Does Alternate Remedy Bar Civil Suits and Writ Petitions?

Saji Koduvath.

1. If Effective alternate remedy, Court refuses relief

In Assistant Commissioner (CT) LTU, Kakinada v. Glaxo Smith Kline Consumer Health Care Limited, AIR 2020 SC 2819, it is pointed out by our Apex Court that when the aggrieved person has an effective alternate remedy available in law, normally, the courts will not entertain a Writ petition. It is observed in Commissioner of Income Tax v. Chhabil Dass Agarwal, 2014-1 SCC 603, that if the High Court is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere, it can refuse to exercise its jurisdiction.

See also:

Rashid Ahmed v. Municipal Board, Kairana, AIR 1950 SC 163.
G. Veerappa Pillai v. Raman & Raman Ltd., AIR 1952 SC 192;
C.A. Abraham v. ITO, (1961) 2 SCR 765: AIR 1961 SC 609;
First IT Officer, Salem v. Short Brothers (P) Ltd. (1966) 60 ITR 83(SC);
L. Hirday Narain v. Income Tax Officer, Bareilly, (1970) 78 ITR 26 (SC);
State of U.P. v. Indian Hume Pipe Co. Ltd. (1977) 2 SCC 724;
Munshi Ram v. Municipal Committee, Chheharta, (1979) 3 SCC 83;
Titaghur Paper Mills Co. Ltd. v. State of Orissa, (1983) 2 SCC 433;
CCE v. Dunlop India Ltd., (1985) 1 SCC 260;
H.B. Gandhi v. Gopi Nath and Sons, 1992 Supp (2) SCC 312;
Mafatlal Industries Ltd. v. Union of India, (1997) 5 SCC 536;
Whirlpool Corpn. v. Registrar of Trade Marks, (1998) 8 SCC 1;
Tin Plate Co. of India Ltd. v. State of Bihar, (1998) 8 SCC 272;
Ramendra Kishore Biswas v. State of Tripura, (1999) 1 SCC 472;
Shivgonda Anna Patil v. State of Maharashtra, (1999) 3 SCC 5;
Sheela Devi v. Jaspal Singh, (1999) 1 SCC 209, AIR 1999 SC 2859;
A. Venkatasubbiah Naidu v. S. Chellappan, (2000) 7 SCC 695;
Karnataka Chemical Industries v. Union of India, (2000) 10 SCC 13;
Punjab National Bank v. O.C. Krishnan, (2001) 6 SCC 569);
National Insurance Co. Ltd. v. Nicolletta Rohtagi, (2002) 7 SCC 456;
Sadhana Lodh v. National Insurance Co. Ltd. (2003) 3 SCC 524;
Satya Pal Anand v. State of M.P. and Ors. ((2016)10 SCC 767;
Maharashtra Chess Assn. v. Union of India, 2019 SCC Online SC 932.

2. Alternative remedy not to operate as a bar in certain contingencies

Our Apex Court further observed in M/S Radha Krishan Industries v. The State of Himachal Pradesh, 2021 SCC OnLine SC 334, that alternative remedy would not operate as a bar in certain contingencies. They include:

where, the statutory authority has not acted in accordance with the provisions of the law or
acted in defiance of the fundamental principles of judicial procedure; or
has resorted to invoke provisions, which are repealed; or
where an order has been passed in violation of the principles of natural justice.

Their Lordships quoted the following from Harbanslal Sahnia v. Indian Oil Corpn. Ltd. (2003) 2 SCC 107:

“7. So far as the view taken by the High Court that the remedy by way of recourse to arbitration clause was available to the appellants and therefore the writ petition filed by the appellants was liable to be dismissed is concerned, suffice it to observe that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies:
- (i) where the writ petition seeks enforcement of any of the fundamental rights;
- (ii) where there is failure of principles of natural justice; or
- (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. (See: Whirlpool Corpn. v. Registrar of Trade Marks,(1998) 8 SCC 1 .)
The present case attracts applicability of the first two contingencies. Moreover, as noted, the appellants’ dealership, which is their bread and butter, came to be terminated for an irrelevant and non-existent cause. In such circumstances, we feel that the appellants should have been allowed relief by the High Court itself instead of driving them to the need of initiating arbitration proceedings.”

3. Appeal from “Caesar to Caesar’s wife”

In Ram and Shyam Co. vs. State of Haryana, (1985) 3 SCC 267 the Supreme Court has noticed that if an appeal is from “Caesar to Caesar’s wife” the existence of alternative remedy would be a mirage and an exercise in futility (referred to in Commissioner of Income Tax v. Chhabil Dass Agarwal, 2014-1 SCC 603; Shauntlabai Derkar v. Maroti Dewaji Wadaskar 2014-1 SCC 602).

4. Courts have wide discretionary powers in issuing Writs

It is pointed out in Commissioner of Income Tax v. Chhabil Dass Agarwal, 2014-1 SCC 603, that various Constitution Benches of the Apex Court have held that though Article 226 confers a very wide powers in the matter of issuing writs on the High Court, the remedy of writ absolutely discretionary in character.

See: K.S. Rashid vs. Income Tax Investigation Commission, AIR 1954 SC 207;
Sangram Singh vs. Election Tribunal, Kotah, AIR 1955 SC 425;
Union of India vs. T.R. Varma, AIR 1957 SC 882;
State of U.P. vs. Mohd. Nooh, AIR 1958 SC 86 and
K.S. Venkataraman and Co. (P) Ltd. vs. State of Madras, AIR 1966 SC 1089

5. If sufficient grounds, extraordinary jurisdiction under Art. 226 invoked

The Supreme Court has pointed out in U.P. State Spinning Co. Ltd. v. R.S. Pandey, (2005) 8 SCC 264, that the Constitution confers on all the High Courts a very wide power in the matter of issuing writs. However, the remedy of writ is an absolutely discretionary remedy and the High Court has always the discretion to refuse to grant any writ if it is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere. The Court, in extraordinary circumstances, may exercise the power if it comes to the conclusion that there has been a breach of principles of natural justice or procedure required for decision has not been adopted.

As pointed out in Commissioner of Income Tax v. Chhabil Dass Agarwal, 2014-1 SCC 603, the High Court must not interfere if there is an adequate efficacious alternative remedy available to the petitioner and he has approached the High Court without availing the same unless he has made out an exceptional case warranting such interference or there exist sufficient grounds to invoke the extraordinary jurisdiction under Article 226.

See also: Union of India v. T.R. Verma AIR 1957 SC 882;
State of U.P. vs. Mohammad Nooh, AIR 1958 SC 86;
Titaghur Paper Mills Co. Ltd. vs. State of Orissa, (1983) 2 SCC 433;
Harbanslal Sahnia vs. Indian Oil Corpn. Ltd., (2003) 2 SCC 107;
State of H.P. vs. Gujarat Ambuja Cement Ltd., (2005) 6 SCC 499).

6. Non-entertainment of writ (when exists alternative remedy) is a self-imposed rule only

It is further observed in Commissioner of Income Tax v. Chhabil Dass Agarwal, 2014-1 SCC 603, that it is a settled law that non-entertainment of petitions under writ jurisdiction by the High Court when an efficacious alternative remedy is available, is a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. Undoubtedly, it is within the discretion of the High Court to grant relief under Article 226 despite the existence of an alternative remedy.

(Also See: Thansingh Nathmal v. Supdt. of Taxes, AIR 1964 SC 1419;
Nivedita Sharma vs. Cellular Operators Assn. of India, (2011) 14 SCC 337;
U.P. State Spinning Co. Ltd. v. R.S. Pandey, (2005) 8 SCC 264).

7. Breach of principles of natural justice or procedure

It is also observed in Commissioner of Income Tax v. Chhabil Dass Agarwal, 2014-1 SCC 603, that the Court, in extraordinary circumstances, may exercise the power in the following instances:

where the statutory authority has not acted in accordance with the provisions of the enactment in question, or
in defiance of the fundamental principles of judicial procedure, or
has resorted to invoke the provisions which are repealed, or
when an order has been passed in total violation of the principles of natural justice,

See also:
N.T. Veluswami Thevar vs. G. Raja Nainar, AIR 1959 SC 422;
Municipal Council, Khurai vs. Kamal Kumar, (1965) 2 SCR 653;
Trimbak Gangadhar Telang v. Ramchandra Ganesh Bhide, AIR 1977 SC 1222;
Siliguri Municipality vs. Amalendu Das, (1984) 2 SCC 436;
S.T. Muthusami vs. K. Natarajan, (1988) 1 SCC 572;
Rajasthan SRTC vs. Krishna Kant, (1995) 5 SCC 75;
Kerala SEB vs. Kurien E. Kalathil, (2000) 6 SCC 293;
A. Venkatasubbiah Naidu vs. S. Chellappan, (2000) 7 SCC 695;
L.L. Sudhakar Reddy vs. State of A.P., (2001) 6 SCC 634;
Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha vs. State of Maharashtra, (2001) 8 SCC 509;
Pratap Singh vs. State of Haryana, (2002) 7 SCC 484;
GKN Driveshafts (India) Ltd. vs. ITO, (2003) 1 SCC 72;
Union of India v. Guwahati Carbon Ltd. 2012 (11) SCC 651.

8. Civil Court can Examine ‘Non-compliance of Law’

Even when a tribunal is provided for reddressal of remedies, the civil courts will have jurisdiction to examine the allegation of non-compliance of the provisions of the statute or of any of the fundamental principles of judicial procedure. If the challenge is only as to the ‘erroneous’ character of the order, other than ‘jurisdictional error’, the suit will not be maintainable. (South Delhi Municipal Corporation v. Today Homes and Infrastructure Pvt. Ltd. 2019-4 CivCC 150 (SC); 2019-3 CurCC 370(SC); 2019-11 Scale 33).

When an order is passed by a statutory Land-Tribunal violating a mandatory provision, the order will be illegal, without jurisdiction and a nullity. The civil courts which are courts of “general jurisdiction” can decide whether a tribunal or authority exercising statutory jurisdiction has acted in excess or beyond the statutory powers. The civil courts can interfere when the order of the statutory tribunal or authority is really not an order under the Act conferring jurisdiction on it. In other words, if a tribunal abuses its power or does not act under the Act but in violation of its provisions (Firm Seth Radha Kishan v. Ludhiana Municipality AIR 1963 SC 1547), the jurisdiction of the civil court will not stand excluded.

Transgression of Jurisdiction– Order Nullity

A certificate of purchase is issued and an order passed by the Land Tribunal without complying with the provisions of the Act and the Rules would be a nullity (Muhammed Haji v. Kunhunni Nair, 1993-1 KLT 227; Secretary, TDB VS Mohanan Nair, ILR 2013-2 Ker883; P. N. Viswambaran v. T. P. Sanu, AIR 2018 Ker 116).

In Muhammed Haji v. Kunhunni Nair, 1993-1 KLT 227(FB), it was found that the order passed by the Land Tribunal under the Kerala Land Reforms Act was illegal, without jurisdiction and a nullity and that the order was of no legal effect for the provisions of the Act and the Rules have not been complied with and the fundamental principles of judicial procedure, as required by the Act, were totally contravened. In such cases, it was pointed out, the jurisdiction of the civil court was not excluded as stated by the Privy Council in Secretary of State v. Mask & Co. (AIR 1940 PC 105) and Ram Swarup’s case (AIR 1966 SC 893).

Similarly, the ultimate decision can be challenged, in spite of finality and exclusionary clauses (or provision for appeal/revision), if the jurisdiction had been (wrongly) assumed by the tribunal, where it did not exist, and the decision was not a decision under the Act, but a nullity. (Muhammad Haji v. Kunhunni Nair, AIR 1993 Ker 104 – tribunal proceeded without issuing notice; Prasannakumar V. State of Kerala, Laws(Ker) 2014-10-127 – the statutory Land tribunal proceeded upon an exempted temple land illegally assuming jurisdiction; Travancore Devaswom Board v. Mohanan Nair, ILR 2013- 2 Ker 883).

It was observed in Mathew v. Taluk Land Board, AIR 1979 SC 1573 that the certificate of purchase issued under the Kerala Land Reforms Act was not conclusive proof of the assignment of the right, as provided under the Act, when title and interest of the landowner had been conferred, under the Act, in favour of the holder when it was found inaccurate on its face or when it is shown that it has been obtained by playing fraud (Relied on in: Ahmmed Kutty v. Mariakutty Umma, 2000 (1) KLT 829 (SC); Mathilakath Skaria VS Mathilakath Joseph, 2013 1 KHC 293; 2013 1 KLJ 410; P. N. Viswambaran v. T. P. Sanu, AIR 2018 Ker 116).

9. If disputed questions of fact, courts decline jurisdiction in a writ petition

It is observed in M/S Radha Krishan Industries vs The State Of Himachal Pradesh, 2021 SCC OnLine SC 334, that where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition; and it is pointed out that this principle have been consistently upheld by the Apex Court in Seth Chand Ratan v Pandit Durga Prasad, (2003) 5 SCC 399, Babubhai Muljibhai Patel v Nandlal Khodidas Barot, (1974) 2 SCC 706 , and Rajasthan SEB v. Union of India, (2008) 5 SCC 632, etc.

10. Important Legal Propositions on Jurisdiction of Civil Courts, Under Sec. 9 CPC

1. When Right or Liability exists at common law, and is re-enacted by the statute with a special forum for efficacious remedy and civil court remedy is expressly barred, there will be an implied bar for civil courts.
Eg. Bylaws of a society provides for efficacious redressal of remedies on wrongful expulsion from a club and the bye laws states that the decisions of that authority is final.
2. When Right or Liability exists at common law, and is re-enacted by the statute with a special forum for efficacious remedy and civil court remedy is not expressly barred, there will be an election of forum (that special forum or civil courts).
Municipal law provides for leaving a particular distance from the boundary so that no nuisance of obstructing light be caused to a neighbor by the building construction (a right exists in common law).
3. New rights conferred by enacted laws (not pre-existing in common law) also provides the machinery for enforcement of such right or liability or for adjudication of disputes, then, even in the absence of an exclusionary provision, the jurisdiction of the civil court will be stood barred by necessary implication. (Raja Ram Kumar Bhargava (Dead) By LRs v. Union of India, (1988) 1 SCC 681; Quoted in South Delhi Municipal Corporation v. Today Homes and Infrastructure Pvt. Ltd. 2019-4 CivCC 150 (SC); 2019-3 CurCC 370(SC); 2019-11 Scale 33).
4. Noncompliance of fundamental principles of law – civil courts will have jurisdiction. Despite express bar, if the decision of the authority under challenge is in:
- (i) non-compliance of fundamental principles of law (like, natural justice),
- (ii) non-compliance of fundamental principles of (that or any other) statute or
- (iii) without jurisdiction (like, Village Officer takes decision where the Collector has to) civil courts will have jurisdiction
- (iv) where the plea of illegality raised before the Civil Court goes to the root of the matter and would, if upheld, lead to the conclusion that the impugned order is a nullity (Ram Swamp v. Shikar Chand, AIR 1966 SC 893).
  - Eg. Rights to vote in an election, candidature (under Acts or Bylaws);
  - Right to Ration under Ration Supply Laws.

11. The fundamentals of these principles are laid down in the following two decisions:

1. Wolverhampton New Waterworks Co. v. Hawkesford, [1859] 6 C. B. (NS) 336: 28 LJ CP 242: 141 ER 486. It is observed as under:
- “One is where there was a liability existing at common law, and that liability is affirmed by a Statute which gives a special and peculiar form of remedy different from the remedy which existed at common law: there, unless the Statute contains words which expressly or by necessary implication exclude the common law remedy the party suing has his election to pursue either that or the statutory remedy. The second class of cases is, where the Statute gives the right to sue merely, but provides, no particular form of remedy: there, the party can only proceed by action at common law. But there is a third class, viz., where a liability not existing at common law is created by a Statute which at the same time gives a special and particular remedy for enforcing it…….. The remedy provided by the Statute must be followed and it is not competent to the party to pursue the course applicable to cases of the second class.”
2. It is observed by Lord Thankerton in The Secretary of State vs Mask and Co., AIR 1940 PC 105, as under:
- “It is settled law that the exclusion of the jurisdiction of the civil courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, 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 principle of judicial procedure.”
(See: Titaghur Paper Mills Co. Ltd. v. State of Orissa, (1983) 2 SCC 433;
South Delhi Municipal Corporation Vs. Today Homes and Infrastructure Pvt. Ltd., 2019-11 SCALE 33;
Zenith Steel Tubes and Industries Ltd Vs. Sicom Litd. AIR 2008 SC 451;
Devinder Singh Vs. State of Haryana, AIR 2006 SC 2850;
Mafatlal Industries Limited Vs. Union Of India, 1997-5 SCC 536;
Pandurang Ramchandra Mandlik Vs. Shantibai Ramchandra Ghatge, AIR 1989 SC 2240)

12. Dhulabhai v. State of MP, AIR 1969 SC 78

Hidayatullah, J. in Dhulabhai v. State of MP observed as to uster of jurisdiction of the civil courts as follows:

(1) Where the Statute gives a finality to the orders of the special tribunals the Civil Courts’ jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.
(2) Where there is an express bar of the jurisdiction of the Court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the Civil Court.
Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the Statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in Civil Courts are prescribed by the said Statute or not.
(3) Challenge to the provisions of the particular Act as ultra vires 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.
(4) 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.
(5) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected a suit lies.
(6) 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 the particular Act must be examined because it is a relevant enquiry.
(7) An exclusion of the jurisdiction of the Civil Court is not readily to be inferred unless the conditions above set down apply.

These propositions are emphasised further in several Supreme Court decisions including the following:

Premier Automobiles Limited v. Kamalakar Shantharam Wadke, (1995) 5 SCC 75,
Rajasthan State Road Transport Corpn. v. Krishna Kant, AIR 1995 SC 1715,
Mafatlal Industries Ltd. v. Union of India, (1997) 5 SCC 536.

13. Construction in Violation of Municipal Building Regulation

In K. Ramdas Shenoy v. Chief Officer, Town Municipal Council, Udipi, AIR 1974 SC 2177, the Apex Court held as follows:

“An illegal construction of a cinema building materially affects the right to of enjoyment of the property by persons residing in the residential area. The Municipal Authorities owe a duty and obligation under the statute to see that the residential areas is not spoilt by unauthorized construction. The scheme is for the benefit of the residents of the locality. The Municipality acts in aid of the scheme. The rights of the residents in the area are invaded by an illegal construction of a cinema building. It has to be remembered that a scheme in residential area means planned orderliness in accordance with the requirements of the residents. If the scheme is nullified by arbitrary acts in excess and derogation of the powers of the Municipality the courts will quash orders passed by Municipalities in such cases.”

A person who is affected by neighbour’s illegal construction which is in infraction of a Municipal regulation will have the locus to maintain a suit for perpetual injunction. The Kerala High Court, in Saina v. Konderi, AIR 1984 Ker 170, turned down the argument that the matters concerning violation of the Municipal Rules are entirely rest in the look-out of the local authority. It was observed that unless, by express words or by necessary implication, he is debarred (Sec. 9 CPC) from doing so, the civil court would have jurisdiction if there was violation of Building Rules. Finally, it is held that the law recognises a citizen’s right to institute a suit with a view to ensure effective implementation of the Municipal regulations, such as the Buildings Rules, even in the absence of a specific personal injury to the person suing. The High Court quoted Lord Wright in (1868) 4 Ex. 43 where it was said:

“If you have an infringement of a legal right there is a right of action without actual damage being proved…. Where you have an interference with a legal right, the law presumes damage.”

Referring the Kerala decision, it is observed in Sindhu Education Society v. Municipal Corporation of City of Ulhasnagar, AIR 2001 Bom 145 and in Fatima v. Village Panchayat of Merces, AIR 2000 Bom 444, that the citizens will have the right to enforce Rules through Court if the Municipal Corporation fails to perform its duty and that courts in India has the duty to see that the law is obeyed and not violated.

(See also: Babulal Shivlal Upadhye v. Yadav Atmaram Joshi, 1994-2 Bom CR 583; 1994-2 MahLR 869; 1994-1 MhLJ 256; D. Thomas v. N. Thomas1999-2 MLJ 260;Musstt Anjira Khatoon Hazarika v. Tapan Kumar Das: 2015-1 GauLR 133.)

Andhra Pradesh High Court held in Bhagwan Das v. Harish ChetwalIt, as quoted in Sarada Bai v. Shakuntala Bai, AIR 1993 AP 20, as under:

“The pronouncement of the Supreme Court in K.R. Shenoy v. Udipi Municipality emboldens us to take a view at variance with the one expressed by a Division Bench of this Court in Kamalamma v. Subba Rao and so hold that an individual, be he a neighbour or one of a class of persons where the infraction of a right is involved and complained of, is certainly clothed with a right to invoke the jurisdiction of a Civil Court not only to enforce the obligations and duties was on the concerned authorities, but also subject the individual or class of individuals to conform to the obligations of the statute.
If that be so, it presents no difficulty in answering one of the questions raised in this case, viz., whether it would be competent for the neighbour, namely, the petitioners herein to enforce the obligation cast on the Municipal Corporation to remove the structures constructed in contravention of the statutory provisions; and to seek a direction against an individual, plaintiff herein to conform to the obligation laid down in Chapter XII of the Act and to demolish any construction made in contravention thereof, either by way of a civil proceeding or seeking mandamus under Article 226 of the Constitution. The answer is quite apparent and it is in the affirmative.”

15. Liquor Shop causing Public Nuisance

The question that required consideration in D. Thomas v. N. Thomas, 1999-2 MLJ 260 was whether the civil court had jurisdiction to entertain suit for permanent prohibitory injunction restraining defendants from conducting a liquor shop for apprehended injury of public nuisance to the residents of locality. The plaintiffs filed the suit in representative capacity under Order 1, Rule 8 of the CPC. The defendants resisted the suit on the ground that it was barred under Sec. 56 of Tamil Nadu Prohibition Act. In this decision the court held as under:

“Under Specific Relief Act, a suit to prevent the nuisance is maintainable under Secs. 38 and 39. Plaintiff is also entitled to file a suit for perpetual prohibitory and mandatory injunction from causing any nuisance. Nuisance is an act of omission which is an interference with, disturbance of or annoyance to a person in the exercise or enjoyment of (a) a right belonging to him as a member of the public, when it is a public nuisance, or (b) his ownership or occupation of land or of some easement, quasi-easement, or other right used or enjoyed in connection with land, when it is a private nuisance.
Whether it is public or private, it is common law right and the suit to prevent the occurrence of nuisance is also a suit of civil nature. So the enforcement of such civil right can be had through court.”
“Plaintiffs are not claiming any right under Tamil Nadu Prohibition Act and what want to enforce is only a common law right. I do not find any prohibition under Tamil Nadu Prohibition Act that the common law right to prevent a nuisance is taken away by any other provisions of Prohibition Act. Plaintiffs are not claiming any right by virtue of statute which creates a right for do they want enforcement of such a right created by statute. To prevent a person from committing nuisance is all along a common law right and that could be enforced de hors the enactment of Tamil Nadu Prohibition Act.”

16. Forum for Enforcement of Right like Avoidance of Nuisance

It was held in Saraswathi v. Lachanna (1994)1 SCC 611, while considering bar of suit, that the court had to see where a particular act creates a right and also provides a forum for enforcement of such right and bars the jurisdiction of the civil court, then ouster of the civil court jurisdiction had to be upheld. But the situation will be different where the statute neither creates the right in question nor provides any remedy or having created any right or liability no forum for adjudication of any dispute arising out or such right or liability is provided. In such a situation, the ouster of the civil courts jurisdiction is not to be easily inferred.

In D. Thomas v. N. Thomas, 1999-2 MLJ 260, a suit filed in representative capacity under O.1, Rule 8 of the CPC, it was observed that prevention of nuisance is not a matter to be decided by authorities under the Act and that for considering location of shop, certain guidelines were given under Rule 18. Though they were not exhaustive, it was clear that authorities under Prohibition Act could not adjudicate private rights of a citizen. So long as plaintiffs were not claiming right under the Act, nor the right to prevent nuisance was created under the Act, there could not be bar under Sec. 9 of Code of Civil Procedure read with Sec. 56 of Tamil Nadu Prohibition Act.

Read in this cluster (Click on the topic):

Civil Suits: Procedure & Principles

Evidence Act

Constitution

Contract Act

Easement

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1 Comment

Prem says:

June 22, 2022 at 7:28 pm

Your given information is in depth and so helpful. Thanks for your efforts, prem.

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Does Alternate Remedy Bar Civil Suits and Writ Petitions?

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