1. In Regular Civil Suit No.902 of 2012 challenging the communication dated 3-10-2012 and the notice dated 29-10-2012 issued by the applicant/defendant Akola Municipal Corporation under Sections 260 and 267 of the Maharashtra Municipal Corporation Act, calling upon the non-applicant/plaintiff to furnish an explanation as to why an unauthorized construction carried out by him should not be pulled down, the Trial Court, on 4-1-2013, has rejected the application under Order VII, Rule 11 of the Civil Procedure Code by an order dated 4-1-2013, claiming dismissal of suit on the ground that there is a bar of jurisdiction of the Civil Court under Section of the said Act to entertain, try and decide the suit. Hence, the original defendant Akola Municipal Corporation has preferred this civil revision application.

2. Though the provisions of the Bombay Provincial Municipal Corporation Act are referred to in the communication and the notice challenged in the suit, the learned counsels appearing for the parties admit that it is a notice under Section 260 of the Maharashtra Municipal Corporation Act. The Trial Court has held that the plaint-allegations are not sufficient to draw an inference that the suit is barred by particular provisions of the said Act. It has further been held that the suit is barred by the provision of Section 433A of the Maharashtra Municipal Corporations Act can be a defence of the applicant/defendant and such a defence and the defences disclosed in the application cannot be taken into consideration for the purpose of rejection of the plaint under Order VII, Rule 11 of the Civil Procedure Code.

3. The questions of law, which arise for consideration of this Court, are – (i) Whether a suit challenging the notice of pulling down unauthorized construction, issued under Section 260 of the Maharashtra Municipal Corporations Act, is barred under the provision of Section 433A of the said Act?, and (ii) Whether a suit is liable to be dismissed under Order VII, Rule 11(a) and (b) of the Civil Procedure Code? Before dealing with such questions, the law laid down by the Apex Court and this Court need to be seen.

4. The learned counsels appearing for the parties have relied upon the decision of the Apex Court in the case of DhruvGreen Field Ltd. v. HukamSingh and others, reported in (2002) 6 SCC 416, and the decision of this Court in QariMohammed Zakir Hussain & others v. Municipal Corporation of Greater Mumbai & others, reported in 2002(2) Bom.C.R. 98.

5. In the decision of the Apex Court in the case of DhruvGreen Field Ltd., cited supra, the Apex Court has laid down that the question as to whether the jurisdiction of Civil Court is barred, must be answered on the basis of the following principles:

“(1) If there is express provision in any special Act barring the jurisdiction of a civil court to deal with matters specified thereunder 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 leads 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 the 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.”

It is thus apparent that if there is express provision in any special Act barring the jurisdiction of the Civil Court to deal with the matters specified thereunder, the jurisdiction of the ordinary Civil Court shall stand excluded. It has been held