IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7751 OF 2008 Shivaji Nagar Railway Station Zopadpatti Vikas Sangh ...Petitioner V/s. Union of India & Ors. ...Respondents ...... Mr.G.S.Godbole i/b Mr.Nitin Mulye for Petitioner. Ms.Lalita Panchakshari for Respondents 1 & 2. ...... CORAM: CORAM: CORAM: A.M.KHANWILKAR, J. A.M.KHANWILKAR, J. A.M.KHANWILKAR, J. FEBRUARY FEBRUARY FEBRUARY 27, 2009. 27, 2009. 27, 2009. P.C. 1. Heard Counsel for the parties. 2. The first argument on behalf of Petitioner is that in view of the High Court order, the Petitioner cannot be termed as unauthorised occupant in respect of the suit premises. The fact that the suit premises are public premises is indisputable. If it is so, the question whether the Petitioner is authorised or unauthorised occupant in respect of such premises is a matter : 2 : within the exclusive domain of the Estate Officer to be answered in terms of Section 4 and 5 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. The argument that the Petitioner cannot be termed as unauthorised occupant or that he was lawfully in use and occupation of the public premises is a matter which ought to be addressed before the Estate Officer. On this finding, the conclusion reached by the Court below that the Civil Court has no jurisdiction to question the show cause notice issued by the Estate Officer against the Petitioner will have to be upheld in view of bar under Section 15 of the Act. 3. The next argument of the Petitioner is that even if the finding of the Trial Court that the Civil Court has no jurisdiction as confirmed by the Appellate Court is to be upheld, the order passed by the Trial Court in terms of provisions of Order VII Rule 11(d) of the Code of Civil Procedure of return of Plaint cannot be sustained and if that part of the order was to be set-aside, the Petitioner could have availed remedy of regular First Appeal against the view taken by the Trial : 3 : Court. The argument though attractive at the first blush, will have to be stated to be rejected. This argument clearly overlooks that the Petitioner has already availed remedy of appeal before the District Court by way of Miscelleneous Civil Appeal. No doubt, that is a remedy of Appeal from Order and not a regular Appeal. Even if it were to be a regular Appeal, it would have been required to be filed before the same District Court which has already considered the merits of the argument with regard to issue of jurisdiction of the Civil Court. It would be only a mere formality to be observed by the same Court to reiterate the view already recorded in the impugned Judgment. This does not mean that the Trial Court was right in directing return of Plaint. Once the Court finds that the jurisdiction of Civil Court is barred in terms of Section 15 of the Act, the question of returning the Plaint does not arise. On that finding, however, the Trial Court ought to have dismissed the Suit as not maintainable. To that extent, the order passed by the Trial Court will stand modified. However, at the same time, it will have to be reiterated for the reasons already recorded above that the Civil Court will have no : 4 : jurisdiction to examine the correctness and appropriateness of show cause notice issued by the Estate Officer. To that extent, the concurrent view taken by the two Courts below is upheld. 4. Writ Petition is disposed of on the above terms. A.M.KHANWILKAR, J.