Gouri Shankar Agarwal and Others vs Phani Bhusan Sharma and Others

Arup Kumar Goswami, J—This second appeal is directed against a judgment and decree dated 28.04.2006 passed by the learned Civil Judge (Senior Division), Tinsukia, in Misc. Appeal No. 12/2005 dismissing the said appeal and confirming the order dated 08.08.2005 passed by the learned Civil Judge (Junior Division) No. 1, Tinsukia, in Title Suit No. 39/2004, holding that the Court has no jurisdiction to try the suit.

By an order dated 18.05.2006, the second appeal was admitted to be heard on the following substantial questions of law:

(i) Whether, either Section 60 or Section 63 of the Assam Town and Country Planning Act, 1959, bars a suit for relief by a neighbour against illegal construction in violation of Building Bye-laws inasmuch as the construction is being done without keeping setback 3'' as well as 10'' on the sides as per Master Plan?

(ii) Whether the suit against illegal construction by a neighbour is barred when the authorities under the Assam Town and Country Planning Act, 1959, failed to consider or take cognizance of the complaint filed by the appellants?

I have heard Mr. G.P. Bhowmik, learned Senior counsel for the appellants, assisted by Mr. P.K. Sarma, learned counsel; and Mr. B.D. Deka, learned counsel for respondent Nos. 1 and 2. None appears for respondent No. 3, i.e. Tinsukia Development Authority, despite service of notice.

The appellants, as plaintiffs, filed a suit on 21.05.2004 in the Court of Civil Judge (Junior Division) No. 1, Tinsukia, which was registered as Title Suit No. 39/2004. The pleaded case, in short, relevant for the purpose of the appeal are that the plaintiffs are the absolute owners of a plot of land measuring 2 Katha 18 Lecha, covered by Dag No. 1337/1337/1338 under Periodic Patta No. 250, at GNB Road, Tinsukia town, in the district of Tinsukia. Two buildings, one two-storied and the other three-storied, stand thereon of which they are the owners. The defendant Nos. 1 and 2 are occupiers of a plot of land measuring more or less 1 Bigha 16 Lecha, covered by a part of Dag No. 1339 of Periodic Patta No. 1040, at GNB Road, Tinsukia town. The said plot of land is situated adjacent to the western and southern side of the land and building of the plaintiffs. The defendant Nos. 1 and 2 had started raising RCC construction on the suit land, which is the land in occupation of the defendant Nos. 1 and 2 without any valid construction permission from defendant No. 3 and without leaving vacant space of 3'' width on the eastern side of the land as well as towards western side of the land and building of the plaintiffs. No vacant space measuring 10'' width was left in the southern side of the land and building of the plaintiffs and northern side of the suit land. It was pleaded that leaving of vacant space measuring 3'' and 10'', as indicated, is a mandatory rule under the law. The defendant Nos. 1 and 2 are digging the suit land in the dimension of 20'' x 30'' approximately and almost 10'' deep, just adjacent to the land and building of the plaintiffs as a result of which cracks developed in the building of the plaintiffs, which may result in collapse of the building.

The plaintiffs were out of station and came to know about the said construction only on their date of coming back on 15.03.2004 and, on 18.03.2004 they lodged a complaint with the defendant No. 3 complaining about the illegal construction, which was duly received on 19.03.2004. The plaintiffs also protested before the defendant Nos. 1 and 2 against such illegal construction and, on such protest being made, they were threatened with dire consequences. The defendant No. 3 did not take any action and it was in this backdrop of events, the suit was filed by the plaintiffs with the following reliefs:

"a) Declaration that the defendant Nos. 1 and 2 are not entitled to make the said construction and the defendant No. 3 has no right to grant/approve/renew any constructions permission to them or any one of them for the said construction;

b) Permanent injunction restraining the defendant Nos. 1 and 2 from making any further constructions on the suit land without leaving a vacant space of 3'' feet wide towards western side of the land building of the plaintiffs and a vacant space of 10'' feet wide towards southern side of the land and building of the plaintiffs and also restraining the defendant No. 3 from granting/approving/renewing any construction permission to the defendant Nos. 1 and 2 or any one of them for the said constructions on the suit land;

c) Mandatory injunction directing the defendant Nos. 1 and 2 for stopping the digging of the land and bringing the land in its original states on the suit land with immediate effect;

d) Cost of the suit;

e) Any other relief or reliefs to which the plaintiffs are found to be entitled under the law, equity and justice."

The defendant Nos. 1 and 2 filed a written statement contending that the suit was not maintainable both in law and facts; that there was no cause of action and that the suit is speculative and barred by the law of limitation. It was stated in the written statement that the defendant Nos. 1 and 2 are owners of the suit land and there is a pucca house, which was constructed about more than 70 years back and the defendant Nos. 1 and 2 had purchased the plot of land along with the building in the year 1991. It is stated that no construction over the suit land is yet made by the defendants without taking any valid permission from the defendant No. 3, as alleged. It is further stated that in the year 1997-98, the defendants had obtained necessary permission from the defendant No. 3 to construct one multi-storied commercial complex over the said plot of land by removing the existing building and the said permission was extended in the year 2004 on payment of necessary dues to the defendant No. 3.

It is admitted that the land of the defendants is bounded by the building belonging to the plaintiffs on the eastern and northern side. The three-storied building of the plaintiff, Gouri Shankar Agarwal, was constructed attaching the same to the wall of the existing building of the defendants on the eastern side without leaving any space between the walls of the two buildings and that the plaintiffs had constructed their building violating all its basic mandatory structural norms under the Assam Town and Country Planning Act, 1959, for short, ''the Act of 1959''. The defendants had demolished their one of the backside rooms of the old existing building for the purpose of the new construction as per implied permission of the defendant No. 3. It was contended that the question of leaving 3'' vacant space on the eastern side of the suit land and also 10'' width on its northern side does not arise at all. It was stated that no construction is made in the land of the defendants as alleged by the plaintiffs. It is also stated that the proposed building would be constructed in the same place and the same area by demolishing and replacing the old building of the defendant without encroaching into any right of the plaintiffs and that the defendant No. 3 had extended the permission as per regulation.

On 12.10.2004, the Chairman of Tinsukia Development Authority, i.e. defendant No. 3, filed a petition under Section 9 and Order 7 Rule II(D) [should have been Order 7 Rule 11(d)] read with Section 151 of the CPC, for rejection of the plaint, which was registered and numbered as Petition No. 1181/04.

In the said petition, it was stated that under Section 63 of the Act of 1959, no order made in exercise of any power conferred under the Act of 1959 shall be called in question in any court except as provided under the Act of 1959. It was also stated that under the Act of 1959, the order of the authority shall only be questioned before the Appellate Authority constituted under Section 43 of the Act of 1959.

The plaintiffs filed objection to the said petition by contending that there was no merit in the petition filed by the defendant No. 3.

The learned trial Court had taken up for consideration the said petition filed by the defendant No. 3 under Order 7 Rule 11(d) CPC. The learned trial Court, taking note of the provisions under Section 43, 60, 63 of the Act of 1959, by order dated 08.08.2005, held that jurisdiction of the civil court is expressly barred and that although the plaintiffs filed a complaint before the defendant No. 3, they had not moved before the Appellate Authority for redressal of their grievance. The learned trial Court held as follows:

"From the discussion, it is clear that when the statute expressly bars the jurisdiction of civil court and remedy is available under the provisions of the statute, the parties first approach to avail said remedy. In the instant case, where the Act expressly bars the jurisdiction of court to take cognizance and giving the Appellate Authority power of civil court to adjudicate the appeal arising out of order under the Act, the parties cannot make straightaway to civil court for the redressal and, in my considered opinion also, under Section 9 of CPC, this Court has no jurisdiction to try the suit."

Against the said order dated 08.08.2005, an appeal was carried to the court of the learned Civil Judge (Senior Division), Tinsukia, wherein the same was registered as Misc. Appeal No. 12/2005.

The learned lower appellate Court held that on the perusal of the documents submitted by the defendants, it appeared that the defendant Nos. 1 and 2 had obtained permission from the Tinsukia Development Authority, i.e., defendant No. 3, on 04.07.1998 and the permission was renewed on 12.05.2004 and, accordingly, as per Section 63 of the said Act, the validity of the permission shall be questioned only before the Appellate Authority. It was noted that the plaintiffs did not file any complaint before the Appellate Authority against the order of permission given by the defendant No. 3, but approached the civil court. Accordingly, it was held that till the order of the defendant No. 3, giving permission to build the house on the suit land is quashed by the Appellate Authority, the order passed by the Tinsukia Development Authority is deemed to be valid in the eye of law. It was also held that the civil court has no jurisdiction to restrain the defendant No. 3 from granting/approving/renewing any construction permission already given to the defendant Nos. 1 and 2 for the said construction.

Considering the provisions of the Act and the factual matrix, the learned Civil Judge (Senior Division) dismissed the appeal by order dated 28.04.2006.

Mr. G.P. Bhowmik, learned Senior counsel for the appellant has submitted that, in the facts and circumstances of the case, learned Courts below committed error of law in holding that civil court''s jurisdiction is barred. The learned Senior counsel has submitted that prayer made by the plaintiffs for a declaration that the defendant No. 3 has no right to grant/approve/renew any construction permission is for the construction in question and having regard to the allegations made, the suit will be maintainable. In any case, maintainability of the suit on that count was not a question under consideration and the court was only considering the application filed by the defendant No. 3 wherein a plea was taken that no civil suit will lie under the Act of 1959. The court can always mould the relief and, in a given case, recourse to the provisions of Order 1 Rule 10(2) CPC can also be taken, if considered necessary by the Court. He has submitted that against the illegal construction raised by the defendant, the appellants had lodged a complaint before the defendant No. 3 and, as no order was passed on such complaint, civil court''s jurisdiction is not barred. In support of his submissions, learned Senior counsel has placed reliance on Dhulabhai and Others Vs. The State of Madhya Pradesh and Another, AIR 1969 SC 78 : (1968) 3 SCR 662 : (1968) 22 STC 416 .

Mr. B.D. Deka, learned counsel for defendants has also placed reliance on Dhulabhai (supra). He submits that the defendants have been granted necessary permission by the authority for construction and such order granting permission has not been challenged by the plaintiffs. He has submitted that raising of construction can be illegal only when the construction is made in deviation of the approved plan as contained in the order. The Act of 1959 is a self-contained Act and has an inbuilt mechanism and it provides remedies under the scheme of the Act to the aggrieved party. He has also submitted that even though there is an express provision in Section 60 of the Act of 1959, if the provisions of the Act have not been complied with, or the authority had acted in violation of the fundamental judicial procedure, in such a situation, civil court''s jurisdiction does not get excluded. Mr. Deka contends that it is, however, not necessary to examine whether there is an efficacious remedy provided under a statute and such examination will be required only if jurisdiction of civil court is barred by necessary implication. Mr. Deka has also placed reliance on the decision of the Apex Court in Dhruv Green Field Ltd. Vs. Hukam Singh and Others, AIR 2002 SC 2841 : (2002) 3 PLR 472 : (2002) 5 SCALE 487 : (2002) 6 SCC 416 : (2002) 1 SCR 449 Supp : (2002) AIRSCW 3227 : (2002) 5 Supreme 257 . He has submitted that in the facts and circumstances of the case, when the order granting permission was not challenged in appeal, lodging of the complaint alleging illegal construction is of no consequence. According to him, both the learned courts below have correctly appreciated the legal provisions and have rightly rejected the plaint and no interference with the said orders is called for in the second appeal.

Section 9 of the CPC provides that the courts shall (subject to the provisions contained therein) have jurisdiction to try all suits of a civil nature excepting suits in respect of which taking of cognizance is expressly or impliedly barred. Thus, the jurisdiction of the civil courts is all embracing except to the extent it is excluded by an express provision of law or by clear and unambiguous intendment arising from such law.

Ouster of jurisdiction of the civil court by a statute, either expressly or by necessary implication, has been the subject-matter of debate in a large number of cases. It will be appropriate to take note of some of the decisions on the subject at this stage.

In Kamala Mills Ltd. Vs. State of Bombay, AIR 1965 SC 1942 : (1965) 57 ITR 643 : (1966) 1 SCR 64 : (1965) 16 STC 613 , a seven-Judge Bench of the Apex Court stated as follows:

"The question about the exclusion of the jurisdiction of civil courts either expressly or by necessary implication must be considered, in every case, in the light of the words used in the statutory provision on which the plea is rested, the scheme of the relevant provisions, their object and their purpose.

Whenever a plea is raised before a civil court that its jurisdiction is excluded either expressly or by necessary implication to entertain claims of a civil nature, the Court naturally feels inclined to consider whether the remedy afforded by an alternative provision prescribed by a special statute is sufficient or adequate. Where the exclusion of the civil court''s jurisdiction is expressly provided for, the consideration as to the scheme of the statute in question and the adequacy or the sufficiency of remedies provided for by it may be relevant, it cannot however, be decisive.

But when exclusion is pleaded as a matter of necessary implication, such considerations would be very important, and in conceivable circumstances, might even become decisive. If a statute creates a special right or a liability and provides for the determination of the right and liability to be dealt with by tribunals specially constituted in that behalf, and it further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, it is pertinent to enquire whether remedies, normally associated with actions in civil courts are prescribed by the said statute or not."

In Bharat Kala Bhandar Ltd. Vs. Municipal Committee, Dhamangaon, AIR 1966 SC 249 : (1966) 59 ITR 73 : (1965) 3 SCR 499 , the Apex Court observed thus: "...., one of the corollaries flowing from the principle that the Constitution is the fundamental law of the land is that the normal remedy of a suit will be available for obtaining redress against the violation of a constitutional provision. The Court must, therefore, lean in favour of construing a law in such a way as not to take away this right and render illusory the protection afforded by the Constitution."

In Lala Ram Swarup and Others Vs. Shikar Chand and Another, AIR 1966 SC 893 : (1966) 2 SCR 553 , a Constitution Bench of the Apex Court had formulated the following tests:

"The two tests, which are often considered relevant in dealing with the question about the exclusion of civil courts'' jurisdiction are (a) whether the special statute which excludes such jurisdiction has used clear and unambiguous words indicating that intention, and (b) does that statute provide for an adequate and satisfactory alternative remedy to a party that may be aggrieved by the relevant order under its material provisions. Applying these tests the inference is inescapable that the jurisdiction of the civil courts is intended to be excluded.

The bar excluding the jurisdiction of civil courts cannot operate in cases where the plea 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."

In State of Kerala Vs. Ramaswami Iyer and Sons, AIR 1966 SC 1738 : (1966) 61 ITR 187 : (1966) 3 SCR 582 : (1966) 18 STC 1 , The Apex Court stated as follows:

"It is true that even if the jurisdiction of the Civil Court is excluded, where the provisions of the statute have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure, the civil courts have jurisdiction to examine these cases."

In Dhulabhai (supra), the Supreme Court, on an analysis of the decisions on the subject, summarised the position of law as follows:

"32. ........ (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."

In Dhruv Green Field (supra), the Apex Court re-stated the following principles:

"10. ...... (1) If there is express provision in any Special Act barring the jurisdiction of a civil court to deal with matters specified there under the jurisdiction of an ordinary civil court shall stand excluded.

(2) If there is no express provision in the Act but an examination of the provisions contained therein lead to a conclusion in regard to exclusion of jurisdiction of a civil court, the Court would then inquire whether any adequate and efficacious alternative remedy is provided under the Act; if the answer is in the affirmative, it can safely be concluded that the jurisdiction of the civil court is barred. If however, no such adequate and effective alternative remedy is provided then exclusion of the jurisdiction of civil court cannot be inferred.

(3) Even in cases where the jurisdiction of a civil court is barred expressly or impliedly the court would nonetheless retain its jurisdiction to entertain and adjudicate the suit provided the order complained of is a nullity."

From the above, it becomes clear that the question about the exclusion of the jurisdiction of the civil courts in every case, whether expressly or by necessary implication, has to be considered in the light of the provisions contained in the statutory provisions, scheme of the relevant provisions, their object and their purpose. When the exclusion of the civil court''s jurisdiction is in express term, consideration of the scheme of the statute and the sufficiency or adequacy of remedies provided, though may be relevant, are not decisive. However, such consideration is very important and may also become decisive when exclusion is pleaded as a matter of necessary implication. Exclusion is not to be readily and lightly inferred. 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 principles of judicial procedure. If a statute imposes a liability and creates effective machinery for deciding question of law or fact arising in regard to that liability, it may, by necessary implication bar the maintainability of a civil suit in respect of the said liability. The statute may also confer exclusive jurisdiction on the authorities constituting the said machinery to decide finally a jurisdictional fact thereby excluding, by necessary implication, the jurisdiction of a civil court in that regard. If an authority acts on the basis of a provision of a statute, which is ultra vires, to that extent it would be acting outside the Act and, in that event, civil court''s jurisdiction will not be barred to question the validity of such an order, made outside the Act.

Bearing in mind the aforesaid principles, it will be necessary to have a close look at some of the provisions of the Act of 1959. Section 43, Section 44(1), Section 45(3), Section 60 and Section 63 are relevant and the same are quoted herein below:

"43. Appointment of Appellate Authority:--

(1) Save as otherwise provided, the State Government shall appoint an Appellate Authority to hear all appeals arising out of the provisions of this Act. The decision of Appellate Authority shall be final.

Duties of the Appellate Authority:-- (1) The duties and powers of the Appellate Authority shall be as follows:--

(a) To hear and decide appeals against the orders of the Authority,

(b) To decide and hear appeals in respect of such other matters and exercise such other powers as may be entrusted to and conferred upon it by the State Government in accordance with the provisions of this Act.

Procedure of working of the Appellate Authority:--

(1) *** *** ***

(2) *** *** ***

(3) The Appellate Authority shall have all the powers of a Civil Court for the purposes of taking evidence on oath and of enforcing the attendance of witnesses including the parties interested or any of them and compelling the production of documents and material objection if considered necessary.

Bar to suits and prosecutions in certain cases:--

(1) No suit, prosecution or other proceeding shall lie against an Authority or any officer or servant thereof or any person acting under their direction or any Government Officer or servant employed for the purposes of this Act for anything which is in good faith done in pursuance of this Act, or any rules made there under.

(2) No suit, prosecution or other proceedings shall lie against any officer or servant of the authority or any Government Officer or servant employed for the purposes of this Act for anything done under this Act,--

(a) Unless the previous sanction of the State Government has been obtained; and

(b) Until the expiration of two months after notice in writing has been given to the person to be sued, clearly stating the cause of action, and the nature of relief sought, etc.

Orders under the Act not to be questioned in any Court:-- No order made in exercise of any power conferred by or under this Act shall be called in question in any court except as provided in this Act."

Thus, the Act of 1959 visualises appointment of an Appellate Authority to hear all appeals arising out of the provisions of the Act and that the decision of the Appellate Authority shall be final. The Appellate Authority is empowered to hear and decide appeals against the orders of the Development Authority. The Appellate Authority has all the powers of a civil court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses. Section 46 also provides that every party to any proceeding before the Appellate Authority shall be entitled to appear either in person or by his recognised agent. Section 60(1) provides that no suit, prosecution shall lie against the Authority or any officer, or servant thereof or any person acting under their direction for anything which is in good faith done in pursuance of the Act or any Rules made there under. Thus, a suit will lie in civil court if the action of the authority or any person acting under its direction is attributed to be not done in good faith. Therefore, jurisdiction of civil court is not expressly barred in all situations. Section 60(2) admits of entertainment of a suit if previous sanction of the State Government is obtained in respect of any officer or servant of the Authority or any Government Officer or servant employed for the purpose of the Act for anything done under the Act, after expiration of two months of a notice in writing given to the person to be sued, clearly stating the cause of action and the nature of relief sought, etc. It is to be noticed that in Section 60(2), the expression "in good faith done" is not to be found. Section 63 expressly provides that no order made in exercise of any power conferred by, or under the Act of 1959 shall be called in question in any court except as provided in the Act. If the Legislative intendment was that under all circumstances, the civil court''s jurisdiction is barred, expression "in any court except as provided in this Act", would not have found place. Sections 43, 60 and 63 of the Act of 1959 cannot be read in isolation and a harmonious reading of the same would go to show that jurisdiction of the civil court is not totally barred under all circumstances.

Section 13(1) of the Act of 1959 provides that after publication of the Plan adopted by the State Government, no person shall use any land, sub-divide any land or set up any new structure or change existing structure of any building or use of any building or land within the area except with the permission of the Authority on a written application submitted for the purpose along with a plan drawn to scale giving details as indicated in sub-Section (2). Section 30A confers power upon the Authority to stop development in case of contravention of Master Plan or development scheme or in case the same was carried out without permission, approval, etc. Section 30B confers power of demolition of building upon the Authority.

An analysis of the provisions aforesaid would indicate that in the Act of 1959, there is exclusion of the jurisdiction of the civil court with regard to orders passed by the Authority. Therefore, in normal circumstances, jurisdiction of civil court will be ousted unless the case is brought within the exceptions which would permit trying of a suit by the civil court.

In Tarasankar Chakravarty vs. The Union of India and Others, reported in (1991) 1 GLR 43, this Court held that remedy by way of an appeal and revision under the relevant rules, namely, Central Reserve Police Force Rules, 1955, by itself was not sufficient in absence of any exclusionary clause to infer exclusion of the jurisdiction of the civil court.

In the plaint, plea was taken that construction was raised without any valid construction permission from the defendant No. 3 and without keeping margin/setback as specified therein. In the complaint dated 18.03.2004, submitted by the plaintiff No. 1 to the Development Authority, it was alleged that the defendants had started construction work without following the provisions of the Act of 1959 and Building Bye-laws and, at the same time, it was also indicated that as far as his knowledge goes, the defendant had no permission for the said construction. It is not that the plaintiffs straightaway, without approaching the Development Authority, had filed the civil suit. They had lodged the complaint, which was not taken cognizance of by the Authority. Having regard to the scheme of the Act, a complaint has to be entertained by the Authority. No order was passed on the said complaint either rejecting the complaint or directing an enquiry on the allegations made in the complaint. Under the Act of 1959, an appeal will lie only against an order passed by the Authority. Against the inaction of the Authority, no appeal lies and there is no provision to take care of such a situation. In the facts of the case, there was failure on the part of the Authority in not taking cognizance of the complaint filed on 18.03.2004.

In the petition filed by the defendant No. 3, there was no statement that the Tinsukia Development Authority had passed any order on the complaint of the plaintiffs dated 18.03.2004 or that any permission was granted to the defendant Nos. 1 and 2 to construct any building in the said land. Only on the basis of the provisions contained in the Act of 1959, it was urged that the jurisdiction of the civil court was barred.

The learned courts below proceeded on the basis that the plaintiffs did not file any appeal against the order granting permission in favour of the defendants on the basis of the stand taken by the defendants. But the courts below did not at all advert to the question as to whether the defendant No. 3 had taken cognizance of the complaint filed by the plaintiffs and had passed some order thereon. That permission was granted was stated only by the defendant Nos. 1 and 2. The defendant No. 3 chose to remain silent on that score. In any case, assuming that some permission was granted, it is an event, which came to the fore after the written statement was filed. No details of the permission so granted were also given. In paragraph 11 of the written statement, the defendant Nos. 1 and 2 had also referred to an implied permission of the Tinsukia Development Authority. It will be wholly incongruous to accept the plea of the defendant No. 3 that jurisdiction of the civil court is barred when it had not discharged its obligation as enjoined under the statute by taking cognizance of a complaint lodged by a neighbour, who alleges that his building had developed cracks because of illegal construction raised without any permission from the Authority.

In view of the discussions above, this Court is of the considered opinion that substantial question No. 2 has to be answered in favour of the appellants and the impugned orders are liable to be set aside and quashed on this score alone. Therefore, it is not considered necessary to answer substantial question of law No. 1.

The impugned orders are, accordingly, set aside and quashed. The parties, by themselves or through their respective counsel, will appear before the court of the learned Civil Judge (Junior Division) No. 1, Tinsukia, on 01.06.2015 to take further orders. No cost.

Registry will send back the LCR forthwith.