Full Judgment Text
2013:BHC-AS:8062
1/19 Writ Petition 933 of 2013.doc
nsc.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 933 OF 2013
Prathamesh Tower Cooperative
Housing Society Limited.
Building – C, Opposite A.K. Vaidya
Ground, New Link Road, ...Petitioner
Borivali (West), Mumbai – 400 091. (Orig. Deft. No.4)
Versus
1. Gorai Road (Borivali) Shree Ganesh
Cooperative Housing Society Ltd.,
Building – B, New Link Road,
Opp. Don Bosco School,
New MHB Colony, Borivali (West),
Mumbai – 400 091.
2. The Municipal Corporation for
Greater Mumbai, having its Head
Office at Mahapalika Bhavan,
Opp. CST Railway Station,
Mumbai – 400 001.
3. The Executive Engineer (BP),
WS 'R' Ward, Corporation Building,
C-Wing, Sanskruti Complex,
90 feet D.P. Road,
Near St. Lawrence School,
Kandivali (East),
Mumbai – 400 101.
4. The Assistant Municipal Commissioner,
R-Central Ward, BMC Building,
S.V. Road, Borivali (West), ...Respondents/
Mumbai – 400 092. (Orig.Deft.nos.1,2&3).
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Mr. Shreepad Murthy a/w. Ms. Shobha Mehra i/b. P.M.
Bhansali, for the Petitioner.
Mr. Surel Shah i/b. Mr. Ram Singh, for Respondent no.1.
----
CORAM : A.P.BHANGALE, J.
th
DATE : 4 APRIL, 2013.
JUDGEMENT :-
1. Rule. Heard finally by consent pursuant to order
st
passed by this Court on 1 April 2013. The Petitioner has
challenged legality of the impugned order on preliminary
issue framed under Section 9A of the Civil Procedure Code
(Maharashtra Amendment). The issue framed was as to
whether the suit is maintainable in view of Section 149 of
the Maharashtra Regional Town Planning Act, 1966
(hereinafter referred as MRTP Act). Parties had chosen not
to lead any oral evidence. The Court below decided the
preliminary issue holding the suit as maintainable.
2. The facts briefly stated are:-
The plaintiff had filed Long Cause Civil suit no. 2642 of
2012 with a prayer for to declare the notice bearing
no.AC/RC/BF-I/MRTP 53(i)/8437 of 2012 dated 29-10-2012
issued under Section 53(1) of MRTP Act as illegal, bad in
law, extraneous, non-germane, issued upon irrelevant
consideration and not enforceable in respect of suit
compound wall as shown in photograph marked ‘A’ for
identification in law. The plaintiff had added the word
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‘Nullity’ in prayer clause by subsequent amendment to the
plaint. The plaintiff decided to incorporate challenge to the
order no. AC/RC/BF-1/MRTP 53(i)/8437 of 2012 dated
05-12-2012 (referred as ’fresh impugned notice’ in the
amended plaint). The challenge is mainly on the same
ground as stated in the prayer clause as above. In addition
the plaintiff contended that the later notice/order was
issued without considering the facts in the matter, without
any justification and at the instance of Prathamesh Tower
Co-operative Housing Society or such other invisible forces,
without following the principles of Natural justice and
without following the due process of law.
3. Learned Advocate for the Petitioner argued with
reference to the structure of the compound wall in question
(appearing in photograph marked for identification as ‘A’) to
argue that the access gates which were available for years
to the defendant (Petitioner Prathamesh Tower CHS Ltd.)
hitherto were sought to be blocked by the plaintiff
(Respondent no.1) by adopting a novel method executing
unauthorized construction/work of compound wall by
obtaining permission from the Police. By letter dated
25-10-2012 it appears that Petitioner had highhandedly
applied to the local police for to permit construction of the
wall in question blocking the access to the members of the
Petitioner’s Co-operative Housing Society which was till
then freely available as approach way to the main Road by
the existing gates. The first respondent surreptitiously
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invoked the police protection for sum of Rs 2319/-. The
police protection was sought and the compound wall
constructed/extended in such a manner to cover/block the
access gates which were hitherto available as right of
approach way to the Link road for Petitioner‘s members of
the co-operative housing society. Photograph (‘A’ for
identification) was taken while the construction was still in
progress. No permission of the planning authority or
Municipal Corporation of Greater Mumbai (MCGM) was
sought as required according to law. According to learned
advocate the Police could never have permitted illegal
construction by providing police protection to illegal
execution of the construction work for blocking the road
access hitherto available to the Petitioners. Under these
circumstances the Petitioner had brought this obvious
illegality immediately to the notice of the MCGM/ planning
authority. Thus statutory action was initiated against the
plaintiff under the provisions of the MRTP Act. Learned
Advocate for the Petitioner submitted that the remedy of a
civil suit, which was not at all maintainable, was
deliberately adopted by the respondent (plaintiff) as a ploy
to procrastinate or to cause delay for the demolition of the
illegal construction in suit by the competent town planning
authority/ MCGM and to enjoy fruits of illegal offensive act
for years together. He made reference to the ruling in
Gopinath Ganpatrao Pensalwar v/s. State of
Maharashtra and Anr. Reported in 2006(6)
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Bom.C.R.6, wherein it was held that where Revenue Officer
purports to do act or pass an order which is invalid, his
action does not operate to raise bar under Section 11 of
Act. He also placed reliance on the ruling in Qari
Mohammed Zakir Hussain & Others v/s. Municipal
Corporation of Greater Mumbai & Others, reported in
2002(2) Bom.C.R.98
wherein it was observed that it is well
settled that exclusion of the jurisdiction of the City Court is
not to be readily inferred but such exclusion must either be
explicitly expressed or clearly implied. It is also well settled
that even if the jurisdiction it so excluded the Civil Courts
have jurisdiction is examine into the issue where the
provisions of the Act have not been complied with, or
statutory Tribunal has not acted in conformity with the
fundamental judicial procedure.
4. Learned Advocate for the respondent(plaintiff) submits
that the writ Petition is not maintainable on the ground that
the Petitioner could have adopted alternative remedy of filing
Dhullabhai Mana
Civil Revision.He made reference to ruling in
Praga & Ors. vs. Manikbhai Vithalrao Bhusarath (deceased) &
Ors. reported in 2009(5) Mh.L.J.524 . It was case in which the
decree for possession under the Bombay Rent Act,1947 was
against the tenants. It was sought to be challenged by a Writ
Petition instead of Civil Revision. Single Judge of this Court in
the facts of that case observed that writ Petition cannot be
normally entertained to assail the decree passed when
remedy of Civil Revision was available. The ruling in,
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my opinion would not absolutely bar the Petitioner herein for
invoking extra-ordinary jurisdiction of this Court by remedy
of Writ Petition in the fact and circumstances of the case,
particularly when Petitioner is seeking protection of
fundamental rights against highhanded illegal construction as
alleged. Hence the contention of the respondent (Plaintiff)
does not merit the consideration in the facts and
circumstances stated in the case in hand.
5. Learned Advocate for the Petitioner submitted that
there is tendency on the part of builders in Mumbai to
construct unlawfully and file a civil suit and get continuing
protection from the City Civil Court in the guise of interim
orders of the Bombay City Civil court which may continue
for prolonged periods of even years together due to huge
pendency of civil suits in trial Courts. It is a fact that a civil
suit in city civil court of Mumbai once interim order is
passed may remain pending for years together without any
final decision. He made reference to ruling in Mohan N.
Bhawe (Dr.) v/s. Municipal Corporation of Greater
Bombay, reported in 2005(3)Bom.C.R.300, wherein it
was held that notice is issued under Section 55 under due
exercise of powers and functions by the officer empowered.
Hence, order passed by the Planning Authority is final under
Section 55(2) and cannot be challenged in a suit or other
legal proceedings since the order is passed by the planning
authority. The Assistant Commissioner having been thus
authorized to act, there is not dispute that he exercised his
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jurisdiction and powers while issuing notice under Section
55 of the Act and his orders are final. Similar view is taken
in the case of Bales Sardara Paracha v/s. Municipal
Corporation of Greater Bombay and Another,
reported in 2005(4)Bom.C.R.577, wherein it was
observed that language of Section 149 is unambiguous and
clear. The bar is clear and admits of no confusion. If section
149 of Act is read in light of Apex Court Judgment in AIR
1964 S.C. 322, the jurisdiction of Civil Court is barred. It
was also observed that where the bar in the Special Act is
express and clear the jurisdiction of the Civil Court stands
excluded. There can be therefore, no doubt that since in the
present case Section 149 creates an express bar whether
the alternative efficacious remedy is available or not need
not be investigated into. The Supreme Court also observed
that the Court could entertain a suit questioning the validity
of an order passed under Section 343 of the Corporation
Act, only if the Court is of prima facie opinion that the order
is nullity in the eyes of law because of an jurisdictional error
in exercise of the power by the Commissioner or that the
order is outside the Corporation Act. It was further held
that Section 149 of the MRTP Act clearly excluded the
jurisdiction of Civil Courts so far as the challenge to the
orders passed or directions issued by the State Government
or orders passed or notices issued by any Regional Board,
Planning Authority or Development Authority under the
MRTP Act are concerned. Reliance is also placed upon
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ruling in Babar Sher Khan and Ors v/s. Municipal
Corporation of Brihanmumbai and Anr. Reported in
2008(2), Bom.CR.335, wherein it was observed suit for
challenging validity of notice is barred as per the provisions
of Section 149 of the Act. Reliance was also placed on the
rulings in which similar view is taken viz. Kalyan Dombivli
Municipal Corporation v/s. Prakash Mutha, reported
in 2008(3), Bombay Cases Reporter, 720. He also
placed reliance on the ruling in Ulhasnagar Municipal
Corporation and Another v/s. Kailash Tikamdas
Mulchandani, reported in 2008(5), ALL MR 204,
wherein it was held that Notice issued under MRTP Act
cannot be challenged/questioned in any suit or other legal
proceedings in Civil Court in view of Section 149 of MRTP
Act, 2008. Reliance was also placed on the rulings in
Laxman Barkya Wadkar v/s. Mumbai Municipal
Corporation of India, in Bom.HC First Appeal no.1635
of 2010, wherein it was observed that suit cannot be
dismissed at the threshold on the ground of bar of Section
149 if there is a case made out in the plaint that the action
of issuing notice under Section 53(1) or Section 55(1) is
“nullity”. He further submitted that under these
circumstances as well as according to the provisions of
MRTP Act, the civil suit in the present case could not have
been entertained by the Bombay City Civil court. Learned
Advocate for the Petitioner argued that the plaintiff has not
questioned the applicability of the provisions of MRTP Act
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so as to treat the notice/order issued under the Act as
'nullity'. He criticized the the impugned order on the ground
that the learned judge ignored the facts and wrongly
decided to entertain the suit despite specific statutory bar
to entertain a civil suit challenging notice/order issued
under the MRTP Act , without recording even prima facie
satisfaction that the notice/order issued by the planning
authority are legally void . He invited my attention to
Section 149 Of the MRTP Act1966 which reads thus:
“Save as otherwise expressly provided in this Act,
every order passed or direction issued by the State
Government or orderor 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 language of this Section, it is clear that every
order passed or directions 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.
Learned Advocate for the respondent no.1 who chose to
support the impugned order is at pains to justify the
impugned 0rder. According to him the suit was rightly
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entertained and held as maintainable by the Bombay City
Civil Court.
6. Having heard submissions at the bar at length; in my
opinion, even if for the sake of argument it is accepted that,
civil suit is maintainable in town planning cases despite
statutory bar, there also, unless the self-contained statutory
remedy incorporated in the Act is fully exhausted such suit
preventing planning authority from demolishing the illegal
construction or unauthorized development would not lie in
civil Court. it must be borne in mind that under the
provisions of the MRTP Act it is statutory responsibility of
the local planning authority to execute the final
development plan effectively without delay. The planning
authority is adequately armed under the statutory
provisions to take prompt and effective steps to remove
unauthorised development if unauthorised development in
the form of illegal construction contrary to the town
planning scheme is noticed in the city. Therefore legislature
in its wisdom, has made all the acts done by the Planning
Authority to implement the town planning scheme final
under the provisions of the M.R.T.P. Act and, therefore, all
such notices and orders having the statutory finality are
specifically made immune from being challenged or
questioned in any civil suit in view of the provision under
Section 149 of the M.R.T.P. Act. The MRTP Act is self
-contained to provide the remedies when notice is issued
under the Act. Because permission can be obtained under
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the Act for to carry out or retain the the alleged
unauthorised development . Thus, the jurisdiction of the
Civil Court is expressly and clearly excluded under Section
149 of the M.R.T.P. Act and a civil suit cannot be
entertained, more so when motivated to perpetuate the
criminal act or continuing offence of unauthorized
construction. Section 52 of the Act contains penal
provisions for to punish the offenders liable for
unauthorized development or use which is contrary to
provisions of the M.R.T.P Act by a punishment which is
minimum one month and may extend up to three years and
fine of Rs 2000/- to Rs 5000/- with additional daily fine up to
Rs 200/- if offence continue beyond the conviction for first
commission of offence.
7. Once therefore a notice under Section 52 of the MRTP
Act is served, the persons aggrieved by such notice has
statutory remedy within the period specified therein, which
in the instant case is one month, must apply for permission
for retention on the land of the building or works in question
under Section 44 of the MRTP Act. Only when permission is
granted, the notice/ order would stand withdrawn. The
question of grant of any permission would arise only if an
application is made therefor. As the first respondent herein
had not filed any such application, the Municipal
Corporation as planning authority was obliged not only to
prosecute the owner but also to carry out the demolition of
illegal construction in terms of the aforementioned notice
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dated 29.10.2012 under Section 53 (1) of the MRTP Act. The
terms of Section 44 of the MRTP Act are crystal clear that, a
person intending to raise any construction is required to
make an application in respect thereof to the Planning
Authority for permission in such form and containing such
particulars and accompanied by such documents, as may
be prescribed. Filing of such application and obtaining such
permission are imperative requirements of MRTP Act, 1966
(State law of town planning.) Such permission, if granted,
remains in force for a period of one year unless extended by
the Planning Authority. The Municipal Corporation of
Greater Mumbai is a 'local authority' as well as planning
authority within the meaning of the provisions of Sections
2(15) and 2(19) of the MRTP Act and has requisite authority
to initiate action under the provisions of the MRTP Act.
Hence order passed by the MCGM as planning authority
under the MRTP Act. The notice/ or order issued under the
provisions of the MRTP Act by or on behalf of the MCGM as
planning authority cannot therefore be termed as ‘nullity’,
legally void in the eye of law. Moreover it appears in the
present case that the amendment of introducing the word
‘nullity’ was result of an afterthought ingenuity of lawyer's
drafting aimed to continue the suit indefinitely in the
Bombay City Civil Court. The civil court must exercise
caution and care before allowing such amendment in the
plaint which may be malafide, aimed at prolonging the
litigation without legal justification or which may result in
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change in the nature of the suit or of the cause of action
originally pleaded on the date of the institution of the suit.
Dishonest amendment which would take away the legal
right accrued in favor of the defendant, motivated to confer
jurisdiction on the civil court and to prolong fate of the suit
intending to perpetuate the wrong which amounts to
continuing offence, cannot be allowed . Because the
plaintiff cannot be allowed to circumvent the provisions of
town planning law to suit his mission to perpetuate the
criminal act of illegal construction of blocking the gates,
obstructing approach way of the Petitioner (Defendant co-
operative housing society) to the main road by obtaining
interim protection therefor in a protractible proceeding filed
as long cause civil suit in Bombay City Civil Court.
8. Section 53 authorizes the local authority as planning
authority to direct removal of unauthorized development.
Sub-section (1) of Section 53 authorizes the local authority
as planning authority under the MRTP Act to issue a
statutory notice where a development of land has taken
place in violation of the conditions indicated in Sub-section
(1) of Section 52. The jurisdiction of a local authority as
planning authority is confined only to deal with application
for grant of permission for construction as contained in
Section 44 of the MRTP Act, whether at the initial stage or
when a notice is served under Sub-section (2) of Section 53
of the MRTP Act. The power to grant such permission could
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be exercised only within the purview of the Building Bye-
laws. Therefore, being beyond the scope of Section 44 of
the MRTP Act, the Municipal Corporation as local municipal
authority did not have any jurisdiction to direct
regularization of such unauthorized or unlawful
constructions by reason of the resolution or otherwise. The
power of the Municipal Corporation, as planning authority
under the MRTP Act, it is trite, being confined to the
provisions of the MRTP Act, no action could be taken by the
MCGM contrary thereto or inconsistent therewith.
9. In terms of Sub-section (7) of Section 53, a person
prosecuted under Clause (1) of Sub-Section (6) of Section
53 will be inflicted with the punishment specified therein. In
M.I. Builders Pvt. Ltd. vs. Radhey Shyam Sahu and
Others [(1999) 6 SCC 464], the Apex Court observed:
"73. The High Court has directed dismantling of the
whole object and for restoration of the park to its
original condition. This Court in numerous decisions has
held that no consideration should be shown to the
builder or any other person where construction is
unauthorised. This dicta is now almost bordering the
rule of law. Stress was laid by the appellant and the
prospective allottees of the shops to exercise judicial
discretion in moulding the relief. Such a discretion
cannot be exercised which encourages illegality
or perpetuates an illegality. Unauthorised
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construction, if it is illegal and cannot be
compounded, has to be demolished . There is no
way out. Judicial discretion cannot be guided by
expediency. Courts are not free from statutory fetters.
Justice is to be rendered in accordance with law. Judges
are not entitled to exercise discretion wearing the robes
of judicial discretion and pass orders based solely on
their personal predilections and peculiar dispositions.
Judicial discretion wherever it is required to be
exercised has to be in accordance with law and set legal
principles. As will be seen in moulding the relief in the
present case and allowing one of the blocks meant for
parking to stand we have been guided by the obligatory
duties of the Mahalaplika to construct and maintain
parking lots." (emphasis mine)
A discretionary power must be exercised having
regard to the larger public interest. The Municipal
Corporation being a creature of statute and invested with
powers of planning authority under the MRTP Act was
bound to carry out its statutory functions within the four-
corners thereof. Being a statutory planning authority, it was
required to follow the rules scrupulously. The Municipal
Corporation on its own as local authority is not possessed of
any statutory power to regularize such unauthorized
constructions which are found contrary to and actionable
under the provisions of the MRTP Act. Moreover, even
development charges could not be recovered from the
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respondent in respect of unauthorized constructions in
terms of Section 124-E(2) of the MRTP Act.
10. The remedy when notice under section 53 (1) is issued
by the planning authority, is self contained under the MRTP
Act in Section 44 read with section 53 (3) of the MRTP Act.
Planning authority’s power is confined to compounding the
offences in certain cases. Permission may be granted for
retention of the development/construction work in question.
Thus alternative efficacious statutory remedy was available
for the plaintiff-respondent to apply for permission for the
retention of the offending notice structure.
11. Section 52 provides for penalty for unauthorized
development or for use otherwise than in conformity with
the Development plan whereas Section 53 confers the
powers to require removal of unauthorized development.
Distinction between Sections 52 and 53 is obvious. The
Legislature could not have intended that unauthorized
development; illegal construction work should be visited
merely with penal consequences. It was enacted for the
sake of completeness of statutory action in public interest.
Section 53 empowers the Planning Authority to require
removal of unauthorized development. Thus, punishing the
wrong doer is not enough. The unauthorised and illegal
development also must be removed and for that purpose
provisions are in place as enacted. In such case, therefore,
the suit by the plaintiff who had bye-passed the statutory
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remedy under the provision in Section 44 read with Section
53 (3) of the MRTP Act, and approached the Bombay City
Civil Court with a Civil Suit, seeking protection for the illegal
construction raised contrary to the provisions of the MRTP
Act could not have been entertained in the facts and
circumstances brought to my notice. More so when
subsequent amendment in the plaint is deliberately made
to introduce the word 'nullity' was nothing but ingenuity of
lawyer's drafting to any how trying to invest or confer
jurisdiction in the Bombay City Civil Court with a view to
buy time for unlawful retention of the suit structure. The
Civil Court must be on guard against such attempts before
exercising its plenary jurisdiction available to do real
justice between the parties. The action of the MCGM as
planning authority to issue notice and to pass the
necessary order to remove unauthorised development/
work was within the scope of statutory power and
authority under the MRTP Act and can not be labeled as
unconstitutional or beyond jurisdiction of the MCGM as
planning authority. The learned Judge of the Bombay City
Civil Court therefore erred to entertain the civil suit despite
statutory bar under Section 149 of the MRTP Act as
aforesaid. The discretion of the civil court cannot be used
for to protect or perpetuate the offending act of illegal
construction/unauthorized work actionable under the
provisions of MRTP Act. If such civil suit is readily
entertained by the Civil court wherein the party has
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bypassed the alternative and primarily available statutory
remedy of filing the proceedings before the planning
authority as is permissible under Section 44 read with
Section 53(4) of the MRTP Act as stated above, it would
defeat the salutory policy of the town planning law to
implement the final development plan in expeditious
planned and orderly manner in the city of Greater Mumbai.
Therefore, the builder must understand that illegal
construction cannot be protected by means of a long drawn
out litigation like Ordinary Civil Suit, even if police power is
used for to protect it while raising illegal construction. It
shall never be beneficial without legal sanction by the
competent authority.
12. It is well known fact that the civil suit once instituted
in city of Mumbai remain pending for years or for indefinite
long period considering the immense docket pendency.
When remedy by way of Civil suit is statutorily barred the
plaintiff is not precluded from resorting to alternative
remedy which is self-contained and available under the
provisions of the MRTP Act or to invoke writ jurisdiction, if
so advised. In any event the plaintiff is not remediless and
can exhaust remedies available under the MRTP Act and
find remedy elsewhere if statute bar him to avail the
remedy of instituting ordinary civil suit. Be that as it may,
remedy available by way of Civil suit cannot be utilized to
perpetuate the continuing wrong continuing offending act
of retaining unauthorized and illegal construction made
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punishable as continuing offence under the MRTP Act. I
must therefore quash and set aside the impugned order.
Hence, following order is passed :-
ORDER
th
The impugned order dated 17 January, 2013
passed by the Bombay City Civil Court in L.C Suit
no. 2642 of 2012 holding the said civil suit as
maintainable is quashed and set aside. The Long
cause suit no. 2642 of 2012 stands dismissed with
costs. However the respondent (original plaintiff)
shall be at liberty to apply within one month from
the date of this order for permission under Section
44 read with Section 53(3) of the MRTP Act. Till
such application, if preferred within time as
aforesaid, is heard and decided and till order is
communicated to the parties by the planning
authority, no coercive action be taken against the
notice structure pursuant to the notice/order
impugned in the said Suit. If such application is
made it is to be decided by the planning authority
concerned as early as possible and necessarily
within a period of three months from the date of
this order. The rule is made absolute accordingly.
(A.P. BHANGALE, J.)
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nsc.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 933 OF 2013
Prathamesh Tower Cooperative
Housing Society Limited.
Building – C, Opposite A.K. Vaidya
Ground, New Link Road, ...Petitioner
Borivali (West), Mumbai – 400 091. (Orig. Deft. No.4)
Versus
1. Gorai Road (Borivali) Shree Ganesh
Cooperative Housing Society Ltd.,
Building – B, New Link Road,
Opp. Don Bosco School,
New MHB Colony, Borivali (West),
Mumbai – 400 091.
2. The Municipal Corporation for
Greater Mumbai, having its Head
Office at Mahapalika Bhavan,
Opp. CST Railway Station,
Mumbai – 400 001.
3. The Executive Engineer (BP),
WS 'R' Ward, Corporation Building,
C-Wing, Sanskruti Complex,
90 feet D.P. Road,
Near St. Lawrence School,
Kandivali (East),
Mumbai – 400 101.
4. The Assistant Municipal Commissioner,
R-Central Ward, BMC Building,
S.V. Road, Borivali (West), ...Respondents/
Mumbai – 400 092. (Orig.Deft.nos.1,2&3).
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Mr. Shreepad Murthy a/w. Ms. Shobha Mehra i/b. P.M.
Bhansali, for the Petitioner.
Mr. Surel Shah i/b. Mr. Ram Singh, for Respondent no.1.
----
CORAM : A.P.BHANGALE, J.
th
DATE : 4 APRIL, 2013.
JUDGEMENT :-
1. Rule. Heard finally by consent pursuant to order
st
passed by this Court on 1 April 2013. The Petitioner has
challenged legality of the impugned order on preliminary
issue framed under Section 9A of the Civil Procedure Code
(Maharashtra Amendment). The issue framed was as to
whether the suit is maintainable in view of Section 149 of
the Maharashtra Regional Town Planning Act, 1966
(hereinafter referred as MRTP Act). Parties had chosen not
to lead any oral evidence. The Court below decided the
preliminary issue holding the suit as maintainable.
2. The facts briefly stated are:-
The plaintiff had filed Long Cause Civil suit no. 2642 of
2012 with a prayer for to declare the notice bearing
no.AC/RC/BF-I/MRTP 53(i)/8437 of 2012 dated 29-10-2012
issued under Section 53(1) of MRTP Act as illegal, bad in
law, extraneous, non-germane, issued upon irrelevant
consideration and not enforceable in respect of suit
compound wall as shown in photograph marked ‘A’ for
identification in law. The plaintiff had added the word
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‘Nullity’ in prayer clause by subsequent amendment to the
plaint. The plaintiff decided to incorporate challenge to the
order no. AC/RC/BF-1/MRTP 53(i)/8437 of 2012 dated
05-12-2012 (referred as ’fresh impugned notice’ in the
amended plaint). The challenge is mainly on the same
ground as stated in the prayer clause as above. In addition
the plaintiff contended that the later notice/order was
issued without considering the facts in the matter, without
any justification and at the instance of Prathamesh Tower
Co-operative Housing Society or such other invisible forces,
without following the principles of Natural justice and
without following the due process of law.
3. Learned Advocate for the Petitioner argued with
reference to the structure of the compound wall in question
(appearing in photograph marked for identification as ‘A’) to
argue that the access gates which were available for years
to the defendant (Petitioner Prathamesh Tower CHS Ltd.)
hitherto were sought to be blocked by the plaintiff
(Respondent no.1) by adopting a novel method executing
unauthorized construction/work of compound wall by
obtaining permission from the Police. By letter dated
25-10-2012 it appears that Petitioner had highhandedly
applied to the local police for to permit construction of the
wall in question blocking the access to the members of the
Petitioner’s Co-operative Housing Society which was till
then freely available as approach way to the main Road by
the existing gates. The first respondent surreptitiously
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invoked the police protection for sum of Rs 2319/-. The
police protection was sought and the compound wall
constructed/extended in such a manner to cover/block the
access gates which were hitherto available as right of
approach way to the Link road for Petitioner‘s members of
the co-operative housing society. Photograph (‘A’ for
identification) was taken while the construction was still in
progress. No permission of the planning authority or
Municipal Corporation of Greater Mumbai (MCGM) was
sought as required according to law. According to learned
advocate the Police could never have permitted illegal
construction by providing police protection to illegal
execution of the construction work for blocking the road
access hitherto available to the Petitioners. Under these
circumstances the Petitioner had brought this obvious
illegality immediately to the notice of the MCGM/ planning
authority. Thus statutory action was initiated against the
plaintiff under the provisions of the MRTP Act. Learned
Advocate for the Petitioner submitted that the remedy of a
civil suit, which was not at all maintainable, was
deliberately adopted by the respondent (plaintiff) as a ploy
to procrastinate or to cause delay for the demolition of the
illegal construction in suit by the competent town planning
authority/ MCGM and to enjoy fruits of illegal offensive act
for years together. He made reference to the ruling in
Gopinath Ganpatrao Pensalwar v/s. State of
Maharashtra and Anr. Reported in 2006(6)
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Bom.C.R.6, wherein it was held that where Revenue Officer
purports to do act or pass an order which is invalid, his
action does not operate to raise bar under Section 11 of
Act. He also placed reliance on the ruling in Qari
Mohammed Zakir Hussain & Others v/s. Municipal
Corporation of Greater Mumbai & Others, reported in
2002(2) Bom.C.R.98
wherein it was observed that it is well
settled that exclusion of the jurisdiction of the City Court is
not to be readily inferred but such exclusion must either be
explicitly expressed or clearly implied. It is also well settled
that even if the jurisdiction it so excluded the Civil Courts
have jurisdiction is examine into the issue where the
provisions of the Act have not been complied with, or
statutory Tribunal has not acted in conformity with the
fundamental judicial procedure.
4. Learned Advocate for the respondent(plaintiff) submits
that the writ Petition is not maintainable on the ground that
the Petitioner could have adopted alternative remedy of filing
Dhullabhai Mana
Civil Revision.He made reference to ruling in
Praga & Ors. vs. Manikbhai Vithalrao Bhusarath (deceased) &
Ors. reported in 2009(5) Mh.L.J.524 . It was case in which the
decree for possession under the Bombay Rent Act,1947 was
against the tenants. It was sought to be challenged by a Writ
Petition instead of Civil Revision. Single Judge of this Court in
the facts of that case observed that writ Petition cannot be
normally entertained to assail the decree passed when
remedy of Civil Revision was available. The ruling in,
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my opinion would not absolutely bar the Petitioner herein for
invoking extra-ordinary jurisdiction of this Court by remedy
of Writ Petition in the fact and circumstances of the case,
particularly when Petitioner is seeking protection of
fundamental rights against highhanded illegal construction as
alleged. Hence the contention of the respondent (Plaintiff)
does not merit the consideration in the facts and
circumstances stated in the case in hand.
5. Learned Advocate for the Petitioner submitted that
there is tendency on the part of builders in Mumbai to
construct unlawfully and file a civil suit and get continuing
protection from the City Civil Court in the guise of interim
orders of the Bombay City Civil court which may continue
for prolonged periods of even years together due to huge
pendency of civil suits in trial Courts. It is a fact that a civil
suit in city civil court of Mumbai once interim order is
passed may remain pending for years together without any
final decision. He made reference to ruling in Mohan N.
Bhawe (Dr.) v/s. Municipal Corporation of Greater
Bombay, reported in 2005(3)Bom.C.R.300, wherein it
was held that notice is issued under Section 55 under due
exercise of powers and functions by the officer empowered.
Hence, order passed by the Planning Authority is final under
Section 55(2) and cannot be challenged in a suit or other
legal proceedings since the order is passed by the planning
authority. The Assistant Commissioner having been thus
authorized to act, there is not dispute that he exercised his
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jurisdiction and powers while issuing notice under Section
55 of the Act and his orders are final. Similar view is taken
in the case of Bales Sardara Paracha v/s. Municipal
Corporation of Greater Bombay and Another,
reported in 2005(4)Bom.C.R.577, wherein it was
observed that language of Section 149 is unambiguous and
clear. The bar is clear and admits of no confusion. If section
149 of Act is read in light of Apex Court Judgment in AIR
1964 S.C. 322, the jurisdiction of Civil Court is barred. It
was also observed that where the bar in the Special Act is
express and clear the jurisdiction of the Civil Court stands
excluded. There can be therefore, no doubt that since in the
present case Section 149 creates an express bar whether
the alternative efficacious remedy is available or not need
not be investigated into. The Supreme Court also observed
that the Court could entertain a suit questioning the validity
of an order passed under Section 343 of the Corporation
Act, only if the Court is of prima facie opinion that the order
is nullity in the eyes of law because of an jurisdictional error
in exercise of the power by the Commissioner or that the
order is outside the Corporation Act. It was further held
that Section 149 of the MRTP Act clearly excluded the
jurisdiction of Civil Courts so far as the challenge to the
orders passed or directions issued by the State Government
or orders passed or notices issued by any Regional Board,
Planning Authority or Development Authority under the
MRTP Act are concerned. Reliance is also placed upon
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ruling in Babar Sher Khan and Ors v/s. Municipal
Corporation of Brihanmumbai and Anr. Reported in
2008(2), Bom.CR.335, wherein it was observed suit for
challenging validity of notice is barred as per the provisions
of Section 149 of the Act. Reliance was also placed on the
rulings in which similar view is taken viz. Kalyan Dombivli
Municipal Corporation v/s. Prakash Mutha, reported
in 2008(3), Bombay Cases Reporter, 720. He also
placed reliance on the ruling in Ulhasnagar Municipal
Corporation and Another v/s. Kailash Tikamdas
Mulchandani, reported in 2008(5), ALL MR 204,
wherein it was held that Notice issued under MRTP Act
cannot be challenged/questioned in any suit or other legal
proceedings in Civil Court in view of Section 149 of MRTP
Act, 2008. Reliance was also placed on the rulings in
Laxman Barkya Wadkar v/s. Mumbai Municipal
Corporation of India, in Bom.HC First Appeal no.1635
of 2010, wherein it was observed that suit cannot be
dismissed at the threshold on the ground of bar of Section
149 if there is a case made out in the plaint that the action
of issuing notice under Section 53(1) or Section 55(1) is
“nullity”. He further submitted that under these
circumstances as well as according to the provisions of
MRTP Act, the civil suit in the present case could not have
been entertained by the Bombay City Civil court. Learned
Advocate for the Petitioner argued that the plaintiff has not
questioned the applicability of the provisions of MRTP Act
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so as to treat the notice/order issued under the Act as
'nullity'. He criticized the the impugned order on the ground
that the learned judge ignored the facts and wrongly
decided to entertain the suit despite specific statutory bar
to entertain a civil suit challenging notice/order issued
under the MRTP Act , without recording even prima facie
satisfaction that the notice/order issued by the planning
authority are legally void . He invited my attention to
Section 149 Of the MRTP Act1966 which reads thus:
“Save as otherwise expressly provided in this Act,
every order passed or direction issued by the State
Government or orderor 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 language of this Section, it is clear that every
order passed or directions 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.
Learned Advocate for the respondent no.1 who chose to
support the impugned order is at pains to justify the
impugned 0rder. According to him the suit was rightly
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entertained and held as maintainable by the Bombay City
Civil Court.
6. Having heard submissions at the bar at length; in my
opinion, even if for the sake of argument it is accepted that,
civil suit is maintainable in town planning cases despite
statutory bar, there also, unless the self-contained statutory
remedy incorporated in the Act is fully exhausted such suit
preventing planning authority from demolishing the illegal
construction or unauthorized development would not lie in
civil Court. it must be borne in mind that under the
provisions of the MRTP Act it is statutory responsibility of
the local planning authority to execute the final
development plan effectively without delay. The planning
authority is adequately armed under the statutory
provisions to take prompt and effective steps to remove
unauthorised development if unauthorised development in
the form of illegal construction contrary to the town
planning scheme is noticed in the city. Therefore legislature
in its wisdom, has made all the acts done by the Planning
Authority to implement the town planning scheme final
under the provisions of the M.R.T.P. Act and, therefore, all
such notices and orders having the statutory finality are
specifically made immune from being challenged or
questioned in any civil suit in view of the provision under
Section 149 of the M.R.T.P. Act. The MRTP Act is self
-contained to provide the remedies when notice is issued
under the Act. Because permission can be obtained under
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the Act for to carry out or retain the the alleged
unauthorised development . Thus, the jurisdiction of the
Civil Court is expressly and clearly excluded under Section
149 of the M.R.T.P. Act and a civil suit cannot be
entertained, more so when motivated to perpetuate the
criminal act or continuing offence of unauthorized
construction. Section 52 of the Act contains penal
provisions for to punish the offenders liable for
unauthorized development or use which is contrary to
provisions of the M.R.T.P Act by a punishment which is
minimum one month and may extend up to three years and
fine of Rs 2000/- to Rs 5000/- with additional daily fine up to
Rs 200/- if offence continue beyond the conviction for first
commission of offence.
7. Once therefore a notice under Section 52 of the MRTP
Act is served, the persons aggrieved by such notice has
statutory remedy within the period specified therein, which
in the instant case is one month, must apply for permission
for retention on the land of the building or works in question
under Section 44 of the MRTP Act. Only when permission is
granted, the notice/ order would stand withdrawn. The
question of grant of any permission would arise only if an
application is made therefor. As the first respondent herein
had not filed any such application, the Municipal
Corporation as planning authority was obliged not only to
prosecute the owner but also to carry out the demolition of
illegal construction in terms of the aforementioned notice
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dated 29.10.2012 under Section 53 (1) of the MRTP Act. The
terms of Section 44 of the MRTP Act are crystal clear that, a
person intending to raise any construction is required to
make an application in respect thereof to the Planning
Authority for permission in such form and containing such
particulars and accompanied by such documents, as may
be prescribed. Filing of such application and obtaining such
permission are imperative requirements of MRTP Act, 1966
(State law of town planning.) Such permission, if granted,
remains in force for a period of one year unless extended by
the Planning Authority. The Municipal Corporation of
Greater Mumbai is a 'local authority' as well as planning
authority within the meaning of the provisions of Sections
2(15) and 2(19) of the MRTP Act and has requisite authority
to initiate action under the provisions of the MRTP Act.
Hence order passed by the MCGM as planning authority
under the MRTP Act. The notice/ or order issued under the
provisions of the MRTP Act by or on behalf of the MCGM as
planning authority cannot therefore be termed as ‘nullity’,
legally void in the eye of law. Moreover it appears in the
present case that the amendment of introducing the word
‘nullity’ was result of an afterthought ingenuity of lawyer's
drafting aimed to continue the suit indefinitely in the
Bombay City Civil Court. The civil court must exercise
caution and care before allowing such amendment in the
plaint which may be malafide, aimed at prolonging the
litigation without legal justification or which may result in
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change in the nature of the suit or of the cause of action
originally pleaded on the date of the institution of the suit.
Dishonest amendment which would take away the legal
right accrued in favor of the defendant, motivated to confer
jurisdiction on the civil court and to prolong fate of the suit
intending to perpetuate the wrong which amounts to
continuing offence, cannot be allowed . Because the
plaintiff cannot be allowed to circumvent the provisions of
town planning law to suit his mission to perpetuate the
criminal act of illegal construction of blocking the gates,
obstructing approach way of the Petitioner (Defendant co-
operative housing society) to the main road by obtaining
interim protection therefor in a protractible proceeding filed
as long cause civil suit in Bombay City Civil Court.
8. Section 53 authorizes the local authority as planning
authority to direct removal of unauthorized development.
Sub-section (1) of Section 53 authorizes the local authority
as planning authority under the MRTP Act to issue a
statutory notice where a development of land has taken
place in violation of the conditions indicated in Sub-section
(1) of Section 52. The jurisdiction of a local authority as
planning authority is confined only to deal with application
for grant of permission for construction as contained in
Section 44 of the MRTP Act, whether at the initial stage or
when a notice is served under Sub-section (2) of Section 53
of the MRTP Act. The power to grant such permission could
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be exercised only within the purview of the Building Bye-
laws. Therefore, being beyond the scope of Section 44 of
the MRTP Act, the Municipal Corporation as local municipal
authority did not have any jurisdiction to direct
regularization of such unauthorized or unlawful
constructions by reason of the resolution or otherwise. The
power of the Municipal Corporation, as planning authority
under the MRTP Act, it is trite, being confined to the
provisions of the MRTP Act, no action could be taken by the
MCGM contrary thereto or inconsistent therewith.
9. In terms of Sub-section (7) of Section 53, a person
prosecuted under Clause (1) of Sub-Section (6) of Section
53 will be inflicted with the punishment specified therein. In
M.I. Builders Pvt. Ltd. vs. Radhey Shyam Sahu and
Others [(1999) 6 SCC 464], the Apex Court observed:
"73. The High Court has directed dismantling of the
whole object and for restoration of the park to its
original condition. This Court in numerous decisions has
held that no consideration should be shown to the
builder or any other person where construction is
unauthorised. This dicta is now almost bordering the
rule of law. Stress was laid by the appellant and the
prospective allottees of the shops to exercise judicial
discretion in moulding the relief. Such a discretion
cannot be exercised which encourages illegality
or perpetuates an illegality. Unauthorised
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construction, if it is illegal and cannot be
compounded, has to be demolished . There is no
way out. Judicial discretion cannot be guided by
expediency. Courts are not free from statutory fetters.
Justice is to be rendered in accordance with law. Judges
are not entitled to exercise discretion wearing the robes
of judicial discretion and pass orders based solely on
their personal predilections and peculiar dispositions.
Judicial discretion wherever it is required to be
exercised has to be in accordance with law and set legal
principles. As will be seen in moulding the relief in the
present case and allowing one of the blocks meant for
parking to stand we have been guided by the obligatory
duties of the Mahalaplika to construct and maintain
parking lots." (emphasis mine)
A discretionary power must be exercised having
regard to the larger public interest. The Municipal
Corporation being a creature of statute and invested with
powers of planning authority under the MRTP Act was
bound to carry out its statutory functions within the four-
corners thereof. Being a statutory planning authority, it was
required to follow the rules scrupulously. The Municipal
Corporation on its own as local authority is not possessed of
any statutory power to regularize such unauthorized
constructions which are found contrary to and actionable
under the provisions of the MRTP Act. Moreover, even
development charges could not be recovered from the
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respondent in respect of unauthorized constructions in
terms of Section 124-E(2) of the MRTP Act.
10. The remedy when notice under section 53 (1) is issued
by the planning authority, is self contained under the MRTP
Act in Section 44 read with section 53 (3) of the MRTP Act.
Planning authority’s power is confined to compounding the
offences in certain cases. Permission may be granted for
retention of the development/construction work in question.
Thus alternative efficacious statutory remedy was available
for the plaintiff-respondent to apply for permission for the
retention of the offending notice structure.
11. Section 52 provides for penalty for unauthorized
development or for use otherwise than in conformity with
the Development plan whereas Section 53 confers the
powers to require removal of unauthorized development.
Distinction between Sections 52 and 53 is obvious. The
Legislature could not have intended that unauthorized
development; illegal construction work should be visited
merely with penal consequences. It was enacted for the
sake of completeness of statutory action in public interest.
Section 53 empowers the Planning Authority to require
removal of unauthorized development. Thus, punishing the
wrong doer is not enough. The unauthorised and illegal
development also must be removed and for that purpose
provisions are in place as enacted. In such case, therefore,
the suit by the plaintiff who had bye-passed the statutory
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remedy under the provision in Section 44 read with Section
53 (3) of the MRTP Act, and approached the Bombay City
Civil Court with a Civil Suit, seeking protection for the illegal
construction raised contrary to the provisions of the MRTP
Act could not have been entertained in the facts and
circumstances brought to my notice. More so when
subsequent amendment in the plaint is deliberately made
to introduce the word 'nullity' was nothing but ingenuity of
lawyer's drafting to any how trying to invest or confer
jurisdiction in the Bombay City Civil Court with a view to
buy time for unlawful retention of the suit structure. The
Civil Court must be on guard against such attempts before
exercising its plenary jurisdiction available to do real
justice between the parties. The action of the MCGM as
planning authority to issue notice and to pass the
necessary order to remove unauthorised development/
work was within the scope of statutory power and
authority under the MRTP Act and can not be labeled as
unconstitutional or beyond jurisdiction of the MCGM as
planning authority. The learned Judge of the Bombay City
Civil Court therefore erred to entertain the civil suit despite
statutory bar under Section 149 of the MRTP Act as
aforesaid. The discretion of the civil court cannot be used
for to protect or perpetuate the offending act of illegal
construction/unauthorized work actionable under the
provisions of MRTP Act. If such civil suit is readily
entertained by the Civil court wherein the party has
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bypassed the alternative and primarily available statutory
remedy of filing the proceedings before the planning
authority as is permissible under Section 44 read with
Section 53(4) of the MRTP Act as stated above, it would
defeat the salutory policy of the town planning law to
implement the final development plan in expeditious
planned and orderly manner in the city of Greater Mumbai.
Therefore, the builder must understand that illegal
construction cannot be protected by means of a long drawn
out litigation like Ordinary Civil Suit, even if police power is
used for to protect it while raising illegal construction. It
shall never be beneficial without legal sanction by the
competent authority.
12. It is well known fact that the civil suit once instituted
in city of Mumbai remain pending for years or for indefinite
long period considering the immense docket pendency.
When remedy by way of Civil suit is statutorily barred the
plaintiff is not precluded from resorting to alternative
remedy which is self-contained and available under the
provisions of the MRTP Act or to invoke writ jurisdiction, if
so advised. In any event the plaintiff is not remediless and
can exhaust remedies available under the MRTP Act and
find remedy elsewhere if statute bar him to avail the
remedy of instituting ordinary civil suit. Be that as it may,
remedy available by way of Civil suit cannot be utilized to
perpetuate the continuing wrong continuing offending act
of retaining unauthorized and illegal construction made
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punishable as continuing offence under the MRTP Act. I
must therefore quash and set aside the impugned order.
Hence, following order is passed :-
ORDER
th
The impugned order dated 17 January, 2013
passed by the Bombay City Civil Court in L.C Suit
no. 2642 of 2012 holding the said civil suit as
maintainable is quashed and set aside. The Long
cause suit no. 2642 of 2012 stands dismissed with
costs. However the respondent (original plaintiff)
shall be at liberty to apply within one month from
the date of this order for permission under Section
44 read with Section 53(3) of the MRTP Act. Till
such application, if preferred within time as
aforesaid, is heard and decided and till order is
communicated to the parties by the planning
authority, no coercive action be taken against the
notice structure pursuant to the notice/order
impugned in the said Suit. If such application is
made it is to be decided by the planning authority
concerned as early as possible and necessarily
within a period of three months from the date of
this order. The rule is made absolute accordingly.
(A.P. BHANGALE, J.)
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