ash 1 57fa-1887.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.1887 OF 2010 Mrs. Kavita Singh & Anr. .. Appellants Vs Maharashtra Housing and Area Development Authority & Ors. .. Respondents -- Shri Anil Singh i/by Shri D.R. Shah for the Appellants. Shri P.G. Lad for Respondent Nos.1 and 2. -- CORAM ; A.S. OKA, J DATED : 14TH MARCH, 2011 P.C. . On 24th January, 2011, this Court has issued notice for final disposal. By the impugned judgment and decree, the plaint has been rejected in exercise of powers under Clause (d) of Rule 11 of Order VII of the Code of Civil Procedure, 1908. 2. The suit was filed by the Appellants for declaration that they are the occupiers within the meaning of Section 2(25) of the Maharashtra Housing and Area Development Act, 1976 (hereinafter referred to as “the MHADA Act”) in respect of the suit premises, more particularly described in the Plaint. The second prayer is for declaration that the order dated 16th September, 2010 passed by the Executive Engineer of the 1st and 2nd Respondents is illegal, ultra vires, ash 2 57fa-1887.10 bad in law and null and void. 3. Perusal of the impugned judgment and decree shows that the learned Trial Judge, while deciding the Notice of Motion taken out by the Plaintiffs for temporary injunction, was of the view that the jurisdiction of the Civil Court was barred in view of Section 71 of the MHADA Act. The learned Trial Judge observed in Paragraph 18 of the impugned judgment and decree that the action taken against the Appellant was under Section 66(1)(b) of the MHADA Act and therefore, remedy of preferring an appeal under Section 70 thereof was available to the Appellants. The learned Trial Judge came to the conclusion that in view of availability of the remedy under Section 70 and the bar created under Section 71 of the MHADA Act, the plaint was liable to be rejected under clause (d) of Rule 11 of Order VII of the said Code. 4. After having heard the learned counsel appearing for the parties, I find that the order which is subject matter of challenge in the suit does not appear to have been passed under Section 66(1)(b) of the MHADA Act. Even the learned counsel appearing for the Respondents is unable to point out that the action has been taken under Section 66(1)(b) of the MHADA Act. 5. It must be also noted here that the first prayer in the suit is ash 3 57fa-1887.10 for declaration that the Appellants are occupiers within the meaning of Section 2(25) of the MHADA Act. The second prayer is that the order dated 16th September, 2010 is nullity. Apart from the fact that there is no remedy provided under the MHADA Act against the order dated 16th September, 2010, it cannot be said that the jurisdiction of the Civil Court under Section 9 of the said Code is barred either expressly or by necessary implication. Notwithstanding bar of Section 71 of MHADA Act, the Civil Court always has a jurisdiction to grant declaration of nullity. 6. Hence, the order of rejection of the plaint on the ground that the suit was barred in view of Section 71 of the MHADA Act is completely erroneous and deserves to be set aside. Whether the Appellants have any case on merits is an issue which will have to be decided by the Trial Court in the Notice of Motion taken out for interim relief and in the main suit. 7. Hence, I pass following order:- ORDER (a) The impugned judgment and decree dated 22nd November, 2010 is quashed and set aside. ash 4 57fa-1887.10 (b) S.C. Suit No.2040 of 2010 along with Notice of Motion No.2487 of 2010 are restored to the file of the Trial Court. (c) It is made clear that all the contentions of the parties on merits of the suit as well as Notice of Motion for interim relief are kept open. (d) Notice of Motion shall be decided by the Trial Court on its own merits as expeditiously as possible and within a period of three weeks from the date on which an authenticated copy of this order is produced before the Trial Court. (e) Ad-interim relief granted by this Court on 24th January, 2011 will continue to operate till disposal of the Notice of Motion. (f) Civil Application No. 4789 of 2010 does not survive and the same is disposed of. ( A.S. OKA, J )