Summary
An allottee of a first-floor tenement in a Maharashtra Housing Board building sued a ground-floor allottee in Amravati over rooms built on the adjoining open space. She said the construction affected her light, air and privacy, and that the neighbour had disturbed her water pipeline and drainage. The trial and first appellate courts decreed the suit. In second appeal, the Bombay High Court held it barred by Sections 71 and 177 of the MHADA Act, 1976, since the authority could evict for unauthorised alterations. Applying Dhulabhai, the Court held that ouster of civil jurisdiction is not readily inferred. The suit sought no eviction but enforcement of the plaintiff's own easements, relief beyond the Act's scheme. So it was not barred, and the second appeal was restored for decision on merits.
Issues
- Whether a suit by one allottee against another for removal of unauthorised construction on adjoining open space, injunction and restoration of water supply, based on infringed easements, is barred by Sections 71 and 177 of the Maharashtra Housing and Area Development Act, 1976.
Provisions considered
- Sections 66, 71 and 177, Maharashtra Housing and Area Development Act, 1976Section 71 bars civil suits about eviction from Authority premises and orders of the Competent Authority, and Section 177 bars matters the Authority may determine. A suit enforcing an allottee's easements and seeking no eviction fell outside both bars. (¶¶ 9, 10, 11, 12, 13, 16)
- Section 9, Code of Civil Procedure, 1908Civil courts try all suits of a civil nature unless their jurisdiction is expressly or impliedly barred. The onus to prove ouster lies on the party asserting it, and the defendant did not discharge it. (¶¶ 14, 15)
Held
- Under Section 9 CPC and Dhulabhai, ouster of civil jurisdiction is not readily inferred. The party asserting it bears the onus. Even where a statute bars jurisdiction, the question is whether the statutory forum can grant the reliefs a civil court normally would. (¶¶ 14, 15)
- Section 66 lets the Competent Authority evict an allottee for unauthorised material alterations. Sections 71 and 177 bar civil suits on eviction, on orders under that Chapter and on matters the Authority may determine. (¶¶ 10, 11, 12)
- The plaintiff did not seek the defendant's eviction. Both were allottees, and she sued because the construction infringed her light, air, privacy, water supply and drainage. Removal of the construction, injunction and restoration of the water connection to protect those easements are reliefs beyond the Act's scheme, so the suit was not barred by Sections 71 or 177. (¶¶ 13, 16)
Result
Appeal allowed. The High Court's judgment holding the suit barred is set aside and the second appeal is restored for disposal on merits, with a request that it be decided within three months.