Since the only exception to entertain a suit is on the basis of the
order being a nullity as suffering from a jurisdictional error, the said ground must be so overwhelming so as to superimpose itself on the bar. The ground of nullity must be such that it is exfacie borne out from the facts and cannot be arrived at by a convoluted process. It is also required to be noted that the suit is filed on the basis of the alleged threat of demolition, as indicated herein above the Plaintiff has not filed any application under Section 53(3) of the
MRTP Act after the notice is received. The cause of action appears to be merely a ruse to file the suit. If such types of suits are entertained, the bar contained in Section 149 of the MRTP Act would turn otiose.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO.448 OF 2013
Mrs. Sarina Esmeralda Lopez Vs Mr.Vijay Goverdhandas Kalantri
CORAM : R. M. SAVANT, J.
DATE : 16th January 2015
Citation: 2015(2) MHLJ603
1 The revisionary jurisdiction of this Court under Section 115 of the
Code of Civil Procedure is invoked against the order dated 22/3/2013 passed
by the learned Judge of the City Civil Court, (Borivali Division), Dindoshi
thereby adjudicating upon the preliminary issue which is to the following
effect:
“Whether the suit is not maintainable, the jurisdiction
of the Court being ousted by virtue of Section 149 of
the Maharashtra Regional Town Planning Act, 1966?
2 The factual matrix involved in the above Civil Revision Application
can be stated thus :At
the outset it would be necessary to describe the parties to the
Civil Revision Application. The Applicant herein is the original Defendant No.2
to the suit; Respondent No.1 herein is the original Plaintiff and the Respondent
No.2 is the original Defendant No.1 to the suit. The Maharashtra Regional and
Town Planning Act would be referred to hereinafter as the “MRTP Act”.
The case of the Plaintiff is that by an Agreement of Sale dated
5/6/1982 between the Plaintiff and one Oriental Developers, the Plaintiff
purchased a residential premises being Flat No.2 on the ground of the building
now known as Wahedna Apartment, situated at 75, Hill Road, CPS No.B12,
Bandra (West) Mumbai – 400 050 on ownership basis. The said Flat No.2
consists of 3 bedrooms, hall and kitchen. The said premises of the Plaintiff are
abutting the open space of the Building. It is the case of the Plaintiff that he
had also acquired a right in respect of the said open space. It is the case of the
Plaintiff that the said open space is forming part of the said Flat No.2 and that
the Plaintiff has a direct access to the said open space and has exclusive
possession of it. The said open space is admeasuring 21 ft. x 9 ft. x 8.6 ft. It is
the case of the Plaintiff that the said open space is enclosed by a brick masonry
wall and the Plaintiff has a direct access to the said open space. It is further
the case of the Plaintiff that the right of the Plaintiff has never been challenged
by the society. It is the case of the Plaintiff that he has neither constructed the
brick masonry wall nor has provided direct access to himself to the said
enclosed passage nor has carried out any development. It is the case of the
Plaintiff that a notice under Section 53(1) of the MRTP Act was suddenly
issued by the Assistant Commissioner, `H' Ward of the Defendant No.1 –
Municipal Corporation of Greater Mumbai ( herein after referred to for short
“the MMC”), to the Plaintiff alleging that the Plaintiff has carried out
unauthorized construction and therefore the Plaintiff was called upon to
restore the status of the suit property to its original position, a copy of the
sanctioned plan was enclosed with the said notice. A Reference to the said
notice would be made in greater detail in the latter part of this judgment.
3 The said notice was replied to by the Plaintiff vide his letter dated
24/4/2012. He contended that he had not carried out any development as
alleged. It was contended that the wall was constructed by the Developer, and
that the Plaintiff was a bonafide purchaser of the Flat No.2 along with the
enclosed open space. It is the case of the Plaintiff that the said reply was not
considered and two days prior to filing of the suit, some persons posing to be
officers of the MMC attached to the “H” ward of the MMC visited the suit
premises and gave a threat to the Plaintiff that the said premises would be
demolished. It is the case of the Plaintiff that as there is an apprehension which
is generated on account of the said threat of demolition, the suit in question
was filed.
4 In the suit in question the principal relief sought is for a
declaration that the notice issued by the MMC under Section 53(1) of the
MRTP Act dated 2/4/2012 is illegal and bad in law and the same is liable to be
quashed and set aside. In the said suit a Notice of Motion for injunction was
filed by the Plaintiff wherein adinterim
relief was granted by the Trial Court
and the said Notice of Motion was adjourned for reply to be filed to the same.
The Applicant herein filed a Chamber Summons for her impleadment in the
said suit which was allowed by the Trial Court and the Applicant was
accordingly joined as party Defendant No.2 to the said suit. The MMC filed its
written statementcumreply
to the said Notice of Motion whereas the
Applicant who is the Defendant No.2 filed her reply opposing the said Notice of
Motion. The said Notice of Motion is pending and by virtue of the adinterim
order, an injunction is operating against the MMC.
5 In view of the objection which was raised to the jurisdiction of the
City Civil Court to try the suit in question, by the Defendants that a preliminary
issue was framed which has already been adverted to herein above. The Trial
Court adjudicated upon the said preliminary issue and ruled that it has the
jurisdiction to try and entertain the suit. The gist of the reasoning of the Trial
Court, as can be seen from the impugned order, is that the Plaintiff has
challenged the impugned notice as being bad in law and a case of nullity is
pleaded. The Trial Court observed that the contention raised and the
submission made in that regard may not be applicable to the entire alleged
unauthorized work of construction shown in the impugned notice. The Trial
Court has further observed that in so far as change of position of doors of the
kitchen and master bedroom, toilet from its original position is concerned, it
would amount to internal work of improvement, alterations, affecting only the
interior of the building. The Trial Court has referred to the judgment of a
learned Single Judge of this Court (A.S.Oka, J) wherein the learned Single
Judge has held that if there is an allegation made in the plaint that action of
issuing notice u/s. 53(1) or 55 of the MRTP Act is a nullity or without
jurisdiction, the express exclusion of the jurisdiction of the Civil Court will not
come in the way of the Civil Court entertaining the said suit. The Trial Court
having regard to the said judgment seemed to be of the view that since the
notice is challenged on the ground that it is bad in law and a case of nullity is
pleaded, the suit is maintainable. The Trial Court also referred to the
judgment in Shiv Kumar Chadha v/s Municipal Corporation of Delhi
reported in (1993) 3 SCC 161 case wherein the Delhi High Court has held
that the Court has to be satisfied that the action appears to be a nullity. The
Trial Court has thereafter concluded that since there is a case of nullity
pleaded, and the construction work which prima facie amounts to internal
work and since the MMC has not replied to the letter dated 24/4/2012, the
suit as filed is maintainable. As indicated above the Trial Court has by the
impugned order ruled that it has the jurisdiction to try and entertain the suit.
6 Heard the Applicant in person Mrs. Sarina Lopez, the learned
Senior Counsel Shri D D Madon appearing for the Respondent No.1 and the
learned Senior Counsel Shri Joquim Reis appearing for the Respondent No.2.
7 The Applicant in person Mrs. Sarina Lopez reiterated her case
urged before the Trial Court viz. that in view of the bar under Section 149 of
the MRTP Act, the suit in question challenging the notice under Section 53(1)
was not maintainable. It is the contention of the Applicant in person that
though the Trial Court has observed that a case of nullity has been pleaded, in
fact there is no mention of the word “nullity” in the plaint. The Applicant in
person referred to various judgments in support of her contention that the suit
is not maintainable in view of the bar of Section 149. A reference to the said
judgments would be made at the appropriate stage in the instant order.
8 Per contra, the learned Senior Counsel Shri D D Madon appearing
on behalf of the Respondent No.1Plaintiff
would support the impugned order.
The learned Senior Counsel would contend that the legality or otherwise of the
structure is not material for the purposes of the issue as to whether the suit is
maintainable. It is the submission of the learned Senior Counsel that the Trial
Court is only required to consider on the basis of the case pleaded as to
whether the suit is maintainable. The learned Senior Counsel sought to draw
this Court's attention to the averments made in the plaint and would contend
that it is the case of the Plaintiff that action of issuing notice being bad in law
and ultra vires, the suit as filed is maintainable. The learned Senior Counsel
sought to place reliance on the unreported judgment dated 10/4/2014 of a
learned Single Judge of this Court (N.M.Jamdar,J) in Writ Petition No.2243 of
2013 and companion matters in the case of Mr. Yogesh Megaji Gada v/s.
The Municipal corporation of Greater Mumbai and anr. in support of his
contention that the suit filed by the Plaintiff was maintainable. The learned
Senior Counsel also sought to question the notice on the ground that the
allegations made in the notice are not clear if one considers the asterisk which
have been placed against the items which finds a place in the said notice. The
learned Senior Counsel would therefore contend that no case for exercise of
the revisionary jurisdiction of this Court is made out.
9 The learned Senior Counsel Shri Joquim Reis appearing on behalf
of the Respondent No.2 – MMC would also question the maintainability of the
suit on the touchstone of Section 149 of the MRTP Act. The learned Senior
Counsel would also seek to draw the Court's attention to the various judgments
of the learned Single Judges of this Court upholding the bar of Section 149 of
the MRTP Act, some of which have also been cited by the Applicant in person.
The learned Senior Counsel would contend that though the notice has been
challenged on the ground of being bad in law and ultra vires, the Plaintiff has
not demonstrated as to how the said notice is bad in law and ultra vires. The
learned Senior Counsel by drawing this Court's attention to the averments in
the plaint and the statutory provisions would contend that no case of the notice
being bad in law or ultra vires or nullity is made out. The learned Senior
Counsel would contend that without applying for regularization under Section
53(3), the Plaintiff has rushed to the Civil Court and obtained interim
injunction, thereby preventing the MMC from taking action against the
unauthorized construction. The learned Senior Counsel by drawing the
attention of the Court to the averments made in the plaint would contend that
the said averments exfacie
demonstrate that construction was carried out by
the Plaintiff unauthorizedly. The learned Senior Counsel would lastly contend
that the Trial Court has erred in holding at the stage of adjudication of the
preliminary issue that the development carried out amounts to internal work.
10 Having heard the Applicant in person, the learned Senior Counsel
for the Respondent No.1 and the learned Senior Counsel for the Respondent
No.2, I have considered the rival contentions. In the context of the challenge
which is raised and which revolves around the bar as contained in Section 149
of the MRTP Act it would be necessary to briefly refer to the objects and
reasons behind the MRTP Act. The MRTP Act has been enacted to make
provision for planning the development and use of land in Regions established
for that purpose and for the constitution of Regional Planning Boards therefor;
to make better provisions for the preparation of Development plans with a
view to ensuring that town planning schemes are made in a proper manner
and their execution is made effective, to provide for the creation of new towns
by means of Development Authorities; to make provisions for the compulsory
acquisition of land required for the public purposes in respect of the plans. The
underlying object of the MRTP Act is therefore to have a proper and planned
development in the areas to which it applies. It is therefore the statutory
obligation of a planning authority to see that the development is carried out in
terms of the development plan. The planning authority is therefore vested with
the requisite power under the MRTP Act to take action against the
unauthorized construction. It is with a view to give finality to the orders
passed by the planning authority that the bar under Section 149 of the MRTP
Act is provided. There can be no dispute about the fact that the MMC is both
the local authority and the planning authority in so far as the provisions of the
MRTP Act are concerned.
11 Having regard to the object of the MRTP Act, it would now be
apposite to refer to Section 53 of the MRTP Act which is one of the provisions
in contention. The said provision is reproduced herein under for the sake of
ready reference :“
53. Power to require removal of unauthorised
development:(
1) Where any development of land has
been carried out as indicated in subsection
(1) of
section 52, the Planning Authority may, subject to the
provisions of this section, 5[****] serve on the owner a
notice requiring him, within such period, being not less
than one month, as may be specified, therein after the
service or the notice, to take such steps as may be
specified in the notice,
(a) in cases specified in clause (a) or (c) of subsection
(1) of section 52, to restore the land to its condition
existing before the said development took place.
(b) in cases prescribed in clauses (b) or (d) of subsection
(1) of section 52, to secure compliance with the
conditions or with the permission as modified:
Provided that, where the notice requires the
discontinuance of any use of land, the Planning
Authority shall serve a notice on the occupier also.
(2) In particular, such notice may, for purposes of subsection
(1), require(
a) the demolition or alteration of
any building or works;
(b) the carrying out on land of any building or other
operations; or
(c) the discontinuance of any use of land.
(3) Any person aggrieved by such notice may, within
the period specified in the notice and in the manner
prescribed, apply for permission under section 44 for
retention on the land of any building or works or for
the continuance of any use of the land, to which the
notice relates, and pending the final determination or
withdrawal of the application, the mere notice itself
shall not affect the retention of buildings or works or
the continuance of such use.
(4) The foregoing provisions of this Chapter shall, so
far as may be applicable apply to an application made
under subsection
(2).
(5) If the permission applied for is granted, the notice
shall stand withdrawn; but if the permission applied for
is not granted, the notice shall stand; or if such
permission is granted for the retention only of some
buildings, or works, or for the continuance of use of
only a part of the land, the notice shall stand
withdrawn as respects such buildings or works or such
part of the land, but shall stand as respects other
buildings or works or other part of the land, as the case
may be and thereupon, the owner shall be required to
take steps specified in the notice under subsection
(1)
as respects such other buildings, works or part of the
land.
(6) If within the period specified in the notice or within
the same period after the disposal of the application
under subsection
(4), the notice or so much of it as
stands is not complied with, the planning Authority
may a)
prosecute the owner for not complying with the
notice; and where the notice requires the
discontinuance of any use of land any other person also
who uses the land or causes or permits the land to be
used in contravention of the notice; and
(b) where the notice requires the demolition or
alteration of any building or works carrying out of any
building or other operations, itself cause the restoration
of the land to its conditions before the development
took place and secure compliance with the conditions
of the permission or with the permission as modified by
taking such steps as the Planning Authority may
consider necessary including demolition or alteration of
any building or works or carrying out of any building or
other operations; and recover the amount of any
expenses incurred by it in this behalf from the owner as
arrears of land revenue.
(7) Any person prosecuted under clause (a) of subsection
(6) shall, on conviction, [be punished with
imprisonment for a term [which shall not be less than
one month but which may extend to three years and
with fine which shall not be less than two thousand
rupees but which may extend to five thousand rupees,
and in the case of a continuing offence with a further
daily fine which may extend to two hundred rupees]
for every day during which such offence continues after
conviction for the first commission of the offence.”
A reading of Section 53(1) therefore discloses that an order of demolition can
be passed in the cases specified in clause (a) or clause © of subsection
(1) of
section 52 to restore the land to its condition existing before the said
development took place. In cases covered by clauses (b) or (d) of subsection
(1) of section 52, an order can be passed to secure compliance with the
conditions or with the permission as modified. Subsection
(2) of Section 53
vests the power in the planning authority for carrying out the purposes of subsection
(1) to order demolition or alteration of any building or works; the
carrying out on land of any building or other operations or the discontinuance
of any use of land. A reading of Section 53(3) discloses that any person
aggrieved by such notice may, within the period specified in the notice and in
the manner prescribed, apply for permission under Section 44 for retention on
the land of any building or works or for the continuance of any use of the
land,. Hence Section 53(3) is in the nature of a remedy which is provided to
an addressee of a notice under Section 53(1) of the MRTP Act to apply for
regularization.
12 It would also be apposite to refer to Section 149 of the MRTP Act
which contains the bar. The said provisions is reproduced herein under for the
sake of ready reference :“
149. Finality of orders:Save
as otherwise expressly
provided in this Act, every order passed or direction
issued by the State Government or order passed or
notice issued by any Regional Board, Planning
Authority or Development Authority under this Act
shall be final and shall not be questioned in any suit or
other legal proceedings.”
The said provision posits that every order passed or direction issued by the
State Government or order passed or notice issued by any Regional Board,
Planning authority or Development Authority would be final and would not be
questioned in any suit or other legal proceedings. Hence the said Section can
be said to be what is popularly known as “the Finality Clause”, or “the Clause
of Exclusion”.
13 After referring to the relevant statutory provisions, it would now
be apposite to refer to the notice dated 2/4/2014 issued under Section 53(1)
of the MRTP Act by the MMC. The relevant excerpt of the said notice is
reproduced herein for the sake of ready reference :
“AND WHEREASit has been reported to me that, you
have commenced, undertaken or carried out
development or instituted or changed the use of the
land described in the Schedule appended below :(
i) Without the permission required under the Act
(ii) Which is not in accordance with the permission
granted.
(iii) After the permission for development was duly
revoked
(iv) In contravention of the permission which was duly
modified
You are therefore hereby called upon :(
i) To demolish the structure or the building atm
(ii) To restore the premises under reference to its
original position as per the approved plan under
No.CE/6972/BSII/AH
Within one month from the date of receipt of this
notice.
Please note that on failure to comply with the
aforesaid requisition, You will be liable for prosecution
under the said Act and the aforesaid requisitions will
be carried out at your risk and cost.
SCHEDULE
(Description of the unauthorized development together
with the particulars of land)
The position of door of kitchen and master bedroom
toilet is changed from its original position, as well as a
living and bedroom windows removed and fixed sliding
glass panels on there to access open passage. The
outside open passage enclosed near living and
bedroom by constructing brick masonry walls adm.
21`X9”x8`.6”. The Offset portion outside living room
is merged in living room are shown in red colour on
plan under No.CE/6972/BSII/AH. Attached herewith.”
A reading of the said notice therefore discloses that the Plaintiff was called
upon to restore the premises under reference to its original position as per the
approved plan under No.CE/6972/BSII/AH, which portion appears in bold in
the original notice. The alleged unauthorized construction which has been
carried out has been mentioned in the Schedule of the said notice. The
reading of the said Schedule shows that apart from the change in position of
the doors of kitchen and master bedroom, toilet from its original position, it is
also alleged that the outside open passage is enclosed near the living and
bedroom by constructing brick masonry wall adm. 21`X9”x8`6”. It is further
alleged that the Offset portion outside the living room is merged in living room
as shown in red colour on plan attached to the notice. The Plaintiff in fact has
accepted in the plaint that the approved plan was attached to the notice which
was served upon him. The Plaintiff can be said to have understood the notice
and has therefore replied to the said notice, and the reply is only to the effect
that the open space abutting his flat was sold to him by the Developer and the
wall was also constructed by the Developer. It is required to be noted that the
Plaintiff gave his reply but no application was made under Section 53(3) of the
MRTP Act.
14 Now the defining aspect that is the bar posited by Section 149 of
the MRTP Act would have to be considered. There is a bar to the filing of the
proceedings on account of the finality given to the order passed under the
MRTP Act. The said bar of Section 149 had come up for consideration before
the learned Single Judges of this Court the judgment of one of the learned
Single Judges has been referred to by the Trial Court in the impugned order.
The said judgment has been rendered by a learned Single Judge of this Court
(A.S.Oka,J.) in First Appeal No.1635 of 2010 in the case of Laxman Barkya
Wadkar v/s. Mumbai Municipal Corporation. The learned Single Judge after
considering the judgments of this Court as well as the Apex Court concluded
that the bar of Section 149 is not absolute and would not apply, if the
notice/order is challenged on the ground of nullity. Paragraph 16 of the said
judgment is material and is reproduced herein for the sake of ready reference :“
There is no necessity to reconsider the view taken by
this Court earlier in as much in the case of Bales
Sardara Parach (supra) this Court accepted the
contention that if action under section 55 of the said
Act is alleged to be nullity, the jurisdiction of the Civil
Court is not ousted. In any event, what binds this
Court is the law laid down by the Apex Court in the
aforesaid decisions.”
Similar view is taken by another learned Single Judge of this court in a group
of Petitions being Writ Petition No2243 of 2013 and companion matters by the
judgment dated 10/4/2014. The learned Single Judge (N.M.Jamdar, J) was
concerned with the challenges to the notices issued under Section 351 and
Section 354 of the Mumbai Municipal Corporation Act, 1888. The challenge to
the said notices by way of Writ Petitions was justified on the ground that there
is a bar under Section 515A
of the MMC Act to the filing of the suits. The bar
under Section 515A
is akin to the bar under Section 149 of the MRTP Act.
15 The learned Judge ( N M Jamdar, J)after adverting to the concept
of “nullity” and “jurisdictional error” by referring to the judgments of the Apex
Court, this Court as well as the English Courts held that the suit is
maintainable if there is a jurisdictional error by the authority. Paragraph 22 of
the said Judgment is material and is reproduced herein under :“
22 The learned Senior Advocate appearing for the
Corporation has in fact not taken an extreme position
that the civil suit in all the circumstances is barred. He
submitted that no Petitioner can directly approach this
court on a presumption that suit is not maintainable
and must show that there has been jurisdictional error
in order to succeed in the suit. Mr. Dwarkadas,
submitted that the legislative policy is to curtail the
litigation by not permitting the challenge to the order
of demolition/stoppage on merits, that is, on
assessment of evidence in a regular trial. According to
him by introducing exclusion clause the scope of the
litigation will now to be restricted only to the
jurisdictional error in the order of the authority. This
submission is correct. Even if the jurisdiction of the
civil court has been excluded by section 515A,
it is still
open if the Petitioners show that there a jurisdictional
error on the part of the authority. The scope to
challenge the order has been narrowed down to this
effect. There is no scope of unlimited challenge to the
orders under the relevant sections.”
16 The aforesaid two judgments in Laxman Barkya Wadkar's case
and Yogesh Megaji Gada's case therefore sound a slightly different tune than
the judgments of the learned Single of this Court concerning Section 149. The
said judgments are the Judgments reported in 2005(3) Bom. C.R. 300 in the
case of Dr. Mohan Bhave v/s. Municipal Corporation of Greater Mumbai;
2008(3) MahLJ 686 in the case of Kalyan Dombivli Municipal Corporation
v/s. Prakash Mutha, unreported judgment in C.R.A. 132 of 2004 in the case
of Ulhasnagar Municipal Corporation v/s. Kailsash Tikamdas and
unreported judgment in Writ Petition No.933 of 2013 in the case of
Prathamesh Towers v/s. Gorai Road (Borivali) Shree Ganesh Cooperative
Housing Society Ltd and ors; 2005(3) All MR 218 in the case of Bales
Sardar Paracha v/s. MCGM. The learned Single Judges of this Court in the
said judgments have held that in view of the finality given to the order passed
by the authority under the MRTP Act, the bar under Section 149 of the MRTP
Act operates and hence the suit questioning the notice or order would not lie.
The aforesaid judgments have been relied upon by the party in person as well
as the learned Senior Counsel appearing on behalf of the Respondent No.2MMC.
In the context of the proposition which has now been laid down by
the said two judgments sounding a slightly different tune viz. that if there is a
jurisdictional error committed by the authority, then a suit would lie which
can be said to be an exception to the general proposition that the bar under
Section 149 of the MRTP Act would operate, that the facts of the instant case
would have to be considered. In the said context Paragraphs 5, 7, 9, 13, 14, 15
and 18 of the plaint are material. The same are reproduced herein under for
the sake of ready reference.
“5 While acquiring Flat No.2, the developer had
raised the existing masonry wall for the purpose of
security. Thus, the Plaintiff was having direct access
and exclusive possession of open passage admeasuring
about 21 ft. x 9 ft. x 8.6 ft. On the said open space, the
Plaintiff is having an excess to bedroom and the living
room. For the purpose of the present suit, the said
open passage, which is enclosed by brick masonry wall
and having a direct access exclusively for the Plaintiff is
hereinafter referred to as the suit premises for the sake
of convenience.
7 Suddenly, on 2nd April 2012 the Plaintiff was
served with a Notice issued under Section 53(1) of the
MRTP Act by the Asst. Commissioner, “H” Ward of the
Defendant, alleging therein that the Plaintiff has carried
out unauthorized development under the provisions of
52(1) of the MRTP Act and called upon the Plaintiff to
restore the same as per the original sanctioned plan.
The Defendant had also enclosed copy of the
sanctioned plan along with the said Notice dated 2nd
April 2012. Herewith enclosed and marked Exhibit B
(colly) is a copy of the Notice dated 2nd april 2012.
9 The Defendant has neither considered the said
reply nor has applied their mind to the fact of the case.
Suddenly, two days back, some persons posing to be as
officers attached to the H Ward of the Defendant visited
the suit premises and gave a threat to the Plaintiff that
the said premises shall be demolished by the Defendant
at any moment without giving any rule or passing any
order upon and without considering reply given by the
Plaintiff.
13 The provision of Section 52 of the MRTP Act is
not at all applicable as no permission under Section 44
or 45 of the MRTP Act is required for carrying out
construction activities, which do not affect the frame
work of the building. Admittedly, the nature of
unauthorized development is shifting of doors and
removal of the windows and fixing the same with
sliding glass. The said work done fall within the
purview of additions, alterations and/or development,
which requires permission under Section 44 or 45 of
the MRTP Act.
14 Notice has been issued without application of
mind. The mala fide act of the Defendant is clearly
established on the fact that the Defendant took steps to
check the sanctioned plan, but failed and included to
consider the decision of the permission reflected in the
BCC or the situation has raised on the date of granting
Occupation Certificate. The Occupation Certificates are
not granted or the Building Completion Certificate is
not granted when there is unauthorized work. Grant of
BCC and Occupation Certificate indicate that the
Defendant has condoned and/or tolerated the said
alleged unauthorized development.
15 The act of the Defendant is against the principle
of natural justice as by the Notice the Defendant has
straightway issued an order for demolition and arrange
to prosecute without giving any opportunity to submit
an explanation. Thus, the Defendant arrived at
conclusion regarding the unauthorized development
without giving any opportunity to the Plaintiff.
18 From the facts stated hereinabove and the
contention raised, it is clear that the act of the
Defendant is illegal, bad in law, malafide, against the
principle of natural justice and ultra virus. The Plaintiff
is therefore entitled for a declaration that the Notice
issued by the Defendant under Section 53(1) of the
MRTP Act dated 2nd April 2012 bearing No.HW/BF/JE2/
MRTP53(
1)3058 of 2012 is illegal and bad in law
and as such the Defendants are not entitled to give
upon the same.”
The gist of the averments contained in Paragraphs 5, 7 and 9 which are
introductory averments have already been referred to in the earlier part of this
Judgment. A reading of Paragraph 13 discloses that the factum of
development carried out by him has been accepted by the Plaintiff but he seeks
to justify the same that the same would amounts to additions alterations or
development which requires permission under Section 44. A reading of the
averments in Paragraph 14 discloses that the Plaintiff knows about the
sanctioned plan but relies upon the occupation certificate to justify the
development. In Paragraph 15 the Plaintiff has alleged violation of principles
of natural justice on the ground that straight way the order of demolition has
been issued. In Paragraph 18, the Plaintiff has averred that the act of the
Defendant No.1 MMC is illegal, bad in law, malafide, against the principles of
natural justice and ultra vires, and thereby seeks to justify the declaration that
is sought. The cause of action can be said to be mentioned in Paragraph 20 of
the plaint and the Plaintiff has averred that since there is a threat of
demolition, that there is urgency in the matter.
17 In so far as the allegation that principles of natural justice are
violated, the said ground is based on the fact that straight way the notice of
demolition has been issued, the scheme as contained in Section 53 of the
MRTP Act has been referred to herein above. The said scheme does not
contemplate any hearing to be granted prior to issuance of a notice under
Section 53(1) of the MRTP Act as the addressee of the notice is given time to
carry out corrections or make amends. As indicated above, Section 53(3)
provides for a representation or an application to be made for regularization
under Section 44 and pending such consideration further action pursuant to
the notice is stayed. Admittedly no representation is made by the Plaintiff and
the construction/development is sought to be justified on the ground that it is
sold to him by the Developer who has also put up the wall. Hence when the
statute does not provide for hearing to be granted prior to the issuance of the
notice under Section 53(1), the question of violation of principles of natural
justice would not arise, and in fact the Plaintiff without availing of the
opportunity under Section 53(3) has rushed to the Civil Court and obtained
injunction on the ground that there is a threat of demolition. It is also required
to be noted that the authority of the officer issuing the notice or the authority
of the MMC to issue notice has not been questioned by the Plaintiff. In so far as
whether the notice could have been given by the MMC in respect of the
construction/development which has been carried out at any earlier point of
time, that is even accepting for a moment the case of the Plaintiff that the
Developer has put up the brick masonry wall and enclosed the open space, in
view of the amendment to Section 53, limitation of three years which was
prescribed for taking action has been removed and therefore the MMC was
within its right to issue notice in respect of the alleged unauthorized
construction/ development assuming that it was put up by the Developer.
18 Hence if the case of the Plaintiff is tested, there is no issue of
jurisdiction which arises for consideration. The Plaintiff has also not been able
to prima facie prove as to how the notice is bad and illegal. Mere use of the
words illegal, bad in law without any substantiation would not aid the Plaintiff
to invoke the jurisdiction of the Civil Court as the jurisdiction of the Civil Court
can now be invoked only if the action is a nullity on account of there being an
error of jurisdiction. The Trial Court has erred in observing that since the word
nullity is used, the suit is maintainable. Though the Plaintiff was not
specifically attributed nullity to the said order and since illegality cannot take
place of nullity assuming for a moment one takes place of the other, the said
ground is also not substantiated. The Trial Court has further compounded the
fact by holding that the development of changing the position of the doors
amounts to internal work. How such a conclusion could be arrived at by the
Trial Court at the preliminary stage, therefore begs an answer. In my view, the
Trial Court has therefore a committed jurisdictional error in entertaining the
suit in question.
19 Since the only exception to entertain a suit is on the basis of the
order being a nullity as suffering from a jurisdictional error, the said ground
must be so overwhelming so as to superimpose itself on the bar. The ground of
nullity must be such that it is exfacie
borne out from the facts and cannot be
arrived at by a convoluted process. It is also required to be noted that the suit
is filed on the basis of the alleged threat of demolition, as indicated herein
above the Plaintiff has not filed any application under Section 53(3) of the
MRTP Act after the notice is received. The cause of action appears to be
merely a ruse to file the suit. If such types of suits are entertained, the bar
contained in Section 149 of the MRTP Act would turn otiose.
20 At this stage it would also be relevant to refer to the judgment of
the Apex Court reported in (2002) 6 SCC 416 in the case of Dhruv Green
Field Ltd. v/s. Hukam Singh and others. The judgment of the Apex Court
was concerned with a similar case of the bar of jurisdiction of the Civil Court.
The Apex Court has held that where there is no express bar, but statutory
provisions imply exclusion of jurisdiction. The Apex Court held that exclusion
still cannot be inferred unless the statute also provides an adequate and
efficacious alternative remedy. The Apex Court has further observed that the
jurisdiction would be retained despite express or implied bar, if the order or
action complained of is a nullity. The Apex Court has clarified that if the
allegation is that the order is illegal, but not a nullity, the jurisdiction of civil
court would remain barred. In the instant case as indicated above the Plaintiff
has not demonstrated as to how the action of the MMC in issuing the notice is
a nullity. In my view, therefore the learned Judge of the City Civil Court has
fallen into an error by entertaining the suit in question, the same therefore
warrants exercise of the revisionary jurisdiction of this Court. The impugned
order dated 22/03/2013 is therefore required to be quashed and set aside and
is accordingly quashed and set aside. Resultantly, it would have to be held that
the Bombay City Civil Court does not have the jurisdiction to entertain the suit.
The suit in question is accordingly required to be dismissed in view of the bar
of Section 149 of the MRTP Act and is accordingly dismissed. The above Civil
Revision Application is accordingly allowed to the aforesaid extent. The parties
to bear the own costs.
21 At this stage, the learned counsel appearing on behalf of the
Respondent No.1Plaintiff
Shri Cyrus Ardeshir, in view of the dismissal of the
suit, prays for stay of the instant order. The said prayer is opposed to on behalf
of the Applicant in person. In the facts and circumstances of the present case,
the instant order is stayed for a period of four weeks from date.
[R.M.SAVANT, J]
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