-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. SECOND APPEAL NO. 75/2009. ( Ashok Jairam Chandragiriwar -versus- Bandu Tukaram Mahakulkar ) ----------------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram appearances, Court's orders or Directions Court's or Judge's Orders. And Registrar's Orders. ----------------------------------------------------------------------------------------------------------------------------------- CORAM : B.P.DHARMADHIKARI, J. DATED : FEBRUARY 26, 2009. Heard Advocate Shri P.T. Dhok, for appellant/original defendant. Challenge is to concurrent judgments and decrees delivered by the Courts below. Respondent no.1 tenant filed suit for protection of his possession pointing out that his landlord, an influential person was with the assistance of Municipal Council and Police Authorities getting the house construction demolished by showing it to be dilapidated. The Courts below have accepted this story. Advocate Shri Dhok has contended that in view of the provisions of Section 195 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 read with section 308, the Civil Court could not have exercised jurisdiction and challenge to this could have -2- been before the Collector, under section 308 of the Act. With his assistance I have perused both the judgments. The Municipal Council has issued a notice because of the inspection report dated 17.04.1998. The said report was seen by the Chief Officer and thereafter he ordered issuance of notice under section 195. The inspection report dated 17.04.1998 and the endorsement of the Chief Officer dated 25.5.1998 are annexed along with the Second Appeal. The Lower Appellate Court has found that the Chief Officer who ordered issuance of notice has in his cross examination stated that he did not remember whether he had personally seen the suit house. It further found that Shri Raut who had seen the suit house and prepared report dated 17.4.1998 was not examined by the appellant. In other words it found that said report and further action by the Municipal Council upon it was not proved in accordance with law. It is to be seen that the action sought to be taken by drastic action and it was therefore, necessary for the appellant to prove that house was dilapidated. By merely producing inspection report, the contention cannot be proved. A technical person who had visited the spot and prepared the report ought to have been examined. Admittedly that has not been done. -3- The contention that in such circumstances, the jurisdiction of Civil Court is barred, is misconceived. The Section 308 of the Municipalities Act permits the Collector to interfere in matters relating to general public importance. Here the plaintiff has established that the action sought to be taken is not in accordance with law. The common law right available to respondent no.1 / plaintiff therefore could not have been allowed to be violated and recourse to Civil Court for its vindication cannot be said to be illegal. The judgment of Hon'ble Apex Court in the matter of Shiv Kumar Chaddha .vrs. Delhi Municipal Corporation (JT 1993 [3] SC 238), clearly covers the controversy. No substantial questions of law arise in this Second Appeal, the same is therefore dismissed. No cost. JUDGE Rgd.