It has not been disputed that there is no express bar
under the Act on the jurisdiction of the civil court to entertain a
suit for damages. As set out above, all we need to determine is
whether the jurisdiction of the civil court is barred by necessary
implication. The principles laid down in Dhulabhai (supra) are
pertinent in this regard. While dealing with the question of
ouster of the jurisdiction of the civil court by specially
constituted tribunals, this Court concluded that such ouster was
not to be readily inferred unless the conditions set out by the
Court were satisfied. For the purposes of determining the
question before us, we need only refer to the following
conditions laid down by this Court in Dhulabhai (supra):
“… (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.
x x x
(7) An exclusion of the jurisdiction of the civil court is
not readily to be inferred unless the conditions above
set down apply.”
(emphasis added)
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8069 OF 2019
M. Hariharasudhan Vs R. Karmegam
MOHAN M. SHANTANAGOUDAR, J.
Dated:October 17, 2019.
Leave granted.
2. The instant appeal arises from the final judgment and
order dated 29.03.2019 passed by the Madurai Bench of the
High Court of Madras in A.S. (M.D.) No. 143 of 2018 allowing
the appeal filed by the unsuccessful defendants in O.S. No. 186
of 2016 (the Respondents herein), wherein the suit for
damages filed by the Appellant herein had been decreed by the
First Additional District Judge, Madurai, vide order dated
03.04.2018.
3. The short question in this appeal is whether the suit for
damages filed by the Appellant is maintainable in light of the
Tamil Nadu Property (Prevention of Damage and Loss) Act,
1992 (in short “the Act”), which depends on whether the Act
excludes the jurisdiction of the civil court. In this respect, the
brief facts of the case as alleged by the Appellant are as
follows:
3.1 The Appellant runs a hotel at Madurai. He had purchased
a plot of land adjacent to a plot owned by his father, where he
started construction in 2014. The Appellant’s father filed O.S.
No. 783 of 2014 against Respondent No. 1 for the relief of
injunction, since Respondent No. 1 had started putting up a
construction in front of the Appellant’s property obstructing
free access to the property of the Appellant’s father. Though an
order for maintaining the status quo was passed in the said
suit, Respondent No. 1 completed his construction regardless.
Later, aggrieved by the filing of the suit, Respondent No. 1,
along with some henchmen, damaged certain construction
materials on the Appellant’s property, causing damage to the
tune of Rs. 2.27 lacs. The Appellant resultantly lodged the first
information before the police and a crime came to be
registered against Respondent No. 1, who later further
damaged the show-case glass at the Appellant’s hotel by
pelting stones at it and damaged its automatic glass door by
driving a car into the hotel. Respondent Nos. 2 and 3
trespassed into the hotel and took away cash of more than Rs.
1 lac. The Appellant spent Rs. 73,000/- on medical expenses for
his injured employees, and subsequently filed O.S. No. 186 of
2016.
3.2 The Trial Court decreed the suit, i.e. O.S. No. 186 of 2016,
holding that the Appellant was entitled to damages of Rs.
18,28,941/- with interest at the rate of 9% p.a. from the date of
filing of the suit till the date of realization, with proportionate
costs. The maintainability of the suit was not an issue before
the Trial Court.
3.3 The High Court, in appeal, framed points for consideration
with respect to the maintainability of the suit, non-joinder of
necessary parties, and the accrual of the cause of action.
Though it was held that the suit was not bad for non-joinder of
necessary parties and was not prematurely filed, the decree
was set aside solely based on the finding that the suit was not
maintainable. The High Court found that there was no express
bar on civil jurisdiction in the Act. However, it held that since
the Act specified a particular method for claiming
compensation for damage to property in Sections 10 and 11 of
the Act, as well as Rule 4 of the Tamil Nadu Property
(Prevention of Damage and Loss) Rules, 1994 (in short “the
Rules”), all other methods for claiming compensation were
excluded by implication, and thus the jurisdiction of the civil
court was impliedly barred. Aggrieved, the Appellant filed the
instant appeal.
4. Learned Senior Counsel Mr. V. Giri, appearing for the
Appellant, argued that though the High Court had correctly held
that there was no express bar on the jurisdiction of the civil
court, it erred in holding that the Act impliedly ousted the
jurisdiction of the civil court—in fact, the provisions thereof
indicate that such jurisdiction exists concurrently with the
remedies provided under the Act.
4.1 Learned Senior Counsel first referred to Section 7(4) of the
Act, which provides that compensation ordered by the Court to
be paid under Section 7 shall be accounted for at the time of
awarding compensation in a subsequent civil suit relating to the
same matter. He contended that Section 7(4) thus recognizes
the possibility of a civil suit being filed, and thus impliedly
recognizes the jurisdiction of the civil court to award
compensation. He also submitted that the scheme of Section 7
was a near verbatim reproduction of Section 357 of the Code of
Criminal Procedure, 1973 (in short the “Cr.P.C.”), which
pertains to the power of a criminal court to order the payment
of compensation, but also accounts for the filing of a
subsequent civil suit for compensation.
4.2 Secondly, our attention was drawn to Section 14 of the
Act, which saves proceedings instituted outside of the Act, to
argue that the jurisdiction of the civil court was also saved
under Section 14. Learned Senior Counsel stressed that ouster
of the jurisdiction of the civil court is not to be readily inferred,
referring to the decision of the Constitutional Bench of this
Court in Dhulabhai v. State of Madhya Pradesh, 1968 (3)
SCR 662.
5. Learned Counsel for the Respondents, on the other hand,
argued that the Act and Rules constituted a self-contained code
and ousted the jurisdiction of the civil court by necessary
implication. He submitted that the Rules create a specific
authority for the determination and payment of compensation,
and thus the decision in Dhulabhai (supra) would squarely
apply, where it was also held that the jurisdiction of the civil
court must be held to excluded when there is an adequate and
sufficient remedy specifically provided in a statute which would
normally be associated with actions in a civil court. He further
argued that the scheme of the Act and Rules would be
rendered redundant if the jurisdiction of the civil court to award
compensation were to be recognized.
6. It has not been disputed that there is no express bar
under the Act on the jurisdiction of the civil court to entertain a
suit for damages. As set out above, all we need to determine is
whether the jurisdiction of the civil court is barred by necessary
implication. The principles laid down in Dhulabhai (supra) are
pertinent in this regard. While dealing with the question of
ouster of the jurisdiction of the civil court by specially
constituted tribunals, this Court concluded that such ouster was
not to be readily inferred unless the conditions set out by the
Court were satisfied. For the purposes of determining the
question before us, we need only refer to the following
conditions laid down by this Court in Dhulabhai (supra):
“… (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.
x x x
(7) An exclusion of the jurisdiction of the civil court is
not readily to be inferred unless the conditions above
set down apply.”
(emphasis added)
6.1 Thus, essentially, we must determine whether the Act
provides an adequate final remedy to what the civil court would
normally do in a suit, such that the jurisdiction of the civil court
must necessarily be inferred to have been ousted. The scheme
of the Act and Rules must be examined in this light.
7. Section 1 of the Act deals with the short title and
commencement, and Section 2 deals with definitions.
Importantly, sub-section (4) defines “property” as any movable
or immovable property or machinery owned by, or in
possession of, or under the control of any person, including the
entities listed under clauses (a) to (j) of the sub-section, for
instance, the Central and State Government, any local
authority, and any institution, concern, or undertaking. Sections
3, 4 and 5 lay out offences punishable under the Act, while
Section 6 pertains to the grant of bail.
7.1 Section 7, which is central to our controversy, merits
reproduction:
“7. Order to Pay Compensation.—(1) When
imposing a sentence of fine for an offence under this
Act, the Court may when passing judgment, order the
whole or any part of the fine recovered to be applied
—(
a) in defraying expenses properly incurred in the
prosecution;
(b) in the payment, to any person, of compensation
for any loss or injury caused by the offence;
(c) in replacing or as the case may be, restoring to
the previous state, the property including any road,
bridge, navigable channel, natural or artificial.
(2) If the fine is imposed in a case which is subject to
appeal, no such payment shall be made before the
period allowed for presenting the appeal has elapsed,
or, if an appeal be presented, before the decision of
the appeal.
(3) An order under this section may also be made by
an Appellate Court or by the High Court when
exercising its powers of revision.
(4) At the time of awarding compensation in any
subsequent civil suit relating to the same matter, the
Court shall take into account any sum paid or
recovered as compensation under this section.
(5) Save as otherwise provided, when a Court
imposes a sentence, of which fine does not form a
part, the Court may, when passing judgment, order
the accused person to pay, by way of compensation,
such amount as may be specified in the order to the
person who has suffered any loss or injury by reason
of the act for which the accused person has been so
sentenced.”
(emphasis added)
7.2 Evidently, Section 7(1) provides that where the Court
trying any offence punishable under the Act imposes a
sentence of fine after conviction, it may order such fine to be
partly or wholly applied, inter alia, for the payment of
compensation for any loss or injury caused by the offence, as
mentioned in clause (b). Sub-section (5), at the same time,
provides that if a Court is imposing a sentence under the Act
comprising only imprisonment, the Court may order the
accused to separately pay compensation to the aggrieved
party.
7.2.1 It is relevant to note at this stage itself that Section 8
specifies that offences under the Act cannot be tried by any
Court inferior to that of a Chief Metropolitan Magistrate or a
Sessions Court.
7.2.2 As per Section 7(3), an order under Section 7, which
would include orders both under sub-sections (1) and (5), may
also be made by an Appellate Court or the High Court in the
exercise of the power of revision. Most crucial, however, is subsection
(4), which specifically provides that in a subsequent
civil suit relating to the same matter, if the civil court is
awarding compensation, it shall take into account any sum paid
or recovered as compensation under Section 7 of the Act.
7.3 Moving on, Section 9 provides that notwithstanding
anything contained in the Act, where an offence punishable
under this Act has been committed during any procession,
assembly, meeting, agitation, demonstration or any other
activity organised by a political party or communal, language or
ethnic group, the Court shall presume that the offence has also
been committed by such party or group, which shall be liable to
pay compensation for damage or loss caused to any property,
in accordance with the provisions of this Act and the rules
made thereunder.
7.4 Section 10(1) pertains to claims for compensation for
damage and loss, which can be made by the person affected by
the damage or loss, or by an officer empowered by any
authority specified in clauses (a) to (j) of Section 2(4). Subsection
(2) provides that every application for claiming
compensation shall be in such format as may be prescribed.
7.5 Section 11(1) provides that every claim for compensation
for damage or loss caused to property shall be made to the
authority as may be prescribed. Sub-section (2) provides the
factors to be considered by the prescribed authority while
determining the quantum of compensation, and sub-section (3)
provides that such authority shall have to follow prescribed
procedure while deciding the application. Sub-section (4) gives
the prescribed authority the powers of a civil court as provided
in the Code of Civil Procedure, 1908 (in short “the CPC”) for the
purpose of taking evidence on oath, enforcing the attendance
of witnesses, discovery and production of documents and
material objects, and for such other purposes as may be
prescribed.
7.6 Section 12 of the Act provides that the prescribed
authority under Section 11 may, after determining the
compensation to be awarded, issue a certificate for the amount
to the Collector, who shall recover the same in the same
manner as an arrear of land revenue. Section 12-A deals with
the manner of appeal against an order under Section 11,
providing that an appeal may be made to such authority as
may be prescribed. Sub-section (2) specifically provides that
the decision of the appellate authority shall be final and shall
not be called into question in any Court of law. Section 13
confers power on the State Government to make rules under
the Act.
7.7 Section 14 is the savings provision. Since much revolves
around this provision as well, we reproduce it below:
“14. Saving.—The provisions of this Act shall be in
addition to, and not in derogation of, any other law
for the time being in force and nothing contained
herein shall exempt any person from any proceeding
by way of investigation or otherwise which might,
apart from this Act, be instituted against him.”
7.8 Section 15, the last provision of the Act, repeals the Tamil
Nadu Public Property (Prevention of Destruction and Loss) Act,
1982.
8. The Rules have been framed by the State Government in
the exercise of powers under Section 13 of the Act. Rule 3 lays
down who may claim compensation for damage or loss to
property owned by, or in the possession or under the control of,
an authority specified in clauses (a) to (j) of Section 2(4), and in
what manner. Importantly, Rule 4 sets out the Commissioner
for Revenue Administration, or any authority authorised by him,
as competent to decide compensation claims made under Rule
3. Sub-rule (2) provides that the decision of the competent
authority as to the quantum of compensation for damage or
loss caused to public property shall be final and not be
questioned in any Court of law. Sub-rule (3) lays down certain
additional factors to be considered while determining
compensation for damage or loss caused to public property.
8.1 Rules 5 to 10 deal with various aspects of the procedure of
inquiry, including rectification of defects, filing of the written
statement, notice to parties, issue of summons, and the
appearance of legal practitioners if required. Rule 11 gives the
power to the inquiring authority to inspect the damaged
property, while Rule 12 allows the production of damaged
movable property before the authority. Rule 13 deals with
travel expenses of the inquiring authority. Rule 14 provides for
the summary examination of any person required. Rule 15
states that the inquiring authority has to get recorded a
memorandum of the substance of the evidence of each
witness. Rule 16 provides that the inquiring authority may take
assistance from persons having special knowledge with respect
to any matter relevant to the inquiry. Rules 17 to 19 require the
inquiring authority to frame a record of points to be decided,
maintain a brief diary of the proceedings of the inquiry, and
record his findings concisely on each point and record reasons
for such findings. Rule 20, pertaining to the application of the
CPC, was omitted by G.O. Ms. No. 1285, Home (Court IV), dated
24.10.1994. Rule 21, the last rule, deals with the manner of
recovery of compensation.
9. Additionally, it is important to note that the Act, which was
enacted in 1992, initially only pertained to damage and loss
caused to public property. The Act was amended vide the Tamil
Nadu Public Property (Prevention of Damage and Loss) Act,
1994, which was published in the Tamil Nadu Government
Gazette Extraordinary on 09.08.1994, to provide compensation
in respect of property other than public property as well. The
Rules framed under the Act came into force on 09.04.1994,
that is to say, prior to the amendment of the Act. Though
certain amendments were subsequently made to the Rules,
vide G.O. Ms. No. 1285, Home (Court IV) dated 24.10.1994, it
appears that the State Government has committed an
oversight in amending the Rules, and has failed to provide any
procedure for the claiming and assessment of damages with
respect to property other than public property. For instance, as
already discussed, Rule 3, which prescribes the authority to
claim compensation, continues to deal only with applications
for compensation with respect to public property. Similarly,
Rule 4(1), which prescribes the authority before whom
compensation is to be claimed, does not clarify as to before
whom an application should be made to claim damages for loss
caused to private property. At the same time, Rule 4(2) states
that the assessment of compensation for damage or loss
caused to public property shall be final, without any mention of
the fate of damages with respect to private property. So also,
Rule 4(3) takes care of the assessment of compensation for
damage or loss caused to public property, and does not deal
with how damages are to be assessed in case of private
property. A bare reading of the Rules in their entirety thus
makes it clear that the State Government has committed an
oversight in amending the Rules appropriately to bring them in
consonance with the amended enactment, and to facilitate the
appropriate enforcement of the same.
10. However, even if we assume that the Rules broadly
provide a procedure to claim compensation for damage or loss
to public as well as private property, we find force in the
contention of learned Senior Counsel for the Appellant that the
scheme of the Act does not envisage ouster of jurisdiction of
the civil court.
11. As mentioned supra, reading the Rules expansively, not
literally, it is evident that the Act, along with the Rules,
provides for the award of compensation in two ways. Firstly, it
may be awarded at the end of the trial for any offence
punishable under the Act, or may be ordered to be paid out of
the fine imposed upon the accused. This is similar to the power
of the criminal court to award compensation under Section 357
of the Cr.P.C. Secondly, compensation may be awarded upon
an application as envisaged under Section 10, after a summary
inquiry as envisaged under the Rules. This is somewhat similar
to the summary procedure envisaged under the Consumer
Protection Act, 1986 (in short “the 1986 Act”), for claiming
compensation thereunder. This would indicate that the Act and
Rules provide a specific remedy to claim compensation for loss
and damage to property. It was on this basis that learned
Counsel for the Respondents submitted that the civil court
could not be said to have concurrent jurisdiction to decide a
suit for damages.
12. Such an argument, however, deserves to be rejected. We
first turn our attention to the aspect of award or provision of
compensation by the criminal court under Section 7 after trial
for any offence under the Act. It is evident that the provision
clearly recognises the possibility of a civil suit instituted
subsequent to the criminal proceedings under the Act, relating
to the same matter, where if the Court trying the civil suit is
awarding compensation, it is required to take into account any
sum paid or recovered as compensation under Section 7 of the
Act. It does not stand to reason that the Act would permit the
subsequent filing of a civil suit while excluding the concurrent
jurisdiction of the civil court.
13. Moreover, even the summary remedy of claiming
compensation envisaged under Section 10 of the Act, read with
the Rules, does not preclude the filing of a suit for damages.
Section 14 of the Act is important in this regard, which clearly
provides that the Act is in addition to, and not in derogation of,
any other law in force for the time being. It further mandates
that nothing contained in the Act shall exempt any person from
any proceeding by way of investigation or otherwise which
might be instituted against him apart from under the Act. “Law”
in force would include the common law, under which the
tortious remedy of damages may be claimed, which remedy
can only be pursued in a civil court. Thus, it is evident that the
Act, by way of Section 14, clearly recognises the concurrent
jurisdiction of the civil court to entertain a suit for damages.
14. In this regard, it would be useful to refer to Section 3 of
the 1986 Act, similar to Section 14 of the Act, which provides
that the 1986 Act is in addition to and not in derogation of
other laws in force:
“3. Act not in derogation of any other law.—The
provisions of this Act shall be in addition to and not in
derogation of the provisions of any other law for the
time being in force.”
14.1 This provision has been considered on a multitude of
occasions by this Court to affirm that the remedy available
before consumer fora may only be one of several concurrent
remedies available to an aggrieved person. For instance, even
recently, this Court in Pioneer Urban Land and
Infrastructure Ltd. v. Union of India (W.P. (C) No. 43/2019,
decided on 09.08.2019) observed that remedies to flat allottees
under various statutes such as the 1986 Act, the Real Estate
(Regulation and Development) Act, 2016, and the Insolvency
and Bankruptcy Code, 2016 are concurrent. However, for our
purposes, we may limit ourselves to examine the effect of
Section 3 of the 1986 Act on the jurisdiction of the civil court.
The following discussion in State of Karnataka v.
Vishwabharathi House Building Coop. Society , (2003) 2
SCC 412, serves us adequately, where this Court explained that
the 1986 Act does not supplant the jurisdiction of the civil
court:
“46. By reason of the provisions of Section 3 of the
Act, it is evident that remedies provided thereunder
are not in derogation of those provided under other
laws. The said Act supplements and not supplants
the jurisdiction of the civil courts or other statutory
authorities.
x x x
53. … Furthermore, primarily the jurisdiction of the
forums/Commissions is to grant damages. In the
event, a complainant feels that he will have a better
and effective remedy in a civil court as he may have
to seek for an order of injunction, he indisputably
may file a suit in an appropriate civil court or may
take recourse to some other remedies as provided for
in other statutes.”
(emphasis added)
14.2 We may also refer to the following observations made by
this Court in its earlier decision in Indian Medical
Association v. V.P. Shantha, (1995) 6 SCC 651, where, while
concluding that consumer fora were competent to deal with
complaints regarding deficiency in service by way of medical
negligence, it was observed as follows:
“37. … In complaints involving complicated issues
requiring recording of evidence of experts, the
complainant can be asked to approach the civil court
for appropriate relief. Section 3 of the Act which
prescribes that the provisions of the Act shall be in
addition to and not in derogation of the provisions of
any other law for the time being in force, preserves
the right of the consumer to approach the civil court
for necessary relief…”
(emphasis added)
14.3 There is no doubt in our minds that a similar proposition
holds the field even with respect to the Act at hand. Section 14
of the Act, being in addition to and not in derogation of the
provisions of other laws in force, permits an aggrieved person
to approach the civil court for relief if he so desires, instead of
availing of the remedy envisaged under Section 10 of the Act.
Clearly, a claim for compensation under the Act is only in the
nature of an additional remedy which may be pursued in place
of filing a civil suit for the same relief.
15. Moreover, it is clear that since a claim for compensation
under Section 10 may only be determined by way of summary
proceedings, it does not stand as a complete substitute to the
remedies that may be pursued in a civil court and determined
through a full-fledged trial, even though certain powers of the
civil court are conferred upon the prescribed authority
determining a claim for compensation under the Act.
16. Upon an evaluation of the entire scheme of the Act and
Rules, and looking to the tests laid down by Dhulabhai (supra),
we are thus of the considered opinion that the Act does not
stand in place of and preclude a claim for damages under the
common law as may fall for determination before a civil court in
a civil suit. In this view of the matter, we find ourselves drawn
to the irresistible conclusion that the Act does not oust the
jurisdiction of the civil court either expressly or by necessary
implication, and that the High Court has erred in allowing the
appeal filed by the Respondents herein by holding that the suit
filed by the Appellant was not maintainable.
17. As mentioned supra, the Trial Court, upon holding that the
suit is maintainable, proceeded to decree the suit on merits.
The appeal before the High Court, filed under Section 96 of the
CPC, was decided only on the preliminary point pertaining to
the maintainability of the suit. In view of our finding that the
suit is maintainable, the matter has to be remitted to the High
Court for hearing the first appeal on merits.
18. Accordingly, the appeal is allowed, and consequently, the
judgment of the High Court is set aside. The matter is remitted
to the High Court for deciding the first appeal being A.S. (MD)
No. 143 of 2018 on merits.
..........................................J.
(Mohan M. Shantanagoudar)
..........................................J.
(Ajay Rastogi)
New Delhi;
October 17, 2019.
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