When jurisdiction of civil court will be barred if Municipal Corporation has issued notice U/S 149 of MRTP Act?

  The learned Civil Judge, however, has found that whenever it is seen that the notice issued under section 53(1) of M.R.T.P. Act prescribes period which is lesser than the period stipulated in this section which is of not less than 30 days, the notice is void ab initio and therefore, civil suit is maintainable. The learned Civil Judge has relied upon the judgment of this Court rendered in the case of Kishor Ramalu Telang v. Municipal Commissioner, Nagpur Municipal Corporation, reported in 2015 (4) Mh.L.J. 836 in this regard.{Para 4}

5. There can be no two opinions about the principle laid down in the above referred case of Kishor Telang. Whenever notice under section 53(1) of M.R.T.P. Act prescribing lesser period is issued and the jurisdiction of the Civil Court is challenged on the ground that the notice prescribes lesser period, the Civil Court would have the jurisdiction to entertain and try the suit. But the facts of the instant case are quite different and in my view these facts have not been appreciated at all by the learned Civil Judge.

6. A careful perusal of the plaint discloses that the respondent No. 1 has nowhere contended that the notice is illegal on the ground that it prescribes lesser period. Such ground is certainly a question of fact and not a mere matter of evidence and therefore, the law would require that such fact is specifically pleaded. When the fact is not pleaded, there would not be any question of leading evidence to prove a fact not pleaded. The only ground from the pleadings taken in the plaint raised by the respondent No. 1 is that the officials of the Municipal Corporation are helping the revision applicant in achieving his evil intention of taking control of the property of respondent No. 1 and that is why the notice in question has been issued illegally by the officials of Municipal Corporation. This ground would not be enough for bringing the civil suit within the purview of the jurisdiction of the Civil Court. Something more was required, it has been discussed just now, but that has not been done in the present case. Therefore, as rightly submitted by the learned counsel for the revision applicant as well as the learned counsel for respondent Nos. 2 and 3, the view taken by the learned Civil Judge would have to be held as contrary to the settled principles of law and I do so. The civil Court would have no jurisdiction in this case in view of bar of jurisdiction in section 149 of M.R.T.P. Act. The impugned order so far as it holds that Civil Court has jurisdiction, therefore, would have to be quashed and set aside.

9. The impugned order is hereby quashed and set aside. The application, Exh. 28, is allowed. It is held that Civil Court would have no jurisdiction to entertain and try the suit as filed by respondent No. 1. However, liberty is given to the respondent No. 1/original plaintiff to approach the Municipal Corporation i.e. respondent Nos. 2 and 3 by making appropriate representations/applications/appeals for redressal of her grievance in respect of the notice issued under section 53(1) of the M.R.T.P. Act as well as the construction made by her and in case, such representations/applications/appeals are filed, the same shall be disposed of by the competent authority of the Corporation in accordance with law as expeditiously as possible.

Bombay High Court

Prashant S/O Dattatraya Wazalwar vs Smt. Sudha Baburao Lokhande And 2 ... on 16 June, 2017

Bench: S.B. Shukre

Citation: 2017 SCC OnLine Bom 2898 : (2017) 5 Mah LJ 696 at page 698

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