Section 121 of the said Act may not present much
difficulty as the immunity from legal proceedings granted is in
respect of any act done in good faith, which would be a question of
fact in the context of the plaint allegations. Thus, the plaint
cannot be rejected at the threshold as against the defendant no.4,
placing reliance on Section 121 of the said Act. In so far as
Section 129 of the said Act is concerned, undoubtedly it attaches
finality to the order passed by the planning and development
authority under the Act and it is not open to be questioned in any
suit or other legal proceedings. In this regard, the learned Trial
Court has referred to a decision of the learned Single Judge of
this Court (A. S. Oka, J.) in the case of Laxman Barkya Wadkar
Vs. Mumbai Municipal Corporation (F.A.No.1635/2010). The
learned Trial Court has found that this Court after considering the
provisions of Sections 53 and 55 of the Maharashtra Regional and
Town Planning Act has held that although on a plain reading of
Section 149 of the M.R.T.P. Act, which contains a finality clause,
excludes the jurisdiction of the Civil Court, on further analysis,
based on the decision of the Hon'ble Apex Court in the case of
Dhulabhai Vs. State of M.P. and another, reported in AIR
1969, SC 78 and Kamla Mills Ltd. Vs. State of Bombay,
reported in 1966(1) SCR 64 has held that if there are allegations
made in the plaint that action under Section 53(1) or 55 of
M.R.T.P. Act is nullity, then provisions excluding jurisdiction of the
Civil Court, will not come in the way of entertaining the suit. It
does appear that the learned Trial Court, after considering the
decision and analogous provisions contained in Maharashtra
Regional and Town and Country Planning Act, 1966, has held that
the plaint cannot be rejected at the threshold, placing reliance onSection 149 of the Town and Country Planning Act. At the cost of
repetition, it may be stated that the case made out in the plaint is
that the defendant no.1 had no title to transfer the suit property to
the defendant no.2 and when the property is belonging to the
plaintiff Comunidade, the entire action was fraudulent. Here
again, it may be mentioned that the relief in so far as the
revocation of the construction licence or approved plan against the
defendant no.4 is concerned, would be consequential to the
declaration as sought in the prayer clause (a) of the plaint. Even
in the case of Maya Dessai (supra), this Court, after referring to
the decision in the case of Laxman Barkya Wadkar (supra), has
held that if the action is nullity, then bar to the jurisdiction of the
Civil Court will not come in the way. In the case of Maya Dessai
(supra), this Court, in view of the pleadings that the action is
vitiated by fraud and that the officers have acted in bad faith, had
held that the matter would be required to be considered on merits
and order dismissing the suit, merely relying on the bar, was set
difficulty as the immunity from legal proceedings granted is in
respect of any act done in good faith, which would be a question of
fact in the context of the plaint allegations. Thus, the plaint
cannot be rejected at the threshold as against the defendant no.4,
placing reliance on Section 121 of the said Act. In so far as
Section 129 of the said Act is concerned, undoubtedly it attaches
finality to the order passed by the planning and development
authority under the Act and it is not open to be questioned in any
suit or other legal proceedings. In this regard, the learned Trial
Court has referred to a decision of the learned Single Judge of
this Court (A. S. Oka, J.) in the case of Laxman Barkya Wadkar
Vs. Mumbai Municipal Corporation (F.A.No.1635/2010). The
learned Trial Court has found that this Court after considering the
provisions of Sections 53 and 55 of the Maharashtra Regional and
Town Planning Act has held that although on a plain reading of
Section 149 of the M.R.T.P. Act, which contains a finality clause,
excludes the jurisdiction of the Civil Court, on further analysis,
based on the decision of the Hon'ble Apex Court in the case of
Dhulabhai Vs. State of M.P. and another, reported in AIR
1969, SC 78 and Kamla Mills Ltd. Vs. State of Bombay,
reported in 1966(1) SCR 64 has held that if there are allegations
made in the plaint that action under Section 53(1) or 55 of
M.R.T.P. Act is nullity, then provisions excluding jurisdiction of the
Civil Court, will not come in the way of entertaining the suit. It
does appear that the learned Trial Court, after considering the
decision and analogous provisions contained in Maharashtra
Regional and Town and Country Planning Act, 1966, has held that
the plaint cannot be rejected at the threshold, placing reliance onSection 149 of the Town and Country Planning Act. At the cost of
repetition, it may be stated that the case made out in the plaint is
that the defendant no.1 had no title to transfer the suit property to
the defendant no.2 and when the property is belonging to the
plaintiff Comunidade, the entire action was fraudulent. Here
again, it may be mentioned that the relief in so far as the
revocation of the construction licence or approved plan against the
defendant no.4 is concerned, would be consequential to the
declaration as sought in the prayer clause (a) of the plaint. Even
in the case of Maya Dessai (supra), this Court, after referring to
the decision in the case of Laxman Barkya Wadkar (supra), has
held that if the action is nullity, then bar to the jurisdiction of the
Civil Court will not come in the way. In the case of Maya Dessai
(supra), this Court, in view of the pleadings that the action is
vitiated by fraud and that the officers have acted in bad faith, had
held that the matter would be required to be considered on merits
and order dismissing the suit, merely relying on the bar, was set
aside.
IN THE HIGH COURT OF BOMBAY AT GOA
CIVIL REVISION APPLICATION NOS.21 and 23 of 2015
CIVIL REVISION APPLICATION NO.21 of 2015
M/s Boshan Developers Pvt. Ltd.,
V/s
Communidade of Bordem,
CORAM :- C. V. BHADANG, J.
Pronounced on :- 16th September, 2015
Citation: AIR 2016(NOC)263 Bom
2. Both these Civil Revision Applications challenge the
order dated 18/06/2015 passed by the learned Adhoc District
Judge at Mapusa in Civil Suit No.6/2015. By the impugned order,
the applications filed by the defendant nos.1 and 2 under Order
VII, Rule 11(d) of C.P.C., have been dismissed. As the
Revision Applications arise out of the same order and involve
common and connected questions of law and fact, they are being
disposed of by this common judgment.
3. The first respondent Comunidade of Bordem is the
original plaintiff while Shri Shantadurga Sangordekarin Devasthan
(Devasthan, for short) and M/s. Boshan Developers Pvt. Ltd, the
petitioners in these Revision Applications are respectively the
defendant nos.1 and 2 before the Trial Court. Bicholim Municipal
Council and the Town and Country Planning Department are
respectively the defendant nos.3 and 4 while State of Goa is the
original defendant no.5.
4. The Comunidade is seeking a declaration that the
Agreement for Sale dated 06/10/2009 executed by the Devasthan
in favour of M/s. Boshan Developers is null and void and for
consequent permanent injunction, restraining them or anybody on
their behalf from carrying on any construction activity in the suit
property and/or changing its user. Permanent injunction
restraining them from creating any third party interest as also
mandatory injunction directing the petitioners herein to restore
the suit property to its original pristine condition is also sought
for. The subject matter of dispute is a landed property situated at
village Bordem, Bicholim Taluka, more specifically described in
para 5 of the plaint. The case made out in the plaint is that the
suit property is leased out to the Devasthan on a permanent basis.
The Devasthan is not permitted to change the user of the said
property. It is contended that the Devasthan can enjoy the suit
property in a restricted and controlled manner, in view of the
terms and conditions of the lease and the provisions contained in
the Code of Comunidades. It is contended that the Comunidade
continues to be the owner of the property. The Devasthan is
governed by the 'Regulamento das Mazania', better known as
Devasthan Regulations and the property cannot be put to any use,
which may be inconsistent with the object of the Devasthan or
which may be in breach of the Devasthan Regulations. The
defendant nos.1 and 2 sought rejection of the plaint under Order
VII, Rule 11(d) of the Code, by filing separate applications. It is
contended that the suit is barred by limitation. Reliance in this
regard is placed on para 13 of the plaint, in order to contend that
on its own saying since the order 2010, villagers/ residents of
Gaonkarwada had noticed construction activities in the suit
property and complaints/ representations were lodged in respect
thereof to various authorities. It is contended that thus, the
villagers/ residents of Gaonkarwada were having knowledge of
construction activities since the year 2010. It is contended that
the villagers/ residents of Gaonkarwada, being the members /
constituents of the Comunidade, a corresponding knowledge has
to be attributed to the Comunidade also. Thus, the suit having
been filed in the year 2015, is barred by limitation. It is contended
that the suit is barred under Section 289 of the Goa Municipalities
Act (the Municipalities Act, for short) since no notice as
contemplated under Section 289(1)(b) of the said Act is issued.
5. The Devasthan has contended that under Article 9 of
the Code of Comunidades, the Comunidade is not entitled to file a
suit without permission of the Administrative Tribunal. The
Comunidade has neither obtained nor produced any such
permission nor there is any statement to that effect in the plaint.
Thus, the suit is barred by the provisions of the Code of
Comunidades.
6. The Devasthan has also raised similar plea based on
the suit being barred by limitation on account of the knowledge of
the gaonkars at least from the year 2010.
7. The learned Adhoc District Judge has dismissed the
application by the common order dated 18/06/2015. CRA21&23/15
7
8. It is submitted by Shri Shivan Dessai, the learned
Counsel appearing for the petitioners (Civil Revision Application
No.21/2015) that from the plaint allegations themselves, it is clear
that the villagers/ gaonkars were aware about the construction
being carried out from the year 2010. He submitted that the
villages/ gaonkars are the members/ constituents of the
Comunidade. Hence, the knowledge of the said activities has
necessarily to be attributed to the Comunidade also. He,
therefore, submitted that the suit having been filed in the year
2015 is barred by limitation. The learned Counsel would submit
that Tukaram Pal who is representing the plaintiff had signed the
complaint dated 25/01/2010. He submitted that the permission for
construction is granted by the Municipal Council way back in the
year 2010 and the Occupancy Certificate is granted in 2003. It is,
therefore, submitted that the suit is clearly barred by limitation.
He submitted that the view taken by the learned District Judge
that the issue of limitation being a mixed question of law and fact,
the plaint cannot be dismissed, is apparently incorrect.
9. It is next submitted that the suit is also bad for nonissuance
of notice under Section 289 of the Municipalities Act. He
submitted that the grant of leave under Section 80 of C.P.C.,
cannot be a substitute for the issuance of the notice under Section
289 of the Municipalities Act. The learned Counsel has placed
reliance on the following decisions, in support of his various
submissions :
(i) Syed Abdul Razzak Aminuddin and Hazrt
Gaiban Shah Baba Syed Vs. Maharashtra State
Board of Wakfs, reported in 2009(111) BOMLR 3609.
(ii) Sadu Vithal Joshi Vs. The Municipal
Corportion and another, reported in 1986(3)
Bom.C.R. 628.
(iii) Hardesh Ores Pvt. Ltd. Vs. Hede and
Company, reported in (2007)5 SCC 614.
10. Shri Thali, the learned Counsel for the petitioner (Civil
Revision Application No.23/2015) has adopted the submissions
made on behalf of the petitioner, in Civil Revision Application
No.21/2015.
11. On the contrary, it is submitted by Shri Bhobe, the
learned Counsel for the respondent no.1 that the knowledge of the
gaonkars cannot tantamount to the knowledge of the Comunidade,
which is a distinct body. It is submitted that the plaint alleges that
the cause of action has accrued on 21/07/2014, when the
defendant no.2 started construction activity in the suit property.
He submits that the agreement of sale is a result of fraud, which
would vitiate the entire transaction. He, therefore, submitted that
the plaint cannot be said to be barred by limitation. Even so far as
the necessity to issue a notice under Section 289 of the
Municipalities Act is concerned, it is submitted that the Court has
granted leave under Section 80 of C.P.C. on an application dated
04/02/2015. It is contended that the application dated 13/02/2015
filed by the defendant no.1 under Order I Rule 10 of C.P.C.,
seeking deletion of defendant nos.3 to 5 has been rejected, which
is not challenged any further and has thus attained finality. The
learned Counsel has placed reliance on the following decision, in
support of his submissions :
(i) Western Coalfields Ltd. and others Vs.
Chandraprakash w/o Krishnalal Khare, reported in
2010(4)Mh.L.J.
(ii) Goa Industrial Development Corporation Vs.
M/s. Sadhana Builders Pvt., (unreported judgment in
CRA No.22/2012, dated 29/04/2014).
(iii) Maya Shrikant Sawant Dessai Vs. the Chief
Secretary and another, (unreported judgment in
F.A.No.67/2014, dated 25/02/2015).
12. In view of the rival circumstances and the submissions
made, the following points arise for my determination. I have
recorded my findings against the same for reasons, which follow.
(i) Whether the plaint is liable to be
rejected under Order VII, Rule 11(d) of
C.P.C. as being barred by limitation ?
In the
negative.
(ii) Whether the plaint is liable to be
rejected under Order VII, Rule 11(d) of
C.P.C. as against respondent
no.3/defendant no.3 for want of notice
under Section 289 of the Goa
Municipalities Act ? If yes, what
effect ?
In the
affirmative.
(iii) Whether the plaint is liable to be
rejected under Order VII Rule 11(d) of
Civil Procedure Code, as against
respondent no.4/defendant no.4 by
virtue of Sections 121 & 129 of the
Goa Town and Country Planning Act,
1974?
In the
negative
(iv) Whether the impugned order needs
interference in exercise of Revisional
jurisdiction of this Court ?
Partly in the
affirmative.
As per final
order.
13. As to point no.(i):- It is now well settled that while
examining the question whether the plaint can be rejected under
Order VII, Rule 11(d) of C.P.C., the Court has to confine itself to
the allegations in the plaint. Thus, any defence, actual or
probable, cannot be looked into at this stage. On behalf of the
petitioner, reliance is placed on para 13 of the plaint which reads
thus :
“The plaintiff states that in the year 2010, the
villagers/residents of Goankar wada noticed
construction activities in the suit property and that
the suit property is being misused. The plaintiff
states that the Gaokars therefore started
inquiries/applying for copies of the documents
pertaining to the suit property from various
authorities and making complaints/representations
in respect of the illegality. The residents of Gaonkar
wada filed complaints with the authorities with
regards to the activities which were just being
commenced in the suit property. The residents of
Gaonkar wada though were aware that the suit
property belongs to the plaintiff and demised to
Defendant no.1. There were also rumors that the
land was sold to the Defendant no.2, however the
residents of Goankar wada were not aware of any
such document. The residents of Gaonkar wada
since than took up the issue with various Statutory
Authorities. During the said process the said
Gaonkars on or about 12th August, 2014 learnt about
the Managing Committee of the Defendant no.1
having clandestinely executed an Agreement for
sale dated 06/10/2009 with the Defendant no. 2,
which is apparently registered in the Office of the
Sub-Registrar of Bicholim, under registration No.
1179/09 at pages 167 to 193 of Book No.1 Volume
No. 741 dated 16./11/2009 (hereinafter referred to
as the “said Agreement” for the sake of brevity.”
14. It is contended that the residents of Gaonkarwada
were aware about the construction from the year 2010. The
submission that the knowledge of the villagers has necessarily to
be attributed to the Comunidade does not commend to me.
Though the villagers and residents may be the members /
constituents of the Comunidade, the Comunidade is a distinct
body, governed by the Code of Comunidades and subject to the
rights and liabilities as contained therein. Thus, merely because
the villagers were aware from the year 2010, it cannot be said that
the Comunidade was also aware of the same. That apart, it is trite
that the plaint allegations have to be read as a whole in
determining whether the plaint is barred by any law. A particular
para cannot be picked up, in order to contend that the plaint is
barred by any law. A bare perusal of para 13 would show that the
plaint alleges that on or about 12/08/2014, it was learnt that the
Managing Comittee of the Devasthan have clandestinely executed
the agreement for sale on 06/10/2009 in favour of the defendant
no.1. In para 34, 35 and 36 of the plaint, it is stated thus :
“34. The plaintiff states that the cause of action
arose on 21/07/2014 when the defendant no.2 started
construction activity in the suit property. The subject
matter of the present suit is an act of fraud
committed by the Defendants as stated herein above
which act has vitiated the entire transaction referred
to herein above. The cause of action is continuing.
35. Although the components of the plaintiff
wanted to prevent continuance of illegal construction
activity in the suit property after noticing the same
by approaching this court immediately, however,
filing of the suit required compliance of law in form
of approvals for filing the present suit. The general
body meeting for discussing issues pertaining to the
suit property was held on 04/01/2015 and in the said
meeting the members of the plaintiff resolved to file
the present suit in order to protect the suit property.
The Administrator of Comunidade also has accorded
approval on 03/02/2015 for filing the present suit in
compliance with law.
36. The suit is within limitation.”
These material allegations are disputed on behalf of
the petitioner. If that be so, it has to be said that the question of
limitation would require examination of facts and would be a
disputed question which can be gone into at the trial. That is also
the reason given by the learned District Judge while dismissing the
application. In the case of Hardesh Ores Ltd. (supra), the Trial
Court had dismissed the suit under Order VII, Rule 11 of C.P.C. as
being barred by limitation. The High Court affirmed the same
holding that in effect, the suit was for specific performance of
renewal of agreement and the suit, which was styled as injunction
simpliciter was nothing but a camouflage to get over the bar of
limitation. While confirming the same, the Hon'ble Apex Court has
inter alia, held that the question is whether the real cause of
action has been set out in the plaint or something purely
illusionary has been stated, with a view to get out of Order VII,
Rule 11 of C.P.C. It has been held that a clever drafting creating
illusion of cause of action, are not permitted in law and a clear
right to sue should be shown in the plaint. In the case of Hardesh
Ores Ltd. (supra), the appellants had sought renewal of lease,
which was denied by the respondents. It was, thus, held on facts
that the appellant could not have camouflaged the real issue
claiming an order of injunction, without establishing the
subsistence of valid agreement.
15. In the present case, the question is about the
knowledge and starting point of limitation, which as rightly held
by the learned Trial Court, would be a disputed question of fact,
which can be gone into only at the trial. Thus, in my considered
view, no exception can be taken to the finding that the suit cannot
be dismissed at the threshold as being barred by limitation. The
point is accordingly answered in the negative.
16. As to point no.(ii):-This takes me to the question of
necessity of issuance of notice under Section 289 of the
Municipalities Act and the consequence thereof. At the outset, it
needs to be mentioned that in so far as the defendant no.5 State of
Goa is concerned, already the Trial Court has granted leave under
Section 80 of C.P.C. The defendant no.3 is the Bicholim Municipal
Council while defendant no.4 is Town and Country Planning
Department. The objection based on Section 289 of the
Municipalities Act pertains to the defendant no.3 alone. At the
outset, it may be mentioned that the defendant no.3 has not raised
the objection and the objection is raised by the private defendant
nos.1 and 2. On behalf of the petitioner, reliance is placed on the
decision of this Court in Syed Abdul Razzak (supra), in order to
submit that such an objection, based on want of statutory notice,
can be raised by any of the defendants and not necessarily by the
Statutory body, which in the present case, is the Municipal
Council. In the case of Syed Abdul Razzak (supra), the suit was
filed against the Wakf Board, which was the defendant no.1. The
objection was raised by the private respondent. A learned Single
Judge of this Court held thus in para 21 of the judgment :
“21. Coming to the next contention raised by the
learned counsel for the petitioners regarding
raising objection of non-issuance of notice by
defendant no.17, I am of the view that the objection
regarding non-issuance of notice under Section 89
of the Wakf Act, 1995 pertains to law point and,
therefore, objection can be raised by any of the
defendants and it is not necessary that defendant
no.1 only can raise the said objection and silence of
defendant no.1 in not raising objection regarding
non-issuance of notice under Section 89 of the
Wakf Act will not amount to deemed waiver, since
as mentioned above, the concept of deemed waiver
of Section 89 of the Wakf Act, 1995 cannot be
imported thereunder, as the very language of the
said provision is express, explicit and mandatory,
since the Wakf Act, 1995 is a special Act.”
It can, thus, be seen that the objection raised was
based on Section 89 of the Wakf Act, 1995. This Court held that
as the objection pertained to a law point, which can be raised by
any of the defendants, it is not necessary that the defendant no.1
(the Wakf Board) only can raise the said objection. It has also
been held that the silence of the defendant no.1 in not raising
objection regarding non-issuance of the notice under Section 89 of
the Wakf act, will not amount to deemed waiver, since the concept
of deemed waiver under Section 89 of the Wakf Act, 1995, cannot
be imported in view of the language of the said provisions, which
is express, explicit and mandatory.
17. Coming to the present case, Section 289 of the
Municipalities Act reads thus :
“289. Limitation of suits against Council, its
committees, officers and servants for acts done in
pursuance or execution of this Act.— (1) No suit
shall lie against a Council or against any committee
constituted under this Act, or against any officer or
servant of a Council in respect of any act done in
pursuance or execution or intended execution of this
Act, or in respect of any alleged neglect or default in
the execution of this Act,—
(a) unless it is commenced within six months next after
the accrual of the cause of action; and
(b) until the expiration of one month after notice in
writing has been, in the case of a Council or its
committee, delivered or left at the municipal office and,
in the case of an officer or servant of a Council,
delivered to him or left at his office or place of abode;
and all such notices shall state with reasonable
particularity the causes of action and the name and
place of abode of the intending plaintiff and of his
advocate, pleader or agent, if any, for the purpose of
the suit.
(2) At the trial of any such suit,—
(a) the plaintiff shall not be permitted to adduce
evidence relating to any cause of action save such as is
set forth in the notice delivered or left by him as
aforesaid;
(b) if the suit be for damages and if tender of sufficient
amends shall have been made before the action was
brought, the plaintiff shall not recover more than the
amount so tendered and shall pay all costs incurred by
the defendant after such tender.
(3) If the defendant in any such suit is an officer or
servant of a Council payment of any sum or part thereof
payable by him in or in consequence of the suit may,
with the sanction of the Council, be made from the
municipal fund.
(4) Nothing in clause (a) and (b) of sub-section (1) shall
apply to any suit under section 38 of the Specific Relief
Act, 1963 or under subsection (1) or (2) of section 92 of
this Act.”
18. It would be, thus, clear that the language of Section
289 is also mandatory in nature as subsection (1) of Section 289 of
the Municipalities Act clearly provides that no suit shall lie against
the Council or against Committee constituted under the Act in
respect of any act done in pursuance of, or in execution or
intended execution of the act or in respect of any alleged neglect
or default in the execution of the act. In my considered view, in
the face of the language as used, it would be for the Court to look
into whether the suit would be maintainable for want of notice
under Section 289 of the Municipalities Act. Thus, once the fact
about absence of a statutory notice under Section 289 of the
Municipalities Act is brought to the notice of the Court, the same
cannot be brushed aside on the ground that the concerned
statutory body, namely Municipal Council has not raised the issue,
but is raised by some other defendant. If we were to draw an
analogy, the same can be found in Section 3 of the Limitation Act,
wherein notwithstanding the fact that any of the parties raise the
issue, the Court is obliged and is entitled to look into and ascertain
whether the suit is filed within limitation. In view of the language
as used in Section 289 of the Act and the observations in the case
of Syed Abdul Razzak (supra), with which I am in respectful
agreement, the objection that the issue of absence of notice under
Section 289 is not raised by the statutory body i.e. the Municipal
Council, but by a private defendant, cannot be accepted. I also
find that non-raising of the said objection by Municipal Council
cannot tantamount to waiver as there is a statutory bar in
entertaining the suit in the absence of the notice.
19. It would not be necessary to multiply authorities on the
point. In the face of the language as used in Section 289 of the
Municipalities Act, I am of the considered view that the suit
against the defendant no.3 Municipal Council would be barred by
the provisions of the said Act. The learned Trial Court has
articulated two reasons in refuting the submission in this regard.
Firstly, it has been held that leave was granted under Section 80
of C.P.C. and secondly, that application for deletion of the
defendant nos.3 and 5 was rejected earlier. In the first instance,
the issuance of the notice under Section 80 of C.P.C. and for the
matter of that, the grant of leave to institute the suit in absence
thereof, cannot enure to the benefit of the plaintiffs in overcoming
the absence of the notice and the legal effects thereof under
Section 289 of the Municipalities Act, which is a distinct provision
under a special Statute. The rejection of the application under
Order I, Rule 10 of C.P.C. seeking deletion of defendant nos.3 and
5 also cannot come to the aid of the plaintiff/ respondent no.1 as
the considerations under Order I, Rule 10 of C.P.C. and Order VII,
Rule 11(d) of C.P.C. in the present context, would be distinct and
differentiable. I, thus, find that the plaint will have to be rejeceted
as against the defendant no.3. I would hasten to add that in the
context and the nature of the suit claim and the reliefs claimed,
the main relief is in respect of the declaration of the agreement of
sale dated 06/10/2009 executed by the defendant no.1 with the
defendant no.2 being null and void. The relief in so far as the
defendant nos.3 and 4 are concerned may only be ancillary and
consequential in nature as the only relief is to revoke the
construction licence and the plan approved, being illegal and
contrary to law. Be that as it may, the objection based on absence
of notice under Section 289 of Municipalities Act, will have to be
accepted in the present case.
20. As to point no.(iii):- This takes me to the objection as
regards the defendant no.4 Town and Country Planning
Department is concerned. Reliance in this regard is placed on
Section 121 and/ or Section129 of the Goa Town and Country
Planning Act, 1974 (the said Act, for short). Sections 121 and 129
of the said Act read as under :
“121 – Bar of legal proceedings- No suit or other
legal proceeding shall be maintained against the
Government, Planning and Development Authority or
any of its officers or persons duly appointed or
authorised by it in respect of anything in good faith
done or purporting to be done under the provisions of
this Act or the rules or regulations made thereunder.
129- Finality of orders- Save as otherwise expressly
provided in this Act, every order passed or direction
issued by the Government or the Board or order
passed or notice issued by any Planning Development
Authority under this Act shall be final and shall not be
questioned in any suit or other legal proceeding.”
21. Section 121 of the said Act may not present much
difficulty as the immunity from legal proceedings granted is in
respect of any act done in good faith, which would be a question of
fact in the context of the plaint allegations. Thus, the plaint
cannot be rejected at the threshold as against the defendant no.4,
placing reliance on Section 121 of the said Act. In so far as
Section 129 of the said Act is concerned, undoubtedly it attaches
finality to the order passed by the planning and development
authority under the Act and it is not open to be questioned in any
suit or other legal proceedings. In this regard, the learned Trial
Court has referred to a decision of the learned Single Judge of
this Court (A. S. Oka, J.) in the case of Laxman Barkya Wadkar
Vs. Mumbai Municipal Corporation (F.A.No.1635/2010). The
learned Trial Court has found that this Court after considering the
provisions of Sections 53 and 55 of the Maharashtra Regional and
Town Planning Act has held that although on a plain reading of
Section 149 of the M.R.T.P. Act, which contains a finality clause,
excludes the jurisdiction of the Civil Court, on further analysis,
based on the decision of the Hon'ble Apex Court in the case of
Dhulabhai Vs. State of M.P. and another, reported in AIR
1969, SC 78 and Kamla Mills Ltd. Vs. State of Bombay,
reported in 1966(1) SCR 64 has held that if there are allegations
made in the plaint that action under Section 53(1) or 55 of
M.R.T.P. Act is nullity, then provisions excluding jurisdiction of the
Civil Court, will not come in the way of entertaining the suit. It
does appear that the learned Trial Court, after considering the
decision and analogous provisions contained in Maharashtra
Regional and Town and Country Planning Act, 1966, has held that
the plaint cannot be rejected at the threshold, placing reliance on
Section 149 of the Town and Country Planning Act. At the cost of
repetition, it may be stated that the case made out in the plaint is
that the defendant no.1 had no title to transfer the suit property to
the defendant no.2 and when the property is belonging to the
plaintiff Comunidade, the entire action was fraudulent. Here
again, it may be mentioned that the relief in so far as the
revocation of the construction licence or approved plan against the
defendant no.4 is concerned, would be consequential to the
declaration as sought in the prayer clause (a) of the plaint. Even
in the case of Maya Dessai (supra), this Court, after referring to
the decision in the case of Laxman Barkya Wadkar (supra), has
held that if the action is nullity, then bar to the jurisdiction of the
Civil Court will not come in the way. In the case of Maya Dessai
(supra), this Court, in view of the pleadings that the action is
vitiated by fraud and that the officers have acted in bad faith, had
held that the matter would be required to be considered on merits
and order dismissing the suit, merely relying on the bar, was set
aside.
22. In that view of the matter, the suit cannot be
dismissed at the threshold as against the defendant no.4. The
point is accordingly answered in the negative. In the result, the
following order is passed :
(i) Civil Revision Applications are partly allowed.
(ii) The impugned order to the extent refusing to
reject the plaint against the defendant no.3,
Bicholim Municipal Council is hereby set aside.
(iii) Plaint stands rejected as against the defendant
no.3.
(iv) Rest of the order stands confirmed.
(v) In the circumstances, there shall be no order as
to costs.
C. V. BHADANG, J.
CIVIL REVISION APPLICATION NOS.21 and 23 of 2015
CIVIL REVISION APPLICATION NO.21 of 2015
M/s Boshan Developers Pvt. Ltd.,
V/s
Communidade of Bordem,
CORAM :- C. V. BHADANG, J.
Pronounced on :- 16th September, 2015
Citation: AIR 2016(NOC)263 Bom
2. Both these Civil Revision Applications challenge the
order dated 18/06/2015 passed by the learned Adhoc District
Judge at Mapusa in Civil Suit No.6/2015. By the impugned order,
the applications filed by the defendant nos.1 and 2 under Order
VII, Rule 11(d) of C.P.C., have been dismissed. As the
Revision Applications arise out of the same order and involve
common and connected questions of law and fact, they are being
disposed of by this common judgment.
3. The first respondent Comunidade of Bordem is the
original plaintiff while Shri Shantadurga Sangordekarin Devasthan
(Devasthan, for short) and M/s. Boshan Developers Pvt. Ltd, the
petitioners in these Revision Applications are respectively the
defendant nos.1 and 2 before the Trial Court. Bicholim Municipal
Council and the Town and Country Planning Department are
respectively the defendant nos.3 and 4 while State of Goa is the
original defendant no.5.
4. The Comunidade is seeking a declaration that the
Agreement for Sale dated 06/10/2009 executed by the Devasthan
in favour of M/s. Boshan Developers is null and void and for
consequent permanent injunction, restraining them or anybody on
their behalf from carrying on any construction activity in the suit
property and/or changing its user. Permanent injunction
restraining them from creating any third party interest as also
mandatory injunction directing the petitioners herein to restore
the suit property to its original pristine condition is also sought
for. The subject matter of dispute is a landed property situated at
village Bordem, Bicholim Taluka, more specifically described in
para 5 of the plaint. The case made out in the plaint is that the
suit property is leased out to the Devasthan on a permanent basis.
The Devasthan is not permitted to change the user of the said
property. It is contended that the Devasthan can enjoy the suit
property in a restricted and controlled manner, in view of the
terms and conditions of the lease and the provisions contained in
the Code of Comunidades. It is contended that the Comunidade
continues to be the owner of the property. The Devasthan is
governed by the 'Regulamento das Mazania', better known as
Devasthan Regulations and the property cannot be put to any use,
which may be inconsistent with the object of the Devasthan or
which may be in breach of the Devasthan Regulations. The
defendant nos.1 and 2 sought rejection of the plaint under Order
VII, Rule 11(d) of the Code, by filing separate applications. It is
contended that the suit is barred by limitation. Reliance in this
regard is placed on para 13 of the plaint, in order to contend that
on its own saying since the order 2010, villagers/ residents of
Gaonkarwada had noticed construction activities in the suit
property and complaints/ representations were lodged in respect
thereof to various authorities. It is contended that thus, the
villagers/ residents of Gaonkarwada were having knowledge of
construction activities since the year 2010. It is contended that
the villagers/ residents of Gaonkarwada, being the members /
constituents of the Comunidade, a corresponding knowledge has
to be attributed to the Comunidade also. Thus, the suit having
been filed in the year 2015, is barred by limitation. It is contended
that the suit is barred under Section 289 of the Goa Municipalities
Act (the Municipalities Act, for short) since no notice as
contemplated under Section 289(1)(b) of the said Act is issued.
5. The Devasthan has contended that under Article 9 of
the Code of Comunidades, the Comunidade is not entitled to file a
suit without permission of the Administrative Tribunal. The
Comunidade has neither obtained nor produced any such
permission nor there is any statement to that effect in the plaint.
Thus, the suit is barred by the provisions of the Code of
Comunidades.
6. The Devasthan has also raised similar plea based on
the suit being barred by limitation on account of the knowledge of
the gaonkars at least from the year 2010.
7. The learned Adhoc District Judge has dismissed the
application by the common order dated 18/06/2015. CRA21&23/15
7
8. It is submitted by Shri Shivan Dessai, the learned
Counsel appearing for the petitioners (Civil Revision Application
No.21/2015) that from the plaint allegations themselves, it is clear
that the villagers/ gaonkars were aware about the construction
being carried out from the year 2010. He submitted that the
villages/ gaonkars are the members/ constituents of the
Comunidade. Hence, the knowledge of the said activities has
necessarily to be attributed to the Comunidade also. He,
therefore, submitted that the suit having been filed in the year
2015 is barred by limitation. The learned Counsel would submit
that Tukaram Pal who is representing the plaintiff had signed the
complaint dated 25/01/2010. He submitted that the permission for
construction is granted by the Municipal Council way back in the
year 2010 and the Occupancy Certificate is granted in 2003. It is,
therefore, submitted that the suit is clearly barred by limitation.
He submitted that the view taken by the learned District Judge
that the issue of limitation being a mixed question of law and fact,
the plaint cannot be dismissed, is apparently incorrect.
9. It is next submitted that the suit is also bad for nonissuance
of notice under Section 289 of the Municipalities Act. He
submitted that the grant of leave under Section 80 of C.P.C.,
cannot be a substitute for the issuance of the notice under Section
289 of the Municipalities Act. The learned Counsel has placed
reliance on the following decisions, in support of his various
submissions :
(i) Syed Abdul Razzak Aminuddin and Hazrt
Gaiban Shah Baba Syed Vs. Maharashtra State
Board of Wakfs, reported in 2009(111) BOMLR 3609.
(ii) Sadu Vithal Joshi Vs. The Municipal
Corportion and another, reported in 1986(3)
Bom.C.R. 628.
(iii) Hardesh Ores Pvt. Ltd. Vs. Hede and
Company, reported in (2007)5 SCC 614.
10. Shri Thali, the learned Counsel for the petitioner (Civil
Revision Application No.23/2015) has adopted the submissions
made on behalf of the petitioner, in Civil Revision Application
No.21/2015.
11. On the contrary, it is submitted by Shri Bhobe, the
learned Counsel for the respondent no.1 that the knowledge of the
gaonkars cannot tantamount to the knowledge of the Comunidade,
which is a distinct body. It is submitted that the plaint alleges that
the cause of action has accrued on 21/07/2014, when the
defendant no.2 started construction activity in the suit property.
He submits that the agreement of sale is a result of fraud, which
would vitiate the entire transaction. He, therefore, submitted that
the plaint cannot be said to be barred by limitation. Even so far as
the necessity to issue a notice under Section 289 of the
Municipalities Act is concerned, it is submitted that the Court has
granted leave under Section 80 of C.P.C. on an application dated
04/02/2015. It is contended that the application dated 13/02/2015
filed by the defendant no.1 under Order I Rule 10 of C.P.C.,
seeking deletion of defendant nos.3 to 5 has been rejected, which
is not challenged any further and has thus attained finality. The
learned Counsel has placed reliance on the following decision, in
support of his submissions :
(i) Western Coalfields Ltd. and others Vs.
Chandraprakash w/o Krishnalal Khare, reported in
2010(4)Mh.L.J.
(ii) Goa Industrial Development Corporation Vs.
M/s. Sadhana Builders Pvt., (unreported judgment in
CRA No.22/2012, dated 29/04/2014).
(iii) Maya Shrikant Sawant Dessai Vs. the Chief
Secretary and another, (unreported judgment in
F.A.No.67/2014, dated 25/02/2015).
12. In view of the rival circumstances and the submissions
made, the following points arise for my determination. I have
recorded my findings against the same for reasons, which follow.
(i) Whether the plaint is liable to be
rejected under Order VII, Rule 11(d) of
C.P.C. as being barred by limitation ?
In the
negative.
(ii) Whether the plaint is liable to be
rejected under Order VII, Rule 11(d) of
C.P.C. as against respondent
no.3/defendant no.3 for want of notice
under Section 289 of the Goa
Municipalities Act ? If yes, what
effect ?
In the
affirmative.
(iii) Whether the plaint is liable to be
rejected under Order VII Rule 11(d) of
Civil Procedure Code, as against
respondent no.4/defendant no.4 by
virtue of Sections 121 & 129 of the
Goa Town and Country Planning Act,
1974?
In the
negative
(iv) Whether the impugned order needs
interference in exercise of Revisional
jurisdiction of this Court ?
Partly in the
affirmative.
As per final
order.
13. As to point no.(i):- It is now well settled that while
examining the question whether the plaint can be rejected under
Order VII, Rule 11(d) of C.P.C., the Court has to confine itself to
the allegations in the plaint. Thus, any defence, actual or
probable, cannot be looked into at this stage. On behalf of the
petitioner, reliance is placed on para 13 of the plaint which reads
thus :
“The plaintiff states that in the year 2010, the
villagers/residents of Goankar wada noticed
construction activities in the suit property and that
the suit property is being misused. The plaintiff
states that the Gaokars therefore started
inquiries/applying for copies of the documents
pertaining to the suit property from various
authorities and making complaints/representations
in respect of the illegality. The residents of Gaonkar
wada filed complaints with the authorities with
regards to the activities which were just being
commenced in the suit property. The residents of
Gaonkar wada though were aware that the suit
property belongs to the plaintiff and demised to
Defendant no.1. There were also rumors that the
land was sold to the Defendant no.2, however the
residents of Goankar wada were not aware of any
such document. The residents of Gaonkar wada
since than took up the issue with various Statutory
Authorities. During the said process the said
Gaonkars on or about 12th August, 2014 learnt about
the Managing Committee of the Defendant no.1
having clandestinely executed an Agreement for
sale dated 06/10/2009 with the Defendant no. 2,
which is apparently registered in the Office of the
Sub-Registrar of Bicholim, under registration No.
1179/09 at pages 167 to 193 of Book No.1 Volume
No. 741 dated 16./11/2009 (hereinafter referred to
as the “said Agreement” for the sake of brevity.”
14. It is contended that the residents of Gaonkarwada
were aware about the construction from the year 2010. The
submission that the knowledge of the villagers has necessarily to
be attributed to the Comunidade does not commend to me.
Though the villagers and residents may be the members /
constituents of the Comunidade, the Comunidade is a distinct
body, governed by the Code of Comunidades and subject to the
rights and liabilities as contained therein. Thus, merely because
the villagers were aware from the year 2010, it cannot be said that
the Comunidade was also aware of the same. That apart, it is trite
that the plaint allegations have to be read as a whole in
determining whether the plaint is barred by any law. A particular
para cannot be picked up, in order to contend that the plaint is
barred by any law. A bare perusal of para 13 would show that the
plaint alleges that on or about 12/08/2014, it was learnt that the
Managing Comittee of the Devasthan have clandestinely executed
the agreement for sale on 06/10/2009 in favour of the defendant
no.1. In para 34, 35 and 36 of the plaint, it is stated thus :
“34. The plaintiff states that the cause of action
arose on 21/07/2014 when the defendant no.2 started
construction activity in the suit property. The subject
matter of the present suit is an act of fraud
committed by the Defendants as stated herein above
which act has vitiated the entire transaction referred
to herein above. The cause of action is continuing.
35. Although the components of the plaintiff
wanted to prevent continuance of illegal construction
activity in the suit property after noticing the same
by approaching this court immediately, however,
filing of the suit required compliance of law in form
of approvals for filing the present suit. The general
body meeting for discussing issues pertaining to the
suit property was held on 04/01/2015 and in the said
meeting the members of the plaintiff resolved to file
the present suit in order to protect the suit property.
The Administrator of Comunidade also has accorded
approval on 03/02/2015 for filing the present suit in
compliance with law.
36. The suit is within limitation.”
These material allegations are disputed on behalf of
the petitioner. If that be so, it has to be said that the question of
limitation would require examination of facts and would be a
disputed question which can be gone into at the trial. That is also
the reason given by the learned District Judge while dismissing the
application. In the case of Hardesh Ores Ltd. (supra), the Trial
Court had dismissed the suit under Order VII, Rule 11 of C.P.C. as
being barred by limitation. The High Court affirmed the same
holding that in effect, the suit was for specific performance of
renewal of agreement and the suit, which was styled as injunction
simpliciter was nothing but a camouflage to get over the bar of
limitation. While confirming the same, the Hon'ble Apex Court has
inter alia, held that the question is whether the real cause of
action has been set out in the plaint or something purely
illusionary has been stated, with a view to get out of Order VII,
Rule 11 of C.P.C. It has been held that a clever drafting creating
illusion of cause of action, are not permitted in law and a clear
right to sue should be shown in the plaint. In the case of Hardesh
Ores Ltd. (supra), the appellants had sought renewal of lease,
which was denied by the respondents. It was, thus, held on facts
that the appellant could not have camouflaged the real issue
claiming an order of injunction, without establishing the
subsistence of valid agreement.
15. In the present case, the question is about the
knowledge and starting point of limitation, which as rightly held
by the learned Trial Court, would be a disputed question of fact,
which can be gone into only at the trial. Thus, in my considered
view, no exception can be taken to the finding that the suit cannot
be dismissed at the threshold as being barred by limitation. The
point is accordingly answered in the negative.
16. As to point no.(ii):-This takes me to the question of
necessity of issuance of notice under Section 289 of the
Municipalities Act and the consequence thereof. At the outset, it
needs to be mentioned that in so far as the defendant no.5 State of
Goa is concerned, already the Trial Court has granted leave under
Section 80 of C.P.C. The defendant no.3 is the Bicholim Municipal
Council while defendant no.4 is Town and Country Planning
Department. The objection based on Section 289 of the
Municipalities Act pertains to the defendant no.3 alone. At the
outset, it may be mentioned that the defendant no.3 has not raised
the objection and the objection is raised by the private defendant
nos.1 and 2. On behalf of the petitioner, reliance is placed on the
decision of this Court in Syed Abdul Razzak (supra), in order to
submit that such an objection, based on want of statutory notice,
can be raised by any of the defendants and not necessarily by the
Statutory body, which in the present case, is the Municipal
Council. In the case of Syed Abdul Razzak (supra), the suit was
filed against the Wakf Board, which was the defendant no.1. The
objection was raised by the private respondent. A learned Single
Judge of this Court held thus in para 21 of the judgment :
“21. Coming to the next contention raised by the
learned counsel for the petitioners regarding
raising objection of non-issuance of notice by
defendant no.17, I am of the view that the objection
regarding non-issuance of notice under Section 89
of the Wakf Act, 1995 pertains to law point and,
therefore, objection can be raised by any of the
defendants and it is not necessary that defendant
no.1 only can raise the said objection and silence of
defendant no.1 in not raising objection regarding
non-issuance of notice under Section 89 of the
Wakf Act will not amount to deemed waiver, since
as mentioned above, the concept of deemed waiver
of Section 89 of the Wakf Act, 1995 cannot be
imported thereunder, as the very language of the
said provision is express, explicit and mandatory,
since the Wakf Act, 1995 is a special Act.”
It can, thus, be seen that the objection raised was
based on Section 89 of the Wakf Act, 1995. This Court held that
as the objection pertained to a law point, which can be raised by
any of the defendants, it is not necessary that the defendant no.1
(the Wakf Board) only can raise the said objection. It has also
been held that the silence of the defendant no.1 in not raising
objection regarding non-issuance of the notice under Section 89 of
the Wakf act, will not amount to deemed waiver, since the concept
of deemed waiver under Section 89 of the Wakf Act, 1995, cannot
be imported in view of the language of the said provisions, which
is express, explicit and mandatory.
17. Coming to the present case, Section 289 of the
Municipalities Act reads thus :
“289. Limitation of suits against Council, its
committees, officers and servants for acts done in
pursuance or execution of this Act.— (1) No suit
shall lie against a Council or against any committee
constituted under this Act, or against any officer or
servant of a Council in respect of any act done in
pursuance or execution or intended execution of this
Act, or in respect of any alleged neglect or default in
the execution of this Act,—
(a) unless it is commenced within six months next after
the accrual of the cause of action; and
(b) until the expiration of one month after notice in
writing has been, in the case of a Council or its
committee, delivered or left at the municipal office and,
in the case of an officer or servant of a Council,
delivered to him or left at his office or place of abode;
and all such notices shall state with reasonable
particularity the causes of action and the name and
place of abode of the intending plaintiff and of his
advocate, pleader or agent, if any, for the purpose of
the suit.
(2) At the trial of any such suit,—
(a) the plaintiff shall not be permitted to adduce
evidence relating to any cause of action save such as is
set forth in the notice delivered or left by him as
aforesaid;
(b) if the suit be for damages and if tender of sufficient
amends shall have been made before the action was
brought, the plaintiff shall not recover more than the
amount so tendered and shall pay all costs incurred by
the defendant after such tender.
(3) If the defendant in any such suit is an officer or
servant of a Council payment of any sum or part thereof
payable by him in or in consequence of the suit may,
with the sanction of the Council, be made from the
municipal fund.
(4) Nothing in clause (a) and (b) of sub-section (1) shall
apply to any suit under section 38 of the Specific Relief
Act, 1963 or under subsection (1) or (2) of section 92 of
this Act.”
18. It would be, thus, clear that the language of Section
289 is also mandatory in nature as subsection (1) of Section 289 of
the Municipalities Act clearly provides that no suit shall lie against
the Council or against Committee constituted under the Act in
respect of any act done in pursuance of, or in execution or
intended execution of the act or in respect of any alleged neglect
or default in the execution of the act. In my considered view, in
the face of the language as used, it would be for the Court to look
into whether the suit would be maintainable for want of notice
under Section 289 of the Municipalities Act. Thus, once the fact
about absence of a statutory notice under Section 289 of the
Municipalities Act is brought to the notice of the Court, the same
cannot be brushed aside on the ground that the concerned
statutory body, namely Municipal Council has not raised the issue,
but is raised by some other defendant. If we were to draw an
analogy, the same can be found in Section 3 of the Limitation Act,
wherein notwithstanding the fact that any of the parties raise the
issue, the Court is obliged and is entitled to look into and ascertain
whether the suit is filed within limitation. In view of the language
as used in Section 289 of the Act and the observations in the case
of Syed Abdul Razzak (supra), with which I am in respectful
agreement, the objection that the issue of absence of notice under
Section 289 is not raised by the statutory body i.e. the Municipal
Council, but by a private defendant, cannot be accepted. I also
find that non-raising of the said objection by Municipal Council
cannot tantamount to waiver as there is a statutory bar in
entertaining the suit in the absence of the notice.
19. It would not be necessary to multiply authorities on the
point. In the face of the language as used in Section 289 of the
Municipalities Act, I am of the considered view that the suit
against the defendant no.3 Municipal Council would be barred by
the provisions of the said Act. The learned Trial Court has
articulated two reasons in refuting the submission in this regard.
Firstly, it has been held that leave was granted under Section 80
of C.P.C. and secondly, that application for deletion of the
defendant nos.3 and 5 was rejected earlier. In the first instance,
the issuance of the notice under Section 80 of C.P.C. and for the
matter of that, the grant of leave to institute the suit in absence
thereof, cannot enure to the benefit of the plaintiffs in overcoming
the absence of the notice and the legal effects thereof under
Section 289 of the Municipalities Act, which is a distinct provision
under a special Statute. The rejection of the application under
Order I, Rule 10 of C.P.C. seeking deletion of defendant nos.3 and
5 also cannot come to the aid of the plaintiff/ respondent no.1 as
the considerations under Order I, Rule 10 of C.P.C. and Order VII,
Rule 11(d) of C.P.C. in the present context, would be distinct and
differentiable. I, thus, find that the plaint will have to be rejeceted
as against the defendant no.3. I would hasten to add that in the
context and the nature of the suit claim and the reliefs claimed,
the main relief is in respect of the declaration of the agreement of
sale dated 06/10/2009 executed by the defendant no.1 with the
defendant no.2 being null and void. The relief in so far as the
defendant nos.3 and 4 are concerned may only be ancillary and
consequential in nature as the only relief is to revoke the
construction licence and the plan approved, being illegal and
contrary to law. Be that as it may, the objection based on absence
of notice under Section 289 of Municipalities Act, will have to be
accepted in the present case.
20. As to point no.(iii):- This takes me to the objection as
regards the defendant no.4 Town and Country Planning
Department is concerned. Reliance in this regard is placed on
Section 121 and/ or Section129 of the Goa Town and Country
Planning Act, 1974 (the said Act, for short). Sections 121 and 129
of the said Act read as under :
“121 – Bar of legal proceedings- No suit or other
legal proceeding shall be maintained against the
Government, Planning and Development Authority or
any of its officers or persons duly appointed or
authorised by it in respect of anything in good faith
done or purporting to be done under the provisions of
this Act or the rules or regulations made thereunder.
129- Finality of orders- Save as otherwise expressly
provided in this Act, every order passed or direction
issued by the Government or the Board or order
passed or notice issued by any Planning Development
Authority under this Act shall be final and shall not be
questioned in any suit or other legal proceeding.”
21. Section 121 of the said Act may not present much
difficulty as the immunity from legal proceedings granted is in
respect of any act done in good faith, which would be a question of
fact in the context of the plaint allegations. Thus, the plaint
cannot be rejected at the threshold as against the defendant no.4,
placing reliance on Section 121 of the said Act. In so far as
Section 129 of the said Act is concerned, undoubtedly it attaches
finality to the order passed by the planning and development
authority under the Act and it is not open to be questioned in any
suit or other legal proceedings. In this regard, the learned Trial
Court has referred to a decision of the learned Single Judge of
this Court (A. S. Oka, J.) in the case of Laxman Barkya Wadkar
Vs. Mumbai Municipal Corporation (F.A.No.1635/2010). The
learned Trial Court has found that this Court after considering the
provisions of Sections 53 and 55 of the Maharashtra Regional and
Town Planning Act has held that although on a plain reading of
Section 149 of the M.R.T.P. Act, which contains a finality clause,
excludes the jurisdiction of the Civil Court, on further analysis,
based on the decision of the Hon'ble Apex Court in the case of
Dhulabhai Vs. State of M.P. and another, reported in AIR
1969, SC 78 and Kamla Mills Ltd. Vs. State of Bombay,
reported in 1966(1) SCR 64 has held that if there are allegations
made in the plaint that action under Section 53(1) or 55 of
M.R.T.P. Act is nullity, then provisions excluding jurisdiction of the
Civil Court, will not come in the way of entertaining the suit. It
does appear that the learned Trial Court, after considering the
decision and analogous provisions contained in Maharashtra
Regional and Town and Country Planning Act, 1966, has held that
the plaint cannot be rejected at the threshold, placing reliance on
Section 149 of the Town and Country Planning Act. At the cost of
repetition, it may be stated that the case made out in the plaint is
that the defendant no.1 had no title to transfer the suit property to
the defendant no.2 and when the property is belonging to the
plaintiff Comunidade, the entire action was fraudulent. Here
again, it may be mentioned that the relief in so far as the
revocation of the construction licence or approved plan against the
defendant no.4 is concerned, would be consequential to the
declaration as sought in the prayer clause (a) of the plaint. Even
in the case of Maya Dessai (supra), this Court, after referring to
the decision in the case of Laxman Barkya Wadkar (supra), has
held that if the action is nullity, then bar to the jurisdiction of the
Civil Court will not come in the way. In the case of Maya Dessai
(supra), this Court, in view of the pleadings that the action is
vitiated by fraud and that the officers have acted in bad faith, had
held that the matter would be required to be considered on merits
and order dismissing the suit, merely relying on the bar, was set
aside.
22. In that view of the matter, the suit cannot be
dismissed at the threshold as against the defendant no.4. The
point is accordingly answered in the negative. In the result, the
following order is passed :
(i) Civil Revision Applications are partly allowed.
(ii) The impugned order to the extent refusing to
reject the plaint against the defendant no.3,
Bicholim Municipal Council is hereby set aside.
(iii) Plaint stands rejected as against the defendant
no.3.
(iv) Rest of the order stands confirmed.
(v) In the circumstances, there shall be no order as
to costs.
C. V. BHADANG, J.
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