Wednesday, 7 September 2016

Whether maharashtra rent control Act is applicable to lease given by municipal corporation?

 It appears that in the aforesaid suit, application
is also filed for relief of temporary injunction to prevent
the Corporation from taking possession. This application
also shows that the plaintiff, present respondent wants to
give go by to the procedure established by law. That
cannot be allowed. It is clear that the Civil Court has
committed error in making aforesaid order. Further the
learned counsel for the petitioner drew attention of this
Court to the provision of section 3 of the Maharashtra
Rent Control Act 1999 which has made clear that the
Maharashtra Rent Control Act shall not apply to the
property belonging to the local body. In view of this
provision of law also the Civil Court cannot give the reliefs

claimed in the suit and so the jurisdiction is barred.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Civil Revision Application No. 249 of 2015
Municipal Corporation of City of Jalgaon

Versus
Arjundas Khushiram Bajaj

 CORAM: T.V. NALAWADE, J.

 DATE : 11th DECEMBER 2015
Citation:2016(4) ALLMR 70


2) The proceeding is filed by the Jalgaon
Municipal Corporation to challenge the order made by the
learned Civil Judge, Senior Division, Jalgaon on
application filed under Order 7 Rule 11 of the Civil
Procedure Code by the present petitioner. The suit is filed
by present respondent and he opposed the application.
The Civil Court has rejected the application.
3) Present respondent is occupying one shop
premises belonging to the petitioner – Corporation. The
period of lease is over and so a show cause notice is
issued against the respondent by the Corporation as
provided under section 81-B of the Maharashtra Municipal
Corporations Act (hereinafter referred to as “the Act”).
After receipt of this notice, present respondent filed
application before Collector by mentioning that he was
filing application under section 80(1) of the Act and he
requested the Collector to declare him as a tenant under
the provisions of the Maharashtra Rent Control Act, 1999.
After hearing both sides, the Collector rejected the
application and held that there was no such power with
the Collector under section 80 of the Act. Then Regular

Civil Suit No.330 of 2013 came to be filed. Present
respondent has claimed following reliefs in the said suit :-
(1) to set aside the aforesaid order made by the
Collector;
(2) to give declaration that provision of section 81-B
of the Act are not applicable against him;
(3) to give declaration that he is a tenant under the
Maharashtra Rent Control Act 1999 and he is holding
over the possession after expiry of the period of lease.
He also prayed for declaration that his possession is
legal. He has prayed for relief of injunction to protect
his possession over the shop.
4) In the application filed at Exhibit 17 the
Corporation contended that in view of the scheme of the
Act, the Court has no jurisdiction.
5) The learned Civil Judge Senior Division has
rejected the application by holding that the Civil Court has
jurisdiction to grant aforesaid reliefs.
6) The learned counsel for the petitioner
Corporation submitted that the application under section
80 of the Act in the present matter itself was not tenable.
There is force in this submission. The provision of section
80(1) of the Act runs as under :-

"80 Decision of claims to property by or against
the Corporation. (1) Where any immovable
property or any right in or over any such property is
claimed by or on behalf of the Corporation, or by any
person as against the Corporation, it shall be lawful
for the Collector after formal inquiry, of which due
notice has been given, to pass an order deciding the
claim."
7) This provision is independent of the provision
of Chapter VIII-A of the Act. Chapter VIII-A gives power to
the Corporation to evict person from Corporation
premises. Admittedly, the premises in possession of the
plaintiff, present respondent, belongs to the Corporation
and so provision of Chapter VIII-A are applicable. The
provision of section 80(1) is in respect of that immovable
property of which the ownership of the Corporation is
disputed by a person and there is dispute over the
ownership. The inquiry under section 80 of the Act is like
the inquiry made in respect of unclaimed properties. In
that case, the dispute needs to be taken before the
Collector. Section 80(2) shows that if any party to such
proceeding is aggrieved by the order made by the
Collector under section 80(1) of the Act he/it needs to file
a suit in competent Civil Court to set aside such order. He
can claim relief in the said suit which he or it were

claiming in the proceeding filed before the Collector.
Thus, the purpose behind the provision of section 80 of
the Act is totally different. It is clear that present
respondent, plaintiff, has tried to use this proceeding to
take the matter to Civil Court when Civil Court has
apparently no jurisdiction to entertain the real dispute.
8) The learned counsel for the Corporation took
this Court through provisions of sections 81-B, 81-E, 81-
G and 81-H. These provisions together give a scheme in
itself. Provision of section 81-B shows that if a lessee
commits default in making payment of rent, this provision
can be used. It shows that if a person is in unauthorized
occupation of any Corporation premises, this provision
can be used. There are some other grounds also
mentioned in section 81-B of the Act. Detail inquiry is
provided in the scheme and the scheme shows that
Commissioner holding such inquiry has the same power as
are vested in Civil Court under the Code of Civil
Procedure 1908 when trying suit for the three purposes
mentioned in section 81-E. Thus in the inquiry, the
Commissioner is expected to consider the record
::: Uploaded on - 19/12/2015 ::: Downloaded on - 07/09/2016 20:15:25 :::Bombay High Court
 6 CRA 249 of 2015
produced by both the sides, take evidence on oath of the
parties and witnesses and then decide about the rights of
the parties. Section 81-F of the Act shows that against this
decision of Commissioner, appeal lies before the District
Judge. If such appeal is not preferred then in view of the
provision of section 81-G the order made by the
Commissioner becomes final and if appeal is preferred the
order made by the Appellate authority becomes final. It is
specifically provided under section 81-G that such order of
the Commission or order of the Appellate Authority cannot
be called in question in any suit, application or execution
proceeding.
9) The provision of Section 81-H of the Act is also
important and it runs as under :-
"81-H Bar of jurisdiction : Subject to the provisions
of this Chapter, no Civil Court shall have jurisdiction
to entertain any suit or proceeding in respect of the
eviction of any person from any Corporation premises
on any of the grounds specified in section 81-B or the
recovery of the arrears of rent or the damages
payable for use or occupation of such premises."
10) This provision shows that the decision given
under the scheme cannot be challenged in Civil Court.

These provisions are sufficient to hold, in view of the facts
and circumstances of the present case, that the matter
falls under theses provisions. Admittedly only show cause
notice was given under section 81-B of the Act and then
the aforesaid step was taken by the present respondent.
This conduct itself shows that the plaintiff, respondent is
attempting to protract the things.
11) The learned counsel for the petitioner placed
reliance on the case reported as (2004) 9 SCC 772
(Bharat Petroleum Corporation Ltd. v. P. Kesavan). In this
case the Apex Court has laid down that when there is
special enactment made in respect of some subject matter,
provision of the special enactment over rides general law.
There cannot be dispute over this proposition. The
aforesaid provisions of the Act show that it is special
scheme created under the special law for the properties
belonging to Corporation.
12) Learned counsel for the Corporation placed
reliance on another case reported as 1999 Bom.C.R. 145
(Ulhasnagar Municipal Corporation v. M/s Gulshan

Contractors). In this case, this Court at Principal Seat has
laid down that jurisdiction of civil court to entertain any
suit or proceeding in respect of the eviction of any person
from Corporation premises under section 81-B is barred.
One more case was cited on this point which is reported
as 2013 (3) Bom.C.R. 297 of this Court (between
Ramchandra Jivatram Chetwani and Pune Municipal
Corporation). In this case also this Court has laid down
that when period of lease expires, possession of the
person in whose favour the lease was made needs to be
treated as unauthorized and illegal possession and the
provisions of the Act need to be used. There cannot be
any dispute over the propositions made in the aforesaid
reported cases.
13) On the other hand, the learned counsel for
present respondent, plaintiff, placed reliance on a case
reported as AIR 2004 SC 1801 (Sopan Sable v. Assistant
Charity Commissioner). In this case in a suit, different
reliefs were claimed and the main relief was regarding
continuation of tenancy under the trust. Other reliefs were
regarding inquiry into affairs of the trust. In view of these

circumstances, the Apex Court held that question of
tenancy or right to tenancy could have been decided by
Civil Court though the other disputes could not have been
considered. It is further laid down that in such a case
entire plaint cannot be rejected and so the proceeding can
go on in respect of matter regarding which the Civil Court
has jurisdiction. There cannot be any dispute over this
proposition. Present matter is of different nature and the
relevant provisions and the law developed is already
discussed. Another case reported as 2013(6) ALL MR 251
(Rite Choice Trading Company v. Vikram Govind Rao)
was cited. While considering provision of section 9-A of
the Civil Procedure Code, this Court made observations
that averments made in the plaint like cause of action
and the relief sought must be considered in its entirety.
There cannot be dispute over this proposition. In another
case reported as 2014 (1) All MR 684 (Shree Hanuman
Mandir v. Satishchandra Bhalchandra Gurjar) this Court
observed that the suit was filed for title to the suit
property and it can be decided by the Civil Court and it
was not regarding administration, the management of the
trust and so the jurisdiction was not barred. In that matter

also some reliefs were of the nature which were touching
the management of the trust.
14) The learned counsel for the respondent placed
reliance on a case reported as AIR 1969 SC 78 (Dhulabhai
vs. State of M.P.). In this case the Apex Court has laid
down principles regarding exclusion of jurisdiction of civil
Court as under :-
“(1) Where the statute gives a finality to the orders
of the special tribunals, the civil courts' jurisdiction
must be held to be excluded if there is adequate
remedy to do what the civil court 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 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 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 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 the tribunals so
constituted, and whether remedies normally
associated with actions in civil courts are prescribed
by the said statute or not.

(3) Challenge to the provisions of the particular Act
as ultra vires cannot be brought before Tribunals
constituted under that Act. Even the High Court
cannot go into that question on a revision or
reference from the decision of the Tribunals.
(4) When a provision is already declared
unconstitutional or the constitutionality of any
provision is to be challenged, a suit is open. A writ of
certiorari may include a direction for refund if the
claim is clearly within the time prescribed by the
Limitation Act but it is not a compulsory remedy to
replace a suit.
(5) Where the particular Act contains no machinery
for refund of tax collected in excess of constitutional
limits or illegally collected, a suit lies.
(6) Questions of the correctness of the assessment
apart from its constitutionality are for the decision of
the authorities and a civil suit does not lie if the
orders of the authorities are declared to be final or
there is an express prohibition in the particular Act.
In either case the scheme of the particular Act must
be examined because it is a relevant inquiry.
(7) An exclusion of jurisdiction of the Civil Court is
not readily to be inferred unless the conditions above
set down apply.”
15) There cannot be dispute over the propositions
made by the Apex Court in the case cited supra. The first
principle itself shows when finality is given to the order
made by the Special Tribunal, civil Court's jurisdiction
must be held to be excluded. If provisions of the Act are
not complied with or the Tribunal has not acted in
conformity with the fundamental principles of judicial

procedure then Civil Court can step in. There is no such
case and at present there is only show cause notice. The
other principles show that if there are adequate and
sufficient remedies provided under the scheme and rights
and liabilities can be determined like by the tribunals then
there is no jurisdiction to Civil Court. Thus as per the
principles laid down by the Apex Court also the suit is not
tenable.
16) It appears that in the aforesaid suit, application
is also filed for relief of temporary injunction to prevent
the Corporation from taking possession. This application
also shows that the plaintiff, present respondent wants to
give go by to the procedure established by law. That
cannot be allowed. It is clear that the Civil Court has
committed error in making aforesaid order. Further the
learned counsel for the petitioner drew attention of this
Court to the provision of section 3 of the Maharashtra
Rent Control Act 1999 which has made clear that the
Maharashtra Rent Control Act shall not apply to the
property belonging to the local body. In view of this
provision of law also the Civil Court cannot give the reliefs

claimed in the suit and so the jurisdiction is barred.
17) In the result, the order made by the learned
Civil Judge, Senior Division, Jalgaon is hereby set aside.
The application filed by the Corporation under Order 7
Rule 11 of the Civil Procedure Code is allowed. The plaint
stands rejected. Rule is made absolute in aforesaid terms.
 Sd/-
 (T.V. NALAWADE, J. )

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