SAU RAJANI versus SAU SMITA & ANR on 8 August 2022

1. Leave granted.

2. By a judgment dated 11 December 2019, a Single Judge of theNagpur Bench of the High Court of Judicature at Bombay, held in theGcourse of deciding a second appeal under Section 100 of the Code ofCivil Procedure 1908[1] that the suit instituted by the appellant is barredby Sections 71 and 177 of the Maharashtra Housing and Area Development Act 1976[2].The High Court reversed concurrent findingsof the trial court in the suit and of the first appellate court.

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3. In order to appreciate the nature of the controversy, it would, atthe outset, be necessary to advert to the plaint in the suit - Regular CivilSuit No 775 of 1993- instituted by the appellant before the Court of theCivil Judge (Junior Division), Amravati. The appellant has pleaded thatthe second respondent (Amravati Housing and Area Development Board)allotted Block No 4/6 situated on the first floor at Tope Nagar, Amravatito her on 16 July 1986. The appellant claims to be in possession of theresidential tenement. The first respondent is stated to be in occupationof a ground floor tenement in the same building bearing Block No 4/2.According to the appellant, the first respondent made an illegal andunauthorized construction in an open vacant site situated in the northernand eastern side of the block. This has been depicted in a plan, which isannexed to the plaint. The first respondent is alleged to have constructedfour rooms, as a consequence of which the appellant claims that hereasements have been affected. The appellant has alleged the followingdisturbances to her easements:

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i.The privacy, light, and air of the appellant’s block have beenaffected;

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i.The privacy, light, and air of the appellant’s block have beenaffected;

ii.The first respondent is alleged to have constructed a staircase to gain access to the terrace, as a consequence of whichEthe appellant’s privacy is stated to be disturbed;

iii. The first respondent has removed a water pipeline, as a resultof which the water supply to the property of the appellant isaffected; and F

iv. The first respondent has locked the service line for the cleaningof the septic tank.

4. It is contended by the appellant that she had raised complaintsagainst the illegal construction by the first respondent to the secondrespondent and that she also issued notices to the first and secondGrespondents for removing the construction. The first and the secondrespondents did not respond to the complaints and notices. The appellantinstituted a suit seeking the following reliefs:

2 “the Act”

A“PRAYER

It is, therefore, most humbly prayed that this Hon’ble Courtmay kindly be pleased to pass a decree in mandatory formsgiving directions to both the defendants to remove the illegaland unauthorized construction made by the defendant no. 1on the open site, which is situated towards the east andnorth to the plaintiffs and defendants No. 1’s tenant as shownby letters A B C D in the map and further be pleased togrant permanent prohibitory injunction restraining thedefendants from making any constructions over this opensite and be directed to keep open the said open site as itwas.

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2. The defendants be directed to restore the water connectionsas it was prior to its removal for the plaintiffs tenement andfurther be directed to grant to temporary injunction toremove by obstruction which have been created in theservice line and the defendant be restrained by grant ofpermanent injunction in the service line.

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3. The defendant no. 1 further be restrained by grant ofpermanent injunction from making encroachment or makingany construction in this open site and causing any nuisanceEto the plaintiff in respect of to occupy her tenement on firstfloor.

4. Costs of this suit be added on the defendants.”

5. The first respondent filed a written statement contending thatFthe civil court does not have the jurisdiction to entertain the suit underthe provisions Section 71 read with Section 177 of the Act. The CivilJudge (Junior Division), Amravati held that (i) the first respondent madean unauthorized construction; (ii) the first respondent shifted the waterpipeline in the course of the illegal construction, resulting in shortage ofwater to the appellant; (iii) the suit is maintainable since the dispute doesGnot relate to the business of the co-operative society but the legal rightsof the appellant. The following order was passed, while decreeing thesuit:

“Plaintiff’s suit is hereby decreed.

Defendants are hereby directed to remove the illegal andunauthorized construction made by the defendant No. 1 on theopen space towards the eastern and northern side of Block No.4/2 which is shown in the map which is produced along withinspection report Ex. 73 by letters A B C D A and D H I J K L D.

Both the defendants are hereby directed to restore the waterconnection to the plaintiff’s house by removing the obstructionswhich are made in the service line.

Defendant No. 1 or anybody on her behalf is hereby permanentlyrestrained from making encroachment as well as making anyconstruction on the open site causing any nuisance to the plaintiff’stenement.

Plaintiff and defendant are residing in the same building. Takinginto consideration the relationship in between them, parties to beartheir own costs, if any.

The map which is produced along with inspection Note Ex. 73will form the part of the decree.

Decree be drawn accordingly.”

6. The judgment of the trial court was assailed by the firstrespondent under Section 96 of the CPC in Regular Civil Appeal No 37of 1999, which was dismissed on 21 November 2003. The District Courtaffirmed the finding of the trial Judge that it had the jurisdiction to entertainthe suit. The District Judge held that the appellant – who is the plaintiffin the suit – is affected by the encroachment which has been made bythe first respondent on premises belonging to the Authority. In the viewof the District Judge, since the individual rights of the appellant wereaffected by the unauthorized construction, the suit was maintainable andwas not barred by the provisions of Section 71. It was observed:

“20. […] Due to the construction made by the defendant no. 1,the plaintiff had lost her right to privacy so also the drainage lineand water pipe line to her premises have been damaged anddestroyed, which has put her to material loss, We have come tothe conclusion that plaintiff has sufficient[ly] proved that hervaluable rights have been infringed due to the construction madeby defendant no.1. So when the rights of plaintiff are infringed,she is certainly entitled to seek relief from the Civil Court to get A

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Areinstated her rights. […] So this is a case in which plaintiff isinterested in safe guarding her right and to get them restored. Theremoval of encroachment is a consequence thereof. So we cannotconstrue the present suit as a suit for removal of encroachmenton the authority premises, as envisaged under MHADA Act soas to hold that the suit is barred under Section 71 or 177 of theBMHADA Act.”

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7. The Single Judge of the Bombay High Court allowed the appealagainst the judgment of the District Judge holding that the suit was barredin terms of the provisions of Sections 71 and 177 of the Act. Referring toSection 66(1)(a)(iv), the High Court observed that the CompetentCAuthority has the power to evict persons from Authority premises if it issatisfied that material alterations have been made without its previouspermission. The High Court held that since the remedy of eviction isprovided for in the Act, the Civil Court does not have jurisdiction toentertain a suit on a cause of action on which the Competent AuthorityDis empowered to take action.

8. We have heard Mr Somiran Sharma, counsel appearing on behalfof the appellant, Mr Satya Kam Sharma, counsel appearing on behalf ofthe first respondent and Mr Sanjay Kharde, counsel appearing on behalfof the second respondent.

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9. Sections 71 and 177 are extracted below:

“71. Bar of jurisdiction of civil courts.—No civil courtshall have jurisdiction to entertain any suit or proceeding inrespect of the eviction of any person from any Authoritypremises under this Chapter, or the recovery of the arrears ofrent, compensation, amount or damages for use and occupationof such premises, or in respect of any order made or to be madeor any action taken or to be taken by the Competent Authority orthe appellate officer in the exercise of any power conferred by orunder this Chapter, or to grant any injunction in respect of suchorder or action.

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177. Bar of jurisdiction.—Save as otherwise expresslyprovided in this Act, no civil court shall have jurisdiction inrespect of any matter which the Authority or the Tribunal isempowered by or under this Act, to determine; and noinjunction or stay shall be granted by any court or other authority H

in respect of any action taken or to be taken in pursuance of anypower conferred or duty imposed by or under this Act.”

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10. Section 66 forms a part of Chapter VI which is titled “Powerto evict persons from authority premises and to recover dues”. Sub-Bsection (1) of Section 66 empowers the competent authority to order aperson who is in occupation of the whole or any part of the premises tobe evicted for unauthorized occupation. Section 66(1) is in the followingterms:

“66. Power to evict certain persons from Authority premises.

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(1) If the Competent Authority is satisfied—

(a) that the person authorised, to occupy any Authority premiseshas—

(i) not paid rent or compensation or amount lawfully duefrom him in respect of such premises for a period ofDmore than two months, or

(ii) sub-let, without the previous permission of theAuthority, the whole or any part of such premises, or

(iii) committed, or is committing any act which isEdestructive or permanently injurious to such premises,or

(iv) made, or is making, material addition to, oralteration in, such premises without the previouspermission of the Authority, or F

(v) otherwise acted in contravention of any of the terms,express or implied, under which he is authorised tooccupy such premises, or

(vi) failed to vacate the premises required by the Authorityfor the purpose of implementing any plan or projectGfor the sale of tenements and to accept the alternativeaccommodation offered by the Authority.

(b) that any person is in unauthorised occupation of any Authoritypremises, the Competent Authority may, for reasons to berecorded in writing, by notice served (i) by post, or (ii) by H

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Aaffixing a copy of it on the outer door or some otherconspicuous part of such premises, or (iii) in such othermanner as may be prescribed, order that person, as well asany other person, who may be in occupation of the wholeor any part of the premises, to vacate the premises inunauthorised occupation, within 24 hours of the date ofBservice of notice, and in any other case within a period ofseven days of the date of such service.”

11. Section 71 provides for the bar of jurisdiction of civil courts. InCterms of the provision, no civil court shall have jurisdiction to entertainany suit or proceedings (i) “in respect of the eviction of any person fromany Authority premises under this Chapter”; or (ii) for the recovery ofthe arrears of rent, compensation or damages for the use and occupationof such premises; or (iii) in respect of any order made or to be made orany action taken or to be taken by the competent authority in exercise ofDthe power conferred by or under the Chapter; or (iv) to grant an injunctionin respect of such order or action. Section 177 bars the jurisdiction of acivil court in respect of any matter which the Authority or Tribunal isempowered by or under the Act, to determine. Similarly, no injunction orstay can be granted by a Court or other authority in respect of anyEaction taken or to be taken in pursuance of the power conferred or dutyimposed by or under the Act.

12. Section 66(1)(b) of MHAD Act entrusts the competentauthority with a power to order eviction on the grounds which are setout in the provision. Among them in sub-clauses (iii), (iv) and (v) ofFclause (a) of sub-section (1) of Section 66 are:

(a) The commission of an act which is destructive of orpermanently injurious to the premises; (b) Making a material addition or alteration to the premises withoutprior permission; andG

(c) Acting in contravention of the terms on which a person isauthorized to occupy the premises.

Under clause (b), where a person is in unauthorized occupationof any ‘Authority premises’, the competent authority may proceed toorder the person to be evicted from the premises.H

13. The appellant did not seek the eviction of the first respondentin the suit. On the contrary, the plaint proceeds on the basis that both theappellant and the first respondent are allottees under the secondrespondent. The plea against the first respondent is that she has madean unauthorized construction of rooms on a vacant site, as a result ofwhich the access to light and air, and the right to privacy of the appellanthave been affected. Besides this, it has been submitted that the firstrespondent has shifted a water line and caused an obstruction to bemade to the drainage line in the premises.

14. Under Section 9 of CPC, the civil court has the jurisdiction totry all suits of a civil nature, except those in respect of which the jurisdictionis barred either expressly or impliedly by a specific provision of law. InDhulabhai v. State of Madhya Pradesh[3], a Constitution Bench laiddown the law on ouster of jurisdiction of civil courts. Chief Justice MHidayatullah writing for the Bench laid down the principles on bar ofjurisdiction of the civil courts as follows:

(1) Where the statute gives a finality to the orders of thespecial Tribunals the civil courts’ jurisdiction must be held to beexcluded if there is adequate remedy to do what the civil courtswould normally do in a suit. Such provision, however, does notexclude those cases where the provisions of the particular Acthave not been complied with or the statutory Tribunal has notacted in conformity with the fundamental principles of judicialprocedure.

(2) Where there is an express bar of the jurisdictionof the court, an examination of the scheme of the particularAct to find the adequacy or the sufficiency of the remediesprovided may be relevant but is not decisive to sustain thejurisdiction of the civil court.

Where there is no express exclusion the examination of theremedies and the scheme of the particular Act to find out theintendment becomes necessary and the result of the inquiry maybe decisive. In the latter case it is necessary to see if the statutecreates a special right or a liability and provides for thedetermination of the right or liability and further lays down that allquestions about the said right and liability shall be determined by AB

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Athe Tribunals so constituted, and whether remedies normallyassociated with actions in civil courts are prescribed by the saidstatute or not.

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(7) An exclusion of the jurisdiction of the civil court is notBreadily to be inferred unless the conditions above set down apply.

15. In Ramesh Gobindram v. Sugra Humayun Mirza[4], a two-Judge Bench of this Court observed that the jurisdiction of the civil courtsCto try suits of a civil nature is expansive and the onus to prove the ousterof the jurisdiction is on the party that asserts it. The court observed thateven in cases where the jurisdiction of the civil court is barred by astatute, the test is to determine if the authority or tribunal constitutedunder the statute has the power to grant reliefs that the civil courtswould normally grant in suits filed before them. The relevant observationsDare extracted below:

“12. The well-settled rule in this regard is that the civil courtshave the jurisdiction to try all suits of civil nature except thoseentertainment whereof is expressly or impliedly barred. Thejurisdiction of the civil courts to try suits of civil nature is veryEexpansive. Any statute which excludes such jurisdiction is,therefore, an exception to the general rule that all disputes shallbe triable by a civil court. Any such exception cannot be readilyinferred by the courts. The court would lean in favour of aconstruction that would uphold the retention of jurisdiction of theFcivil courts and shift the onus of proof to the party that assertsthat the civil court’s jurisdiction is ousted.”

13. Even in cases where the statute accords finality to the orderspassed by the Tribunals, the court will have to see whether theTribunal has the power to grant the reliefs which the civil courtswould normally grant in suits filed before them. If the answer is inGthe negative, exclusion of the civil court’s jurisdiction would notbe ordinarily inferred. In Rajasthan SRTC v. Bal Mukund Bairwa(2) [(2009) 4 SCC 299 : (2009) 1 SCC (L&S) 812] a three-JudgeBench of this Court observed: (SCC pp. 302h-303a)

4 (2010) 8 SCC 726; Also see Competent Authority, Calcutta under the Urban LandH(Ceiling and Regulation) Act 1976 v. David Manthosh, (2020) 12 SCC 542

“There is a presumption that a civil court has jurisdiction. Ousterof civil court’s jurisdiction is not to be readily inferred. A persontaking a plea contra must establish the same. Even in a case wherejurisdiction of a civil court is sought to be barred under a statute,the civil court can exercise its jurisdiction in respect of some mattersparticularly when the statutory authority or tribunal acts withoutjurisdiction.”

16. The preamble to the Act states that it is an Act to “unify,consolidate and amend the laws relating to housing, repairing andreconstructing dangerous buildings and carrying out improvement worksin slum areas”. The scheme of the statute provides that the Boardconstituted under the statute would have the power to repair andreconstruct dilapidated buildings, conduct structural repairs and evictpersons from authority premises, among others. The objective of thebodies and authorities constituted under the Act is to ensure repairingand reconstructing buildings to provide housing. Undoubtedly, thecompetent authority has the jurisdiction to order eviction in terms of theprovisions of Section 66. But that is not the frame of the suit or the reliefwhich has been claimed by the appellant in the suit. The reliefs soughtby the appellant in the plaint are: (i) the removal of the unauthorizedconstruction; (ii) a permanent prohibitory injunction restraining thedefendants from constructing over the open site and causing ‘nuisance’;and (iii) restoration of the water connection as it was prior to theconstruction. The appellant instituted the suit for injunction because hereasements were infringed by the illegal construction which the firstrespondent had erected on the open space. The reliefs claimed by theappellant are beyond the scope of the Act. A suit of this nature will bemaintainable before the civil court and would not be barred by Section71 or Section 177 of the Act.

17. For the above reasons, we are of the view that the SingleJudge of the High Court was in error in upholding the plea that therewas a bar of jurisdiction and reversing the findings of the trial Judge andthe first appellate court. Since, however, the Single Judge of the HighCourt has only ruled on the absence of jurisdiction, a view which hasbeen disapproved above, the second appeal is restored to the file of theHigh Court for consideration on merits. We allow the appeal and setaside the impugned judgment and order of the Single Judge of the NagpurBench of the High Court of Judicature at Bombay dated 11 December AB

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A2019 in Second Appeal No 111 of 2004. Second Appeal No 111 of 2004is restored to the file of the High Court for disposal on merits.

18. Since the appeal pertains to the year 2004, we request theHigh Court to take it up for admission expeditiously and to endeavor adisposal within a period of three months from the date on which a certifiedBcopy of this order is produced before it on the record.

19. Pending application, if any, stands disposed of.

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Bibhuti Bhushan Bose

(Assisted by : Preetam Bharti, LCRA)

Appeal allowed.

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