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2019 Supreme(Bom) 1754
IN THE HIGH COURT OF JUDICATURE AT BOMBAY AT NAGPUR BENCH
PUSHPA V. GANEDIWALA, J.
Smita - Appellant
Versus
Rajani & Another - Respondents
Second Appeal No. 111 of 2004
Decided On : 11-12-2019
For the Appellant :Radhika Raskar, Advocate.
For the Respondent:V.R. Choudhari, H.N. Verma, Advocates.
Headnote:
Maharashtra Housing and Area Development Act, 1976 - Section 71 - Challenged the legality - Trial Court - Suit for mandatory and prohibitory injunction - Jurisdiction of the civil courts - It is further the case of respondent / plaintiff that appellant/defendant without any permission of Housing Board has illegally and unauthorized constructed a structure on an open site, which was kept open towards eastern and northern side of her block for the use of occupiers of the building. Due to this illegal construction it is stated that right to light and air of plaintiff’s block got affected which constrained the plaintiff to file a suit for mandatory and prohibitory injunction - Defendant in her written statement resisted the suit and denied all the adverse contention and essentially raised the question of jurisdiction to Civil Court in view of bar of jurisdiction under Section 71 read with Section 177 of the Maharashtra Housing and Area Development Act, 1976 – Held, In instant case it is not disputed that both the parties are the members of the Housing Board - It is grievance of plaintiff that defendant without any authority and sanction, made unauthorized construction on the open place which was kept open for use of occupiers of the building wherein both the parties have been allotted tenements by the Board. As per Section 66 said Act competent authority is empowered to evict a person, who is authorized to occupy any tenement and who has made or is making material addition to, or alteration in such premises without the previous permission of the authority - In instant case, as remedy is already provided in the said Act which is a self-contained Code and there is express bar as per Section 71 read with Section 173 of the said Act Civil Court has no jurisdiction to entertain any suit or proceeding in respect of any matter which the Competent Authority is empowered to take - Plaintiff, in instant case, instead of approaching the Competent Authority, filed a suit for mandatory and prohibitory injunction before the Civil Court - Both Courts below, decreed the suit mainly on the ground that civil rights of the plaintiff have been infringed and therefore, he has remedy to approach Civil Courts - There can not be any doubt that the civil courts have jurisdiction to try all suits of civil nature except the suits of which their cognizance is either expressly or impliedly barred. In the instant case, it is not disputed that both the parties have been allotted tenements in the same building by the defendant no.2 - the Housing Board - Rights with regard to the said tenements of both parties have been emanated from the order of allotment of tenements by Board and the Competent Authority has been appointed in said Act to control illegal and unauthorized acts of tenement holders and a complete procedure is provided in said Act as to how to deal with occupant if he fails to comply with the order of competent authority - Section 71 – Appeal disposed of
JUDGMENT :
1. Heard.
2. In this second appeal, the appellant / defendant No.1 challenged the legality and correctness of the concurrent Judgments and decrees passed by both the courts below. The parties hereinafter are referred to as per their original status before the Trial Court.
3. While admitting this appeal on 01/07/2004, the following substantial question of law was framed.
“Can any construction which is otherwise permissible but is carried out without obtaining prior permission, ipso facto, constitute nuisance or violation of right of privacy of a person who could have otherwise not obstructed such construction?”
4. This Court vide order dated 1st March 2019 framed the following additional substantial question of law.
“Whether the Civil Court in the present case had jurisdiction to entertain the suit filed by the respondent, in view of the expressed bar of jurisdiction of Civil Courts under Section 71 of the Maharashtra Housing and Area Development Act, 1976?”
The facts in brief, which are necessary to decide the present appeal, are as under:-
5. The respondent-plaintiff filed a suit for Mandatory and Prohibitory Injunction vide Regular Civil Suit No.775/1993 before the Court of Civil Judge, Junior Division, Amravati. It is the case of the plaintiff that respondent No.2 - defendant No.2 – The Amravati Housing and Area Development Board (In short “Housing Board”) allotted Block No.4/6 on first floor to the plaintiff and Block No.4/2 on ground floor to the defendant no.1 in the building situated at Tope Nagar, Amravati.
6. It is further the case of respondent / plaintiff that appellant/defendant No.1 without any permission of the Housing Board has illegally and unauthorizedly constructed a structure on an open site, which was kept open towards eastern and northern side of her block for the use of occupiers of the building. Due to this illegal construction, it is stated that the right to light and air of the plaintiff’s block got affected which constrained the plaintiff to file a suit for mandatory and prohibitory injunction.
7. The defendant No.1 in her written statement resisted the suit and denied all the adverse contention and essentially raised the question of jurisdiction to the Civil Court, in view of bar of jurisdiction under Section 71 read with Section 177 of the Maharashtra Housing and Area Development Act, 1976. (In short, the “said Act”).
8. The learned Trial Court on the basis of pleadings of the parties framed necessary issues, recorded evidence and decreed the suit in favour of plaintiff. On issue of jurisdiction, the learned Trial Court held that as dispute is with regard to civil rights between the parties, the Civil Court has jurisdiction to adjudicate the dispute. The learned Trial Court also answered issue with regard to unauthorized construction in favour of the plaintiff.
9. The defendant no. 1 carried the Judgment and decree dated 21/01/1999 of the Trial Court in first appeal bearing R.C.A.No.37/1999 before the Court of District Judge, Amravati. The Joint District Judge, Amravati vide its Judgment and decree dated 21/11/2003, while dismissing the appeal maintained all the findings recorded by the Trial Court. The impugned Judgment and decree of the First Appellate Court is assailed in this second appeal by the defendant no.1.
10. Ms. Radhika Raskar, learned counsel appearing on behalf of appellant-defendant no.1 brought to the notice of this Court various provisions in the said Act and vehemently argued with regard to bar of jurisdiction to the Civil Courts in as much as there are express provisions and remedies available to the members of the Board with regard to any grievance relating to the tenements.
11. Before adverting to discuss the issue of jurisdiction, it would be necessary to reproduce the relevant provisions of the said Act. In the said Act, Chapter VI deals with the powers of the competent authority to evict persons from authority premises and to recover dues. Relevant Section 66 of the said Act wit
