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IN THE HIGH COURT OF BOMBAY
M.R. Waikar V.V. Vaze, JJ.
Ishwar Chinga Shetty another .... Appellants.
Versus
Jivanji Bhulabhai Patel since deceased by his heirs others.... Respondents.
Appeal No. 159 of 1980 from Order with Civil Revision Applications No. 628 of 1980, decided on 2-9-1983.
Advocates appeared :
R.T. Walawalker, for appellants-orig, plaintiffs in A.O. 159/80.
A.G. Parikh, for respondents Nos. 1-A to 1-C, 1-E and 1-G and respondents Nos. 2 3 in A.O. 159/80.
S.R. Kolambekar with Smt. M.V. Shetty, N.V. Kamat and P.B. Karhadkar, for respondent No. 4 in A.O. 159/80.
P.S. Patankar, for applicants-orig, plaintiffs in C.R.A. 628/80.
R.K. Rao, for respondents Nos. 1 to 3 in C.R.A. 628/80.
S.R. Kolambekar with S.D. Gavaskar, for respondent No. 4 in C.R.A. 628/86.
M.M. Sakhardande, for respondents Nos. 5 6 in C.R.A. 628/80.
Section 7-Expressions (i) "alterations in the structure" (ii) any other alterations in the structure of buildings or construct any additional structures (iii) "alteration" (iv) "change" occurring in Section 7 (1) (i), 7 (1) (ii), 7 (1) (i) and (ii) and 7 (2) respectively-Their relative use.
The expression used in sub-clause (i) of Section 7 (1) with reference to one fiat or fiats is alterations in the structures.
The expression used in sub-clause (ii) of Section 7 (1) with reference to the building as approved by the local authority is any other alterations in the structure of the building, or construct any additional structures.
Sub-section (2) of Section 7, which opens by saying that the building shall be constructed and completed in accordance with the plans and specifications as aforesaid, refers to cases of defect in the building or material used and the case of any unauthorised change in the construction. The expression alteration occurring in sub-clauses (i) and (ii) of Section 7 (1) and the expression change occurring, in sub-section (2) are synonymous and the word unauthorised is advisedly used, if read in the context of the opening words of the sub-section emphasizing the obligation of the builder to construct as per plans and the fact that alteration in the structure of the flat or building as referred to in sub-section (1) of Section 7 with the consent of the fiat owners being permissive.
Section 7--Civil Procedure Code, 1908, Section 9-For grant of relief of declaration and injunction to aggrieved fiat owner, Civil Court required first to decide disputed facts contemplated by Section 7, which are jurisdictional facts to be determined by the Housing Commissioners for exercising his jurisdiction.
A Civil Court, no doubt, can grant relief of declaration and injunction including interim injunction, but for grant of such reliefs to the aggrieved flat owners, the Civil Court would be required to first decide disputed facts contemplated by Section 7 of the Act, which are jurisdictional facts to be determined by the Housing Commissioner for exercising his jurisdiction, There would thus be two forums functioning in the same area resolving similar disputes.
Section 7-Housing Commissioner-Authority of-Submission that Housing Commission cannot pass any order in the absence of any such provision in the Act, held to have no force-Express grant of statutory power carries with it the authority to use all reasonable means to make grant effective-The Housing Commissioner therefore, can order and direct stoppage of work, order rectification or removal and award compensation.
It is true that there is no provision to be found in the Act about the enforcement or execution of the orders of the Housing Commissioner. It is, therefore, submitted that in the absence of any provision, the Housing Commissioner cannot pass any order whatsoever. There is no force in such a submission, An express grant of statutory power carries with it by necessary implication the authority to use all reasonable means to make such grant effective,
The Housing Commissioner can, therefore, order and direct stoppage of the further work, order rectification or removal and award compensation. The orders or decisions made by him can certainly constitute a cause of action for the aggrieved party to file a suit enforcing these reliefs. So merely because there is no machinery provided for the enforcement of his orders, the Housing Commissioner does not rob himself of the jurisdiction to decide the matters and fix up the liability acting under Section 7 of the Act:
Section 7-Dispute regarding construction-Promoter to construct as per sanctioned plan-Any change or alteration only with Previous consent of Oat owners-When doing so without their consent or using defective material, promoter liable to rectify defect without any charge, Promoter to pay compensation where rectification not possible-Superintending Engineer, being an expert, a competent authority to decide justly such disputes.
The promoter then has to construct as per the sanctioned plan and if he wants to make any change or alteration, he has to do so only with the previous consent of the flat owners. If he does so without their consent or uses defective material, he is under an obligation to rectify the defect without charging anything from the flat owners. In case the rectification is not practicable, he can be asked to pay compensation. All these are statutory rights and liabilities created by the statute. The Superintending Engineer is also a competent authority under this section because he, as an expert, can decide justly the nature of such a dispute.
Section 7-Cases covered by-Such as promoters making alterations or making any additional structure without previous consent of flat owners to be resolved by Housing Commissioner-Disputes envisaged in the section to be brought to the notice of promoters within one year from handing over possession -Promoter to rectify defect without any charge-Disputes over any of these matters to be referred to Housing Commissioner within a period of two years from date of handing over of possession-Housing Commissioner sole arbitrator.
Disputes are also likely to arise if the promoter makes alterations in the structures in respect of a flat or flats or the structure of the building or makes any additional structure without the previous consent of the flat owners, cases covered by subo clauses (i) and (ii) of Section 7 (1) of the Act. All such disputes relatable to these sub-clauses, in our view, are also required to be referred and resolved by the Housing Commissioner. We see no merit in the submission of Shri Walavalkar that the jurisdiction of the Housing Commissioner does not come into playas regards cases relatable to sub-clauses (i) and (ii) of Section 7 (1) of the Act.
Thus, all such disputes as envisaged in Section 7 are to be brought to the notice of the promoters within one year from the date of handing over possession and the promoter, in his turn, is required to rectify the defect without any further charge. If a dispute arises over any of these matters then it is to be referred to the Housing Commissioner within a period of two years from the date of handing over possession. The Housing Commissioner has to record his decision after holding an inquiry and his decision becomes final. Thus, for settlement of disputes of such nature falling within the periphery of Section 7 and arising within the limited period, the Housing Commissioner is made the sole arbiter, with the avowed object of providing a speedier and cheaper remedy to the purchasers of, the flats. The section obviously can have no application to matters and disputes falling outside its scope.
Section 7-Act Purpose of enactment-To ameliorate of evils of sundry abuses, malpractices and solve difficulties to the promotion of construction, the sale, management and transfer of flats taken on ownership basis- Jurisdiction of Civil Court-Tribunal vested with exclusive powers, over any given special matter, no interference by Civil Court-Where tribunal abuses its powers and not act. under the Act, Civil Courts jurisdiction to adjudicate not ousted-Civil Court not to take cognizance of matters where special tribunal or a body is created under the Act for specific purpose of determining rights which are creation of the Act-Object of enactment-To provide more speedier and cheaper remedy to solve dispute involved between flat owners and promoters-Jurisdiction of Civil Court to be held as barred by necessary implication.
In order to ameliorate the evils of sundry abuses, malpractices and solve the difficulties relating to the promotion of construction, the sale, management and transfer of flats taken on ownership basis, the said Act came to be enacted. The Legislature, it appears, thought it expedient and advisable to confer jurisdiction upon a body outside the normal hierarchy of Courts for speedy disposal of such disputes at a lesser expense.
True it is that every presumption should be made in favour of the, jurisdiction of a Civil Court which can be taken away wholly be express words or by necessary implication. Section 9 of the Code of Civil Procedure, which says that Courts shall have jurisdiction to the all suits of a civil nature also recognises the power of the Legislature to vest in another Tribunal exclusive powers over any given special matter and where exclusive jurisdiction is thus created, the Civil Court evidently cannot interfere. The jurisdiction of a Civil Court can be taken away by express words or by necessary implication. Where exclusion of Civil Courts jurisdiction is pleaded or raised, the matter has to be considered in the light of the words used in the statutory provision on which the exclusion rests. In case the decision of a tribunal is made final and binding on the parties, the decision cannot be assailed in a Court of law unless, however, it is on certain well accepted principles relating to jurisdiction and on the principles of natural justice, viz. if the tribunal abuses its powers or does not act under the Act but is violative of its provisions or where the special tribunal arbitrarily refuses to exercise its jurisdiction or has exceeded its jurisdiction under the statutes, rules and regulations, regulating its duties and procedure, the Civil Courts jurisdiction to adjudicate is not ousted.
It is again well-known that sometimes the Legislature entrusts a tribunal with the jurisdiction including the jurisdiction to determine whether the preliminary state of facts on which the exercise of its jurisdiction depends exists. Sometimes, the Legislature confers jurisdiction on such tribunals to proceed in a case where a certain state of facts exists or is shown to exist. In the present case, the jurisdiction of the tribunal, viz. the Housing Commissioner, depends upon the existence of certain jurisdictional facts, viz., (1) alteration in respect of structure of the flat or building without the consent of the flat owners, (2) defect in the building, (3) use of defective material and (4) unauthorised change in the construction. The Housing Commissioner has, therefore, also the power to determine these facts giving him the jurisdiction.
It is true that there is no provision in the act expressly barring or ousting the jurisdiction of a Civil Court. The question is whether it is barred by necessary implication. The exclusion, no doubt, must be explicitly or clearly implied. When a special tribunal or a body is created by or under the authority of an Act of this nature for the specific purpose of determining rights which are the creation of the Act, then the jurisdiction of the tribunal or of that body is exclusive, unless otherwise provided and the Civil Court cannot take cognizance of such matters. Regard being had to the object of the enactment, the nature of the controversy or dispute involved between the flat owners and the promoters and the finality given to such an adjudication, the Legislature clearly intended to provide a more speedier and a cheaper remedy and the jurisdiction of the Civil Court in such matters must be held as barred by necessary implication.
''I would be inclined, if the matter was res integra, to regard the expression ''unauthorised change in construction'' as referable only to the construction handed over to and occupied by the complaining party (under its agreement with the builders) or at the highest regarding the common amenities such as stair case or terrace. It is only the disputes regarding defects in the building or material or unauthorised changes in the tenement or in the common amenities in the building which, according to me, are referable to the Housing Commissioner. The scheme of section 7 would appear to be that such defects and changes are to be brought to the notice of the Promoter and a time limit is prescribed during which the attention of the Promoter is to be drawn to such defects and he must then rectify or if rectification is not feasible, compensate for the defect or change. If he disputes the claim of the occupant or denies his liability, then the question of reference to the Housing Commissioner arises. The Housing Commissioner cannot prima facie, grant relief either by parvenue injunction or subsequently by mandatory injunction. He can only determine the compensation which is payable by the Promoter to the other party. If that be the restricted power of the Housing Commissioner, then the scope of the matters referable to him would be required to be read in a restricted sense rather than in the wider sense which found favour with Naik, J. With respect, there is clear logic in this approach by only referring certain disputes to him and excluding other types of disputes from his consideration and retaining the full control and jurisdiction of the Civil Courts over these disputes. The latter types of disputes which are excluded from the purview of the Housing Commissioner would normally require grant of relief of the nature which the Housing Commissioner by his very nature of office is unable to grant. If that be so, then to hold that such disputes also are referable to the Housing Commissioner and within his exclusive control and jurisdiction would be to make a mockery of the various provisions contained in and right conferred on the purchasers by the Ownership Flats Act.''
2. The learned referring Judge also referred to another decision of the learned Single Judge (Apte, J.) in Civil Revision Application No. 185 of 1976, decided on 29-6-1976. An interim injunction was granted, but it was subsequently vacated and it was on the footing that in their agreement with the builders the plaintiffs had agreed to allow and accept any future constructions that might be constructed by the builders. Apte, J., however, held that a blanket consent in the initial agreement ran counter to the provisions of section 7 and was, therefore, of no avail.
3. The learned referring Judge found that a
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