ORDER
R.M. Lodha, J.
1. Rule, returnable forthwith.
Mr. Mundargi waives service for the respondent.
By consent, rule is heard at this stage.
2. The only question involved in this Civil Revision Application is whether the jurisdiction of the Civil Court to entertain and proceed with the suit filed by the respondent herein is barred under the provisions of the Bombay Provincial Municipal Corporations Act, 1949.
3. The facts which are necessary for decision on the aforesaid question may be briefly stated. The petitioner is Ulhasnagar Municipal Corporation (for short the “Corporation”). The Corporation invited tenders for the purpose of awarding contracts for running a swimming pool and the adjoining canteen belonging to it in the year 1995. The respondent herein M/s. Gulshan Contractors (for short the “original plaintiff”) was granted the contract for a period of five years with effect from 16-8-1995. An agreement between the
Corporation and the original plaintiff was, accordingly, entered into. It was found by the Corporation that the original plaintiff was not providing proper service at the swimming pool and the canteen and that various terms and conditions have been breached. One person also died in the swimming pool on 1-11-1998 for want of proper safety measures by the original plaintiff. A show cause notice was issued to the original plaintiff by the Commissioner of the Corporation on 3-11-1998 to which reply was filed by the original plaintiff on 30-11-1998. Thereafter, on 18-12-1998 the Commissioner of the Corporation terminated the contract for breach of the conditions. Security deposit was forfeited and the original plaintiff was directed to vacate the premises with effect from 31-12-1998. The original plaintiff challenged the order of the Commissioner by filing a Regular Civil Suit in the Court of Civil Judge, Junior Division, Ulhasnagar, on 21-12-1998. An application for temporary injunction was also made by the original plaintiff. The Corporation filed its written statement-cum-say opposing the suit as well as the application for temporary injunction. On 31-12-1998 the trial Court directed the parties to maintain status quo. On 8-1-1999 the trial Court allowed the application for temporary injunction made by the original plaintiff. An application for rejection of the plaint under Order 7, Rule 11 of the Code of Civil Procedure was made by the Corporation on 11-1-1999. By the impugned order dated 19-1-1999, the trial Court has rejected the application made by the Corporation giving rise to the present civil revision application.
4. The Bombay Provincial Municipal Corporations Act, 1949 (for short the “Act of 1949”) provides the remedy of appeal against every order of the Commissioner made in respect of Corporation premises under section 81-B or 81-C to an appellate officer who is a District Judge or such other judicial officer in the city of not less than ten years standing. Section 81-F provides thus :–
“81-F. (1) An appeal shall lie from every order of the Commissioner, made in respect of any Corporation premises, under section 81-B or section 81-C, to an appellate officer, who shall be the District Judge or such other judicial officer in the city of not less than ten years standing, as the District Judge may designate in this behalf.
(2) An appeal under sub-section (1), shall be preferred,—
(a) in the case of an appeal from an order under section 81-B, within thirty days from the date of the service of the notice relating to the order under sub-section (1) of that section, and
(b) in the case of an appeal from an order under section 81-C, within thirty days from the date of the service of the notice relating to the order under sub-section (1) or (2) of that section, as the case may be:
Provided that, the appellate officer may entertain the appeal after the expiry of the said period of thirty days, if he is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.
(3) Where an appeal is preferred from an order of the Commissioner, the appellate officer may stay the enforcement of that order for such period, and on such conditions as he deems fit.
(4) Every appeal under this section shall be disposed of by the appellate officer as expeditiously as possible.”
5. The Act of 1949 in section 81-G provides that every order made by the Commissioner or the appellate officer under Chapter VIII-A shall be final and shall not be called in question in original suit, application or execution proceedings. Section 81-H bars the jurisdiction of Civil Court. The said sections 81-G and 81-H read thus :—
“81-G. Save as otherwise expressly provided in this Chapter, every order made by the Commissioner or the appellate officer under this Chapter shall be final, and shall not be called in question in any original suit, application or execution proceedings.
81-H. Subject to the provisions of this Chapter, no Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of the eviction of any person from any Corporation premises on any of the grounds specified in section 81-B or the recovery of the arrears of rent or the damages payable for use or occupation of such premises.”
6. A combined reading of the aforesaid provisions of the Act of 1949 leave no manner of doubt that the order passed by the Commissioner for eviction of the Corporation premises and recovery of rent or damages is appealable before the Appellate Authority who is judicial officer having designation of District Judge or ten years standing as a Judge. The order passed by the Commissioner and if challenged in appeal to the appellate officer, the order of the appellate officer is final and cannot be challenged in any original suit, application or execution proceedings. The jurisdiction of the Civil Court to entertain any suit or proceedings in respect of eviction of any person from Corporation premises under section 81-B or recovery of arrears of rent or the damages payable for use or occupation of the premises is barred. The Act of 1949 provides the self-contained remedy and the remedy having been created by the Act of 1949 and the jurisdiction of the Civil Court having been expressly excluded, the trial Court grossly erred in rejecting the application made by the Corporation challenging its jurisdiction. The aforesaid provisions leave no manner of doubt that the Civil Court’s jurisdiction is expressly excluded under the Act of 1949 and on the face of such specific provisions, it cannot be said that the aggrieved person has remedy under the statute i.e. the Act of 1949 as well as before the Civil Court. The provisions of the Act of 1949 provide specific remedy for challenging the order of Commissioner for eviction of Corporation premises and the Civil Court even does not have concurrent jurisdiction since its jurisdiction is expressly excluded and barred.
7. In the result, the Revision Application succeeds and the order passed by the Civil Judge, Junior Division, Ulhasnagar, on 19-1-1999 is quashed and set aside. The application made by the Corporation for rejection of the plaint stands allowed. No order as to costs.
8. It would be open to the original plaintiff to challenge the order passed by the Commissioner of the Corporation before the appellate officer and if the time for filing the appeal has expired, upon application for condonation being made by the respondent, the same would be considered, in accordance with law, keeping in view that the respondent pursued its remedy in the wrong Court. To enable the respondent-original plaintiff to file an appeal and obtain
appropriate interim order from the appellate officer, for a period of two weeks, the parties are directed to maintain status quo as obtaining today.
Certified copy expedited.
9. The parties may be provided with an ordinary copy of this order duly authenticated by the Sherestedar of this Court.
10. Application allowed.