(S.C. Dharmadhikari, J.)

1. In this writ petition under Article 226 of the Constitution of India, the Petitioner has challenged a notice issued by the Respondent–Municipal Corporation of Greater Mumbai by invoking Section 354 A of the Mumbai Municipal Corporation Act, 1888. It is stated that the Respondent No.1–Municipal Corporation has issued this notice dated 1st August 2013 in relation to a structure, more particularly described in para 1 of this Petition. The Petitioner submits that the notice issued under Section 354 A alleges that the Petitioner has carried out unauthorized construction of a structure in open space by using I-Section, bricks masonry wall admeasuring 16' x 16' x 8'. This allegation is denied and it is submitted that the structure has been in existence for number of years. The notice was replied and the Petitioner has then stated that the Petitioner had no opportunity to satisfy the Municipal Corporation that the notice was bad in law as on 5th August 2013 the Officer of Respondent No.1 came to the premises and damaged the first floor of the structure. Therefore, a suit was filed being L.C. Suit No.2426 of 2013 in the City Civil Court, Dindoshi, Mumbai but, a bar to the jurisdiction of the Civil Court was raised and that is how the ad-interim order was refused. The Appeal from Order challenging that order was filed in this Court but, as set out in para 13, a legal advice was given to withdraw the said Appeal from Order and the Suit and that is how the Appeal from Order came to be withdrawn. The Petitioners counsel states, on instructions, that though the order passed by this Court allows the Petitioner to withdraw the Suit in the City Civil Court, that is still not withdrawn.

2. On the earlier occasion, we have heard Mrs. Castelino and placed this matter at her request today because the apprehension of the Petitioner was that the entire structure consisting of ground and one upper floor would be demolished. We granted protection on 5th September 2013 and posted the matter today along with other cases.

3. As far as the legal position is concerned, it is already clarified in several decisions of the Hon'ble Supreme Court and this Court and what we have noted is that Section 515A of the Mumbai Municipal Corporation Act, 1888 states that save as otherwise provided in this Act, any notice issued, order passed or direction issued by the Designated Officer, under Section 351 or 354 A shall not be questioned in any Suit or other legal proceedings does not mean that a Suit before a Civil Court is per se not tenable. In other words, a Civil Court's power to take on file a Civil Suit inasmuch as scrutinize and verify the plaint, register it, is not taken away by such a bar. The clause ousting the jurisdiction of the Civil Court may be in the terms noted above but, for that bar to apply the Civil Court is obliged to consider the facts and circumstances in each Suit and then apply Section 515A of the Mumbai Municipal Corporation Act, 1888. Unless the plea of ouster of jurisdiction based on this Section is considered in each case, the Civil Court's jurisdiction cannot be said to be ousted. The principle is too well settled to require any reiteration.

4. In the case of Secretary of State V/s. Mask & Company, reported in AIR 1943 P.C. 105, the Privy Council has held that the exclusion of the jurisdiction of the Civil Courts is not to be readily inferred. Such exclusion must be either explicitly expressed or clearly implied. Even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine whether the provisions of the Act have not been complied with or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure.

5. This principle was applied and followed by the Hon'ble Supreme Court considering somewhat identical provision in the Delhi Municipal Corporation Act. In Shiv Kumar Chadha V/s. Municipal Corporation of Delhi reported in 1993 (3) SCC 161, a thr