Whether civil court can decide issue of eligible slum dweller as per Maharashtra Slum Areas Act?

The perusal of the plaint would also reveal that the entire tenor of the case of the Plaintiff is that after the death of Anandibai, it is the Plaintiff and Defendant No. 1, who were jointly entitled to the benefits of the hutment which was occupied by their mother Anandibai. It can thus be seen that the basic prayer of the Plaintiff is for a declaration that he along with the Defendant No. 1 is entitled to the rights flowing from the said hutment. By now, it is the settled position of law that the averments in the plaint cannot be read in isolation and for finding out what is the main relief claimed in the plaint, the plaint has to be read as a whole. The perusal of the plaint would reveal that the basic claim of the Plaintiff is on the basis of being the legal heir of Anandibai who was the original occupant of the suit hut. As such, it would be clear that the main claim in the plaint is against the Defendant No. 1, contending that the Plaintiff and the Defendant No. 1 are entitled to the joint use of the rights flowing from the said hut being legal heirs of the deceased Anandibai.

11. Perusal of the provisions of the said Act referred to hereinabove would reveal that by no stretch of imagination a dispute of nature which is sought to be raised in the plaint can be gone into by the Competent Authority, Appellate Court or Grievance Redressal Committee. In any case, the issue as to rights flowing to the Plaintiff and Defendant as legal heirs of Anandibai could be within the exclusive jurisdiction of the Civil Court and not any other forum.

12. In this regard, it will be relevant to refer to para nos. 12,13 and 14 of the Apex Court, in the case of Rajasthan State Road Transport Corporation and Anr. v/s. Bal Mukund Bairwa reported in MANU/SC/0181/2009 : (2009) 4 SCC 299.

12. Section 9 of the Code is in enforcement of the fundamental principles of law laid down in the maxim Ubi jus Ibi remedium. A litigant, thus, having a grievance of a civil nature has a right to institute a civil suit in a competent civil court unless its cognizance is either expressly or impliedly barred by any statute. Ex facie, in terms of Section 9 of the Code, civil courts can try all suits, unless barred by statute, either expressly or by necessary implication.

13. The civil court, furthermore, being a court of plenary jurisdiction has the jurisdiction to determine its jurisdiction upon considering the averments made in the plaint but that would not mean that the plaintiff can circumvent the provisions of law in order to invest jurisdiction on the civil court although it otherwise may not possess. For the said purpose, the court in given cases would be entitled to decide the question of its own jurisdiction upon arriving at a finding in regard to the existence of the jurisdictional fact.

14. It is also well settled that there is a presumption that a civil court will have jurisdiction and the ouster 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 jurisdiction.

13. It can thus be clearly seen that the Apex Court in clear terms has held that a litigant having a grievance of a civil nature has a right to institute a civil suit in a competent civil court unless its cognizance is either expressly or impliedly barred by any statute. It has been further held that there is a presumption that a civil court will have jurisdiction and the ouster of civil court's jurisdiction is not to be readily inferred. It has been further held that a person taking a plea contra must establish the same.

14. In the present case, as has been discussed herein-above, the dispute interse between the two claimants claiming to be legal heirs of deceased Anandibai, by no stretch of imagination, falls within the scope of powers of the Competent Authority or the Appellate Authority or Grievance Redressal Committee, which falls under Sections 35 and 42 of the said Act.

15. In that view of the matter, the learned Judge has erred in rejecting the plaint.

IN THE HIGH COURT OF BOMBAY

Appeal From Order No. 137 of 2012

Decided On: 09.04.2013

 Ashok B. Nigudkar Vs.  Sudhadra P. Nirgudkar and Ors.

Hon'ble Judges/Coram:

B.R. Gavai, J.

Citation:2013(4) ALLMR 753

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Whether jurisdiction of civil court is barred by S 42 of Slums Act?

The bar excluding the jurisdiction of
civil courts does not operate in cases where the plea is of nullity, which goes to
the root of the matter. A fraudulent act or an act ultra vires the law providing for it,
are nullities where despite even an express bar of jurisdiction the civil courts can

interfere.
18 I can do no better to affirm this than simply quote what the Supreme
Court said in Dhruv Green Field Ltd. vs. Hukam Singh9
. The Court stated the
law thus :
“9. The question, when and in what circumstances, can a suit of
civil nature be said to be barred by a special statute, is no longer
res Integra. In Kamala Mills Ltd. v. State of Bombay, AIR (1965)
SC   1942,   a   seven­judge   Bench   of   this   Court   laid   down   the
principle thus: 
"The question about the exclusion of the jurisdiction of
civil courts either expressly or by necessary implication must be
considered, in every case, in the light of the words used in the
statutory provision on which the plea is rested, the scheme of the
relevant provisions, their object and their purpose.  (AIR p.1951,
para 30)
Whenever a  plea  is   raised  before  a civil  court that  its
jurisdiction   is   excluded   either   expressly   or   by   necessary
implication   to   entertain   claims   of   a   civil   nature,   the   Court
naturally feels inclined to consider whether the remedy afforded
by   an   alternative   provision   prescribed   by   a   special   statute   is
sufficient or adequate. Where the exclusion of the civil court's
jurisdiction is expressly provided for, the consideration as to the
scheme   of   the   statute   in   question   and   the   adequacy   or   the
sufficiency of remedies provided for by it may be relevant, it
cannot however, be decisive.
But when exclusion is pleaded as a matter of necessary
implication, such considerations would be very important, and, in
conceivable   circumstances,   might   even   become   decisive.   If   a
statute creates a special right or a liability and provides for the
determination   of   the   right   and   liability   to   be   dealt   with   by
tribunals specially constituted in that behalf, and it further lays
down that all questions about the said right and liability shall be
determined   by   the   tribunals   so   constituted,   it   is   pertinent   to
enquire whether remedies, normally associated with actions in
civil courts are prescribed by the said statute or not.” (AIR p.
1952, para 32)
9 (2002) 6 SCC

That judgment was followed in Rama Swarup v. Shikar Chand,
AIR 1966 SC 893. There Gajendragadkar, CJ. speaking for a
Constitution Bench of this Court formulated the following tests: 
"The  two tests,  which  are  often  considered  relevant  in
dealing   with   the  question   about   the   exclusion  of  civil  courts'
jurisdiction are (a) whether the special statute which excludes
such   jurisdiction   has   used   clear   and   unambiguous   words
indicating that intention, and (b) does that statute provide for an
adequate and satisfactory alternative remedy to a party that may
be aggrieved by the relevant order under its material provisions.
Applying   these   tests   the   inference   is   inescapable   that   the
jurisdiction of the civil courts is intended to be excluded.  (AIR p.
896, para 12)
The bar excluding the jurisdiction of civil courts cannot
operate in cases where the plea raised before the civil court goes
to   the   root   of   the   matter   and   would,   if   upheld,   lead   to   the
conclusion that the impugned order is a nullity.
10. In   the   light   of   the   above   discussion,   the   following
principles may be restated: 
(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   lead   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 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.”
19 As I have noted above, the present suit being based on a plea of
fraud against the State in a matter of acquisition under the Slum Act and also on
                                                                                                            
a plea of ultra vires, the suit is clearly maintenable on the pleadings of the
Plaintiffs. As of today, there is no evidence to either sustain or decline the pleas
of fraud and ultra vires. The matter is argued on a demurrer, based on pleadings
and admitted documents on record. There is no case for dismissing the suit for
want of jurisdiction. The preliminary issue is, thus, answered in the negative.
            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 ORDINARY ORIGINAL CIVIL JURISDICTION
SUIT NO. 2862 OF 2008

Abdul Sattar Haji Usman & Anr. 
vs.
The Archbishop of Bombay & Ors

 CORAM : S.C. GUPTE, J.

 PRONOUNCED ON : 12 APRIL 2016
Citation: 2017(2) ALLMR 260

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