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IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
Goutam Bhaduri, J.
Prakash Kumar - APPELLANT
Versus
Kanahiya Lal Agrawal and others - RESPONDENTS
M. A. No. 93 of 2014
Decided on : 13/03/2015
C.G. Accommodation Control Act, 1961 – Section 38 - C.G. Rent Control Act, 2011 – Civil Procedure Code - Order 7 - Rule 11 - Restore electricity connection to suit premises – Tenant - Declaration and injunction - Suit for restoration of electricity supply - Brief facts which are necessary for adjudication of this case are that filed a civil suit before Court of Civil Judge Class-I against for declaration and injunction - Plaintiffs were tenant and being landlord was arrayed as a defendant No.1 and Officer-in-charge C.G. State Power Distribution Company Ltd was arrayed as defendant No.2 - It was pleased that plaintiffs are the tenants were carrying on business in the name and style of Book Depot and General Stores in schedule suit property - Said suit premises was obtained on rent - It was stated that at instance of owner defendant No.2, C.G. State Power Distribution Company Ltd disconnected electricity line and took away the meter whereby the electricity connection to the premises of the tenant stopped - It was stated that when the matter was enquired it was orally stated that since road was to be widened and therefore, some part of premises were being demolished - After such incident passed but electricity connection was not restored as such civil suit was filed and it was prayed that removal of meter be declared bad and illegal and direction was sought to restore electricity connection to the suit premises – Held, Challenge to provisions of particular Act as ultra virus cannot be brought before tribunals constituted under that Act - Even the High Court cannot go into that question on a revision or reference from the decision of the tribunals - When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged a suit is open - A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit - Where particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected a suit lies - Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act - In either case the scheme of particular Act must be examined because it is a relevant enquiry - An exclusion of the jurisdiction of the civil court is not readily to be inferred unless the conditions above set down apply - It is well settled that there is a presumption that a civil court will have jurisdiction and the ouster of civil courts jurisdiction is not to be readily inferred - But where the Act itself specifically barred jurisdiction of Civil Court such presumption of jurisdiction of civil court cannot be adopted - Reading of Section 45 of Act of 1961 would further make it clear that there is unmistakable and express bar of civil court in respect of the matters covered U/s. 38 of the Act of 1961 - Here statute Section 38 read with Section 45 of the Act of 1961 necessarily excluded jurisdiction of civil court to deal with a case brought before it in respect of some of the matters covered by the said statute - Similar proposition was laid down in the case of reported therefore reading Act application of the facts in the given case suit for restoration of the electricity supply which was filed by the respondents is not maintainable before the Civil Court as there exists a express bar of jurisdiction of Civil Court - Appeal is allowed
1. Challenge in this appeal is to the judgment and decree dated 12.09.2014, passed in Civil Appeal No.12-A/2014, passed by the Court of First Additional District Judge, Sakti, whereby the order dated 15.05.2014, passed in Civil Suit No.1-A/2014, by the Court of Civil Judge Class-II, Sakti, was reversed and the case was remanded back to the learned Trial Court for adjudication on merits.
2. Brief facts which are necessary for adjudication of this case are that one Kanhaiya Lal Agrawal, Anil Kumar Agrawal and Sanjay Kumar Agrawal filed a civil suit before the Court of Civil Judge Class-I, Sakti against Prakash Kumar for declaration and injunction. The plaintiffs were the tenant and the Prakash Kumar being the landlord was arrayed as a defendant No.1 and the Officer-in-charge C.G. State Power Distribution Company Ltd., was arrayed as defendant No.2. It was pleaded that the plaintiffs are the tenants were carrying on the business in the name and style of Vijay Book Depot and General Stores in the schedule suit property. The said suit premises was obtained on rent 40 years back. It was stated that on 22.01.2013, at the instance of owner, Prakash Kumar, the defendant No.2, C.G. State Power Distribution Company Ltd, disconnected the electricity line and took away the meter, whereby the electricity connection to the premises of the tenant stopped. It was stated that when the matter was enquired, it was orally stated that since the road was to be widened and therefore, some part of the premises were being demolished. After such incident, 5-6 months passed but electricity connection was not restored as such civil suit was filed on 03.01.2014 and it was prayed that the removal of meter on 22.01.2013 be declared bad and illegal and direction was sought to restore electricity connection to the suit premises. In the said civil suit, the pleading was also made to the effect that at the time of filing, an application was preferred U/s. 38 of the C.G. Accommodation Control Act, 1961 (hereinafter referred to as “the Act of 1961”) but nothing transpired as such, the civil suit was preferred.
3. In reply to the plaint allegation, an application under Order 7 Rule 11 CPC was filed by the defendant, landlord. The landlord made reference to the plaint allegation that since the tenant has admitted the fact of pendency of the application under Section 38 of the Act of 1961, before SDO, Sakti, meaning thereby remedy is being exhausted at forum, therefore, present civil suit was not tenable. It was also contended that specific remedy is provided U/s.38 of the Act of 1961 and therefore, the civil suit is barred.
4. Learned Trial Court by its order dated 15.05.2014 allowed the application moved by the defendant/landlord under Order 7 Rule 11 of CPC and held that admittedly the relation of landlord and tenant exists and has held that the C.G. Rent Control Act, 2011 (hereinafter referred to as “the Act of 2011”) has come to an existence on 06.11.2012, which repealed the earlier Act i.e. the Act of 1961. The Trial Court, therefore held that with the coming of the new Act, the Civil Court does not have jurisdiction since the entire dispute has to be decided by the Tribunal and on that ground dismissed the suit.
5. The said order was assailed before the Appellate Court. The Appellate Court of First Additional District Judge, Sakti came to the conclusion that the Act of 2011 was not applicable in the Nagar Palika Parishad, Sakti and as such set-aside the order of the learned Trial Court and remanded the case back to the Trial Court for fresh adjudication.
6. Learned counsel for the appellant would submit that new Act of 2011 was not operative in the District – Sakti when the suit was filed therefore, it would be governed by the provisions of the Act of 1961, as per Section 1 (2) read with Section 14 of the Act of 2011. He would submit that in such case, the respondents having availed the remedy U/s. 38 of the Act of 1961, before the SDO for restoration
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