Holding

The Guwahati Municipal Corporation Act does not expressly or impliedly bar a civil suit for declaration of an existing right to use a drain; therefore, the civil court has jurisdiction and the High Court’s dismissal was erroneous.

Summary

Ratul Mahanta filed a title suit seeking a declaration that a common public drain forming the western boundary of his and adjoining properties could be used by him and that the respondent could not obstruct it, also seeking a permanent injunction. The respondent contended that the Guwahati Municipal Corporation Act, 1971 barred the civil court’s jurisdiction, relying on Section 341 and the provisions on drains in Sections 246‑248, and the High Court rejected the plaint under Order VII Rule 11(d) of the CPC. The Munsif had held the suit maintainable, but the High Court set it aside. The Supreme Court examined whether the GMC Act provisions constitute an express or implied bar to a civil suit for declaration of an existing right. It held that the Act does not bar the suit, as the relief sought is to protect a pre‑existing common‑law right, and the provisions merely empower the Commissioner to create or regulate rights, not to oust court jurisdiction. Consequently, the High Court’s rejection was erroneous, the appeal was allowed, and the suit was restored for trial.

Issues considered

Whether Sections 341, 246, 247 and 248 of the Guwahati Municipal Corporation Act, 1971 bar the civil court’s jurisdiction to entertain a suit for declaration of an existing right to use a common drain.
Whether the plaint should be rejected under Order VII Rule 11(d) of the CPC on the ground of being barred by any law.

Legislation cited

Code of Civil Procedure, 1908s. 9, s. 96(1), s. Order 43 Rule 1, s. Order VII Rule 11(d)
Guahati Municipal Corporation Act, 1971s. 246, s. 247, s. 248, s. 341

Subjects

civil jurisdictionmunicipal corporation actpublic draindeclaratory reliefinjunctionbar of jurisdictionOrder VII Rule 11(d)CPCproperty law

Judgment

92 [2021]
SUPREME COURT 8 S.C.R. 92
REPORTS [2021] 8 S.C.R.

A RATUL MAHANTA
V.
NIRMALENDU SAHA
(Civil Appeal No. 4627 of 2021)
B AUGUST 10, 2021
[HEMANT GUPTA AND A. S. BOPANNA, JJ.]
Municipal Corporation:
Guwahati Municipal Corporation Act, 1971: ss. 341, 246,
C 247 and 248 – Bar of jurisdiction of civil court – Issue relating to a
common drain between two private individuals residing within the
limits of the Municipal Corporation – Held: Is not an issue regarding
which a specific bar is contemplated against approaching the civil
court for relief – ss. 246, 247 and 248 though referred to the
ownership and the manner in which the drains connected to
D
municipal drain are to be used and the Commissioner is given the
authority to compel the owner of a drain to permit another property
owner to use the same, the said provisions cannot be considered
either as an express or an implied bar on the civil court to entertain
a suit relating to the declaration of an existing right to use of the
E drain – On facts, appellant is asserting about a right which existed
and is seeking to safeguard and continue to exercise such right –
Case pleaded is not to the effect that any of them own the drain but
that the respondent is seeking to alter that position and thus, be
restrained – Such relief is to be considered in the suit based on the
evidence that would be tendered – Thus, such relief is not barred
F
under any law - High Court wrongly rejected the plaint, when in
the instant facts there is neither express nor implied bar under any
law, whereas Munsif was justified in passing the order holding the
suit to be maintainable – Thus, the order passed by the High Court
is set aside.
G Allowing the appeal, the Court
HELD: 1.1 A bare perusal of Section 9 CPC indicates that
the courts shall have jurisdiction to try all suits of civil nature
excepting suits of which their cognizance is either expressly or
impliedly barred. Though in the instant case, the issue had not
H
92
RATUL MAHANTA V. NIRMALENDU SAHA 93

arisen before the Munsif while considering an application under A
Order VII Rule 11(d) of CPC, taking note of the fact that the
High Court has invoked the said provision to consider as to
whether the suit is barred and has thereafter held that the civil
court has no jurisdiction and ordered rejection of plaint. The
perusal of Order VII Rule 11(d) CPC would indicate that there
B
would be a bar for the civil court to entertain the suit, if such suit
is barred either expressly or impliedly by any law. Further, Order
VII Rule 11(d) contemplates that from the statement contained
in the plaint the suit should appear to be barred by any law, in
which case the plaint shall be rejected. [Para 7][99-F-H; 100-A-
D] C
1.2 On perusal of the contents of Section 341 of the Guwahati
Municipal Corporation Act, 1971, it indicates that no civil court
shall have jurisdiction to settle, decide or deal with any question
which is under that part wherein Section 341 is placed and is
required to be settled, decided or dealt with by the Commissioner. D
The Part VI under which a bar is imposed relates to Land,
Buildings and Streets. Therefore, on the face of it, it indicates
that the issue relating to a common drain between two private
individuals residing within the limits of the Municipal Corporation
is not an issue regarding which a specific bar is contemplated
against approaching the civil court for relief. [Para 11][101-E-G] E

1.3 The GMC Act no doubt makes provision to empower
the Commissioner under certain circumstances to regulate the
manner in which the use of the drain connected with the municipal
drain is to be used. The provisions to that effect are contained in
Sections 246, 247 and 248, in Part V of GMC Act. Perusal of the F
said provisions would indicate that the Commissioner is
empowered by granting the authority under GMC Act to compel
the owner or joint owner of a drain to permit a person who is not
the owner of such drain to use that drain. In effect, the
Commissioner is given the authority to create a right in favour of G
the property owner to drain out the water through the drain owned
by any other property owner. In the instant case the appellant is
not seeking for creation of such right. The case as pleaded and
noticed indicates that the appellant is asserting about a right which

H
94 SUPREME COURT REPORTS [2021] 8 S.C.R.

A existed and is seeking to safeguard and continue to exercise such
right. The case pleaded is not to the effect that any of them own
the drain but it is contended that it existed as the western
boundary of all the properties in the vicinity and the respondent
is seeking to alter that position and is therefore to be restrained.
Whether the appellant will succeed or not will depend on the
B
evidence that will be produced to support the pleading. [Para 12,
13][101-G-H; 102-G-H; 103-A-B]
1.4 It is seen that Sections 246, 247 and 248 of the GMC
Act though referred to the ownership and the manner in which
the drains connected to municipal drain are to be used and the
C Commissioner is given the authority to compel the owner of a
drain to permit another property owner to use the same, the said
provisions cannot be considered either as an express or an
implied bar on the civil court to entertain a suit relating to the
declaration of an existing right to use of the drain. [Para 16][106-
D E-F]
1.5 In fact, the existence of a drain as claimed by the
appellant in the plaint as on the date of purchase of the property
and the same being used throughout is an issue which is to be
proved based on the evidence that would be tendered in the suit.
E The provisions contained in Section 246, 247 and 248 of the GMC
Act would be the provisions which would come to the aid of the
appellant if ultimately the respondent establishes his ownership
right over the drain, despite the appellant proving the existence
of the drain. No doubt, the appellant could have also filed an
application to the Commissioner seeking the relief to which the
F Commissioner could exercise his authority but that would have
arisen only if the appellant had conceded to the position that the
respondent is the owner of the drain. Even in such circumstance,
if relief was not made available to the appellant by the
Commissioner and if he was dissatisfied with the manner in which
G such authority was exercised by the Commissioner it would still
have been open to approach the court for relief. The Advocate
for respondent has in this regard contended that an appeal is
provided under Section 438 of GMC Act. However, it is not
considered as an alternate and efficacious remedy in a case of
the present nature. The relief sought in the instant suit is in the
H
RATUL MAHANTA V. NIRMALENDU SAHA 95

nature of declaratory relief in an inter se dispute between the A
parties. The consideration by the statutory authority as provided
under GMC Act is of summary nature. Further, the appeal
provided is in respect of any notice issued or action taken or
proposed to be taken by the Commissioner, which in effect
provides the appeal remedy only to the owner of the drain against
B
whom action is proposed. [Para 17][106-F-H; 107-A-D]
1.6 In the instant case, the averments contained in the plaint
and the prayer made would disclose that the appellant is not
seeking for creation of a right over the drain owned by the
defendant nor is any issue raised with regard to the drain of GMC.
But the case as put forth is that the property of the appellant, SD C
and the defendant are contiguous to one another which are shown
as suit schedule ‘A’, ‘B’ and ‘C’ properties and on the western
side of the property starting from the appellant’s property, there
is a drain, which is shown as the boundary and it facilitates the
water to flow into the GMC drain. Such relief is to be considered D
in the suit based on the evidence that would be tendered.
Therefore, such relief is not barred under any law. [Para 18][107-
D-F]
1.7 It is clear that the High Court without taking note of
these aspects of the matter has wrongly invoked the provisions E
contained in Order VII Rule 11 (d) CPC to reject the plaint, when
in the instant facts there is neither express nor implied bar under
any law. On the other hand, the Munsif was justified in passing
the order holding the suit to be maintainable. The order passed
by the High Court is set aside. [Para 19, 20][107-F-H]
F
Shiv Kumar Chadha v. Municipal Corporation of Delhi
and Others (1993) 3 SCC 161 : [1993] 3 SCR 522;
Ramesh Gobindram v. Sugra Humayun Mirza Wakf
(2010) 8 SCC 726 : [2010] 10 SCR 945 – referred to.
Case Law Reference G
[1993] 3 SCR 522 referred to Para 15
[2010] 10 SCR 945 referred to Para 16

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96 SUPREME COURT REPORTS [2021] 8 S.C.R.

A CIVIL APPELLATE JURISDICTION: Civil Appeal No.4627 of
2021.
From the Judgment and Order dated 06.06.2014 of the High Court
of Gauhati at Guwahati in C.R.P. No.128 of 2014.
Parthiv K. Goswami, Ms. Diksha Rai, Ms. Ragini Pandey, Advs.
B for the Appellant.
Arunabh Chowdhury, Karma Dorjee, Ms. Barnali Chowdhury,
Mrs. Pragya Baghel, Ms. Samtan Doma, Advs. for the Respondent.
The Judgment of the Court was delivered by
C A. S. BOPANNA, J.
1. The appellant instituted title suit No.334 of 2011 in the Court of
learned Munsif No.2, Kamrup Guwahati against the respondent herein
seeking for a declaration that on the western boundary of the suit Schedule
properties A, B and C there is a common public drain which can be used
D by the plaintiff. A declaration is also sought to the affect that the public
drain on the boundary of the suit Schedule ‘C’ property of the defendant,
connected to the plaintiff’s property cannot be obstructed by the
defendant at any point of time. As an ancillary relief, the appellant has
also sought for permanent injunction against the defendant so as to allow
free flow of water in the said drain upto the main GMC drain.
E
2. The respondent having appeared, disputed the claim put forth
by the plaintiff on merits. In addition, the respondent raised the issue of
jurisdiction for the civil court to entertain the suit in view of the provisions
contained in the Guwahati Municipal Corporation Act, 1971 (‘GMC’
Act for short). In the said suit, since the appellant had also prayed for
F
temporary injunction, on consideration it was granted by the trial court,
of course without reference to the objection regarding jurisdiction. The
respondent had therefore assailed the order of injunction by filing an
appeal before the Lower Appellate Court under Section 96 (1) read with
Order 43 Rule 1 of the Civil Procedure Code (‘CPC’ for short). In the
G said appeal, the respondent herein who was the appellant had contended
that the order dated 30.09.2011 passed by the learned Munsif was not
justified since the issue relating to the maintainability of the suit vis-a-vis
the provisions of the GMC Act barring the jurisdiction of the civil court
goes to the root of the case. It was contended that the same was required
to be considered and decided, before considering any other relief prayed
H
RATUL MAHANTA V. NIRMALENDU SAHA 97
[A. S. BOPANNA, J.]

in the suit. The lower appellate court in the said miscellaneous application A
No.33/2011 through its order dated 21.09.2012 arrived at the conclusion
that the jurisdiction aspect is to be decided at the outset by the learned
Munsif. Therefore, without going into the merits, the lower appellate
court remanded the matter by setting aside the order impugned in the
said appeal for deciding the question of jurisdiction before considering
B
grant of any other relief.
3. The appellant herein claiming to be aggrieved by the said order
preferred revision petition in CRP No.260/2013 before the Gauhati High
Court. The learned Judge while taking note of the rival contentions,
through its order dated 29.08.2013 had agreed with the decision of the
lower appellate court that the jurisdiction of the civil court to entertain C
the suit was to be decided at the outset. The revision petition was
accordingly disposed of. The parties were allowed to urge their
contentions in the court of the learned Munsif.
4. Pursuant thereto the learned Munsif has considered the issue
relating to jurisdiction and has by its order dated 16.11.2013 arrived at D
the conclusion that the bar contemplated under the GMC Act does not
apply to the fact situation, keeping in view the nature of the relief prayed.
Accordingly, the learned Munsif has held that the civil court has jurisdiction
to try the suit between the parties. The respondent herein claiming to be
aggrieved by the said order dated 16.11.2013 preferred revision petition E
in CRP No.128/2018 before the Gauhati High Court. The learned Judge,
through the order dated 06.06.2014 has held that the jurisdiction of this
civil court would stand ousted by implication and the party can claim
relief under the procedure prescribed under the GMC Act only. In that
background, the order dated 16.11.2013 impugned in the revision petition
was set aside, the suit was held not maintainable and liberty was reserved F
to the appellant to ventilate his grievance under the relevant provisions
of the GMC Act, if so advised. Accordingly, the plaint in title suit No.334/
2011 was ordered to be rejected. The appellant therefore claiming to be
aggrieved by the order dated 08.04.2014 passed by the Gauhati High
Court is before this Court in appeal. G
5. Mr. Parthiv K. Goswami, learned counsel for the petitioner
while assailing the order impugned has contended that the lower appellate
court in the first instance and the High Court in the present round have
erred in arriving at the conclusion that the suit is not maintainable. It is
contended that the reasoning adopted by the High Court to consider the H
98 SUPREME COURT REPORTS [2021] 8 S.C.R.

A present case to be covered under Order VII Rule 11(d) of the Civil
Procedure Code and to bar the civil suit is not justified. It is contended
that there is no bar contemplated to approach the civil court for the
nature of relief sought in the suit, either under the GMC Act or under
any other law for the time being in force. In that regard, the learned
counsel has referred to section 341 of the GMC Act which contemplates
B
for a bar of jurisdiction and would point out that the same is restricted to
the relief under the part to which the bar is made applicable. In that
regard, reference is made to Part VI of the Act to contend that if at all,
a civil suit is barred, it is only in respect of the nature of activities which
are stated in section 322 and the other provisions which appear in Part
C VI of the Act. It is argued that the relief sought in the instant suit is in
respect of a drain which had existed on the western side of the suit
Schedule Properties and to protect the right of free flow of water which
had been enjoyed from the time the plaintiff had purchased the property.
Such right sought to be protected is within the domain of the civil court.
It is contended that even though the provisions contained in section 246,
D
247 and 248 of the GMC Act, refer to the power of the Commissioner,
any right available to the plaintiff under the said provisions can only be in
aid of the relief to be sought by the plaintiff, but in any event cannot be
construed as a bar to maintain the suit. It is therefore contended that the
order passed by the High Court is not sustainable and the suit should be
E allowed to be proceeded on its merit.
6. Mr. Arunabh Chowdhury, learned counsel for the respondent
seeks to sustain the order passed by the High Court. The contention is
that the GMC Act contemplates a bar against the civil court entertaining
the matters relating to the facilities which are to be considered by the
F Commissioner, under the Act. Even assuming that section 341 of GMC
Act contemplates an express bar only in respect of Part VI, the provisions
contained in section 246, 247 and 248 of the GMC Act provide the forum
to a property owner seeking for right relating to drain to approach the
Commissioner, who shall decide the said issue. In that context, it is
contended that though section 341 is not made applicable to Part V, by
G necessary implication, the suit would stand barred. It is his contention
that in this case the plaintiff is seeking for a right in respect of the public
drain and in such circumstance when the remedy is provided under the
Act, the consideration of the same under the Common law does not
arise. He contends that the High Court was justified in invoking the
H provision contained in Order VII Rule 11(d) of the Civil Procedure Code
RATUL MAHANTA V. NIRMALENDU SAHA 99
[A. S. BOPANNA, J.]

to hold that the civil court did not have jurisdiction to entertain the instant A
suit. In that view, the rejection of the plaint ordered is justified. The
appellant is not left without a remedy and the alternate forum is allowed
to be invoked. In such circumstance, the order impugned does not call
for interference.
7. In the background of the above contentions, the nature of the B
suit and the relief prayed for therein requires to be noticed only to the
limited extent to arrive at a conclusion as to whether the civil court had
jurisdiction to proceed with the suit or as to whether a bar with regard to
jurisdiction as provided in the GMC Act will apply. Before adverting to
that aspect, it is necessary to take note of the contents in para 9 of CPC
which provides for exercise of jurisdiction by civil court. It reads as C
hereunder: -
“9. The Courts shall (subject to the provisions herein contained)
have jurisdiction to try all suits of a civil nature excepting suits of
which their cognizance is either expressly or impliedly barred.
D
Explanation I-
A suit in which the right to property or to an office is contested is
a suit of a civil nature, notwithstanding that such right may depend
entirely on the decision of questions as to religious rites or
ceremonies. E
Explanation II.-
For the purposes of this section, it is immaterial whether or not
any fees are attached to the office referred to in Explanation I or
whether or not such office is attached to a particular place.”
F
A bare perusal of the same indicates that the courts shall have
jurisdiction to try all suits of civil nature excepting suits of which their
cognizance is either expressly or impliedly barred. In that background,
though in the instant case, the issue had not arisen before the learned
Munsif while considering an application under Order VII Rule 11(d) of
CPC, taking note of the fact that the High Court has invoked the said G
provision to consider as to whether the suit is barred and has thereafter
held that the civil court has no jurisdiction and ordered rejection of plaint,
it would be appropriate to take note of the provision contained in Order
VII Rule 11(d) which reads as hereunder: -
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100 SUPREME COURT REPORTS [2021] 8 S.C.R.

A “Order VII Rule 11
Rejection of plaint - The plaint shall be rejected in the following
cases: -
(a) xx xx xx xx
B (b) xx xx xx xx
(c) xx xx xx xx
(d) where the suit appears from the statement in the plaint to be
barred by any law.
(e) xx xx xx xx
C
(f) xx xx xx xx”
The perusal of the above noted provision would indicate that there
would be a bar for the civil court to entertain the suit, if such suit is
barred either expressly or impliedly by any law. Further, Order VII Rule
D 11(d) contemplates that from the statement contained in the plaint the
suit should appear to be barred by any law, in which case the plaint shall
be rejected.
8. In that backdrop, a perusal of the plaint in the instant suit would
disclose that the case pleaded by the appellant is that he along with one
E Mr. Dhan Chandra Mahanta purchased ‘schedule ‘A’ property measuring
15 lessas on 08.12.1997 from Mr. Sailendra Medhi and others. Mr. Dhan
Chandra Mahanta relinquished his right in favour of the appellant. The
appellant has thus become the sole owner of the suit schedule ‘A’ property.
It is contended that the sale deed indicates that the last part of the western
boundary contained a water exhaust drain which was also passing along
F the western boundary of the property belonging to Ms. Suwola Devi and
would join the public drain maintained by Guwahati Municipal Corporation
(‘GMC’ for short). Another adjacent land owner purchased Schedule
‘B’ property under sale deed dated 08.12.1997 wherein also the western
boundary traverses through the water drain which connected the public
G drain of GMC.
9. It is further averred in the plaint that the respondent who owns
the property on the southern side of the appellant’s property, had
purchased the extent of 13 lessa under sale deed dated 24.04.1984 wherein
the western boundary is shown as public drain. Though the said common
H drain had existed at the time of purchase and was being used, the
RATUL MAHANTA V. NIRMALENDU SAHA 101
[A. S. BOPANNA, J.]

defendant is alleged to have blocked the same by dumping RCC material A
and therefore the water had overflowed into the appellant’s property. It
is in that light, the appellant had prayed for the relief to declare that the
western boundary of Schedule A, B and C properties contained a common
public drain which can be used and the further prayer made in the plaint
indicates that, injunction sought is for the peaceful enjoyment of the
B
drain facility to allow the free flow of water upto the main GMC drain.
10. The question therefore is as to whether the nature of the
relief prayed in the plaint falls exclusively within the domain of the GMC
Act and as to whether the case put forth and the relief prayed is barred
by any provision contained in the GMC Act so as to disentitle the civil
court to entertain the suit as contemplated under Section 9 of the CPC, C
if so, whether a plaint of the present nature was liable to be rejected as
envisaged under Order VII Rule11(d) of CPC.
11. At the outset it is necessary to take note of Section 341 of the
GMC Act which provides for the bar of jurisdiction of civil court which
reads as hereunder: - D

“341- Bar of jurisdiction- Save as otherwise expressly provided
no civil court shall have jurisdiction to settle, decide or deal with
any question, which is by or under this part required to be settled,
decided or dealt with by the Commissioner.”
E
On perusal of the contents, it indicates that no civil court shall
have jurisdiction to settle, decide or deal with any question which is
under that part wherein Section 341 is placed and is required to be settled,
decided or dealt with by the Commissioner. The Part VI under which a
bar is imposed relates to Land, Buildings and Streets. Therefore, on the
face of it, it indicates that the issue relating to a common drain between F
two private individuals residing within the limits of the Municipal
Corporation is not an issue regarding which a specific bar is contemplated
against approaching the civil court for relief.
12. The GMC Act no doubt makes provision to empower the
Commissioner under certain circumstances to regulate the manner in G
which the use of the drain connected with the municipal drain is to be
used. The provisions to that effect are contained in Sections 246, 247
and 248, in Part V of GMC Act. The said provisions read as hereunder:-
“246. Obligation of owner or joint owner of drain to allow
the uses of it to other: - Every owner of a drain connected with H
102 SUPREME COURT REPORTS [2021] 8 S.C.R.

A a municipal drain or other place set apart by the Commissioner
for drainage shall be bound to allow the use of it to other persons,
or to admit other persons as joint owners, thereof, on such terms
as may be prescribed under section 248.
247. How right of use of a drain may be obtained by a person
B other than the owner:- Any person desiring to drain his premises
into a municipal drain through a drain of which he is not an owner
may make a private arrangement with the owner for permission
to use his drain, or may apply to the Commissioner for authority to
use such drain.
C 248. Commissioner may authority person other than the
owner of a drain to use the same or declare him to be a
joint user thereof:- (1) Where the Commissioner is of opinion
whether on receipt of an application or otherwise, that the most
convenient means by which the owner or occupier of any premises
can drain such premises is through a drain belonging to some
D person other than the said owner or occupier the Commissioner
shall, give the owner of the drain a reasonable opportunity of stating
his objection thereto, and if no objection is raised or if the objection
appears to him invalid or insufficient, may, by an order in writing
authorise the said owner or occupier to use the drain or declare
E the said user to be a joint owner thereof on such conditions as
may appear to him equitable with regard to the payment of rent or
compensation and to connecting the drain of the said premises
with the communicating drain and to the responsibilities of the
parties for maintaining, repairing, flushing and clearing the joint
drain. (2) In respect of the execution of any work under sub-
F section (1) the person in whose favour the Commissioner’s order
is made shall be subject to the same restriction and liabilities as
are specified in sub-section (4) of section 245.”
13. Perusal of the above noted provisions would indicate that the
Commissioner is empowered by granting the authority under GMC Act
G to compel the owner or joint owner of a drain to permit a person who is
not the owner of such drain to use that drain. In effect, the Commissioner
is given the authority to create a right in favour of the property owner to
drain out the water through the drain owned by any other property owner.
In the instant case the appellant is not seeking for creation of such right.
H The case as pleaded and noticed above indicates that the appellant is
RATUL MAHANTA V. NIRMALENDU SAHA 103
[A. S. BOPANNA, J.]

asserting about a right which existed and is seeking to safeguard and A
continue to exercise such right. The case pleaded is not to the effect
that any of them own the drain but it is contended that it existed as the
western boundary of all the properties in the vicinity and the respondent
is seeking to alter that position and is therefore to be restrained. Whether
the appellant will succeed or not will depend on the evidence that will be
B
produced to support the pleading.
14. The point for consideration is as to whether the existence of
such provision in GMC Act would impliedly bar a civil suit. For answering
the said question, it would be appropriate to refer to the decision in the
case of Shiv Kumar Chadha v. Municipal Corporation of Delhi and
Others (1993) 3 SCC 161 which in fact was also taken note by the C
learned Munsif. The relevant consideration made therein is as hereunder:-
“11. In the olden days the source of most of the rights and liabilities
could be traced to the common law. Then statutory enactments
were few. Even such enactments only created rights or liabilities
but seldom provided forums for remedies. The result was that D
any person having a grievance that he had been wronged or his
right was being affected, could approach the ordinary civil court
on the principle of law that where there is a right there is a remedy
— ubi jus ibi remedium. As no internal remedy had been provided
in the different statutes creating rights or liabilities, the ordinary E
civil courts had to examine the grievances in the light of different
statutes. With the concept of the welfare State, it was realised
that enactments creating liabilities in respect of payment of taxes,
obligations after vesting of estates and conferring rights on a class
of citizens, should be complete codes by themselves. With that
object in view, forums were created under the Acts themselves F
where grievances could be entertained on behalf of the persons
aggrieved. Provisions were also made for appeals and revision to
higher authorities.
12. Then a question arose as to where a particular Act had created
a right or liability and had also provided a forum for enforcement G
of such right or for protection from enforcement of a liability without
any authority in law, whether a citizen could approach a court. It
may be pointed out that many statutes have created certain rights
or liabilities and have also provided the remedial measures in
respect thereof. But such statutes have not touched the common H
104 SUPREME COURT REPORTS [2021] 8 S.C.R.

A law rights of the citizen. But there are some statutes, which in
public interest affect even the common law rights or liabilities of
the citizen, which were in the nature of existing rights. The
distinction between the two types of rights or liabilities is subtle in
nature but at the same time very vital.
B 23. With the increase in the number of taxing statutes, welfare
legislations and enactments to protect a class of citizens, a trend
can be noticed that most of such legislations confer decision making
powers on various authorities and they seek to limit or exclude
court’s power to review those decisions. The result is that the
power of the court under Section 9 of the Code is being denuded
C and curtailed by such special enactments, in respect of liabilities
created or rights conferred. This Court in the judgments referred
to above has upheld the ouster of the jurisdiction of the court on
examination of two questions — (1) whether the right or liability
in respect whereof grievance has been made, had been created
D under an enactment and it did not relate to a pre-existing common
law right? (2) Whether the machinery provided for redressal of
the grievance in respect of infringement of such right or imposition
of a liability under such enactment, was adequate and complete?
The ouster of the jurisdiction of the court was upheld on the finding
that the rights or liabilities in question had been created by the Act
E in question and remedy provided therein was adequate.
24. But the situation will be different where a statute purports to
curb and curtail a pre-existing common law right and purports to
oust the jurisdiction of the court so far remedy against the orders
passed under such statute are concerned. In such cases, the courts
F have to be more vigilant, while examining the question as to
whether an adequate redressal machinery has been provided,
before which the person aggrieved may agitate his grievance. In
the case of Katikara Chintamani Dora v.Guntreddi
Annamanaidu [(1974) 1 SCC 567 : AIR 1974 SC 1069] this Court
G after referring to the case of Addanki Tiruvenkata Thata Desika
Charyulu v. State of A.P. [AIR 1964 SC 807] observed: (SCC p.
579, para 35)
“It was pertinently added that this exclusion of the jurisdiction of
the civil court would be subject to two limitations. First, ‘the Civil
H Courts have jurisdiction to examine into cases where the provisions
RATUL MAHANTA V. NIRMALENDU SAHA 105
[A. S. BOPANNA, J.]

of the Act have not been complied with or the statutory tribunal A
has not acted in conformity with the fundamental principles of
judicial procedure. The second is as regards the exact extent to
which the powers of statutory tribunals are exclusive’. The question
as to whether any particular case falls under the first or the second
of the above categories would depend on the purpose of the statute
B
and its general scheme, taken in conjunction with the scope of the
enquiry entrusted to the tribunal set up and other relevant factors.”
It was held that a suit for declaration that the decision of the
Settlement Officer/Tribunal holding certain properties to be an
‘estate’ under Section 3(2)(d) of the 1908 Act was void, was
maintainable on the ground that the suit property was not an ‘inam C
village’. In Pyx Granite Co. Ltd. v. Ministry of Housing and
Local Government [(1960) AC 260] the appellants sought a
declaration of their common law right to quarry their land without
the need to obtain planning permission under the Town and Country
Planning Act, 1947. In that connection it was said: D
“The appellant-company are given no new right of quarrying by
the Act of 1947. Their right is a common-law right and the only
question is how far it has been taken away. They do not uno flatu
claim under the Act and seek a remedy elsewhere. On the contrary,
they deny that they come within its purview and seek a declaration E
to that effect.”
25. In spite of the bar placed on the power of the court, orders
passed under such statutes can be examined on “jurisdictional
question”. To illustrate: a special machinery has been provided
for removal of the encroachments from ‘public land’ under F
different enactments in different States and the jurisdiction of the
court has been barred in respect of the orders passed by such
special tribunals or authorities constituted under such Acts. Still a
suit will be maintainable before a court on a plea that the land in
question shall not be deemed to be a public land within the meaning
of the definition of ‘public land’ given in the Act in question, and G
as such provisions thereof shall not be applicable.”
15. Further, this Court in the case of Ramesh Gobindram vs.
Sugra Humayun Mirza Wakf (2010) 8 SCC 726 while examining the
bar of civil court as contemplated under Section 85 of the Wakf Act,
H
106 SUPREME COURT REPORTS [2021] 8 S.C.R.

A 1995 had drawn a distinction that such power would apply only in respect
of the issues arising under certain provisions of Act i.e., Section 6, 7 and
83 of the Wakf Act, 1995 and had held that a suit before a civil court
would be maintainable for other reliefs notwithstanding the creation of
the Wakf tribunal under the Act, unless the dispute falls within the four
corners of the powers vested in the Tribunal. Therefore, despite there
B
being the bar of jurisdiction of the civil courts under the Act, as noted,
except for the disputes arising to the limited extent all other issues were
held to be maintainable before the civil court. The relevant consideration
is as hereunder: -
“8. Wakfs and matters relating thereto were for a long time
C governed by the Wakf Act, 1954. The need for a fresh legislation
on the subject was, however, felt because of the deficiencies
noticed in the working of the said earlier enactment especially
those governing the Wakf Boards, their power of superintendence
and control over the management of individual wakfs. Repeated
D amendments to the 1954 Act, having failed to provide effective
answers to the questions that kept arising for consideration,
Parliament had to bring a comprehensive legislation in the form of
the Wakf Act, 1995 for better administration of wakfs and matters
connected therewith or incidental thereto.”
E 16. In the above circumstance, while adverting to the present
case it is seen that sections 246, 247 and 248 though referred to the
ownership and the manner in which the drains connected to municipal
drain are to be used and the Commissioner is given the authority to
compel the owner of a drain to permit another property owner to use the
same, the said provisions cannot be considered either as an express or
F an implied bar on the civil court to entertain a suit relating to the declaration
of an existing right to use of the drain as asserted in the plaint.
17. In fact, the existence of a drain as claimed by the appellant in
the plaint as on the date of purchase of the property and the same being
used throughout is an issue which is to be proved based on the evidence
G that would be tendered in the suit. The provisions contained in Section
246, 247 and 248 of the GMC Act would be the provisions which would
come to the aid of the appellant if ultimately the respondent establishes
his ownership right over the drain, despite the appellant proving the
existence of the drain. No doubt, the appellant could have also filed an
H application to the Commissioner seeking the relief to which the
RATUL MAHANTA V. NIRMALENDU SAHA 107
[A. S. BOPANNA, J.]

Commissioner could exercise his authority but that would have arisen A
only if the appellant had conceded to the position that the respondent is
the owner of the drain. Even in such circumstance, if relief was not
made available to the appellant by the Commissioner and if he was
dissatisfied with the manner in which such authority was exercised by
the Commissioner it would still have been open to approach the court for
B
relief. The learned Advocate for respondent has in this regard contended
that an appeal is provided under Section 438 of GMC Act. However, we
do not consider it as an alternate and efficacious remedy in a case of the
present nature. The relief sought in the instant suit is in the nature of
declaratory relief in an inter se dispute between the parties. The
consideration by the statutory authority as provided under GMC Act is C
of summary nature. Further, the appeal provided is in respect of any
notice issued or action taken or proposed to be taken by the Commissioner,
which in effect provides the appeal remedy only to the owner of the
drain against whom action is proposed.
18. Further as already noted, in the instant case the averments D
contained in the plaint and the prayer made would disclose that the
appellant is not seeking for creation of a right over the drain owned by
the defendant nor is any issue raised with regard to the drain of GMC.
But the case as put forth is that the property of the appellant, Ms. Suwola
Devi and the defendant are contiguous to one another which are shown
as suit schedule ‘A’, ‘B’ and ‘C’ properties and on the western side of E
the property starting from the appellant’s property, there is a drain, which
is shown as the boundary and it facilitates the water to flow into the
GMC drain. Such relief is to be considered in the suit based on the
evidence that would be tendered. Therefore, such relief is not barred
under any law. F
19. In view of the above, it is clear that the High Court without
taking note of these aspects of the matter has wrongly invoked the
provisions contained in Order VII Rule 11 (d) of the Civil Procedure
Code to reject the plaint, when in the instant facts there is neither express
nor implied bar under any law. On the other hand, the learned Munsif G
was justified in passing the order dated 16.11.2013 in T.S. No. 334/2011
holding the suit to be maintainable.
20. In the result, the order dated 06.06.2014 passed by the Gauhati
High Court at Guwahati in CRP No.128/2014 is set aside. The plaint in
title suit No.334/2011 is restored to the file of the learned Munsif No.2 H
108 SUPREME COURT REPORTS [2021] 8 S.C.R.

A Kamrup Guwahati. The parties herein shall appear before the learned
Munsif on 01.09.2021 as the first date for appearance without further
notice, whereafter the suit shall be considered on its merits.
21. The appeal is accordingly allowed with no order as to costs.
22. Pending applications, if any, shall stand disposed of.
B

Nidhi Jain Appeal allowed.

C

D

E

F

G

H