* 1 * IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 1667 OF 2009 1. Nanu Recreation Centre Trust 2. Shri. Sharif Ahmed Mohmed Ali Shaikh 3. Shri. Aftab Ahmed Hafiz Akbar 4. Mr. Jagdish Nandlal Joshi 5. Mr. Majid Mohd. Ali Shaikh 6. Mr. Kishor Nandlal Joshi 7. Shri. Sham M. Mhatre 8. Mr. Upendra Amrutlal Mistry Appellants/Orig.Plffs Vs. 1. The Maharashtra Housing and Area Development Board 2. The State of Maharashtra thru. The Ministry of Housing Government of Maharashtra, Mantralaya .... Resps/Orig.Defds. ------------ Mr. Anil Singh i/by. Mr.Devendra Mishra, Advocate for appellants. Mr. G.W. Mattos, AGP for respondent no.1-MHADA. Ms. V.S. Mhaispurkar, AGP for respondent no.2-State. Coram : SMT. R.P. SONDURBALDOTA, J. Dated : 26th November, 2009. P.C. 1. By consent of all the parties, this appeal was taken up for final hearing at the stage of admission, as the only questions falling for * 2 * consideration thereunder are the questions relating to jurisdiction of The appellants are the plaintiffs to Long Cause Suit No.851 of 2005. Respondent no.1 MHADA is defendant no.1 and respondent no.2, the 2. tate of Maharashtra is defendant no.2 to the suit. The appellants filed the instant suit in Bombay City Civil Court, inter-alia, for a declaration that the letter of allotment dated 2nd January 2003 allotting the suit plot at Survey no.1103 (part) admeasuring 6000 sq, mtrs near Aaram Nagar, Versova, Mumbai to the appellants is final, conclusive and binding upon the parties and the same cannot be revoked. The appellants also sought permanent injunction to restrain the respondents inter-alia from acting contrary to the allotment and from alienating or re-allotting the suit land to any third person. 3. Both, MHADA and State of Maharashtra in their affidavits-in- reply to oppose the Notice of Motion for interim reliefs contended that the suit as framed is barred under Section 177 of MHAD Act. They also alleged that the appellants had not valued the suit properly and that on proper valuation under Schedule-I Article 7 of the Bombay Court Fees Act, the suit would be beyond the limits of pecuniary jurisdiction of the Bombay City Civil Court. On the basis of these contentions raised in the affidavit-in-reply, respondent no.1 even before filing written statement made an application to the Court * 3 * that the issues of jurisdiction be framed as preliminary issues and decided. The application of respondent no.1 was allowed by the Bombay City Civil Court by its order dated 6th October, 2009 and following preliminary issues were framed : (i) Whether the jurisdiction of this court is barred under Section 177 of MHAD Act ? (ii) Whether this court has pecuniary jurisdiction to entertain and try the suit ? 4. By the impugned judgment and order dated 14th October 2009, Bombay City Civil Court answered Issue no.1 in the affirmative and Issue no.2 in the negative. With these findings, the plaint came to be rejected under Order 7 Rule 11 (d) CPC. 5. Mr.Singh, the learned counsel for the appellants, submits that the contention of the appellants as regards the application of Section 177 of MHAD Act is wholly misconceived as the suit is essentially directed not against MHADA, but, against the Government. He submits that the authority of allotment of land under Regulation 16 of the Maharashtra Housing & Area Development (Disposal of Land) Regulation, 1982 is exclusively with the State and MHADA has nothing to do with the allotment. Since the allotment by the decision dated 16th July 2002 was by the Cabinet Sub-Committee of * 4 * the State over which MHADA had no control, the provision of Section 177 of MHAD Act is not attracted. Mr.Mattos, the learned counsel for MHADA, on the other hand, has strenuously argued that though the land is kept at the disposal of the State in the matter of allotment, since the land vests in MHADA, Section 177 of MHAD Act, will be applicable. He also submits that the decision taken by the State, of allotment, being under the rules framed under the MHAD Act, the power of allotment exercised by the State would be under the MHAD Act and therefore the bar under Section 177 of MHAD Act is attracted. Thirdly, Mr. Mattos submits that the decision of allotment of the land by the State cannot be said to be independent of MHADA as all the next steps in furtherance of the decision of allotment are required to be taken by MHADA. Mr.Mattos draws attention to Section 28 of MHAD Act, which provides for functions, duties and powers of the MHADA and the provision of sub-section 3 in particular, to submit that, after the allotment of land is done by the State, all further steps as regards entering into the agreements/contracts, setting up of terms and conditions for the allotment and development etc. are within the purview of MHADA. He also draws attention to Section 29 (1) (b) which provides that all the contracts would be entered in the name of the MHADA. * 5 * According to Mr.Mattos, since MHADA has to shoulder a major part of the task after the decision of allotment of the land by the State under Regulation 16 of the Maharashtra Housing & Area Development (Disposal of Land) Regulation, 1982 Section 177 of MHAD Act will be applicable. 6. For proper appreciation of the rival contentions, it will be convenient to note at this stage, the provision of Section 177 of MHAD Act. The same reads as under : 177. “ Bar of jurisdiction- Save as otherwise 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 in respect of any action taken or to be taken in pursuance of any power conferred or duty imposed by or under this Act.” 7. From mere reading of the above provision, it is clear that the bar thereunder is limited to the matters which are within the power of determination of the Authority or the Tribunal. The dispute herein is about allotment of land under Rule 16 of of the Maharashtra Housing & Area Development (Disposal of Land) Regulation, 1982. Such a matter is undisputedly beyond the province of the Authority, the power of allotment being specifically vested in the State. * 6 * MHADA can have no control or power over the allotment. It at the highest can act as an advisor by furnishing the necessary information to the Sub-Committee to enable the Sub-Committee to take appropriate decision of allotment. Mr. Mattos, has not pointed out any provision to show that the matter of allotment under Regulation 16 is within the powers of determination of the Tribunal. As regards the functions and powers of the Authority under Section 28 of MHAD Act of setting up the terms of allotment, executing agreement etc. pointed out by Mr. Mattos, the same will come into picture only post allotment. Therefore, the question of applicability of Section 177 to the facts of the present case, does not arise. In these circumstances, the learned trial Judge was not correct in holding that the suit is barred under Section 177 of the MHAD Act. He has completely misread the plaint. At para-15 of the judgment, it is observed that it is evident from the plaint that the suit plot is alloted by respondent no.1 to the appellants. This is incorrect, as Rule 16 empowers respondent no.2 alone to allot the land. It is further seen that the learned Judge was impressed by the fact that the terms and conditions for the allotment are to be decided by respondent no.1. Even if that is so, in the instant case, the dispute is not as regards the terms of allotment. The terms were infact accepted by the * 7 * appellants and the payment thereunder was made. The other error committed by the learned trial Judge is, not finding out whether the matter before him is a matter which the Act has empowered the Tribunal or the Authority to determine. Unless the question involved or matter raised in the suit in respect of which any power is conferred upon the MHADA, Section 177 has no application. 8. As regards the pecuniary jurisdiction of the Bombay City Civil and Sessions Court, Mr.Singh concedes that the appellants ought to have valued the suit under Schedule-I Article 7 of Bombay Court Fees Act and on proper valuation, the suit would be beyond the pecuniary jurisdiction of the Bombay City Civil Court. In view of this concession, the plaint is required to be returned to the appellants for presentation to the proper court. The Appeal is hence partly allowed. The impugned order rejecting the Suit under Order 7 Rule 11 CPC is set aside. The plaint is directed to be returned to the appellants for presentation to the proper court. 9. During the course of the submissions, Mr. Mattos informed the court that MHADA has since, by its letter dated 31st October, 2009 cancelled the allotment of the suit plot of land in favour of the appellants and refunded the amount of Rs.33 lacs by forwarding a cheque to the appellants. He also states that MHADA now with the * 8 * permission of the State proposes to develop the entire Aaram Nagar layout which includes the suit property in joint venture with the Aaram Nagar Tenants Association and a Developer appointed by the Association. In these circumstances and in view of the return of the plaint for presentation to the proper court, Mr. Singh presses for interim protection until such time as he is able to take the plaint and present the same to the proper court. Mr.Mattos on instructions from the Joint Chief Officer, Mumbai Board, makes a statement that MHADA will not take any step in respect of the suit plot of land for a period of 8 weeks from today i .e. till 21st January, 2010. (SMT. R.P. SONDURBALDOTA, J) * 9 *