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Supreme Court of India
Ratul Mahanta vs Nirmalendu Saha on 10 August, 2021Author: Hemant Gupta
Bench: Hemant Gupta, A.S. Bopanna
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4627 OF 2021
(Arising out of SLP (CIVIL) No.24735 of 2014)
Ratul Mahanta ..…Appellant(s)
Versus
Nirmalendu Saha …. Respondent(s)
JUDGMENT
A.S. Bopanna, J.
1. The appellant instituted title suit No.334 of 2011 in
the Court of learned Munsif No.2, Kamrup Guwahati
against the respondent herein seeking for a declaration
that on the western boundary of the suit Schedule
properties A, B and C there is a common public drain
which can be used by the plaintiff. A declaration is also
Signature Not Verified sought to the affect that the public drain on the boundary
Digitally signed by R
Natarajan
Date: 2021.08.10
of the suit Schedule ‘C’ property of the defendant,
17:34:35 IST
Reason:
Page 1 of 26
connected to the plaintiff’s property cannot be obstructed
by the defendant at any point of time. As an ancillary
relief, the appellant has also sought for permanent
injunction against the defendant so as to allow free flow
of water in the said drain upto the main GMC drain.
2. The respondent having appeared, disputed the
claim put forth by the plaintiff on merits. In addition, the
respondent raised the issue of jurisdiction for the civil
court to entertain the suit in view of the provisions
contained in the Guwahati Municipal Corporation Act,
1971 (‘GMC’ Act for short). In the said suit, since the
appellant had also prayed for temporary injunction, on
consideration it was granted by the trial court, of course
without reference to the objection regarding jurisdiction.
The respondent had therefore assailed the order of
injunction by filing an appeal before the Lower Appellate
Court under Section 96 (1) read with Order 43 Rule 1 of
the Civil Procedure Code (‘CPC’ for short). In the said
appeal, the respondent herein who was the appellant had
contended that the order dated 30.09.2011passed by the
Page 2 of 26
learned Munsif was not justified since the issue relating
to the maintainability of the suit visavis the provisions
of the GMC Act barring the jurisdiction of the civil court
goes to the root of the case. It was contended that the
same was required to be considered and decided, before
considering any other relief prayed in the suit. The lower
appellate court in the said miscellaneous application
No.33/2011 through its order dated 21.09.2012 arrived
at the conclusion that the jurisdiction aspect is to be
decided at the outset by the learned Munsif. Therefore,
without going into the merits, the lower appellate court
remanded the matter by setting aside the order impugned
in the said appeal for deciding the question of jurisdiction
before considering grant of any other relief.
3. The appellant herein claiming to be aggrieved by
the said order preferred revision petition in CRP
No.260/2013 before the Gauhati High Court. The learned
Judge while taking note of the rival contentions, through
its order dated 29.08.2013 had agreed with the decision
of the lower appellate court that the jurisdiction of the
Page 3 of 26
civil court to entertain the suit was to be decided at the
outset. The revision petition was accordingly disposed of.
The parties were allowed to urge their contentions in the
court of the learned Munsif.
4. Pursuant thereto the learned Munsif has
considered the issue relating to jurisdiction and has by
its order dated 16.11.2013 arrived at the conclusion that
the bar contemplated under the GMC Act does not apply
to the fact situation, keeping in view the nature of the
relief prayed. Accordingly, the learned Munsif has held
that the civil court has jurisdiction to try the suit between
the parties. The respondent herein claiming to be
aggrieved by the said order dated 16.11.2013 preferred
revision petition in 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 this civil
court would stand ousted by implication and the party
can claim relief under the procedure prescribed under the
GMC Act only. In that background, the order dated
16.11.2013 impugned in the revision petition was set
Page 4 of 26
aside, the suit was held not maintainable and liberty was
reserved to the appellant to ventilate his grievance under
the relevant provisions of 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
be aggrieved by the order dated 08.04.2014 passed by the
Gauhati High Court is before this Court in appeal.
5. Mr. Parthiv K. Goswami, learned counsel for the
petitioner while assailing the order impugned has
contended that the lower appellate court in the first
instance and the High Court in the present round have
erred in arriving at the conclusion that the suit is not
maintainable. It is contended that the reasoning adopted
by the High Court to consider the present case to be
covered under Order VII Rule 11(d) of the Civil Procedure
Code and to bar the civil suit is not justified. It is
contended that there is no bar contemplated to approach
the civil court for the nature of relief sought in the suit,
either under the GMC Act or under any other law for the
time being in force. In that regard, the learned counsel
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has referred to section 341 of the GMC Act which
contemplates for a bar of jurisdiction and would point out
that the same is restricted to the relief under the part to
which the bar is made applicable. In that regard,
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 which are stated in section 322 and
the other provisions which appear in Part VI of the Act. It
is argued that the relief sought in the instant suit is in
respect of a drain which had existed on the western side
of the suit Schedule Properties and to protect the right of
free flow of water which had 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, 247 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 in aid of the relief to be sought by the plaintiff,
but in any event cannot be construed as a bar to
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maintain the suit. It is therefore contended that the order
passed by the High Court is not sustainable and the suit
should be allowed to be proceeded on its merit.
6. Mr. Arunabh Chowdhury, learned counsel for the
respondent seeks to sustain the order passed by the High
Court. The contention is that the GMC Act contemplates
a bar against the civil court entertaining the matters
relating to the facilities which are to be considered by the
Commissioner, under the Act. Even assuming that
section 341 of GMC Act contemplates an express bar only
in respect of Part VI, the provisions contained in section
246, 247 and 248 of the GMC Act provide the forum to a
property owner seeking for right relating to drain to
approach the Commissioner, who shall decide the said
issue. In that context, it is contended that though section
341 is not made applicable to Part V, by necessary
implication, the suit would stand barred. It is his
contention that in this case the plaintiff is seeking for a
right in respect of the public drain and in such
circumstance when the remedy is provided under the Act,
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the consideration of the same under the Common law
does not arise. He contends that the High Court was
justified in invoking the provision 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
instant suit. In that view, the rejection of the plaint
ordered is justified. The appellant is not left without a
remedy and the alternate forum is allowed to be invoked.
In such circumstance, the order impugned does not call
for interference.
7. In the background of the above contentions, the
nature of the suit and the relief prayed for therein
requires to be noticed only to the limited extent to arrive
at a conclusion as to whether the civil court had
jurisdiction to proceed with the suit or as to whether a
bar with regard to jurisdiction as provided in the GMC
Act will apply. Before adverting to that aspect, it is
necessary to take note of the contents in para 9 of CPC
which provides for exercise of jurisdiction by civil court. It
reads as hereunder:
Page 8 of 26
“9. The Courts shall (subject to the
provisions herein contained) have
jurisdiction to try all suits of a civil nature
excepting suits of which their cognizance is
either expressly or impliedly barred.
ExplanationI
A suit in which the right to property or to an
office is contested is a suit of a civil nature,
notwithstanding that such right may depend
entirely on the decision of questions as to
religious rites or ceremonies.
ExplanationII.
For the purposes of this section, it is
immaterial whether or not any fees are
attached to the office referred to in
Explanation I or whether or not such office is
attached to a particular place.”
A bare perusal of the same indicates that the
courts shall have jurisdiction to try all suits of civil
nature excepting suits of which their cognizance is either
expressly or impliedly barred. In that background, though
in the instant case, the issue had not arisen before the
learned Munsif while considering an application under
Order VII Rule 11(d) of CPC, taking note of the fact that
the High Court has invoked the said provision to consider
as to whether the suit is barred and has thereafter held
that the civil court has no jurisdiction and ordered
Page 9 of 26
rejection of plaint, it would be appropriate to take note of
the provision contained in Order VII 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 be barred by
any law.
(e) xx xx xx xx
(f) xx xx xx xx”
The perusal of the above noted provision would
indicate that there would be a bar for the civil court to
entertain the suit, if such suit is barred either expressly
or impliedly by any law. Further, Order VII Rule 11(d)
contemplates that from the statement contained in the
plaint the suit should appear to be barred by any law, in
which case the plaint shall be rejected.
8. In that backdrop, a perusal of the plaint in the
instant suit would disclose that the case pleaded by the
appellant is that he along with one Mr. Dhan Chandra
Page 10 of 26
Mahanta purchased ‘schedule ‘A’ property measuring 15
lessas on 08.12.1997 from Mr. Sailendra Medhi and
others. Mr. Dhan Chandra Mahanta relinquished his
right in favour of the appellant. The appellant 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 western boundary contained a water exhaust
drain which was also passing along the western boundary
of the property belonging to Ms. Suwola Devi and would
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 western boundary
traverses through the water drain which connected the
public drain of GMC.
9. It is further averred in the plaint that the
respondent who owns the property on the southern side
of the appellant’s property, had purchased the extent of
13 lessa under sale deed dated 24.04.1984 wherein the
western boundary is shown as public drain. Though the
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said common drain had existed at the time of purchase
and was being used, the defendant is alleged to have
blocked the same by dumping RCC material and therefore
the water had overflowed into the appellant’s property. It
is in that light, the appellant had prayed for the relief to
declare that the western boundary of Schedule A, B and
C properties contained a common public drain which can
be used and the further prayer made in the plaint
indicates that, injunction sought is for the peaceful
enjoyment of the drain facility to allow the free flow of
water upto the main GMC drain.
10. The question therefore is as to whether the nature
of the relief prayed in the plaint falls exclusively within
the domain of the GMC Act and as to whether the case
put forth and the relief prayed is barred by any provision
contained in the GMC Act so as to disentitle the civil
court to entertain the suit as contemplated under Section
9 of the CPC, if so, whether a plaint of the present nature
was liable to be rejected as envisaged under Order VII
Rule11(d) of CPC.
Page 12 of 26
11. At the outset it is necessary to take note of Section
341 of the GMC Act which provides for the bar of
jurisdiction of civil court which reads as hereunder:
“341 Bar of jurisdiction Save as otherwise
expressly provided no civil court shall have
jurisdiction to settle, decide or deal with any
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 shall have jurisdiction to settle, decide or deal with
any question which is under 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
a bar is imposed relates to Land, Buildings and Streets.
Therefore, on the face of it, it indicates that the issue
relating to a common drain between two private
individuals residing within the limits of the Municipal
Corporation is not an issue regarding which a specific bar
is contemplated against approaching the civil court for
relief.
Page 13 of 26
12. The GMC Act no doubt makes provision to
empower the Commissioner under certain circumstances
to regulate the manner in which the use of the drain
connected with the municipal drain is to be used. The
provisions to that effect are contained in Sections 246,
247 and 248, in Part V of GMC Act. The said provisions
read as hereunder:
“246. Obligation of owner or joint owner
of drain to allow the uses of it to other:
Every owner of a drain connected with a
municipal drain or other place set apart by
the Commissioner for drainage shall be
bound to allow the use of it to other persons,
or to admit other persons as joint owners,
thereof, on such terms as may be prescribed
under section 248.
247. How right of use of a drain may be
obtained by a person other than the
owner: Any person desiring to drain his
premises into a municipal drain through a
drain of which he is not an owner may make
a private arrangement with the owner for
permission to use his drain, or may apply to
the Commissioner for authority to use such
drain.
248. Commissioner may authority person
other than the owner of a drain to use the
same or declare him to be a joint user
thereof: (1) Where the Commissioner is of
opinion whether on receipt of an application
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or otherwise, that the most convenient
means by which the owner or occupier of any
premises can drain such premises is through
a drain belonging to some person other than
the said owner or occupier the Commissioner
shall, give the owner of the drain a
reasonable opportunity of stating his
objection thereto, and if no objection is
raised or if the objection appears to him
invalid or insufficient, may, by an order in
writing authorise the said owner or occupier
to use the drain or declare the said user to
be a joint owner thereof on such conditions
as may appear to him equitable with regard
to the payment of rent or compensation and
to connecting the drain of the said premises
with the communicating drain and to the
responsibilities of the parties for
maintaining, repairing, flushing and clearing
the joint drain. (2) In respect of the execution
of any work under subsection (1) the person
in whose favour the Commissioner’s order is
made shall be subject to the same restriction
and liabilities as are specified in subsection
(4) of section 245.”
13. Perusal of the above noted provisions would
indicate that the Commissioner is empowered by granting
the authority under GMC Act to compel the owner or joint
owner of a drain to permit a person who is not the owner
of such drain to use that drain. In effect, the
Commissioner is given the authority to create a right in
favour of the property owner to drain out the water
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through the drain owned by any other property owner. In
the instant case the appellant is not seeking for creation
of such right. The case as pleaded and noticed above
indicates that the appellant is asserting about a right
which existed and is seeking to safeguard and continue to
exercise such right. The case pleaded is not to the effect
that any of them own the drain but it is contended that it
existed as the western boundary of all the properties in
the vicinity and the respondent is seeking to alter that
position and is therefore to be restrained. Whether the
appellant will succeed or not will depend on the evidence
that will be produced to support the pleading.
14. The point for consideration is as to whether the
existence of such provision in GMC Act would impliedly
bar a civil suit. For answering the said question, it would
be appropriate to refer to the decision in the case of Shiv
Kumar Chadha v. Municipal Corporation of Delhi
and Others (1993) 3 SCC 161 which in fact was also
taken note by the learned Munsif. The relevant
consideration made therein is as hereunder:
Page 16 of 26
“11. In the olden days the source of most
of the rights and liabilities could be
traced to the common law. Then
statutory enactments were few. Even
such enactments only created rights or
liabilities but seldom provided forums for
remedies. The result was that any person
having a grievance that he had been
wronged or his right was being affected,
could approach the ordinary civil court
on the principle of law that where there
is a right there is a remedy — ubi jus ibi
remedium. As no internal remedy had
been provided in the different statutes
creating rights or liabilities, the ordinary
civil courts had to examine the
grievances in the light of different
statutes. With the concept of the welfare
State, it was realised that enactments
creating liabilities in respect of payment
of taxes, obligations after vesting of
estates and conferring rights on a class
of citizens, should be complete codes by
themselves. With that object in view,
forums were created under the Acts
themselves where grievances could be
entertained on behalf of the persons
aggrieved. Provisions were also made for
appeals and revision to higher
authorities.
12. Then a question arose as to where a
particular Act had created a right or
liability and had also provided a forum
for enforcement of such right or for
protection from enforcement of a liability
without any authority in law, whether a
citizen could approach a court. It may be
pointed out that many statutes have
Page 17 of 26
created certain rights or liabilities and
have also provided the remedial
measures in respect thereof. But such
statutes have not touched the common
law rights of the citizen. But there are
some statutes, which in public interest
affect even the common law rights or
liabilities of the citizen, which were in
the nature of existing rights. The
distinction between the two types of
rights or liabilities is subtle in nature but
at the same time very vital.
23. With the increase in the number of
taxing statutes, welfare legislations and
enactments to protect a class of citizens,
a trend can be noticed that most of such
legislations confer decision making
powers on various authorities and they
seek to limit or exclude court’s power to
review those decisions. The result is that
the power of the court under Section 9 of
the Code is being denuded and curtailed
by such special enactments, in respect of
liabilities created or rights conferred.
This Court in the judgments referred to
above has upheld the ouster of the
jurisdiction of the court on examination
of two questions — (1) whether the right
or liability in respect whereof grievance
has been made, had been created under
an enactment and it did not relate to a
preexisting common law right? (2)
Whether the machinery provided for
redressal of the grievance in respect of
infringement of such right or imposition
of a liability under such enactment, was
adequate and complete? The ouster of
the jurisdiction of the court was upheld
on the finding that the rights or liabilities
Page 18 of 26
in question had been created by the Act
in question and remedy provided therein
was adequate.
24. But the situation will be different
where a statute purports to curb and
curtail a preexisting common law right
and purports to oust the jurisdiction of
the court so far remedy against the
orders passed under such statute are
concerned. In such cases, the courts
have to be more vigilant, while
examining the question as to whether an
adequate redressal machinery has been
provided, before which the person
aggrieved may agitate his grievance. In
the case of Katikara Chintamani Dora
v.Guntreddi Annamanaidu [(1974) 1 SCC
567 : AIR 1974 SC 1069] this Court after
referring to the case of Addanki
Tiruvenkata Thata Desika Charyulu 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 of the civil
court would be subject to two
limitations. First, ‘the Civil Courts have
jurisdiction to examine into cases where
the provisions of the Act have not been
complied with or the statutory tribunal
has not acted in conformity with the
fundamental principles of judicial
procedure. The second is as regards the
exact extent to which the powers of
statutory tribunals are exclusive’. The
question as to whether any particular
case falls under the first or the second of
the above categories would depend on
the purpose of the statute and its
Page 19 of 26
general scheme, taken in conjunction
with the scope of the enquiry entrusted
to the tribunal set up and other relevant
factors.”
It was held that a suit for declaration
that the decision of the Settlement
Officer/Tribunal holding certain
properties to be an ‘estate’ under Section
3(2)(d) of the 1908 Act was void, was
maintainable on the ground that the suit
property was not an ‘inam village’. In Pyx
Granite Co. Ltd. v. Ministry of Housing
and Local Government [(1960) AC 260]
the appellants sought a declaration of
their common law right to quarry their
land without the need to obtain planning
permission under the Town and Country
Planning Act, 1947. In that connection it
was said:
“The appellantcompany are given no
new right of quarrying by the Act of
1947. Their right is a commonlaw right
and the only question is how far it has
been taken away. They do not uno flatu
claim under the Act and seek a remedy
elsewhere. On the contrary, they deny
that they come within its purview and
seek a declaration to that effect.”
25. In spite of the bar placed on the
power of the court, orders passed under
such statutes can be examined on
“jurisdictional question”. To illustrate: a
special machinery has been provided for
removal of the encroachments from
‘public land’ under different enactments
in different States and the jurisdiction of
the court has been barred in respect of
the orders passed by such special
Page 20 of 26
tribunals or authorities constituted
under such Acts. Still a suit will be
maintainable before a court on a plea
that the land in question shall not be
deemed to be a public land within the
meaning of the definition of ‘public land’
given in the Act in question, and as 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 the bar of civil court as
contemplated under Section 85 of the Wakf Act, 1995 had
drawn a distinction that such power would apply only in
respect of the issues arising under certain provisions of
Act i.e., Section 6, 7 and 83 of the Wakf Act, 1995 and
had held that a suit before a civil court would be
maintainable for other reliefs notwithstanding the
creation of the Wakf tribunal under the Act, unless the
dispute falls within the four corners of the powers vested
in the Tribunal. Therefore, despite there being the bar of
jurisdiction of the civil courts under the Act, as noted,
except for the disputes arising to the limited extent all
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other issues were held to be maintainable before the civil
court. The relevant consideration is as hereunder:
“8. Wakfs and matters relating thereto were
for a long time governed by the Wakf Act,
1954. The need for a fresh legislation on the
subject was, however, felt because of the
deficiencies noticed in the working of the
said earlier enactment especially those
governing the Wakf Boards, their power of
superintendence and control over the
management of individual wakfs. Repeated
amendments to the 1954 Act, having failed
to provide effective answers to the questions
that kept arising for consideration,
Parliament had to bring a comprehensive
legislation in the form of the Wakf Act, 1995
for better administration of wakfs and
matters connected therewith or incidental
thereto.”
16. In the above circumstance, while adverting to the
present case it is seen that sections 246, 247 and 248
though referred to the ownership and the manner in
which the drains connected to municipal drain are to be
used and the Commissioner is given the authority to
compel the owner of a drain to permit another property
owner to use the same, the said provisions cannot be
considered either as an express or an implied bar on the
civil court to entertain a suit relating to the declaration of
Page 22 of 26
an existing right to use of the drain as asserted in the
plaint.
17. In fact, the existence of a drain as claimed by the
appellant in the plaint as on the date of purchase of the
property and the same being used throughout is an issue
which is to be proved based on the evidence that would
be tendered in the suit. The provisions contained in
Section 246, 247 and 248 of the GMC Act would be the
provisions which would come to the aid of the appellant if
ultimately the respondent establishes his ownership right
over the drain, despite the appellant proving the existence
of the drain. No doubt, the appellant could have also filed
an application to the Commissioner seeking the relief to
which the Commissioner could exercise his authority but
that would have arisen only if the appellant had conceded
to the position that the respondent is the owner of the
drain. Even in such circumstance, if relief was not made
available to the appellant by the Commissioner and if he
was dissatisfied with the manner in which such authority
was exercised by the Commissioner it would still have
Page 23 of 26
been open to approach the court for relief. The learned
Advocate for respondent has in this regard contended
that an appeal is provided under Section 438 of GMC Act.
However, we do not consider it as an alternate and
efficacious remedy in a case of the present nature. The
relief sought in the instant suit is in the nature of
declaratory relief in an inter se dispute between the
parties. The consideration by the statutory authority as
provided under GMC Act is of summary nature. Further,
the appeal provided is in respect of any notice issued or
action taken or proposed to be taken by the
Commissioner, which in effect provides the appeal
remedy only to the owner of the drain against whom
action is proposed.
18. Further as already noted, in the instant case the
averments contained in the plaint and the prayer made
would disclose that the appellant is not seeking for
creation of a right over the drain owned by the 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
Page 24 of 26
appellant, Ms. Suwola Devi and the defendant are
contiguous to one another which are shown as suit
schedule ‘A’, ‘B’ and ‘C’ properties and on the western
side of the property starting from the appellant’s
property, there is a drain, which is shown as the
boundary and it facilitates the water to flow into the GMC
drain. Such relief is to be considered in the suit based on
the evidence that would be tendered. Therefore, such
relief is not barred under any law.
19. In view of the above, it is clear that the High Court
without taking note of these aspects of the matter has
wrongly invoked the provisions contained in Order VII
Rule 11 (d) of the Civil Procedure Code to reject the
plaint, when in the instant facts there is neither express
nor implied bar under any law. On the other hand, the
learned Munsif was justified in passing the order dated
16.11.2013 in T.S. No. 334/2011 holding the suit to be
maintainable.
20. In the result, the order dated 06.06.2014 passed by
the Gauhati High Court at Guwahati in CRP
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No.128/2014 is set aside. The plaint in title suit
No.334/2011 is restored to the file of the learned Munsif
No.2 Kamrup Guwahati. The parties herein shall appear
before the learned Munsif on 01.09.2021 as the first date
for appearance without further notice, 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.
………….…………….J.
(HEMANT GUPTA)
………….…………….J.
(A.S. BOPANNA)
New Delhi,
August 10, 2021
Page 26 of 26
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