Ulhasnagar Municipal Corporation vs Gulshan Contractors/ Enterprises

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1999 Supreme(Bom) 54

IN THE HIGH COURT OF BOMBAY
R.M. Lodha, J.
Ulhasnagar Municipal Corporation ..... Petitioner.
Versus
M/s. Gulshan Contractors/ Enterprises..... Respondent.
Civil Revision Application No. 49 of 1999, decided on 29-1-1999.
Advocates appeared :
Vijay Patil, for the petitioner.
A.P. Mundargi, for the respondent.

Headnote:Sections 81-H and 81-B-Civil Procedure Code, Section 9-Civil Court has no jurisdiction to entertain suit in respect of eviction of any person from premises of the Corporation-Bombay Provincial Municipal Corporations Act provides self-contained remedy-Jurisdiction of Civil Court is expressly barred.-An order passed by the Commissioner for eviction from the Corporation premises and recovery of rent or damages is appealable before the appellate authority, who is judicial officer having designation of District Judge or ten years standing as a Judge. The order passed by the Commissioner and if challenged in appeal to the appellate officer, the order of the appellate officer is final and cannot be challenged in any original suit, application or execution proceedings. The jurisdiction of the Civil Court to entertain any suit or proceedings in respect of eviction of any person from Corporation premises under Section 81-B or recovery of arrears of rent or the damages payable for use or occupation of the premises is barred. The Bombay Provincial Municipal Corporations Act, 1949 provides a self-contained remedy. The jurisdiction of the Civil Court is expressly barred.
       When on termination of his contract, a contractor was directed to vacate the Corporation premises, he filed civil suit challenging the order passed by the Commissioner. Said suit was not maintainable being expressly barred by Section 81-H of the Bombay Provincial Municipal Corporations Act, 1949. Application for rejecting the plaint as was made in the trial Court allowed. It would be open to the original plaintiff to challenge the order passed by the Commissioner of the Corporation before the appellate officer and if the time for filing the appeal has expired, upon application for condonation being made by the respondent, the same would be considered, in accordance with law, keeping in view that the respondent pursued its remedy in the wrong Court. To enable the respondent-original plaintiff to file an appeal arid obtain appropriate interim order from the appellate officer, for a period of two weeks, the parties were directed to maintain status quo as obtaining on date of order.
       Sections 81-F, G and H-Civil Court jurisdiction-Eviction from Municipal Corporation premises ordered by Commissioner-Remedy of appeal against such order available in the Act itself-Jurisdiction of Civil Court is expressly excluded and based.- The Act of 1949 provides the self-contained remedy and the remedy having been created by the Act of 1949 and the jurisdiction of the Civil Court having been expressly excluded, the trial Court grossly erred in rejecting the application made by the Corporation challenging its jurisdiction. The provisions of Sections 81-G and 81-H leave no manner of doubt that the Civil Courts jurisdiction is expressly excluded under the Act of 1949 and on the face of such specific provisions, it cannot be said that the aggrieved person has remedy under the statute i.e. the Act of 1949 as well as before the Civil Court. The provisions of the Act of 1949 provide specific remedy for challenging the order of Commissioner for eviction of Corporation premises and the Civil Court even does not have concurrent jurisdiction since its jurisdiction is expressly excluded and barred.
       Section 81-H and Civil Procedure Code, Order VII, Rule 11 and Section 9-Application under Order VII, Rule 11 filed on ground that suit was not maintainable in view of bar under Section 81-H of Act rejected by trial Court-In revision application, said application allowed, suit being expressly barred under Section 81-H of Bombay Provincial Municipal Corporations Act, 1949.

JUDGMENT - R.M. LODHA, J.:---Rule, returnable forthwith.

Mr. Mundargi waives service for the respondent.

By consent, rule is heard at this stage.

2. The only question involved in this Civil Revision Application is whether the jurisdiction of the Civil Court to entertain and proceed with the suit filed by the respondent herein is barred under the provisions of the Bombay Provincial Municipal Corporations Act, 1949.

3. The facts which are necessary for decision on the aforesaid question may be briefly stated. The petitioner is Ulhasnagar Municipal Corporation (for short the "Corporation"). The Corporation invited tenders for the purpose of awarding contracts for running a swimming pool and the adjoining canteen belonging to it in the year 1995. The respondent herein M/s. Gulshan Contractors (for short the "original plaintiff") was granted the contract for a period of five years with effect from 16-8-1995. An agreement between the Corporation and the original plaintiff was, accordingly, entered into. It was found by the Corporation that the original plaintiff was not providing proper service at the swimming pool and the canteen and that various terms and conditions have been breached. One person also died in the swimming pool on 1-11-1998 for want of proper safety measures by the original plaintiff. A show cause notice was issued to the original plaintiff by the Commissioner of the Corporation on 3-11-1998 to which reply was filed by the original plaintiff on 30-11-1998. Thereafter, on 18-12-1998 the Commissioner of the Corporation terminated the contract for breach of the conditions. Security deposit was forfeited and the original plaintiff was directed to vacate the premises with effect from 31-12-1998. The original plaintiff challenged the order of the Commissioner by filing a Regular Civil Suit in the Court of Civil Judge, Junior Division, Ulhasnagar, on 21-12-1998. An application for temporary injunction was also made by the original plaintiff. The Corporation filed its written statement-cum-say opposing the suit as well as the application for temporary injunction. On 31-12-1998 the trial Court directed the parties to maintain status quo. On 8-1-1999 the trial Court allowed the application for temporary injunction made by the original plaintiff. An application for rejection of the plaint under Order 7, Rule 11 of the Code of Civil Procedure was made by the Corporation on 11-1-1999. By the impugned order dated 19-1-1999, the trial Court has rejected the application made by the Corporation giving rise to the present civil revision application.

4. The Bombay Provincial Municipal Corporations Act, 1949 (for short the "Act of 1949") provides the remedy of appeal against every order of the Commissioner made in respect of Corporation premises under section 81-B or 81-C to an appellate officer who is a District Judge or such other judicial officer in the city of not less than ten years standing. Section 81-F provides thus :--

"81-F. (1) An appeal shall lie from every order of the Commissioner, made in respect of any Corporation premises, under section 81-B or section 81-C, to an appellate officer, who shall be the District Judge or such other judicial officer in the city of not less than ten years standing, as the District Judge may designate in this behalf .

(2) An appeal under sub-section (1), shall be preferred,---

(a) in the case of an appeal from an order under section 81-B, within thirty days from the date of the service of the notice relating to the order under sub-section (1) of that section, and

(b) in the case of an appeal from an order under section 81-C, within thirty days from the date of the service of the notice relating to the order under sub-section (1) or (2) of that section, as the case may be:

Provided that, the appellate officer may entertain the appeal after the expiry of the said period of thirty days, if he is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.

(3) Wher

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