SAU RAJANIversusSAU SMITA & ANR

126                      [2022]REPORTS
               SUPREME COURT   16 S.C.R. 126               [2022] 16 S.C.R.


A                                SAU RAJANI
                                        v.
                              SAU SMITA & ANR
                         (Civil Appeal No. 5216 of 2022)
B                              AUGUST 08, 2022
              [DR DHANANJAYA Y CHANDRACHUD AND
                       A S BOPANNA, JJ.]
             Code of Civil Procedure, 1908: s.9 – Bar of jurisdiction of
      civil court – Maharashtra Housing and Area Development Act, 1976
C
      (MHADA) – ss.71, 177 and 66(1)(a)(iv) – Appellant claimed to be
      in possession of the residential tenement – The first respondent is
      stated to be in occupation of a ground floor tenement in the same
      building – Appellant alleged that the first respondent has made illegal
      and unauthorized construction in open vacant site situated in the
D     side of the block which has affected her easements including
      privacy, light, air, water supply – Appellant instituted regular civil
      suit seeking removal of illegal construction, grant of permanent
      prohibitory injunction restraining first respondent-defendant from
      making any construction over the open site and restoration of water
      connection – First respondent filed written statement contending
E
      that the civil court does not have jurisdiction to entertain the suit
      under s.71 r/w s.177 of the MHADA – Civil Judge dismissed the
      challenge to the jurisdiction and decreed the suit – District Court
      affirmed the finding of the civil judge – High Court, however, allowed
      the second appeal filed by the respondent and held that the suit
F     was barred in terms of the provisions of sections 71 and 177 of the
      MHADA – Held: The objective of the bodies and authorities
      constituted under the MHADA is to ensure repairing and
      reconstructing buildings to provide housing – The competent
      authority under the Act (MHADA) has jurisdiction to order the
      eviction in terms of the provisions of s.66 but that was not the relief
G
      claimed by the plaintiff-appellant in the suit – Thus, the reliefs
      claimed by the appellant were beyond the scope of the Act – Suit of
      the nature filed by the appellant would be maintainable before the
      civil court and would not be barred by s.71 or s.177 of the MHADA.

H
                                       126
              SAU RAJANI v. SAU SMITA & ANR.                              127


      Allowing the appeal, the Court                                      A
      HELD: 1. Section 71 of the Act provides for the bar of
jurisdiction of civil courts. In terms of the provision, no civil court
shall have jurisdiction to entertain any suit or proceedings (i) “in
respect of the eviction of any person from any Authority premises
under this Chapter”; or (ii) for the recovery of the arrears of           B
rent, compensation or damages for the use and occupation of
such premises; or (iii) in respect of any order made or to be made
or any action taken or to be taken by the competent authority in
exercise of the power conferred by or under the Chapter; or (iv)
to grant an injunction in respect of such order or action. Section
177 bars the jurisdiction of a civil court in respect of any matter       C
which the Authority or Tribunal is empowered by or under the
Act, to determine. Similarly, no injunction or stay can be granted
by a Court or other authority in respect of any action taken or to
be taken in pursuance of the power conferred or duty imposed
by or under the Act. [Para 11][134-C-E]                                   D
      2. Section 66(1)(b) of MHAD Act entrusts the competent
authority with a power to order eviction on the grounds which
are set out in the provision. Under clause (b), where a person is
in unauthorized occupation of any ‘Authority premises’, the
competent authority may proceed to order the person to be                 E
evicted from the premises. [Para 12][134-F, H]
       3. Under Section 9 of CPC, the civil court has the jurisdiction
to try all suits of a civil nature, except those in respect of which
the jurisdiction is barred either expressly or impliedly by a specific
provision of law. The objective of the bodies and authorities             F
constituted under the Act is to ensure repairing and
reconstructing buildings to provide housing. Undoubtedly, the
competent authority has the jurisdiction to order eviction in terms
of the provisions of Section 66. But that is not the frame of the
suit or the relief which has been claimed by the appellant in the
suit. The reliefs sought by the appellant in the plaint are: (i) the      G
removal of the unauthorized construction; (ii) a permanent
prohibitory injunction restraining the defendants from
constructing over the open site and causing ‘nuisance’; and (iii)

                                                                          H
128               SUPREME COURT REPORTS                     [2022] 16 S.C.R.


A     restoration of the water connection as it was prior to the
      construction. The appellant instituted the suit for injunction
      because her easements were infringed by the illegal construction
      which the first respondent had erected on the open space. The
      reliefs claimed by the appellant are beyond the scope of the Act.
      A suit of this nature will be maintainable before the civil court
B
      and would not be barred by Section 71 or Section 177 of the Act.
      [Paras 14 and 16][135-C; 137-C-F]
              Dhulabhai v. State of Madhya Pradesh AIR 1969 SC
              78 : [1968] 3 SCR 662 – followed.
C             Ramesh Gobindram v. Sugra Humayun Mirza (2010) 8
              SCC 726 : [2010] 10 SCR 945 – relied on.
                              Case Law Reference
      [1968] 3 SCR 662                   followed                 Para 14

D     [2010] 10 SCR 945                  relied on                Para 15
            CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5216
      of 2022.
            From the Judgment and Order dated 11.12.2019 of the High Court
      of Judicature at Bombay, Nagpur Bench at Nagpur in Second Appeal
E     No. 111 of 2004.
              Somiran Sharma, Adv. for the Appellant.
            Satya Kam Sharma, Ms. Anagha S. Desai, Siddharth Gautam,
      Sanjay Kharde, Sunil Kumar Verma, Advs. for the Respondents.
F             The Judgment of the Court was delivered by
              DR DHANANJAYA Y CHANDRACHUD, J.
              1. Leave granted.
             2. By a judgment dated 11 December 2019, a Single Judge of the
      Nagpur Bench of the High Court of Judicature at Bombay, held in the
G
      course of deciding a second appeal under Section 100 of the Code of
      Civil Procedure 19081 that the suit instituted by the appellant is barred
      by Sections 71 and 177 of the Maharashtra Housing and Area


      1
H         “CPC”
                   SAU RAJANI v. SAU SMITA & ANR.                                 129
                [DR DHANANJAYA Y CHANDRACHUD, J.]

Development Act 19762.The High Court reversed concurrent findings                 A
of the trial court in the suit and of the first appellate court.
       3. In order to appreciate the nature of the controversy, it would, at
the outset, be necessary to advert to the plaint in the suit - Regular Civil
Suit No 775 of 1993- instituted by the appellant before the Court of the
Civil Judge (Junior Division), Amravati. The appellant has pleaded that           B
the second respondent (Amravati Housing and Area Development Board)
allotted Block No 4/6 situated on the first floor at Tope Nagar, Amravati
to her on 16 July 1986. The appellant claims to be in possession of the
residential tenement. The first respondent is stated to be in occupation
of a ground floor tenement in the same building bearing Block No 4/2.
According to the appellant, the first respondent made an illegal and              C
unauthorized construction in an open vacant site situated in the northern
and eastern side of the block. This has been depicted in a plan, which is
annexed to the plaint. The first respondent is alleged to have constructed
four rooms, as a consequence of which the appellant claims that her
easements have been affected. The appellant has alleged the following             D
disturbances to her easements:
          i.    The privacy, light, and air of the appellant’s block have been
                affected;
          ii. The first respondent is alleged to have constructed a stair
              case to gain access to the terrace, as a consequence of which       E
              the appellant’s privacy is stated to be disturbed;
          iii. The first respondent has removed a water pipeline, as a result
               of which the water supply to the property of the appellant is
               affected; and
                                                                                  F
          iv. The first respondent has locked the service line for the cleaning
              of the septic tank.
       4. It is contended by the appellant that she had raised complaints
against the illegal construction by the first respondent to the second
respondent and that she also issued notices to the first and second
                                                                                  G
respondents for removing the construction. The first and the second
respondents did not respond to the complaints and notices. The appellant
instituted a suit seeking the following reliefs:


2
    “the Act”                                                                     H
130               SUPREME COURT REPORTS                        [2022] 16 S.C.R.


A                                     “PRAYER
                    It is, therefore, most humbly prayed that this Hon’ble Court
                    may kindly be pleased to pass a decree in mandatory forms
                    giving directions to both the defendants to remove the illegal
                    and unauthorized construction made by the defendant no. 1
B                   on the open site, which is situated towards the east and
                    north to the plaintiffs and defendants No. 1’s tenant as shown
                    by letters A B C D in the map and further be pleased to
                    grant permanent prohibitory injunction restraining the
                    defendants from making any constructions over this open
                    site and be directed to keep open the said open site as it
C                   was.
             2.     The defendants be directed to restore the water connections
                    as it was prior to its removal for the plaintiffs tenement and
                    further be directed to grant to temporary injunction to
                    remove by obstruction which have been created in the
D                   service line and the defendant be restrained by grant of
                    permanent injunction in the service line.
             3.     The defendant no. 1 further be restrained by grant of
                    permanent injunction from making encroachment or making
                    any construction in this open site and causing any nuisance
E                   to the plaintiff in respect of to occupy her tenement on first
                    floor.
             4.     Costs of this suit be added on the defendants.”
             5. The first respondent filed a written statement contending that
F     the civil court does not have the jurisdiction to entertain the suit under
      the provisions Section 71 read with Section 177 of the Act. The Civil
      Judge (Junior Division), Amravati held that (i) the first respondent made
      an unauthorized construction; (ii) the first respondent shifted the water
      pipeline in the course of the illegal construction, resulting in shortage of
      water to the appellant; (iii) the suit is maintainable since the dispute does
G     not relate to the business of the co-operative society but the legal rights
      of the appellant. The following order was passed, while decreeing the
      suit:
             “Plaintiff’s suit is hereby decreed.

H
               SAU RAJANI v. SAU SMITA & ANR.                                       131
            [DR DHANANJAYA Y CHANDRACHUD, J.]

       Defendants are hereby directed to remove the illegal and                     A
       unauthorized construction made by the defendant No. 1 on the
       open space towards the eastern and northern side of Block No.4/
       2 which is shown in the map which is produced along with
       inspection report Ex. 73 by letters A B C D A and D H I J K L D.
       Both the defendants are hereby directed to restore the water                 B
       connection to the plaintiff’s house by removing the obstructions
       which are made in the service line.
       Defendant No. 1 or anybody on her behalf is hereby permanently
       restrained from making encroachment as well as making any
       construction on the open site causing any nuisance to the plaintiff’s        C
       tenement.
       Plaintiff and defendant are residing in the same building. Taking
       into consideration the relationship in between them, parties to bear
       their own costs, if any.
       The map which is produced along with inspection Note Ex. 73                  D
       will form the part of the decree.
       Decree be drawn accordingly.”
       6. The judgment of the trial court was assailed by the first
respondent under Section 96 of the CPC in Regular Civil Appeal No 37
                                                                                    E
of 1999, which was dismissed on 21 November 2003. The District Court
affirmed the finding of the trial Judge that it had the jurisdiction to entertain
the suit. The District Judge held that the appellant – who is the plaintiff
in the suit – is affected by the encroachment which has been made by
the first respondent on premises belonging to the Authority. In the view
of the District Judge, since the individual rights of the appellant were            F
affected by the unauthorized construction, the suit was maintainable and
was not barred by the provisions of Section 71. It was observed:
       “20. […] Due to the construction made by the defendant no. 1,
       the plaintiff had lost her right to privacy so also the drainage line
       and water pipe line to her premises have been damaged and                    G
       destroyed, which has put her to material loss, We have come to
       the conclusion that plaintiff has sufficient[ly] proved that her
       valuable rights have been infringed due to the construction made
       by defendant no.1. So when the rights of plaintiff are infringed,
       she is certainly entitled to seek relief from the Civil Court to get
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132            SUPREME COURT REPORTS                          [2022] 16 S.C.R.


A           reinstated her rights. […] So this is a case in which plaintiff is
            interested in safe guarding her right and to get them restored. The
            removal of encroachment is a consequence thereof. So we cannot
            construe the present suit as a suit for removal of encroachment
            on the authority premises, as envisaged under MHADA Act so
            as to hold that the suit is barred under Section 71 or 177 of the
B
            MHADA Act.”
             7. The Single Judge of the Bombay High Court allowed the appeal
      against the judgment of the District Judge holding that the suit was barred
      in terms of the provisions of Sections 71 and 177 of the Act. Referring to
      Section 66(1)(a)(iv), the High Court observed that the Competent
C     Authority has the power to evict persons from Authority premises if it is
      satisfied that material alterations have been made without its previous
      permission. The High Court held that since the remedy of eviction is
      provided for in the Act, the Civil Court does not have jurisdiction to
      entertain a suit on a cause of action on which the Competent Authority
D     is empowered to take action.
              8. We have heard Mr Somiran Sharma, counsel appearing on behalf
      of the appellant, Mr Satya Kam Sharma, counsel appearing on behalf of
      the first respondent and Mr Sanjay Kharde, counsel appearing on behalf
      of the second respondent.
E           9. Sections 71 and 177 are extracted below:
                   “71. Bar of jurisdiction of civil courts.—No civil court
            shall have jurisdiction to entertain any suit or proceeding in
            respect of the eviction of any person from any Authority
            premises under this Chapter, or the recovery of the arrears of
F           rent, compensation, amount or damages for use and occupation
            of such premises, or in respect of any order made or to be made
            or any action taken or to be taken by the Competent Authority or
            the appellate officer in the exercise of any power conferred by or
            under this Chapter, or to grant any injunction in respect of such
G           order or action.
                  177. Bar of jurisdiction.—Save as otherwise expressly
            provided in this Act, no civil court shall have jurisdiction in
            respect of any matter which the Authority or the Tribunal is
            empowered by or under this Act, to determine; and no
            injunction or stay shall be granted by any court or other authority
H
               SAU RAJANI v. SAU SMITA & ANR.                                 133
            [DR DHANANJAYA Y CHANDRACHUD, J.]

      in respect of any action taken or to be taken in pursuance of any       A
      power conferred or duty imposed by or under this Act.”
                                                   (emphasis supplied)
       10. Section 66 forms a part of Chapter VI which is titled “Power
to evict persons from authority premises and to recover dues”. Sub-
section (1) of Section 66 empowers the competent authority to order a         B
person who is in occupation of the whole or any part of the premises to
be evicted for unauthorized occupation. Section 66(1) is in the following
terms:
      “66. Power to evict certain persons from Authority premises.
                                                                              C
      (1)    If the Competent Authority is satisfied—
      (a)    that the person authorised, to occupy any Authority premises
             has—
             (i)   not paid rent or compensation or amount lawfully due
                   from him in respect of such premises for a period of       D
                   more than two months, or
             (ii) sub-let, without the previous permission of the
                  Authority, the whole or any part of such premises, or
             (iii) committed, or is committing any act which is
                   destructive or permanently injurious to such premises,     E
                   or
             (iv) made, or is making, material addition to, or
                  alteration in, such premises without the previous
                  permission of the Authority, or
                                                                              F
             (v) otherwise acted in contravention of any of the terms,
                 express or implied, under which he is authorised to
                 occupy such premises, or
             (vi) failed to vacate the premises required by the Authority
                  for the purpose of implementing any plan or project         G
                  for the sale of tenements and to accept the alternative
                  accommodation offered by the Authority.
      (b)    that any person is in unauthorised occupation of any Authority
             premises, the Competent Authority may, for reasons to be
              recorded in writing, by notice served (i) by post, or (ii) by
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134             SUPREME COURT REPORTS                           [2022] 16 S.C.R.


A                   affixing a copy of it on the outer door or some other
                    conspicuous part of such premises, or (iii) in such other
                    manner as may be prescribed, order that person, as well as
                    any other person, who may be in occupation of the whole
                    or any part of the premises, to vacate the premises in
                    unauthorised occupation, within 24 hours of the date of
B
                    service of notice, and in any other case within a period of
                    seven days of the date of such service.”
                                                            (emphasis supplied)
             11. Section 71 provides for the bar of jurisdiction of civil courts. In
C     terms of the provision, no civil court shall have jurisdiction to entertain
      any suit or proceedings (i) “in respect of the eviction of any person from
      any Authority premises under this Chapter”; or (ii) for the recovery of
      the arrears of rent, compensation or damages for the use and occupation
      of such premises; or (iii) in respect of any order made or to be made or
      any action taken or to be taken by the competent authority in exercise of
D     the power conferred by or under the Chapter; or (iv) to grant an injunction
      in respect of such order or action. Section 177 bars the jurisdiction of a
      civil court in respect of any matter which the Authority or Tribunal is
      empowered by or under the Act, to determine. Similarly, no injunction or
      stay can be granted by a Court or other authority in respect of any
E     action taken or to be taken in pursuance of the power conferred or duty
      imposed by or under the Act.
             12. Section 66(1)(b) of MHAD Act entrusts the competent
      authority with a power to order eviction on the grounds which are set
      out in the provision. Among them in sub-clauses (iii), (iv) and (v) of
F     clause (a) of sub-section (1) of Section 66 are:
             (a) The commission of an act which is destructive of or
                 permanently injurious to the premises;
             (b) Making a material addition or alteration to the premises without
                 prior permission; and
G
             (c) Acting in contravention of the terms on which a person is
                 authorized to occupy the premises.
             Under clause (b), where a person is in unauthorized occupation
      of any ‘Authority premises’, the competent authority may proceed to
      order the person to be evicted from the premises.
H
                SAU RAJANI v. SAU SMITA & ANR.                                       135
             [DR DHANANJAYA Y CHANDRACHUD, J.]

       13. The appellant did not seek the eviction of the first respondent           A
in the suit. On the contrary, the plaint proceeds on the basis that both the
appellant and the first respondent are allottees under the second
respondent. The plea against the first respondent is that she has made
an unauthorized construction of rooms on a vacant site, as a result of
which the access to light and air, and the right to privacy of the appellant
                                                                                     B
have been affected. Besides this, it has been submitted that the first
respondent has shifted a water line and caused an obstruction to be
made to the drainage line in the premises.
         14. Under Section 9 of CPC, the civil court has the jurisdiction to
try all suits of a civil nature, except those in respect of which the jurisdiction
is barred either expressly or impliedly by a specific provision of law. In           C
Dhulabhai v. State of Madhya Pradesh3, a Constitution Bench laid
down the law on ouster of jurisdiction of civil courts. Chief Justice M
Hidayatullah writing for the Bench laid down the principles on bar of
jurisdiction of the civil courts as follows:
                (1) Where the statute gives a finality to the orders of the          D
         special Tribunals the civil courts’ jurisdiction must be held to be
         excluded if there is adequate remedy to do what the civil courts
         would normally do in a suit. Such provision, however, does not
         exclude those cases where the provisions of the particular Act
         have not been complied with or the statutory Tribunal has not               E
         acted in conformity with the fundamental principles of judicial
         procedure.
               (2) Where there is an express bar of the jurisdiction
         of the court, an examination of the scheme of the particular
         Act to find the adequacy or the sufficiency of the remedies                 F
         provided may be relevant but is not decisive to sustain the
         jurisdiction of the civil court.
               Where there is no express exclusion the examination of the
         remedies and the scheme of the particular Act to find out the
         intendment becomes necessary and the result of the inquiry may              G
         be decisive. In the latter case it is necessary to see if the statute
         creates a special right or a liability and provides for the
         determination of the right or liability and further lays down that all
         questions about the said right and liability shall be determined by
3
    AIR 1969 SC 78                                                                   H
136             SUPREME COURT REPORTS                            [2022] 16 S.C.R.


A            the Tribunals so constituted, and whether remedies normally
             associated with actions in civil courts are prescribed by the said
             statute or not.
                    […]
                    (7) An exclusion of the jurisdiction of the civil court is not
B            readily to be inferred unless the conditions above set down apply.
                                                            (emphasis supplied)
              15. In Ramesh Gobindram v. Sugra Humayun Mirza4, a two-
      Judge Bench of this Court observed that the jurisdiction of the civil courts
C     to try suits of a civil nature is expansive and the onus to prove the ouster
      of the jurisdiction is on the party that asserts it. The court observed that
      even in cases where the jurisdiction of the civil court is barred by a
      statute, the test is to determine if the authority or tribunal constituted
      under the statute has the power to grant reliefs that the civil courts
      would normally grant in suits filed before them. The relevant observations
D     are extracted below:
             “12. The well-settled rule in this regard is that the civil courts
             have the jurisdiction to try all suits of civil nature except those
             entertainment whereof is expressly or impliedly barred. The
             jurisdiction of the civil courts to try suits of civil nature is very
E            expansive. Any statute which excludes such jurisdiction is,
             therefore, an exception to the general rule that all disputes shall
             be triable by a civil court. Any such exception cannot be readily
             inferred by the courts. The court would lean in favour of a
             construction that would uphold the retention of jurisdiction of the
F            civil courts and shift the onus of proof to the party that asserts
             that the civil court’s jurisdiction is ousted.”
             13. Even in cases where the statute accords finality to the orders
             passed by the Tribunals, the court will have to see whether the
             Tribunal has the power to grant the reliefs which the civil courts
             would normally grant in suits filed before them. If the answer is in
G
             the negative, exclusion of the civil court’s jurisdiction would not
             be ordinarily inferred. In Rajasthan SRTC v. Bal Mukund Bairwa
             (2) [(2009) 4 SCC 299 : (2009) 1 SCC (L&S) 812] a three-Judge
             Bench of this Court observed: (SCC pp. 302h-303a)
      4
        (2010) 8 SCC 726; Also see Competent Authority, Calcutta under the Urban Land
H     (Ceiling and Regulation) Act 1976 v. David Manthosh, (2020) 12 SCC 542
              SAU RAJANI v. SAU SMITA & ANR.                                     137
           [DR DHANANJAYA Y CHANDRACHUD, J.]

      “There is a presumption that a civil court has jurisdiction. Ouster        A
      of civil court’s jurisdiction is not to be readily inferred. A person
      taking a plea contra must establish the same. Even in a case where
      jurisdiction of a civil court is sought to be barred under a statute,
      the civil court can exercise its jurisdiction in respect of some matters
      particularly when the statutory authority or tribunal acts without
                                                                                 B
      jurisdiction.”
      16. The preamble to the Act states that it is an Act to “unify,
consolidate and amend the laws relating to housing, repairing and
reconstructing dangerous buildings and carrying out improvement works
in slum areas”. The scheme of the statute provides that the Board
constituted under the statute would have the power to repair and                 C
reconstruct dilapidated buildings, conduct structural repairs and evict
persons from authority premises, among others. The objective of the
bodies and authorities constituted under the Act is to ensure repairing
and reconstructing buildings to provide housing. Undoubtedly, the
competent authority has the jurisdiction to order eviction in terms of the       D
provisions of Section 66. But that is not the frame of the suit or the relief
which has been claimed by the appellant in the suit. The reliefs sought
by the appellant in the plaint are: (i) the removal of the unauthorized
construction; (ii) a permanent prohibitory injunction restraining the
defendants from constructing over the open site and causing ‘nuisance’;
and (iii) restoration of the water connection as it was prior to the             E
construction. The appellant instituted the suit for injunction because her
easements were infringed by the illegal construction which the first
respondent had erected on the open space. The reliefs claimed by the
appellant are beyond the scope of the Act. A suit of this nature will be
maintainable before the civil court and would not be barred by Section           F
71 or Section 177 of the Act.
       17. For the above reasons, we are of the view that the Single
Judge of the High Court was in error in upholding the plea that there
was a bar of jurisdiction and reversing the findings of the trial Judge and
the first appellate court. Since, however, the Single Judge of the High          G
Court has only ruled on the absence of jurisdiction, a view which has
been disapproved above, the second appeal is restored to the file of the
High Court for consideration on merits. We allow the appeal and set
aside the impugned judgment and order of the Single Judge of the Nagpur
Bench of the High Court of Judicature at Bombay dated 11 December
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138              SUPREME COURT REPORTS                        [2022] 16 S.C.R.


A     2019 in Second Appeal No 111 of 2004. Second Appeal No 111 of 2004
      is restored to the file of the High Court for disposal on merits.
            18. Since the appeal pertains to the year 2004, we request the
      High Court to take it up for admission expeditiously and to endeavor a
      disposal within a period of three months from the date on which a certified
B     copy of this order is produced before it on the record.
             19. Pending application, if any, stands disposed of.

      Bibhuti Bhushan Bose                                          Appeal allowed.
      (Assisted by : Preetam Bharti, LCRA)
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