunal, the civil court's jurisdiction must be held to be excluded insofar as the merits of the case are concerned. In State of Andhra Pradesh v. Manjeti Laxmi Kantha Rao [2000 (3) S.C.C 689], their Lordships of the Supreme Court held that the test adopted in examining the exclusion of civil court's jurisdiction is:

(1) whether the legislative intent to exclude arises explicitly or by necessary implication? and

(2) whether the statute in question provides for adequate and satisfactory alternative remedy to a party aggrieved by an order made under it?

Where a statute gives finality to the orders of the Special Tribunals, jurisdiction of the civil courts must be held to be excluded if there is an adequate remedy to do what the civil courts would normally do in a suit. However, this will not exclude cases where the provisions of the particular Act have not been complied with or when the statutory authorities have not acted in conformity with the fundamental principles of judicial procedure. In P. Nirathilingam v. Annaya Nadar [2001 (9) S.C.C 673], dealing with the Tamil Nadu Debt Relief Act 1980, the Supreme Court held that from the provisions of the said Act, the legislative scheme is clear that the scheme is not to allow interference by any court with determination of the question of eligibility to receive benefit under the said Act and that the legislative intent is to vest the jurisdiction with the statutory authorities to the exclusion of the court.

17. In order to maintain a suit, the plaintiff has to prima facie establish that the notice/order is a nullity in the eye of law because of any jurisdictional error. The only argument advanced by the respondents in reference to this aspect is that the development in question has taken place three years earlier and therefore, the notice issued under Section 56 of the Act cannot have any legal force. The Supreme Court also was conscious of the fact that persons who make unauthorised construction by contravening or by violating the building regulations often run to courts with the plea that the constructions were made prior to the coming into force of the Act and that no notice was served on them before the demolition order was made. It is also well known that in most of the cities, building regulations have been framed, but still it has been discovered that constructions have been made without any sanction or in contravention of the sanctioned plan and that such constructions have continued without any intervention. Their Lordships observed that there cannot be two opinions that the regulations and bye-laws in respect of the buildings are meant to serve the public interest. However, in special cases where a jurisdictional error on the part of the Corporation is established, a suit is maintainable. Therefore, by a mere statement that the construction is more than three years old, it will not take away the jurisdiction of the authorities under the Act and it shall not confer the jurisdiction to civil courts in such cases provided the jurisdictional error is atleast prima facie established. Otherwise, the very purpose of the various provisions of the enactment will get defeated.

18. The 573 suits are pending in various City Civil Courts of Chennai as against the notices issued and action taken under the Act. Without looking into the maintainability of the suits, they have been entertained and interim orders of injunction obtained. Though the records have been called for, it is not practically possible for this Court to hear all the parties and consider the issue. This Court considers it appropriate, just and necessary that all the suits be remanded to the City Civil Court to try the questions, viz. whether the civil court has jurisdiction and whether the bar created by the Tamil Nadu Town and Country Planning Act, 1971 will not apply to the case as the preliminary issue, and to deal with the suits in accordance with the decision on this issue, in the light of the observations contained in this order. The civil court shall pass appropriate orders, to vary or discharge the interim orders granted, if the same had been granted contrary to the provisions of Order 39(1), (2) or 3A of the Code of Civil Procedure, and the principle set out in paragraph 14 of this order, on or before 26.4.2002

19. As the suits are pending in different courts, to avoid further delay and for an expeditious disposal, it is hereby ordered that,

Items 1 to 200 (Docket Nos. vide page nos. 42 to 82 of the typed set, for the corresponding suit numbers) be posted before the III Assistant Judge, Civil Court, Chennai;

Items 201 to 400 be posted before the IV Assistant Judge, City Civil Court, Chennai; and

Items 401 to 573 be posted before the XI Assistant Judge, City Civil Court, Chennai,

and listed on 10.4.2002 and the same shall be disposed of on or before 26.6.2002 If any of the suits had already been disposed of, the petitioner is at liberty to proceed further in accordance with law. The civil court may exclude some of the cases wherein the issue may not arise for consideration.

20. C.R.P No. 4154 of 2001 is remanded and posted before the III Assistant Judge, City Civil Court, Chennai along with the other matters as stated above, for disposal in the light of the observations contained in this order. No costs. Consequently, the connected C.M.P is closed. The records along with the copy of this order shall be dispatched immediately to the courts indicated above.

VCJ/VCS