BANSNARAYAN SITAPRASAD PATEL Vs. SAIRAM CO OPERATIVE HOUSING

JUDGEMENT

(1.) The AppellantOriginal Plaintiff has challenged order dated 16 December 2008, passed by the learned Judge of the City Civil Court, Greater Bombay, whereby his Suit for declaration about his entitlement to the joint possession of the transit premises Room No. 702, Gomati Nagar Transit Camp, G.K. Marg, Worli, Mumbai and other related prayers including of injunction, were not entertained, by holding that the Court has no jurisdiction and further directed to represent before the Competent Authority under the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 (for short, SRA) read with Order 7 Rule 10 of the Code of Civil Procedure (for short, CPC). Section 42 of the SRA reads as under:

(2.) The learned Judge therefore, accepted the preliminary objection raised by the Defendants and passed the impugned order.

(3.) Both the learned counsel make statement that after the development, the developer already given possession of the premises to Respondent No.3. They are in exclusive possession of the constructed premises as per the allotment of the permanent alternate accommodation in lieu of old premises. The case of Respondent No.3 is that the PlaintiffAppellant was alone allowed to reside in the old hut and therefore, no other family members are entitled to reside in transit, as well as, in the new premises. The same is even confirmed by the Slum Rehabilitation Authority in order dated 19 September 2006. The learned Judge however, by the impugned order dismissed the Suit and thereby without determining the rights of the Plaintiff with regard to his claim in the temporary, as well as, permanent structure, though the concerned Respondent is not denying the right to occupy the said premises by the Plaintiff alone but not with his other family members. The Court in view of bar of jurisdiction may not grant injunction and may not be in position to determine the right, action and/or order passed by the Competent Authority or Tribunal under the Act. But the right and the private disputes between the parties, in the present facts and circumstance, which is nothing but a Civil right has to be adjudicated by the Court and cannot be by the Competent authority and/or the Tribunal. I am inclined to observe that the preliminary objection so accepted by the Court and return of the Suit for proper presentation as referred to above, is incorrect. The Civil right cannot be adjudicated and/or concluded in such fashion specifically when the Competent Authority and/or the Tribunal has no jurisdiction and/or authority to determine and the title and/or the Civil disputes between the parties, though question relates to the occupation and/or rights flowing disputed long and authorized occupation of a hut in question. The dispute so initiated at the stage where the question about joint occupation in transit camp, now in view of permanent accommodation granted to the Respondent concerned, needs to be adjudicated in view of the positive averments even made by the concerned Respondent and has noted in the order that the PlaintiffAppellant alone has a right to occupy the premises and no other family members. This itself, in my view, sufficient to set aside the impugned order as the Plaintiff is entitled to put his case and the Court also required to adjudicate his claim of joint possession as prayed/claimed in accordance with law.