Surendra Pal Singh v. Munsif Aonla, Bareilly — 1993 DIGILAW 539 (ALL)

Judgment : S. P. Srivastava, J. 1. BEING aggrieved by an order passed by the Munsif Aonla, Bareilly dated 31-5-1993, where under on an application of the plaintiff respondent No. 3 moved in original suit No. 73 of 1993, an exparte order of temporary injunction had been granted prohibiting the defendant No. 2 from plying their buses on Aliganj Bisharat Ganj-Rampnra Mod, the petitioner approached this Court by means of the present writ petition seeking not only the quashing of the order dated 31-5-1993, passed by the learned Munsif but also the quashing of the proceedings of suit No. 73 of 1993 referred to hereinbefore. 2. THE facts in brief shorn of details and necessary for the disposal of this case lie in a narrow compass. THE petitioner, who is a member of the Dataganj Bareilly Private Bus Union, Bareilly, defendant No. 2 in the suit filed by General Mini Bus Owners Operating Association, the plaintiff respondent, held a permanent permit issued under the provisions of the Motor Vehicles Act for operating on the route Bareilly-Dataganj Via Diyochara-Billia. THE competent authority while exercising its jurisdiction envisaged under the provisions of the Motor Vehicles Act, 1988, vide its order dated 20-5-1993 granted an extension of the aforesaid route where under the petitioner could ply vehicle on the extended portion of the route viz, Chandpur-Bisharatganj- Rampura Mod. It appears that the plaintiff respondent felt aggrieved by the aforesaid grant of extension of the route and therefore filed a suit being suit No. 73 of 1993 impleading therein the Regional Transport Officer, Bareilly as defendant No. 1 and Dataganj Private Bus Union, Bareilly which was impleaded as defendant No. 2, claiming a decree of permanent injunction against the defendants restraining them from plying the buses on the extended portion of the route and further seeking to restrain the defendants from plying their vehicles on any portion of the route other than that which was covered under the permits issued prior to the extention and further not to extend the route. From the perusal of the true copy of the plaint, which has been filed as Annexure-2 to the writ petition, it is apparent that the plaintiff sought to challenge the order passed by the competent authority where under the extension of the route had been granted. From the perusal of the true copy of the plaint, which has been filed as Annexure-2 to the writ petition, it is apparent that the plaintiff sought to challenge the order passed by the competent authority where under the extension of the route had been granted. The plaintiff has alleged that only Mini Buses could run properly on the extended portion of the route which was not at all suitable for running the big buses and authorising the plying of the big buses on the said portion could result in serious accidents. It was also asserted that the order of extension of the route was collusive. It was further alleged that in the circumstances of the case, plying of the vehicles on the basis of the order of extension on the extended portion of the route will cause inconvenience to the passengers and in the presence of the Mini Buses being run by the plaintiff's members there was absolutely no justification for the extension of the route. In the circumstances, it was alleged by the plaintiff that it will suffer irreparable loss as its members will be deprived of source of livelihood and the operators of the Mini Buses will suffer starvation. 3. IT may be noticed at this stage that the learned Munsif has not disclosed any reason which justified the grant of temporary injunction and has only observed that the injunction was being issued considering the necessity involved in the case and the fact that the court was to remain closed during the summer vacations. 4. WHILE granting temporary injunction, the learned Munsif had fixed 30th July, 1993 for objection and disposal of the injunction application. However, vide an order dated 28th June, 1993, passed by this Court, the operation of the impugned order had been stayed which order is still continuing to be operative. The parties in this case have exchanged the affidavits. Considering the facts and circumstances, we are of the opinion that it is a fit case in which the writ petition itself may be finally disposed of at this very stage under the second proviso to Rule 2 (1) of Chapter XXII of the Rules of the Court. 5. WE have heard Sri A. D. Saunders, learned counsel for the petitioner and Sri S. K. Verma, learned counsel representing the plaintiff respondents as well as the learned Standing Counsel representing the respondent No. 2. 5. WE have heard Sri A. D. Saunders, learned counsel for the petitioner and Sri S. K. Verma, learned counsel representing the plaintiff respondents as well as the learned Standing Counsel representing the respondent No. 2. 6. IN support of the writ petition, the learned counsel for the petitioner has contended that the suit filed by the plaintiff respondents was not at all maintainable and the impugned order passed by the learned Munsif was clearly without jurisdiction. It has further been contended that in the facts and circumstances of the present case, it is apparent that the learned Munsif has, while entertaining the suit and passing the impugned order assumed a jurisdiction which never vested in the civil Court at all and this has resulted in manifest miscarriage of justice. The learned Counsel for the petitioner has in this connection, placed strong reliance upon the provisions contained in section 94 of he Motor Vehicles Act, 1988 which is to the following effect: "94. Bar of Jurisdiction of Civil Courts-No Civil Court shall have jurisdiction to entertain any question relating to the grant of a permit under this Act, and no injunction in respect of any action taken on to be taken by the duly constituted authorities under this Act with regard to the grant of a permit, shall be entertained by any Civil Court." On the strength of the aforeraid provisions, what has been contended is that in the facts and circumstances of the present case specially of taking consideration the controversy raised by the plaintiff as apparent from the perusal of the plaint of the suit in question, the jurisdiction of the. Civil Court stood clearly excluded and neither the suit could be entertained nor any injunction issued thereunder as claimed. 7. Civil Court stood clearly excluded and neither the suit could be entertained nor any injunction issued thereunder as claimed. 7. THE learned counsel for the plaintiff respondent however, on the other hand urged that taking into consideration the nature of the reliefs claimed in the plaint, the suit filed by the respondent No. 3 was entertainable and since a remedy to get the ex-parte injunction vacated not only in the proceedings under order 39 Rule 4 of the Civil Procedure Code, also in an appeal which stands provided against the orders issued under order 39 Rule I of the Civil Procedure Code, of the nature similar to the impugned order, this writ petition deserves to be dismissed as these remedies have not been exhausted before approaching this court. THE contention is that the petitioner had at his disposal two specific statutory remedies wherein he could challenge the correctness of the impugned order and in the presence of such statutory remedies, which have not been availed of, this writ petition could not be entertained and is liable to be dismissed on this ground alone. 8. WE have given our anxious consideration to the rival contentions raised by the learned counsel for the parties and also to the decisions cited at the bar. Under the provisions contained is section 9 of the Civil Procedure Code, a civil Court is empowered to try any suit of civil nature but this jurisdiction to deal with a civil cause could be excluded by the Legislature by special Acts which deal with special subject matters. This exclusion of jurisdiction must be made by statutory provision which either expressely provides for it or which necessarily and inevitably leads to that inference. Obviously therefore, the jurisdiction of the Civil Courts could be ousted by special legislation either expressly or by necessary implication. 9. IT may, however, be noticed that as indicated in the decision of the Apex Court in the case of Shiv Kumar Chathi v. Municipal Corporation of Delhi, JT 1993 (3) SC 238, the ouster of the jurisdiction of the Civil Court can be up held on the finding that the rights or liabilities in question had been created by the Act in question and remedy provided thereunder for redressal of any grievance was adequate. 10. 10. THE question which arises for consideration is as to whether the bar created under the provisions contained in section 94 of the Motor Vehicles Act, 1988 excludes the jurisdiction of the Civil Courts to entertain any question relating to the grant of a permit under the Act. THE learned Counsel for the petitioner has urged that the words' 'relating to the grant of a permit' as used in Section 94 of the Motor Vehicles Act, 1988 cover situations which are anterior to the actual grant of permit as well as those which are posterior to the same. THE learned Counsel for the plaintiff respondent however, asserts that the aforesaid words ousted the jurisdiction of the Civil Courts only in so far as those proceedings are concerned which are anterior to the actual grant of the permit. What has been asserted is that, the Civil Courts can have no jurisdiction in the matter relating to the proceedings under the Motor Vehicles Act up to the grant of the permit but there-after the bar ceases to be operative. Learned Counsel has further urged in this connection, that while the Civil Courts may not have jurisdiction to interfere up to the stage of the grant of permit but once the permit is granted its validity, effect, propriety, correctness etc. could be scrutinised by the Civil Courts and no limit can be put upon the exercise of the jurisdiction of the Civil Courts in this regard with which it stands vested as contemplated under section 9 of the Civil Procedure Code. Taking into consideration the scheme of the Act and the implication arising under the various provisions contained therein as well as the rights and liabilities created thereunder it is apparent that the words 'relating to' as used in section 94 of the Motor Vehicles Act, 1988 are words of comprehensiveness and of a wide import. They cover the entire process not only upto the grant of the permit but also subsequent to it that is its resultant effect. There is absolutely no justification for treating the phrase 'relating to' as containing the words of restrictive content and in fact they ought not to be so construed. These words clearly take within the ambit of section 94 of the Act everything which might have a direct or indirect significance of the grant of permit depending on the context. There is absolutely no justification for treating the phrase 'relating to' as containing the words of restrictive content and in fact they ought not to be so construed. These words clearly take within the ambit of section 94 of the Act everything which might have a direct or indirect significance of the grant of permit depending on the context. In our view the exclusion of the jurisdiction of the Civil Court in the aforesaid matters is complete and there was no contextual reason to restrict the meaning of the aforesaid words occurring in section 94 of the Act under consideration. 11. THE submission of the learned counsel for the petitioner that the jurisdiction of the Civil Court is barred only till the stage of actual grant of permit and not thereafter it seems to us, is pedantic and tantamounts to indulging in sophistry. We are, therefore, of the considered opinion that the Civil Court is not competent to issue preventive injunction restraining the defendant no. 2 or its members from plying their vehicles as a result of the permit granted to them. 12. IT should not be lost sight of that while determining either the general object of the Legislature or the meaning of its language in a particular passage, it is obvious that the intention which appears to be most in accord with convenience, reason, justice and legal principles should in all cases of doubtful significance be presumed to be a true one. As observed by the Division Bench of this Court in its decision in the case of Omkar Singh v. Regional Transport Authority, Bareilly, AIR 1991 Alld. 239, the Motor Vehicles Act and Rules framed thereunder have provided for grant of permits and have laid down an elaborate procedure to be followed by the Transport Authorities while granting them orders of the Transport Authorities are liable to be challenged by way of appeal or revision and orders of the appellate tribunal have been made final. The statutory finality attached to an order envisaged under section 89 or 90 of the Motor Vehicles Act cannot be lightly interfered with or nullified. The statutory finality attached to an order envisaged under section 89 or 90 of the Motor Vehicles Act cannot be lightly interfered with or nullified. In its decision in the case of Omkar Singh (Supra), this court had observed that civil courts have no jurisdiction to issue injunction order not only in respect of the action already taken in the matter of grant of permit but they are also prohibited to issue preventive orders in connection therewith. 13. FROM the perusal of the various provisions of the Act in question and the scheme running thereunder, it is apparent that the Act is a self contained exhaustive code and provides various remedies to the party aggrieved which may be pursued for the redressal of the grievances if any. It provides a complete machinery for adjudication of claims and in the presence of the bar envisaged under section 94 of the Act which clearly over-rides other laws including section 9 of the Code of Civil Procedure, no scope for the civil Court is left for entertaining any suit touching a controversy which could be raised and decided within the frame work of the Act itself. 14. WE are of the clear opinion that the purpose behind the provisions contained in section 94 of the Motor Vehicles Act is to ensure that all the orders made in exercise of any power conferred by or under the Act shall be exempted from challenge in the courts of law as regards their sufficiency of grounds and propriety. The bar contained in section 94 of the Act Excludes judicial scrutiny of any order passed by any authority in exercise of any power conferred by or under the Act as regards to the correctness or propriety thereof. WE must, however, hasten to add that the bar created by section 94 of the Act would not operate in cases where the plea raised before the Civil Court goes to the root of the matter and if upheld, may lead to the conclusion that the impugned order is a nullity. The bar of the civil court to question whether the order is intra-vires or ultra-vires the authority making it is not taken away. The bar of the civil court to question whether the order is intra-vires or ultra-vires the authority making it is not taken away. Obviously, an order made without jurisdiction cannot be deemed to be one made under the Act and civil court cannot be debarred from scrutinising the validity of the order challenged on the ground of inherent lack of jurisdiction, In the facts and circumstances of the present case, taking into consideration the allegations contained in the plaint referred to hereinbefore, we are of the clear opinion that the bar contained in section 94 of the Act stood clearly attracted and the suit as framed could not be entertained by the civil court, inasmuch as the whole thrust of the plaintiff-respondent has been towards the impropriety and incorrectness of the order granting the permit which questions were sought to be adjudicated upon by the civil court. It may be noticed that the plaintiff-respondent had not come up with way any case about there being inherent lack of jurisdiction to grant the permit impugned in the suit. If the matter is viewed from the angle indicated hereinbefore, that being the only view, we find no difficulty whatever in holding that the entire proceedings including the impugned order are clearly without jurisdiction. 15. SO far as the question relating to the availability of the alternative remedy and its effect is concerned it may be noticed that it is now well settled that the mere existence of an effective remedy does not oust the jurisdiction of the High Court but it is only one of the circumstance that the court should take into account while exercising its discretionary jurisdiction under Article 226 of the Constitution of India. The requirement of the exhaustion of the alternative remedy is a rule of convenience and discretion, rather than a rule of law. The power conferred on the High Court under Article 226 of the Constitution cannot be taken away by an ordinary law and if at all it can only be taken away or curtaited by an amendment of the constitution Obviously, therefore, no law by purporting to provide an exclusive machinery for the determination of certain matters can take away the High Court's power secured under Article 226 of the Constitution. 16. 16. FURTHER it should not be lost sight of that although a law can bar a suit it cannot deprive the High Court of its jurisdiction under Article 226 of the Constitution and any law attempting to bar the High Court's jurisdiction under Article 226 of the Constitution would be ultra-vires and void subject, however, to the exception contemplated under Article 323-A (2) (d) of the Constitution. In view of what has been indicated above, it is clear that while it is true that the High Court cannot allow the constitutional jurisdiction to be used for deciding disputes for which remedies under the general law, civil or criminal are available as it is not intended to replace the ordinary remedies by the special and extraordinary jurisdiction envisaged under Article 226 of the Constitution which cannot be expected to be exercised casually or lightly yet the failure to have resort to the alternative remedy cannot by itself be sufficient to constitute an absolute bar or a reason for refusal to exercise the extraordinary jurisdiction of this court secured under the aforesaid provision of the Constitution and it must depend upon the facts and circumstances of each case. 17. IN any case, the limitation that the High Court will not ordinarily issue a writ in favour of a person who has an adequate alternative remedy is really a self-imposed restriction and has to be adhered subject to the well recognised exceptions as discussed and declared by the judicial decisions. When, as in the present case, on undisputed facts, exfacie, on the allegations made in the plaint itself, the suit is apparently not entertainable and the order passed therein cannot be deemed to be within jurisdiction, it seems to us, that it is not necessary for the party aggrieved to exhaust the alternative remedy before applying under Article 226 of the Constitution. We are of the considered opinion that where no disputed facts are involved and the impugned proceeding/order is exfacie without jurisdiction, in that case it is not necessary to drive the petitioner to avail the alternative remedy which may result in prolonging a wholly unwarranted proceeding or an order of this nature which will be nothing else except abuse of the process of this court. 18. 18. AS observed by the Apex Court in its decision in the case of Shiv Kumar Chadha (supra), before any order of temporary injunction is passed by Court must be satisfied that a strong prima facie case has been made out by the plaintiff including on the question of maintainability of the suit and the balance of convenience is in his favour and refusal of injunction would cause irreparable injury to him. It was further observed that with so many cases pending in Courts, once an interim order of injunction is passed, in many cases, such interim orders continue for months if not for yean. At final hearing while vacating such interim orders of injunction in many cases, it has been discovered that while protecting the plaintiffs from suffering the alleged injury, more serious injury has been caused to the defendants due to continuance of interim orders of injunction without final hearing. 19. IT was further indicated by the Apex Court that it is a matter of common knowledge that on many occasions even public interest also suffers in view of such interim orders of injunction because persons on whose favours such orders are passed are interested in perpetuating the contraventions made by them by delaying the final disposal of such applications. 20. IN such cases, as the present one, intervention of equity at the earliest, exercising the discretionary jurisdiction envisaged under Article 226 of the Constitution will be appropriate in order to prevent manifest miscarriage of justice especially when, the dilatory alternative remedies relied upon by the learned counsel for the respondents cannot be deemed to be equally convenient, beneficial and effective as compared to the hearing of the writ petition in the peculiar facts and circumstances of the present case. In view of our conclusions indicated hereinabove sufficient ground has been made out for interference by this court. 21. IN the result, the writ petition succeeds and allowing the same, the entire proceedings of original Suit no. 73 of 1973 of the court of Munsif, Aonla, district Bareilly in question including the impugned order dated 31-5-93 passed by the respondent no. 1 are hereby, quashed. 22. THE parties are, however, directed to bear their own costs. Petition allowed.