In the present case, the dispute between the parties is as to whether any permission was granted by the plaintiff to the defendants for the purpose of amalgamation of two plots or not and the plaintiff's specific case is that no such permission was given to the defendants either in the Development Agreement or in the Power of Attorney which was executed in their favour. The question which falls for consideration is as to whether the suit filed by the plaintiff can be tried in Civil Court or not. In order to appreciate the rival contentions, it would be necessary to examine relevant provisions. Section 149 of the M.R.T.P. Act, 1966 reads as under :-
"149. Finality of orders.- Save as otherwise expressly provided in this Act, every order passed or direction issued by the State Government or order passed or notice issued by any Regional Board, Planning Authority or Development Authority under this Act shall be final and shall not be questioned in any suit or other legal proceedings."
From the perusal of the said section, it is apparent that every order passed or direction issued by the State Government or order passed or notice issued by any Regional Board, Planning Authority or Development Authority under the Act shall be final and shall not be questioned in any suit or legal proceedings. The M.R.T.P. Act, 1966 empowers the Government to issue various orders or directions regarding numerous matters pertaining to either reservation or preparation of development plan etc. In my view, Civil Court's jurisdiction is ousted in respect of such matters where State Government or its authorities alone are empowered under the Act to adjudicate or decide any matter. In the present case, dispute is regarding the question as to whether the plaintiff had permitted the defendants to apply for amalgamation for the two plots or not. The dispute therefore is one which is arising out of the terms and conditions of the contract or the terms and conditions in the Power of Attorney which is executed by the plaintiff. In my view, therefore, bar of section 149 would not be applicable to the facts of the present case.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
V.M. KANADE, J.
M/S. Gadre Constructions & Ors.Vs.Sadashiv Keshav Sathe & Ors.
Civil Revision Application No.2213 of 2002
10th March, 2004
Citation: 2004(4) ALL MR 374,2004(4) Bom CR 596 Bom
JUDGMENT :- Petitioners are the original defendants and respondent No.1 is the original plaintiff. Respondent Nos.2 and 3 are the original defendant No.5. For the sake of convenience parties shall be referred to as plaintiff and defendants.
FACTS :
2. Plaintiff, respondent No.1 herein, instituted a suit against the defendants and the Pune Municipal Corporation seeking a declaration that the amalgamation of two plots bearing CTS Nos.1357 and 1358 by the defendants, petitioners herein, and the respondent Nos.2 and 3 is illegal, null and void and he further prayed that the building permission granted on the basis of Building Plan of the amalgamated property be revoked. Reply and Written Statement was filed by the defendants. An application vide Exhibit-20 was filed under Order VII, Rule 11 in which the defendants, petitioners herein, prayed for rejection of the plaint. An objection was raised that the Civil Court has no jurisdiction to decide the said dispute in view of the provisions of section 149 of the Maharashtra Regional Town Planning Act, 1966 (for short M.R.T.P. Act, 1966). A reply was filed by the plaintiff and the Trial Court came to the conclusion that section 149 does not expressly oust the jurisdiction of the Civil Court and, therefore, held that the suit was maintainable. The original defendant Nos.1 to 4 had filed this Civil Revision Application challenging the said order passed by the Civil Judge Junior Division.
ARGUMENTS :
3. The learned Counsel appearing on behalf of defendant Nos.1 to 4, petitioners herein, submitted that by virtue of the provisions of section 149, the Civil Court's jurisdiction is expressly barred. He relied upon the judgment of the Apex Court in the case of Dhulabhai Vs. State of Madhya Pradesh & Anr. reported in AIR 1969 SC 78. He also relied upon the judgment of this Court in the case of Smt. Sujala Yeshwant Nitsure and others Vs. The Municipal Corporation of City of Pune and Ors. reported in 1996(2) Bom.C.R. 503. He submitted that the plaintiff had, in fact, given Irrevocable Power of Attorney to the defendants and had also executed agreement in which it was expressly provided that the defendants should amalgamate two plots. He submitted that in the teeth of the said consent given by the plaintiff, he had no right to file a suit in the Civil Court and he should prefer an appeal against the permission which was granted for amalgamation of the said property before the authorities as provided under the M.R.T.P. Act, 1966.
4. The learned Counsel appearing on behalf of the plaintiff - respondent No.1 has submitted that the Trial Court had rightly held that the jurisdiction of the Civil Court is not expressly barred. He submitted that the question whether consent was given by the plaintiff to the defendants to amalgamate the properties was a question of fact which Civil Court alone could decide and it was a matter which depended on the contract which was executed between the parties as also on the terms and conditions of the Power of Attorney which was executed by the plaintiff in favour of the defendants. He further relied on Division Bench Judgment of this Court in the case of Raja Bahadur Motilal & Anr. Vs. State of Maharashtra & Ors. reported in 2003(1) Bom.C.R. 251 : [2002(4) ALL MR 429]. He submitted that the Division Bench of this Court had held that the bar spelt out by section 149 was very limited. He submitted that the Civil Suit was maintainable.
FINDINGS :
5. I have heard both the Counsel appearing on behalf of plaintiff and defendants at length. In the present case, the dispute between the parties is as to whether any permission was granted by the plaintiff to the defendants for the purpose of amalgamation of two plots or not and the plaintiff's specific case is that no such permission was given to the defendants either in the Development Agreement or in the Power of Attorney which was executed in their favour. The question which falls for consideration is as to whether the suit filed by the plaintiff can be tried in Civil Court or not. In order to appreciate the rival contentions, it would be necessary to examine relevant provisions. Section 149 of the M.R.T.P. Act, 1966 reads as under :-
"149. Finality of orders.- Save as otherwise expressly provided in this Act, every order passed or direction issued by the State Government or order passed or notice issued by any Regional Board, Planning Authority or Development Authority under this Act shall be final and shall not be questioned in any suit or other legal proceedings."
From the perusal of the said section, it is apparent that every order passed or direction issued by the State Government or order passed or notice issued by any Regional Board, Planning Authority or Development Authority under the Act shall be final and shall not be questioned in any suit or legal proceedings. The M.R.T.P. Act, 1966 empowers the Government to issue various orders or directions regarding numerous matters pertaining to either reservation or preparation of development plan etc. In my view, Civil Court's jurisdiction is ousted in respect of such matters where State Government or its authorities alone are empowered under the Act to adjudicate or decide any matter. In the present case, dispute is regarding the question as to whether the plaintiff had permitted the defendants to apply for amalgamation for the two plots or not. The dispute therefore is one which is arising out of the terms and conditions of the contract or the terms and conditions in the Power of Attorney which is executed by the plaintiff. In my view, therefore, bar of section 149 would not be applicable to the facts of the present case. Moreover, Division Bench of this Court in a recent Judgment in the case of Raja Bahadur Motilal & Anr. (supra) in para 12 has observed as under :-
"12. What is necessary under section 149 to acquire finality and invite the bar of civil suit is, it should be an order passed or direction issued by the State Government or it should be an order passed or notice issued by any Regional Board, Planning Authority or Development Authority under this Act. It is provided by this section that no such order shall be questioned in any suit or in any legal proceedings. It is obvious therefore that a suit or legal proceeding for quashing a deemed permission under section 45(5) is maintainable. Even otherwise under section 149 what is barred is questioning of an order made under the Act in the civil suit. It does not bar any suit whereby a party to it can be prevented from acting on an action and order made under the Act. The bar spelt out by section 149 is therefore very limited."
In this view of the matter, I am of the view that there is no jurisdictional error committed by the Trial Court and there is no infirmity in the said order.
CONCLUSION :
6. For the reasons stated hereinabove, the following order is passed :-
O R D E R
In the result, I am of the view that the present suit is maintainable in the Civil Court. The petitioner can agitate his case on merits by satisfying the trial Court that the plaintiff - respondent herein has specifically agreed that he would not take any objection to the amalgamation of two properties for the purpose of development. The petitioner/defendant can also, on merits, point out to the trial Court that the power of attorney was given by the plaintiff to the petitioner-defendant pursuant to the development agreement and, therefore, it was not open for him to say that the amalgamation was done without his consent. However, the fact remains that the suit in the present form is maintainable in the Civil Court. The Civil Revision Application is, therefore, dismissed. The trial Court is, however, directed to decide the suit as expeditiously as possible and in any case by the end of 31st March, 2005.
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