1 S.A. No.600.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL No.600 OF 2010 Ishwar S/o Bhanudas Wakhare & others .. APPELLANTS VERSUS The State of Maharashtra & others ...RESPONDENTS ... Shri. S.S. Thombre, Advocate for the appellants Smt. R.K. Ladda, A.G.P. for respondent /State. ... CORAM : S.V. GANGAPURWALA, J. DATE : 13th December, 2010. PER COURT : This is plaintiffs Second Appeal. The plaintiff had filed a suit for injunction against the respondents from dispossessing the plaintiff from the suit property. The trial Court decreed the suit and clamped injunction against the defendant Nos. 1 & 2 restraining them from dispossessing the plaintiffs without due process 2 S.A. No.600.2010 of law. The defendant Nos. 1 & 2 preferred an appeal before the District Court. The District Court allowed the appeal and set aside the Judgment and Decree passed by the Trial Court. More particularly, on the ground that Civil Court has no jurisdiction to entertain the suit in view of the bar under Section 68 of the Bombay High Way Act, 1955. The plaintiff has assailed the said Judgment in the present Second Appeal. 2. Shri S.S. Thombre, learned Counsel for the appellants submit that even there was no pleading on the part of the defendants suggesting that Civil Court does not have jurisdiction, pursuant to the provisions of Bombay High Way Act. The authorities had issued a notice on 7th July, 2003 under the Bombay High Way Act, without quoting the provisions under which the notice was issued. The Civil Courts jurisdiction is always presumed to be there, unless and until expressly barred. Even when there is bar, if an illegality is committed, Civil Court can always go into the same. The learned Counsel further contended that the plaintiff are in possession of the said shops 3 S.A. No.600.2010 legally and under the authority of Grampanchayat. Even the Grampanchayat has accepting the rent from the plaintiffs. In such circumstances, the possession needs to be protected, and the trial Court had rightly granted a guarded relief. 3. Per contra, Mrs. R.K. Ladda,learned A.G.P. submits that Section 68 of the Bombay High Way Act is clear and does not call for any interpretation, it specifically bars the jurisdiction of the Civil Court. Though the section is not mentioned in the notice, still the contents of the notice are explicitly clear. 4. With the assistance of learned Counsel for the respective parties I have gone through the provisions of Bombay High Way Act and the judgments delivered by both the Courts below. It is a fact that the plaintiffs are in possession of the suit premises, even Grampanchayat has not denied that it is receiving the rent from the plaintiff. The dispute is as to whether the said premises comes within the ambit and purview of Bombay High Way Act. The notice was issued under 4 S.A. No.600.2010 the said Act by the authority concerned. The Bombay High Way Act, is complete code in itself. It provides for remedies. Section 68 creates a specific bar, Section 64 gives power of summary eviction to the authority, Section 65 the Act also provides for appeal. In the light of the same, when the Act is self contained code, and there is barring provision, the Civil Court can not invoke its jurisdiction. In that light of the same, no fault can be found in the Judgment of the Courts below. 5. At this stage Shri Tombre, learned Counsel submits that admittedly the plaintiffs are in possession and time may be required for initiating the proceedings under the Bombay High Way Act with the authorities and for that purpose their possession be protected. Mrs. R.K. Ladda, A.G.P. strenuously opposes said request on the ground that in the year 2003 notice was issued, much time has lapsed, and the defendants are illegally in possession of the premises. 6. In the light of above, the respondents 5 S.A. No.600.2010 shall not evict / dispossess the appellant for a period of 8 weeks from today. 7. Second Appeal is dismissed with the above observations. Needless to state that if any proceedings are initiated, this authorities shall consider it on the merits of the matter, without being influenced by the order passed by the Civil Court and this Court. In view of the dismissal of the Second Appeal, the Civil Application is also disposed of. [S.V. GANGAPURWALA] JUDGE SDM*