C.S.DHARMADHIKARI, J. - (1.) This is an appeal filed by the original plaintiffs against the order passed by the City Civil Court, Bombay in Notice of Motion No. 2357 of 1981 on 1st of May, 1981 in L.C. Suit no. 2672 of 1981, dated 18th of August, 1981 dismissing the said notice of motion is an admitted position that the present appeal has been filed under order 43 read with section 104 of the Code Civil Procedure.
(2.) In the suit plaintiffs claimed that they were in possession of the disputed land. It is an admitted position that in the Town Planning Scheme the land in dispute was given plot No. 1215 and was allotted to one Peter Louis who in his turn assigned it to M/s. Sanghi Motors Ltd. M/s. Sanghi Motors Limited and Shri Loise filed a petition before this Honable Court against the Bombay Municipal Corporation bearing Misc. Petition No. 906 of 1972 wherein a statement was made on behalf of the Corporation before the High Court that they will take immediate steps to stop the nonconfirming use of the structure on this plot by launching prosecution, in view of this statement the petition came to be withdrawn by the petitioners and thereafter the plaintiff No. 1 was prosecuted under the provisions of the Maharashtra Regional Town Planning Act, but was acquitted. The M/s. Sanghi Motors Ltd. also filed suit in small causes Court, Bombay against plaintiffs and the said suit the was dismissed as not maintainable. The Corporation then called upon the plaintiffs to show documentary evidence. It then appears that the matter was against brought before the High Court by Sanghavi Motors Ltd. in Misc. Petition No. 1668 of 1975 which was decided by Pendse, J., on 11th October, 1979. Pendse, J., after making a reference to the decision of the Supreme Court in (Municipal Corporation of Greater Bombay v. The Advance Builders India Pvt. Ltd.) reported in 75 Bombay Law Reporter 355 and the decision of the Division Bench of this Court consisting of the Chief Justice Kantawala and Mr. Justice Tulzapurkar (dated 9th October, 1973 in Appeal No. 135 of 1969) and the decision of Justice Deshmukh dated (23rd November, 1977 in Misc. petition No. 288 of 1970) came to the conclusion that it is the statutory duty of the Corporation to put the allottee of the final plot in actual possession. Accordingly, the rule was made absolute in the said petition and the corporation was directed to enforce the final Town Planning Scheme, Bombay City No. IV, Mahim area and put the M/s Sanghavi Motors Ltd. in actual and Physical possession after removing all the huts, sheds and temporary structures on the final plot No. 1215. The Corporation was further directed to enforce the scheme and put the M/s. Sanghavi Motors Ltd. in possession according to the provisions of law within a period of one year from the date of the judgment. It appears that thereafter betterment charges were paid by the said M/s. Sanghavi Motors Ltd. and the Corporation issued notice to the plaintiffs under sections 89 and 90 of the Maharashtra Regional Town Planning Scheme Act, 1966, herein after called as the Act. In substance it is these notices which were challenged in the present suit by the plaintiffs.
(3.) The defendants, that is, the Corporation and its Ward Office justified their action under Law. They also contended that the plaintiffs were already offered alternate accommodation as per the policy of the Corporation. They also contended that the Civil Court has no jurisdiction to entertain the suit in view of the provisions of the Town Planning Act. On the basis of the pleadings of the parties the learned Judge of the City Civil Court, Bombay framed the following issues : (1) Whether growing of garlic and giving treatment is an industry ? (2) Whether this Court has jurisdiction to entertain this suit ?" ;