made construction after expiry of 60 days and if according to him, there was a deemed permission, he could have submitted an explanation before the respondents in response to the said notice. However, as the notice was issued under the provisions of the M.R.T.P. Act in view of language of section 149, issuance of such a notice cannot be questioned in any suit or other legal proceedings. The present case is squarely covered by the findings and observations in the above referred cases decided by different learned Single Judges of this Court. Therefore, it must be held that the suit filed by the plaintiff challenging the said notice is not tenable. The learned Judge was wrong in holding that the Civil Court has jurisdiction to entertain the suit.
Bombay High Court
Before Bhatia J.H., J.
Ulhasnagar Municipal Corporation & anr. Vs Kailash Tikamdas Mulchandani
Civil Revision Application No. 132 of 2004
Decided on March 18, 2008
Citation: 2008 SCC OnLine Bom 305 : (2008) 3 Bom CR 725 : (2008) 5 AIR Bom R 520
The Judgment of the Court was delivered by
Bhatia J.H., J.:— The respondent filed Special Civil Suit No. 38 of 2004 in the Court of Civil Judge, Senior Division, Kalyan challenging the Ulhasnagar Municipal Corporation under sections 53 and 54 read with section 52 of the Maharashtra Regional and Town Planing Act, 1966 (hereinafter referred to as M.R.T.P. Act). In the said notice, it was contended that the plaintiff/respondent had erected/developed or construct ground plus 3 storeys without permission and by the said notice he was called upon to forthwith stop the erection/development/execution of work and he was also required to submit a statement in writing within 30 days from the receipt of the notice to show cause why such erection/building or work should not be removed, altered or pulled down. He was also informed by the said notice that if the plaintiff-respondent failed to show sufficient cause, the erection/development/building work shall be removed, altered or pulled down by the Deputy Commissioner of the Municipal Commissioner who had issued the notice.
2. The applicants, who were the defendants in the suit, made an application under section 9-A of the Code of Civil Procedure before the trial Court contending that the suit is barred under section 149 of the M.R.T.P. Act and therefore, a preliminary issue be raised as to jurisdiction of the Civil Court to entertain the suit. To that application, a reply was filed by the plaintiff/respondent contending that he had made an application for permission for erection and he had also submitted a revised building plan. However, there was no response from the Corporation for about 60 days and as such, the revised plan was deemed to have been sanctioned under section 45(5) of the M.R.T.P. Act According to him, after expiry of 60 days he had commenced construction in September, 2003 and had completed the same before receipt of the notice dated 13th February, 2004. The learned trial Court entered into the merits of the case and held that the Civil Court has jurisdiction to try the suit.
3. Being aggrieved by that order the defendants have preferred the present Revision Application.
4. Perused the impugned notice as well as the impugned order passed by the trial Court. Heard learned Counsel for the parties.
5. Section 149 of the M.R.T.P. Act reads as follows:
“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.”
6. It may be noted that this Court had an opportunity to deal with a similar question in Civil Revision Application No. 222 of 1999 (Kalyan Dombivli Municipal Corporation v. Shri Prakash Mutha)1, reported in 2008 (3) Bom. C.R. 720 and by the judgment dated 22nd February, 2008, I have held that in view of the language of section 149, the jurisdiction of the Civil Court to entertain the suit challenging the notice, or an order issued under the M.R.T.P. Act is ousted. This issue is supported by the decision of the learned Single Judge in Appeal from Order No. 813 of 1982 decided on 11th October, 2002 wherein it was held that the suit is barred under section 149 of the M.R.T.P. Act. That authority was relied upon by another learned Single Judge in (Mohan N. Bhawe v. Municipal Corporation of Greater Bombay)2, 2005 (3) Bom. C.R. 300 in which notice under section 55(1) of the M.R.T.P. Act was issued for demolition of the unauthorised temporary construction and it was held that the suit was barred and such notice could not be challenged or questioned in the suit. Similar view was taken in (Bales Sardara Paracha v. Municipal Corporation of Greater Bombay)3, 2005 (4) Bom. C.R. 577. The facts in the present case are not much different from the facts in those cases. If the plaintiff/respondent had really applied for sanction of the plan or the revised building plan and if he has
made construction after expiry of 60 days and if according to him, there was a deemed permission, he could have submitted an explanation before the respondents in response to the said notice. However, as the notice was issued under the provisions of the M.R.T.P. Act in view of language of section 149, issuance of such a notice cannot be questioned in any suit or other legal proceedings. The present case is squarely covered by the findings and observations in the above referred cases decided by different learned Single Judges of this Court. Therefore, it must be held that the suit filed by the plaintiff challenging the said notice is not tenable. The learned Judge was wrong in holding that the Civil Court has jurisdiction to entertain the suit.
7. In the result, Revision Application is allowed. The impugned order is therefore, set aside and it is therefore declared that the suit is not tenable in view of the provisions of section 149 of the M.R.T.P. Act.
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