2004 Supreme(Bom) 1426

Bombay High Court
(OCTOBER 18, 2004)
Abdul Rahim B. Attar
Versus
Atul Ambalal Barot

Headnote:Maharashtra Housing and Area Development Act, 1977 - Section 13-B - Civil Procedure Code, Section 151 - Suit for eviction of tenants. - Merely because tenants have proposed to farm co-operative society of occupiers of building and moved concerned authority under MHAD Act, that would not preclude landlord from initiating proceeding for eviction of tenant. - (2004) 6 SCC 378 - Relied. - Section 13-B of the MHAD Act and more particularly the explanation clause thereto clearly provides that any proceedings initiated for formation of the co-operative society by the occupiers of the building, in relation to which the suit has been filed either prior to initiation of the proceeding for formation of the co-operative society or thereafter, shall be subject to the result of the suit. In other words, merely because the tenants initiate the proceedings for the purpose of formation of co-operative society of the occupiers of the building, that would not by itself preclude the landlord from initiating a proceeding for eviction of the tenant if the landlord is entitled to initiate such proceeding in terms of the provisions under the Rent Legislation in force in the State. Undisputedly, the proviso to such explanation further clarifies that in case the proceedings pertaining to the formation of the co-operative society are completed prior to the disposal of the suit, the suit would stand abated. In other words, the conclusion of the proceedings either in relation to the formation of the co-operative society and the acquisition under the MHAD Act or disposal of the suit, whichever happens prior in time, would prevail upon the other. The statutory provision being so clear as regards the rights of the parties who approach for formation of the co-operative society and taking steps for acquisition of the building under the MHAD Act as well as in relation to the suits filed for eviction of a tenant in relation to the same building, there can be no occasion for the Civil Court to exercise the powers under Section 151 of Civil Procedure Code for stay of the suit for the reasons mentioned above unless a clear case for exercise of inherent powers is made out. Once the statutory provision provides for the consequences in relation to the eventualities, which may arise in the course of the litigation between the parties while proceedings for formation of the co-operative society or necessary action under the MHAD Act are pending, the question of Court taking resort to Section 151 of Civil Procedure Code to deny the right to the parties to seek redress in a case of alleged wrong disclosed in the plaint does not arise at all and any such exercise by the Civil Court to stay the suit would not be in judicious exercise of its discretion, but rather an arbitrary exercise of such powers. It is well-settled that express provisions of law in a statute would by necessary implication exclude the exercise of inherent powers in regard to that particular Act where specific remedy is provided in accordance with the codified law. It is also well-settled that recourse to inherent powers in the face of or in conflict with the specific provisions of a statute is not permissible. Inherent powers cannot be exercised to nullify the effect of any statutory provision. The Apex Court in Vareed Jacob v. Sosamma Geevarghese and others, reported in (2004) 6 SCC 378 has held that "if there is express provision covering a particular topic, then Section 151 of Civil Procedure Code cannot be applied."

       Merely because the Apex Court has directed the authorities not to proceed with the acquisition proceedings under the MHAD Act in view of challenge to the statutory provisions under the said Act, it cannot enure to the benefit of the respondents to contend that it will create right in favour of the respondents merely because they have proposed the formation of the co-operative society or an action by the authority under the MHAD Act. Being so, it is apparent that the Courts below have exercised the discretion under Section 151 of Civil Procedure Code without addressing itself to the relevant issues in the matter and in a very capricious manner.