COMMISSIONER AKOLA MUNICIPAL CORPORTION Vs. BHALCHANDRA

JUDGEMENT

(1.) In Regular Civil Suit No.902 of 2012 challenging the communication dated 3102012 and the notice dated 29102012 issued by the applicant/defendant Akola Municipal Corporation under Sections 260 and 267 of the Maharashtra Muniicipal Corporation Act, calling upon the nonapplicant/plaintiff to furnish an explanation as to why an unauthorized construction carried out by him should not be pulled down, the Trial Court, on 412013, has rejected the application under Order VII, Rule 11 of the Civil Procedure Code by an order dated 412013, claiming dismissal of suit on the ground that there is a bar of jurisdiction of the Civil Court under Section of the said Act to entertain, try and decide the suit. Hence, the original defendant Akola Municipal Corporation has preferred this civil revision application.

(2.) Though the provisions of the Bombay Provincial Municipal Corporation Act are referred to in the communication and the notice challenged in the suit, the learned counsels appearing for the parties admit that it is a notice under Section 260 of the Maharashtra Municipal Corporation Act. The Trial Court has held that the plaintallegations are not sufficient to draw an inference that the suit is barred by particular provisions of the said Act. It has further been held that the suit is barred by the provision of Section 433A of the Maharashtra Municipal Corporations Act can be a defence of the applicant/defendant and such a defence and the defences disclosed in the application cannot be taken into consideration for the purpose of rejection of the plaint under Order VII, Rule 11 of the Civil Procedure Code.

(3.) The questions of law, which arise for consideration of this Court, are