12. It is in this backdrop that the applicability of the bar under section 149 of the said Act is required to be considered. Section 149 of the said Act reads thus:
“149. Finality of order.— Save as otherwise expressly provided in this Act, every order passed or direction issued by the State Government or other 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.”
13. In Addanki Tiruvenkata (supra) while considering the question as regards jurisdiction of the Civil Court being barred in view of such bar contained in a special statute, in para 26 it has been observed thus:
“The scope of the exception here made was the subject of examination by this Court in the case of Firm of Illuri Subbayya Chetty v. State of A.P., C.A. No. 315 of 1962 D/25-1-1963 = AIR 1964 SC 322 where Gajendragadkar J. speaking for the Court said:
“Non-compliance with the provisions of the statute to which reference is made by the Privy Council must, we think, be non compliance with such fundamental provisions of the statute as would make the entire proceedings before the appropriate authority illegal and without jurisdiction. Similarly, if an appropriate authority has acted in violation of the fundamental principles or judicial procedure, that may also tend to make the proceedings illegal and void and this infirmity may affect the validity of the order passed by the authority in question. It is cases of this character where the defect or the infirmity in the order goes to the root of the order and makes it in law invalid and void that these observations may perhaps be invoked in support of the plea that the Civil Court can exercise its jurisdiction notwithstanding a provision to the contrary contained in the relevant statute.”
In Shiv Kumar Chadha (supra) the Supreme Court in paragraph 28 of its decision observed thus:
“In spite of the bar prescribed under sub-sections (4) and (5) of section 343 and section 347-E of the Corporation Act over the power of the Courts, under certain special circumstances, the Court can examine, whether the dispute falls within the ambit of the Act. But once the Court is satisfied that either the provisions of the Act are not applicable to the building in question or the basic procedural requirements which are vital in nature, have not been followed, it shall have jurisdiction, to enquire and investigate while protecting the common law rights of the citizens.”
14. It is well settled that despite exclusion of jurisdiction of the Civil Court, where the grievance is in relation to failure to comply with statutory provisions, such cases can be examined by the Civil Court. In State of Kerala v. N. Ramaswami Iyer and Sons, AIR 1966 SC 1738 in para 8 it has been held thus:
“8. It is true that even if the jurisdiction of the Civil Court is excluded, where the provisions of the statute have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure, the Civil Courts have jurisdiction to examine those cases: Secretary of State v. Mask and Co., 67 Ind APP 222 : AIR 1940 PC 105.
In Firm Seth Radha Kishan v. Administrator, Municipal Committee, Ludhiana, AIR 1963 SC 1547 which considering the aspect of ouster of jurisdiction of the Civil Court by a special statute, it was held as under:
“7. Under S. 9 of the Code of Civil Procedure the Court shall have jurisdiction to try all suits of civil nature excepting suits of which cognizance is either expressly or impliedly barred. A statute, therefore, expressly or by necessary implication, can bar the jurisdiction of Civil Courts in respect of a particular matter. The mere conferment of special jurisdiction on a tribunal in respect of the said matter does not in itself exclude the jurisdiction of Civil Courts. The statute may specifically provide for ousting the jurisdiction of Civil Courts, even if there was no such specific exclusion, if it creates a liability not existing before and gives a special and particular remedy for the aggrieved party, the remedy provided by it must be followed. The same principle would apply if the statute had provided for the particular forum in which the remedy could be had. Even in such cases, the Civil Court's jurisdiction is not completely ousted. A suit in a Civil Court will always lie to question the order of a tribunal created by a statute, even if its order is expressly or by necessary implication, made final, if the said tribunal abuses its power or does not act under the Act but in violation of its provisions.”
Similarly, in Krishanlal v. State of J. and K., (1994) 4 SCC 422, it was held that violation of a mandatory statutory provision while passing the impugned order would not amount to an act done under the Act. In para 11 it was observed thus:
“11. We may not labour much on this point because of the aforesaid legal proposition and also because of what was pointed out by a Constitution Bench in Dhulabhai v. State of M.P. That exclusion of jurisdiction of Civil Court should not be readily inferred. So we agree with Shri Mehta that the High Court erred in law in holding that the Civil Courts' jurisdiction was barred, inasmuch as there being violation of mandatory provision as contained in section 17(5) of the Act, it can well be said that the respondents had no jurisdiction to pass the impugned order and by doing so they committed a “jurisdictional error”.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH
NAGPUR.
SECOND APPEAL NO. 491 OF 2012
APPELLANT:
Kishor Ramalu @ Rambhau Telang, Vs The Municipal Commissioner, Nagpur Municipal Corporation,
CORAM: A. S. CHANDURKAR J.
Dated : JANUARY 20, 2015.
Citation;2016(1)ALLMR175,2015 SCC OnLine Bom 3168 : (2015) 4 Mah LJ 836 : (2015) 5 AIR Bom R 671 : AIR 2016 (NOC 96) 36 : (2016) 2 Bom CR 416 at page 840
Heard. Admit on the following substantial question of law:
Whether the bar under Section 149 of the
Maharashtra Regional and Town Planning Act, 1966
applies in the present case when the notice issued
under Section 53 of the said Act is challenged on the
ground that the period prescribed therein falls short of
the statutory period and is therefore a nullity?
2] Considering the issue involved the learned counsel for the parties
have been heard on aforesaid substantial question of law.
3] The appellant is the original plaintiff who had been issued notice
dated 18.11.2010 under the provisions of Section 53(1) of the Maharashtra
Regional and Town Planning Act, 1966 (for short the said Act). As per said
notice certain deficiencies in the user of the land in question were pointed
out and it was stated that within one month from receiving the notice
corrective action should be taken. Plaintiff therefore filed suit for declaration
that the defendant nos. 1 and 2 were not entitled to demolish the suit
property. Further prayer was made to direct the defendant nos. 1 and 2 to
grant the sanctioned map. The defendant nos. 1 and 2 filed preliminary
objections under Section 9A of the Code of Civil Procedure vide Ex. 19. The
objection raised was that the trial Court had no jurisdiction to decide the suit
in view of the bar contained in Section 149 of the said Act. The plaintiff in
his reply took the stand that the construction in question had come up prior
to the said Act being enacted. Further stand was taken that the due process
of law, rules and regulations were not followed. The trial Court therefore
framed the following preliminary issue:
“Whether this Court has jurisdiction to entertain,
try and decide the present suit?”
Thereafter the plaintiff examined himself vide Ex. 25. By order dated
17.10.2011 the trial Court recorded a finding that the civil Court had no
jurisdiction to entertain the suit in view of bar under Section 149 of the said
Act. It, therefore, rejected the plaint under provisions of Order 7 Rule 11(d)
of the Code of Civil Procedure.
4] The plaintiff being aggrieved by aforesaid adjudication preferred
appeal. First appellate Court confirmed the findings recorded by the trial
Court and dismissed the appeal.
5] Shri N. B. Kalwaghe, learned counsel appearing for the appellant
submitted that the suit as filed was maintainable and the bar under Section
149 of the said Act was not attracted. He submitted that the notice dated
18.11.2010 under Section 53 of the said Act required the plaintiff to take
corrective steps within a period of one month. According to him under
provisions of Section 53(1) the notice that is required to be served requires
the owner to take necessary steps within such period being not less than one
month. He, therefore, submitted that the aforesaid notice that gave cause of
action to the plaintiff was not in accordance with provisions of Section 53(1)
of the said Act and hence the same could be challenged in the suit. He
submitted that if the notice as issued was not in accordance with provisions
of said Act, then the bar under Section 149 of the said Act would not apply.
In support of his submission that there is a distinction between steps required
to be taken within a period of one month and that to be taken within a period
being not less than one month and in this regard he relied upon the decision
of the Division Bench of this Court in Commissioner of Incometax Vs. Ekbal
& Co. A. I. R. (32) 1945 Bombay 316. To buttress his submissions as regards
tenability of suit in such circumstances he placed reliance upon the decision
of supreme Court in Shiv Kumar Chadha Vs. Municipal Corporation of Delhi
and others (1993) 3 Supreme Court Cases 161, Addanki Tiruvenkata Thata
Desika Charyulu (since deceased) Vs. State of Andhara Pradesh and another
AIR 1964 Supreme Court 807 and Ramchandra Keshav Adke (Dead) By LRs.
And others Vs. Govind Joti Chavare and others (1975) 1 Supreme Court Cases
559.
6] Smt. S. S. Jachak, learned counsel appearing for respondent nos.
1 and 2 supported the impugned orders. According to her the suit as filed
was not maintainable in view of the bar under Section 149 of the said Act.
As the plaintiff was seeking relief in relation to a notice issued under Section
53 of the said Act such suit was not maintainable.
Shri V. R. Chaudhari, learned counsel appearing for respondent
no.3 and M. M. Deshmukh, learned counsel appearing for respondent no.4
also supported the impugned orders.
7] In the suit as filed, the reliefs sought vide prayers (i) to (iii) read
as under:
i) the decree be passed in favour of plaintiff and
against defendant nos.1 to 4.
ii) To restrain the defendant nos.1 and 2 for
demolishing the house property of the plaintiff
permanently;
iii) To declare that the defendant nos.1 and 2 is not
entitled for demolishing the house property of the
plaintiff.
The objection to bar of jurisdiction was raised under Section 9A
of the Code of Civil Procedure by the defendant No.2.
8] As the issue of jurisdiction relates to the notice dated 18.11.2010
issued under Section 53 of the said Act it is necessary to note its contents.
After stating the irregularities/deficiencies in the user of the land in question
it has been stated that “within a period of one month” necessary steps to
remove said deficiencies should be taken.
It would therefore be necessary to refer to the provisions of
Section 53(1) of the said Act. The said provisions in so far as the same are
relevant read thus:
“53. Power to require removal of unauthorised
development
(1) Where 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, 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 of the
notice, to take such steps as may be, specified in the
notice.
(a) in case specified in clause (a) or (c) of sub section
(1) of section 52, to restore the land to its condition
existing before the said development took place,
(b) in cases specified in clause (b) or (d) of sub section
(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.”
It is, therefore, clear that under Section 53(1) of the said Act the
planning authority is required to serve on the owner a notice requiring him to
take such steps as may be specified within such period “being not less than
one month”.
9] The issue therefore to be considered is firstly whether the notice
dated 18.10.2011 can be challenged on the ground that the same is not in
accordance with provisions of Section 53 of the said Act and if found so
whether the bar under Section 149 of the said Act would apply in such a
case.
10] While the impugned notice calls upon the plaintiff to take
necessary steps within a period of one month, Section 53(1) of the said Act
requires taking of steps within a period being not less than one month. In
Commissioner of Incometax (supra) the Division Bench considered the effect
of words “within such period not being less than thirty days”. While
considering aforesaid expression along with the expression “within thirty
days”, it was observed thus:
“In my judgment expressions “within 30 days”
and “not less than 30 days” are two quite different
things. “Within 30 days” is within two points of time,
one at which the period begins and the other at which
it expires. On the other hand, “not less than 30 days”
is outside these two points of time. There must b e an
interval of not less than 30 days and that means 30
days clear: see (1885) 29 Ch. D. 204. The period must
continue beyond the expiration of the stated time.
Whereas “within” the stated period must mean what it
says, something less than the moment of expiration.
In my opinion, therefore, the notice is invalid and the
question referred to must be answered in the
negative.”
11] From the aforesaid, it is clear that both the said expressions are
different. While “within thirty days” is a shorter period, expression “not less
than thirty days” connotes larger period of time. It was then held that by
using the expression “within thirty days” the noticee did not get thirty clear
days period as was contemplated by the expression “not less than thirty
days”. The factual position in the present case is some what similar. While
provisions of Section 53(1) of the said Act prescribe period being not less
than one month, the impugned notice grants time for steps to be taken within
a period of one month. Thus there is no notice of period of not less than one
month as contemplated by Section 53(1) of the said Act. Hence, there is
considerable force in the submission of the learned counsel for the appellant
that notice dated 18.11.2010 by prescribing a shorter period than the one
prescribed by Section 53(1) of the said Act cannot be called a notice under
Section 53(1) of the said Act.
12] It is in this backdrop that the applicability of the bar under
Section 149 of the said Act is required to be considered. Section 149 of the
said Act reads thus:
“149: Finality of order
Save as otherwise expressly provided in this Act,
every order passed or direction issued by the State
Government or other 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.”
13] In Addanki Tiruvenkata (supra) while considering the question as
regards jurisdiction of the civil Court being barred in view of such bar
contained in a special statute, in para 26 it has been observed thus:
“The scope of the exception here made was the
subject of examination by this Court in the case of
Firm of Illuri Subbayya Chetty v. State of Andhra
Pradesh, C. A. No. 315 of 1962 D/2511963: (AIR
1964 SC 322) where Gajendragadkar J. speaking for
the Court said:
“Noncompliance with the provisions of the statute to
which reference is made by the Privy Council must, we
think, be non compliance with such fundamental
provisions of the statute as would make the entire
proceedings before the appropriate authority illegal
and without jurisdiction. Similarly, if an appropriate
authority has acted in violation of the fundamental
principles or judicial procedure, that may also tend to
make the proceedings illegal and void and this
infirmity may affect the validity of the order passed by
the authority in question. It is cases of this character
where the defect or the infirmity in the order goes to
the root of the order and makes it in law invalid and
void that these observations may perhaps be invoked
in support of the plea that the civil court can exercise
its jurisdiction notwithstanding a provision to the
contrary contained in the relevant statute.”
In Shiv Kumar Chadha (supra) the Supreme Court in
paragraph 28 of its decision observed thus:
“In spite of the bar prescribed under sub
sections (4) and (5) of Section 343 and Section 347E
of the Corporation Act over the power of the courts,
under certain special circumstances, the court can
examine, whether the dispute falls within the ambit of
the Act. But once the court is satisfied that either the
provisions of the Act are not applicable to the building
in question or the basic procedural requirements
which are vital in nature, have not been followed, it
shall have jurisdiction, to enquire and investigate while
protecting the common law rights of the citizens.”
14] It is well settled that despite exclusion of jurisdiction of the
Civil Court, where the grievance is in relation to failure to comply with
statutory provisions, such cases can be examined by the Civil Court. In
State of Kerala Vs. M/s. N. Ramaswami Iyer and Sons, AIR 1966 SC
1738 in para 8 it has been held thus:
“8. It is true that even if the jurisdiction of
the civil court is excluded, where the provisions of
the statute have not been complied with or the
statutory tribunal has not acted in conformity with
the fundamental principles of judicial procedure, the
civil courts have jurisdiction to examine those cases:
Secretary of State v. Mask and Co., 67 Ind APP 222:
(AIR 1940 PC 105).
In Firm Seth Radha Kishan Vs. Administrator, Municipal Committee,
Ludhiana, AIR 1963 SC 1547 which considering the aspect of ouster of
jurisdiction of the Civil Court by a special statute, it was held as under:
“7. Under S. 9 of the Code of Civil Procedure
the Court shall have jurisdiction to try all suits of
civil nature excepting suits of which cognizance is
either expressly or impliedly barred. A statute,
therefore, expressly or by necessary implication, can
bar the jurisdiction of civil Courts in respect of a
particular matter. The mere conferment of special
jurisdiction on a tribunal in respect of the said matter
does not in itself exclude the jurisdiction of civil
Courts. The statute may specifically provide for
ousting the jurisdiction of civil Courts, even if there
was no such specific exclusion, if it creates a liability
not existing before and gives a special and particular
remedy for the aggrieved party, the remedy provided
by it must be followed. The same principle would
apply if the statute had provided for the particular
forum in which the remedy could be had. Even in
such cases, the Civil Court's jurisdiction is not
completely ousted. A suit in a civil Court will always
lie to question the order of a tribunal created by a
statute, even if its order is expressly or by necessary
implication, made final, if the said tribunal abuses its
power or does not act under the Act but in violation
of its provisions.”
Similarly, in Krishanlal Vs. State of J & K (1994) 4 SCC 422, it was
held that violation of a mandatory statutory provision while passing the
impugned order would not amount to an act done under the Act. In
para 11 it was observed thus:
“11. We may not labour much on this point
because of the aforesaid legal proposition and also
because of what was pointed out by a Constitution
Bench in Dhulabhai v. State of M.P. That exclusion of
jurisdiction of civil court should not be readily
inferred. So we agree with Shri Mehta that the High
Court erred in law in holding that the civil courts'
jurisdiction was barred, in as much as there being
violation of mandatory provision as contained in
Section 17(5) of the Act, it can well be said that the
respondents had no jurisdiction to pass the
impugned order and by doing so they committed a
“jurisdictional error”.
15] From the aforesaid it is clear that the jurisdiction of the civil
Court is available for determining the question as to whether infirmity in
the action impugned goes to the root of the proceedings making it
invalid or where the basic procedural requirements which are vital in
nature have not been followed. The jurisdiction to that extent has been
held to be preserved.
16] Thus, from the aforesaid, it is clear that the jurisdiction of
the Civil Court for the purposes of examining as to whether the
statutory requirements have been duly complied or not or whether
basic procedural requirements have been followed or not can be
examined. In that background, if the notice dated 18102011 is
examined, it is clear that the same grants time of period of less than
one month to the plaintiff to take corrective steps in terms of the
deficiencies pointed out therein. Provisions of Section 53(1) of the said
Act prescribe period of not less than one month for taking necessary
steps. If the jurisdiction of the Civil Court is invoked for considering
the validity of such notice on the ground that the same prescribes a
lesser period than that prescribed by the statute and hence clearly
contrary to the statute, then the jurisdiction of the Civil Court will not
be barred. Hence, aforesaid submission made on behalf of the plaintiff
regarding maintainability of the suit will have to be accepted.
17] Before the first appellate Court, it was argued on behalf of
the plaintiff that as the period prescribed in the notice was less than that
prescribed by the Section 53(1) of the said Act, the notice was contrary
to law. The first appellate Court, however, has not specifically adverted
to said aspect of the matter and has relied upon provisions of Section
149 of the said Act to hold that the Civil Court had no jurisdiction to
entertain the suit. As observed herein above, the jurisdiction of the Civil
Court to examine said aspect is not barred by provisions of Section 149
of the said Act. In Ramchandra Keshav Adke (supra), in para 25 it has
been observed as under:
“A century ago, in Taylor V Taylor, Jassel,
M. R. adopted the rule that where a power is given to
do a certain thing in a certain way, the thing must be
done in that way or not at all and that other methods
of performance are necessarily forbidden. This rule
has stood the test of time.”
The Civil Court was competent to consider validity of the notice dated
18112011 in that background. It is to be noted that as per the
application at Exhibit19, a preliminary issue in that regard was also
prayed for being framed.
18] From the aforesaid discussion, it is clear that both the Courts
have erred in holding that the suit as filed was not maintainable in view
of the bar prescribed by Section 149 of the said Act. From the
discussion already made, it is clear that such jurisdiction was not barred.
It is however to be noted that as no arguments were advanced in respect
of tenability of prayer clause (iv) of the plaint, the trial Court is free to
consider the entitlement of the plaintiff in that regard in accordance
with law. As the suit has been dismissed after framing the preliminary
issue, it would be necessary to direct the Civil Court to entertain the suit
on merits.
19] In view of aforesaid, the following order is passed:
(1) The order dated 17102011 passed by the trial Court below
Exhibit1 and confirmed by the first appellate Court in R.C.A. No.
536/2011 by order dated 1242012 is set aside.
(2) The proceedings are remanded to the trial Court for
deciding Regular Civil Suit No.211/2011 in accordance with law.
(3) It is clarified that the suit shall be decided in accordance
with law. The trial Court shall independently consider the evidence on
record while deciding aforesaid suit.
(4) The order of status quo granted by this Court on 1112012
shall continue to operate till the trial Court decides the application for
temporary injunction. It is, however, clarified that said application shall
be decided on its own merits and the trial Court should not be
influenced by continuation of the order of status quo passed by this
Court.
(5) The second appeal is allowed in aforesaid terms with no
order as to costs.
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