Full Judgment Text
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CIVIL REVISION APPLICATION NO.132 OF 2014
M/s. Arihant Construction,
Mahesh Nagar, Jalna Road,
Aurangabad,
Through its Partner
Shri Lalit s/o Vasantlal Gandhi,
Age42 years, Occu:Business,
R/oPlot No.18, MaheshNagar,
Jalna Road, Aurangabad.
...APPLICANT
(Orig. Defendant No.3)
VERSUS
1) Shri Subhash Kesharmal Barlota,
AgeMajor, Occu:Advocate
Through his Power of Attorney Holder
Mr. Mohd. Abdul Shakeel
s/o Mohd. Abdul Sami,
Age49 years, Occu:Business,
R/oBlock No.16, Model Colony,
Opp. Himayat Baugh, Delhi Gate,
Tq. & DistAurangabad.
(Orig. Plaintiff)
2) The Municipal Corporation,
Aurangabad, Through
its Commissioner at Aurangabad,
(Orig. Defendant No.1)
3) The Assistant Director of Town Planning,
Municipal Corporation,
Aurangabad. (Orig. Defendant No.2 )
...RESPONDENTS
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...
Mr. A.B. Kale Advocate for Applicant.
Mr. D.P. Palodkar Advocate h/f. Mr. Abhishek
C. Deshpande Advocate for Respondent No.1.
Mr. C.V. Thombre Advocate for Respondent Nos.
2 and 3.
...
CORAM: A.I.S. CHEEMA, J.
DATE OF RESERVING JUDGMENT : 24TH FEBRUARY,2015.
DATE OF PRONOUNCING JUDGMENT: 20TH MARCH, 2015.
JUDGMENT :
1. Heard learned counsel for the Applicant,
learned counsel for Respondent No.1 and learned
counsel for Respondent Nos.2 and 3 finally with
consent.
2. Respondent No.1 (original Plaintiff
hereafter referred as "Plaintiff") has filed
Regular Civil Suit No.41 of 2014 before Civil
Judge, Senior Division, Corporation Court,
Aurangabad against Planning Authority Respondent
Nos.2 and 3 (original Defendant Nos.1 and 2
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hereafter referred as “Defendant Nos.1 and 2”) and
present Applicant, arrayed in the Suit as
Defendant No.3 (hereafter referred as
"Defendant"). The Suit filed is for
suspension/cancellation of permission of
construction issued by the Municipal Corporation
and Assistant Director of Town Planning (Defendant
Nos.1 and 2) in favour of the Defendant No.3 on
21st March 2014. The Plaintiff claimed
suspension/cancellation of the permission of
construction and consequential relief of mandatory
injunction to demolish the construction made in
view of the permission and also has claimed
perpetual injunction that Defendant No.3 should
not carry out any construction over the suit plot.
Plaintiff filed application for temporary
injunction also. Defendant No.3 filed written
statement and interalia claimed that the suit was
barred in view of Section 149 of the Maharashtra
Regional and Town Planning Act, 1966 ("the Act" in
brief). In view of the question of jurisdiction of
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Civil Court being raised, trial Court framed
preliminary issue Whether the Civil Court is
having jurisdiction to decide subject matter of
the present suit. The trial Court answered the
same in the affirmative holding that it has
jurisdiction and held that the suit can proceed
further. Against the said impugned order of the
trial Court dated 6th August 2014, the present
Revision has been filed.
3. To put it in nutshell, the objections
raised by the Defendant No.3 are that the
Plaintiff is trying to say that the Plaintiff has
title to the suit property and thus the Municipal
Corporation should not have granted the permission
of construction and the Suit has limited prayer
for cancellation of the permission and
consequential reliefs sought are of mandatory and
permanent injunction and thus it is claimed that
the Suit is not maintainable in view of Section
149 of the Act.
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4. I have heard counsel for both sides. The
counsel for Applicant original Defendant No.3
claimed that the Suit filed by the Plaintiff
refers to an old litigation relating to properties
of Salarjung and Plaintiff claims to have acquired
title on the basis of purchase of decree which was
not executed. According to learned counsel, the
Defendant No.3 purchased the suit property from
one Mrs. Jayashree Admane, member of
Venkateshnagar Cooperative Housing Society. The
C.T.S. records for last many years showed clear
title and there was no litigation about the title
and Defendant No.3 had purchased suit property
after verifying title. The present dispute has
been raised only when Defendant No.3 applied for
permission of construction. According to the
learned counsel, the Suit filed by the Plaintiff
does not claim declaration of title of the
Plaintiff. The Suit does not show that the
Plaintiff was in possession before or when the
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Suit was filed. The Suit does not even claim
possession and according to the counsel, the only
relief sought is cancellation of the permission of
construction and the Suit is thus, according to
him, not maintainable. Under Section 149 of the
Act there is finality to the orders passed by the
Planning or Development Authority under this Act
and grant of commencement certificate is under
Section 45 of the Act and thus Civil Court has no
jurisdiction to consider whether or not the order
granting permission of construction is correct,
legal or proper.
5. Against this, learned counsel for
Respondent No.1 Plaintiff has claimed that the
Suit as has been filed, is maintainable in the
Civil Court. According to him, the Plaintiff has
title to the property and Defendant does not have
title. The Defendant and his predecessors claimed
title through the earlier Pattedars who were not
entitle to retain possession in view of the
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earlier litigation. The counsel submitted that the
Plaintiff need not claim his own title and without
claiming his own title, the Plaintiff can maintain
the Suit questioning the title of Defendant No.3.
According to him, even when Defendant No.3 moved
for permission to construct, Plaintiff had
objected and the Municipal Corporation sent letter
to the Plaintiff asking him to go to the Court.
The Corporation considered only revenue entries
while considering the grant of permission to
construct. The counsel submitted that Plaintiff
has sought mandatory and perpetual injunction
which can be granted only by the Civil Court and
thus the Suit is maintainable. Against permission
under Section 45 of the Act only the Applicant who
applied for the permission, can go in Appeal under
Section 47 of the Act and thus according to the
counsel, the Plaintiff, if he wants to challenge
the permission to construction, has no other
option but to file the present Suit. The counsel
for Respondent No.1 – original Plaintiff wants the
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Revision to be dismissed.
6. Question before me is – Whether the
impugned order is illegal or suffers from material
irregularity?
7. Looking to the controversy, it would be
appropriate to consider the Suit as has been
brought.
(A). Copy of the plaint is available at
Exhibit A in the Revision Application. In the
initial part, in bold, the plaint mentions that
the claim in the Suit is for :
“1) Cancellation/ Suspension of permission
of construction in file no.1045/17/201314,
dt.210314, granted by defendant no.1 and
2 on plot no.20 bearing C.T.S. No. 12486/1,
situated at Venkateshnagar, Baijipura,
Aurangabad, in favour of defendant no.3 in
contravention of settled norms and without
verifying the valid title and competency of
defendant no.3.
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2) Mandatory Injunction, thereby directing
the defendant no.3 to demolish the entire
construction carried on over the suit plot
in pursuance of permission of construction
in file no. 1045/17/201314, dt.210314
sought by misrepresentation besides being
illegal, invalid and vitiated by fraud and
misrepresentation.
3) Perpetual injunction, restraining the
defendant no.3 from carrying out or
erecting any construction over the suit
plot and/or changing the nature of the suit
plot by any mode whatsoever and creating
any sort of charge, encumbrance or third
party interest over the suit property."
(B). The recitals in the plaint then refer to
the Suit property as C.T.S. No. 12486/1
corresponding to Plot No.20 at Venkateshnagar,
Baijipura, Aurangabad admeasuring 322.01 sq. mtrs.
The plaint gives boundaries and adds that the suit
plot partially falls in Survey No.14 and partially
in Survey No.15. The Plaintiff has then claimed
that he is one of the joint owners along with six
others, of Block No.5 situated at Baijipura and
gives reference of three registered sale deeds of
1984 claiming that “by virtue of the Sale Deed the
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Plaintiff and other coowners were put in
possession of the purchased properties by the
respective vendors”.
(C). The plaint then mentions that the village
Baijipura was private property of late Salarjung
Bahadur and was included in the properties in the
dispute in Civil Suit No.13 of 1958 for
distribution amongst LRs and successors of late
Salarjung. Various paragraphs of the plaint then
refer to the litigation of 1958 and the orders
passed by the Andhra Pradesh High Court as well as
subsequently by this High Court. After referring
to the long history, Paragraph No.12 mentions that
as per Application No.377 of 1961 in Civil Suit
No.13 of 1958 properties of Aurangabad such as
Baijipura, Maljipura (etc.) including suit
property were distributed by the Receivercum
Commissioner amongst the heirs of Salarjung such
as Turab Yar Jung group, Plaintiff's group and
One Ana's group and Two Ana's group. It is claimed
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that different groups of heirs of Salarjung were
put in possession of the property and thus suit
property Survey No.14 in suit Plot C.T.S. No.
12486/1 came in share of Turab Yar Jung group. It
is claimed that as the property was taken over by
the ReceivercumCommissioner for distribution and
ReceivercumCommissioner distributed the property
amongst the heirs of late Salarjung, concept of
Pattedar came to an end and that even otherwise
the Pattedar has no nexus over the ownership and
title of the property.
(D). It is claimed that Plaintiff under the
sale deeds mentioned, purchased entire Block No.5
from the group of Turab Yar Jung. Plaintiff claims
that Plaintiff and six others have right to deal
with the property. The plaint refers to the
earlier Pattedars and then it is claimed that
bogus and fake persons alienated part of the land
Surve No.14 of Baijipura in favour of
Venkateshnagar Cooperative Housing Society vide
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rd
sale deed dated 3 May 1975. The said purchaser
without title and competency prepared lay out and
laid plots over the land Survey No.14. Suit claims
that Defendant No.2 – Assistant Director of Town
Planning did not inquire and verify the title as
well as competency and blindly sanctioned the lay
out. One Mrs. Jayashree Admane appears to have
purchased suit plot and from her Defendant No.3
purchased the suit plot. The plaint further
mentions that the Pattedars laid out plots over
adjoining land of Survey No.14 i.e. part of Survey
No.15 and had got lay out sanctioned from the
Municipal Corporation.
(E). According to the Plaintiff, he had
th
objected on 28 February 2014 for grant of
permission of construction to Defendant No.3 but
the same was not accepted. According to him, the
Corporation without proper scrutiny granted
permission of construction and the Municipal
Corporation Authorities are guilty of non
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discharge of statutory and official duties.
Property Card of C.T.S. Office or revenue record
(7 X 12 Extract) are not conclusive proof of
ownership of title or rights. Title of properties
can only be decided by competent Civil Court.
According to the Plaintiff, Municipal Corporation
should have looked into the matter of illegality
committed by Defendant No.3 and his predecessors
intitle. Without giving opportunity to Plaintiff
on the point of objection, the objection was
rejected.
(F). Perusal of the plaint shows that for the
purpose of Court Fees and Jurisdiction, the claims
are as under:
“A) For the Relief of Cancellation and
Suspension of construction permission in
file no. 1045/17/201314, dt.21032014;
the relief is also being nonsuspectable to
monitory evaluation, the relief is valued
of Rs.2000/ and fixed court fees of
Rs.200/ is also paid herewith.
B) For the Relief of Mandatory Injunction,
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being a consequential relief, based on the
relies of suspension and cancellation. The
same need not to be valued and no separate
court fees is required. However, to avoid
any technicality, the relief being non
suspectable to monitory evaluation, the
relief is valued of Rs.2000/ and fixed
court fees of Rs.200/ is paid herewith.
C) For the Relief of Perpetual Injunction,
the relief is valued at Rs.2000/ and fixed
court fees of Rs.200/ is paid herewith.
Thus, the total court fees of Rs.600/ is
paid herewith, which is sufficient."
(G). It would be appropriate to refer to the
prayers made in the Suit also. It has been
prayed:
“1. The suit of the plaintiff may kindly be
decreed.
2. The permission of construction, granted
by the defendant no.1 & 2, in favour of the
defendant no.3 in and or vide file no.
1045/17/201314, dt.21.03.2014 for proposed
construction over the suit plot, be
suspended and cancelled, being
contravention of the settled norms and
without verifying the valid title and the
competency of defendant no.3.
3. In consequences of cancellation /
suspension, the construction carriedout in
pursuance of the impugned permission
challenged, may kindly be ordered to be
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demolished, by the defendant no.3, in the
event of the failure of defendant no.3 to
comply the order, the said construction may
kindly be ordered to be demolished by the
defendant no.1 and 2.
4. The defendant no.3 may kindly be
restrained by way of decree of perpetual
injunction restraining them from carrying
out the erection of any construction over
the suit plot and/or changing the nature of
the suit plot by any mode, whatsoever and
creating any sort of charge, encumbrance or
third party interest over the suit
property.
5. The cost of the suit may kindly be
awarded.
6. Any other equitable relief which this
Hon'ble Court deems fit may kindly be
awarded in favour of the plaintiff."
8. Keeping the above Suit filed by
Respondent No.1 – Plaintiff in view, if the
impugned permission to construct is perused, it
st
shows that the permission was granted on 21 March
2014 (Page No.248 of the Petition). Interalia the
Commencement Certificate relies on Section 45 of
the Act and in addition to other conditions, it
has been added that if there is any dispute
regarding ownership, the same would be
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responsibility of the Applicant (i.e. Defendant
No.3), to whom the permission was given.
9. With reference to the objections raised
by the Plaintiff Subhash, the Municipal
th
Corporation informed him vide letter dated 15
March 2014 (Page No.252 of the Petition) that he
has filed objections. Corporation mentioned that
for building permission, Property Card, sale deed,
documents relating to title are filed by the
parties. The objection of the Plaintiff was
regarding title. The Corporation is concerned
whether or not the permission sought is as per the
Development Plan and the Corporation informed the
Plaintiff that regarding his objection, he may
move the concerned authorities or Court. The
corporation informed the Plaintiff that they have
considered the sale deed in favour of Defendant
No.3 and the Property Card, measurement map etc.
and the property was standing in the name of
Defendant No.3. There was no suit pending with
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reference to the property and the record showed
the title for more than twelve years and
considering the title deeds and the possession,
the permission was given and his objection was
being disposed of.
10. Record shows that Defendant No.3 filed
written statement and claimed that the Plaintiff
is in no way concerned with the suit plot.
Defendant purchased the plot from Jayashree
th
Admane. Earlier on 29 June 2013 public notice was
given calling objections regarding the sale but
Plaintiff did not file any objections. This
Defendant obtained search reports from 1984 till
2013 and found that there was no dispute.
Referring to an earlier dispute with one Sanjay
Bassaiye, Defendant claimed that in view of that
dispute, compound wall was constructed by Smt.
Admane after taking permission from Municipal
Corporation. The permission was granted after
measurement was carried out by Town Planning
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Officer. After the wall was constructed, the
Defendant No.3 purchased the property and applied
for permission to construct, which has been
granted. Defendant claimed that Plaintiff has
not shown his possession or title over the suit
property and not filed any document to show the
same. Name of Plaintiff was not at all shown in
any of the documents between 1984 to 2014. The
suit was not maintainable in view of Section 149
of the Act. Venkateshnagar Cooperative Housing
Society has not been added as party. The Plaintiff
has not prayed for declaration of ownership and
title over suit property and Suit merely claiming
injunction is not maintainable.
11. Before referring to the Rulings relied on
by the counsel for both sides, in order to
appreciate the relevant provisions, the same need
to be reproduced for the sake of convenience.
Section 45 to 47 of the Act read as under:
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“ 45. Grant or refusal of permission
(1) On receipt of an application under
section 44 the Planning Authority may,
subject to the provisions of this Act, by
order in writing
(i) grant the permission, unconditionally;
(ii) grant the permission, subject to such
general or special conditions as it may
impose with the previous approval of the
State Government; or
(iii) refuse the permission.
(2) Any permission granted under sub
section (1) with or without conditions
shall be contained in a commencement
certificate in the prescribed form.
(3) Every order granting permission subject
to conditions, or refusing permission shall
state the grounds for imposing such
conditions or for such refusal.
(4) Every order under subsection (1) shall
be communicated to the applicant in the
manner prescribed by regulations.
(5) If the Planning Authority does not
communicate its decision whether to grant
or refuse permission to the applicant
within sixty days from the date of receipt
of his application, or within sixty days
from the date of receipt of reply from the
applicant in respect of any requisition
made by the Planning Authority, whichever
is later, such permission shall be deemed
to have been granted to the applicant on
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the date immediately following the date of
expiry of sixty days:
, the development proposal,
Provided that
for which the permission was applied for,
is strictly in conformity with the
requirements of all the relevant
Development Control Regulations framed
under this Act or byelaws or regulations
framed in this behalf under any law for the
time being in force and the same in no way
violates either the provisions of any draft
or final plan or proposals published by
means of notice, submitted for sanction
under this Act:
that, any development
Provided further
carried out in pursuance of such deemed
permission which is in contravention of the
provisions of the first proviso, shall be
deemed to be an unauthorised development
for the purposes of sections 52 to 57.
(6) The Planning Authority shall, within
one month from the date of issue of
commencement certificate, forward duly
authenticated copies of such certificate
and the sanctioned building or development
plans to the Collector concerned."
46. Provisions of Development Plan to be
considered before granting permission
The Planning Authority in considering
application for permission shall have due
regard to the provisions of any draft or
final plan or proposal, (published by means
of notice) submitted or sanctioned under
this Act.
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47. Appeal
(1) Any applicant aggrieved by an order
granting permission on conditions or
refusing permission under section 45 may,
within forty days of the date of
communication of the order to him, prefer
an appeal to the State Government or to an
officer appointed by the State Government
in this behalf, being an officer not below
the rank of a Deputy Secretary to
Government; and such appeal shall be made
in such manner and accompanied by such fees
(if any) as may be prescribed.
(2) The State Government or the officer so
appointed may, after giving a reasonable
opportunity to the appellant and the
Planning Authority to be heard, by order
dismiss the appeal, or allow the appeal by
granting permission unconditionally or
subject to the conditions as modified."
. Then there is Section 147 of the Act
which says that no suit, prosecution or other
legal proceeding shall lie against any person for
anything which is in good faith done or intended
to be done under this Act or in rules or
regulations made thereunder.
. Section 149 of the Act reads as follows:
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“ 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."
12. Counsel for Applicant – Defendant No.3
relied on the case of Smt. Sujala Yeshwant Nitsure
and others vs. The Municipal Corporation of City
of Pune and others, reported in 1996(2) Bom.C.R.
503 . That was matter which related to challenge to
sanction for construction of Mangal Karyalaya in
residential area by the Municipal Commissioner
under his discretionary powers. It was Second
Appeal before the High Court. Suit had been
brought by Plaintiff in that matter in
representative capacity claiming that the
permission granted by the Municipal Corporation to
the plot holders for construction of Mangal
Karyalaya was illegal, ultra vires. In such suit,
injunction was claimed that the construction work
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should be stopped. This Court considered the facts
and circumstances of that matter and observed in
Para 70 as follows:
“70. Therefore, taking into consideration
all the facts and circumstances as obtained
in the matter herein and the findings
rendered herein above, I do not find any
merits in the appeal. The 1st Appellate
Court has dismissed the appeal although
reasoning assigned were different to
certain extent as have been clarified in
the Judgment herein above. In as much as,
the bar of suit under section 149 of the
M.R.T.P. Act was not argued over before the
trial Court or before the 1st Appellate
Court. But same being a point of law, this
Court has allowed the parties to address it
on the said point. The plaintiffs have
failed in the said legal point and as the
same goes to the root of the matter the
suit of the plaintiffs consequently has to
be dismissed."
13. Learned counsel for Applicant – Defendant
No.3 further relied on the case of Kalyan Dombivli
Municipal Corporation, Through Commissioner vs.
Prakash Mutha, reported in 2008(3) Bom.C.R. 720 .
In that matter the plaintiff and other persons had
raised objections to the development plan. It was
claimed that the draft development plan was not
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prepared as per the procedure laid down under the
M.R.T.P. Act. Mainly relief sought was of
declaration of the draft development plan to be
illegal, ultra vires of the M.R.T.P. Act. In that
matter the Civil Judge, Junior Division held that
the suit was not barred under Section 149 of the
Act. However, this Court found that the suit was
barred under Section 149 of the Act.
14. The learned counsel for Applicant further
relied on the case of Bales Sardara Paracha vs.
Municipal Corporation of Greater Bombay and
another, reported in 2005(4) Bom.C.R. 577 . That
was a matter in which notice under Section 55(1)
of the Act had been issued. Section 55 deals with
removal or discontinuance of unauthorized
temporary development summarily. The notice issued
was challenged by way of suit. Objection of
jurisdiction was raised and after considering the
material and evidence, the suit was dismissed for
want of jurisdiction by the City Civil Court and
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the appeal was carried to this Court. Dispute was
raised in the High Court that M.R.T.P. Act does
not make provision under which notice under
Section 55(1) of the Act could be challenged and
thus it was claimed that Civil Court's
jurisdiction will not be excluded. This Court
referred to the case of Dhruv Green Field Ltd. vs.
Hukam Singh and others, reported in 2002 (6)
Supreme Court Cases 416 and observed in Paragraphs
18 and 19 as under:
“18. In Dhruv's case (supra), on which the
learned Counsel has placed reliance, the
Supreme Court was dealing with section 13
read with section 10A of the Punjab
Village Common Lands (Regulation) Act, 1961
(the Act, for short). A suit was filed by
the respondent therein, challenging the
validity of the lease of land granted by
Gram Panchayat Madnaka for a period of 10
years in favour of the appellant on 1st
October, 1997. The question was whether in
view of section 13 read with section 10A
of the Act, a civil suit could be
entertained. After taking a resume of the
relevant cases on the point, the Supreme
Court stated the principles which a Court
has to follow while ascertaining whether
Civil Court's jurisdiction is excluded or
not. I may quote the principles enunciated
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by the Supreme Court:
(1) If there is express provision in any
special Act barring the jurisdiction of a
Civil Court to deal with matters specified
thereunder the jurisdiction of an ordinary
Civil Court shall stand excluded.
(2) If there is no express provision in the
Act but an examination of the provisions
contained therein leads to a conclusion in
regard to exclusion of jurisdiction of a
Civil Court, the Court would then inquire
whether any adequate and efficacious
alternative remedy is provided under the
Act; if the answer is in the affirmative,
it can safely be concluded that the
jurisdiction of the Civil Court is barred.
If, however, no such adequate and effective
alternative remedy is provided then
exclusion of the jurisdiction of the Civil
Court cannot be inferred.
(3) Even in cases where the jurisdiction of
a Civil Court is barred expressly or
impliedly, the Court would nonetheless
retain its jurisdiction to entertain and
adjudicate the suit provided the order
complained of is a nullity.
19. From the above observations of the
Supreme Court, it is clear that where the
bar in the Special Act is express and
clear, the jurisdiction of the Civil Court
stands excluded. The question of the Court
embarking upon any enquiry to find out
whether there is any adequate or
efficacious remedy provided under the
Special Act would arise only when there is
no express bar but the examination of the
provisions of the Special Act leads to a
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conclusion that the Civil Court's
jurisdiction is barred. In such cases,
availability of effective alternative
remedy assumes importance because the
legislative intent to bar the jurisdiction
of the Civil Court is not explicit. In such
cases, on the principle that ordinarily
every person has a right to approach a
Civil Court to redress his grievance, it
becomes necessary to investigate whether
other efficacious remedy is available or
not. However, in cases where the order
complained of is a nullity, even if the
jurisdiction of the Civil Court is barred
expressly or impliedly, the Court would
still retain its power to entertain the
suit. 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."
(Emphasis supplied)
. For these and other reasons arising from
the facts of that matter it was found that the
trial Court had rightly dismissed the suit of
plaintiff on the ground that in view of Section
149 of the Act the same could not be entertained.
The appeal was dismissed.
15. The counsel for Applicant relied on yet
another Judgment in the case of Mohan N. Bhawe
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(Dr.) vs. Municipal Corporation of Greater Bombay,
reported in 2005(3) Bom.C.R. 300. Like the matter
of Bales Sardara Paracha (supra) this was also
relating to notice under Section 55(1) and it was
held that Section 149 applies.
16. Relying on the above Judgments, the
counsel for Applicant has argued that Section 149
applies in present matter also and the suit should
have been dismissed as not maintainable.
17. Counsel for Respondent No.1 – original
Plaintiff relied on the case of Malad Kokil Co
operative Housing Society Ltd. vs. Modern
Construction Co. Ltd. and others, reported in
2012(6) A.I.R. Bom. R 257 . Referring to Para 50 of
that Judgment it has been submitted that
provisions of Section 149 do not bar suit whereby
a party can be prevented from acting on an action
and order made under the Act.
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. This matter arose in a suit filed by the
plaintiff society for decree directing the
Defendant Nos.1 and 2 to convey the suit property
and for declaration that the concessions/
relaxations granted by Defendant No.7 on the
th
approval report dated 5 December 2009 were bad in
law, malicious etc. In that suit, plaintiffs
further prayed for declaration that the
th
commencement certificate dated 13 October 2010
was null and void. Thus, in this matter the suit
was mainly for directing Defendant Nos.1 and 2 to
convey the suit property and further reliefs were
sought regarding the declaration relating to
commencement certificate. In that context, in Para
50, the observations appear to be that Section 149
does not bar the suit whereby a party can be
prevented from acting on an action and order made
under the Act.
. In para 49 of that Judgment, reliance was
placed on the matter of Raja Bahadur Motilal and
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another vs. State of Maharashtra and others,
reported in 2003 (1) Bom.C.R. 251 . That matter of
Raja Bahadur related to dispute between
Respondent No.7 and the Petitioner of that matter
as to who has the right to use the TDR on the
construction already made by the Petitioner and
Respondent No.7 and observations were made that
suit or legal proceedings for quashing deemed
permission under Section 45(5) was maintainable
and that even otherwise Section 149 does not bar
a party from acting on an action and order made
under the Act.
18. Keeping Rulings referred to by the
parties in view, when present suit is perused,
although it refers to an old earlier history of
litigation, it does not seek declaration of the
ownership of the plaintiff. It does not even seek
possession of the property although from the
plaint itself it can be made out that plaintiff
was not supported by the revenue entries also
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regarding the possession. At the time of argument,
I had asked the learned counsel for Respondent
No.1 – how plaintiff without seeking declaration
of title the plaintiff was claiming mere
cancellation of building permission. The counsel
submitted that plaintiff was claiming mandatory
and perpetual injunction also. The counsel was
asked if without seeking declaration of title the
suit could be maintained, the counsel submitted
that present suit was only to the effect that
Defendant No.3 should be restrained from acting on
the permission of construction given by the
Corporation. According to the counsel, the
Corporation had given permission merely relying on
revenue entries and he submitted that this was not
appropriate. According to the counsel for
Respondent No.1, the Respondent No.1 had raised
objections but the Corporation still granted the
permission. I find that the suit in its present
form is hit by Section 149 of the Act. It merely
seeks cancellation of the permission of
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construction on the basis that the plaintiff had
raised question of title before Planning Authority
and thus according to the plaintiff the permission
should not have been granted. Merely because
plaintiff raised dispute of title with the
Corporation, would not be sufficient. The
st
commencement certificate dated 21 March 2014
issued to the Defendant No.3 and before issuing
th
the certificate, letter dated 15 March 2014
issued to the Plaintiff by the Corporation shows
that the Corporation considered entries in P.R.
Card and sale deed relied on by the Defendant No.3
and measurement map and found that the entries
showed title of the Defendant No.3 and accordingly
granted permission for construction. Planning
Authority cannot sit down and give Judgment on
th
title. The letter dated 15 March 2014 clearly
informs the plaintiff that when he is asserting
title, he may file appropriate suit. The plaintiff
has filed the suit but did not claim declaration
of his title. Although learned counsel for
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plaintiff has argued that the plaintiff can
maintain the suit without asking for declaration
of his own title but can seek declaration that
Defendant No.3 does not have title, even that is
not done. The suit does not even seek to set aside
Sale Deed relied on by Defendant. I do not find
substance in the arguments.
19. It is not a case that while granting the
permission, the planning authority did not give
regard to the provisions of draft or final plan as
is required to be considered under Section 46 of
the Act. Even in that case what would be
appropriate relief or forum would be matter of
consideration. The basic reason for objecting to
the building permission given in Plaint is that
plaintiff had raised the question of title and so
the permission should not have been granted.
Looking to the Court Fee clause of the suit as
well as the prayers of the suit reproduced above,
it is quite clear that the only relief sought is
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to cancel the construction permission given to
Defendant No.3 and “in consequences of
cancellation/suspension” of permission the
mandatory injunction to remove structure and
further perpetual injunction is claimed that
Defendant No.3 should not do any construction at
the suit property.
20. I have gone through the impugned order
passed by the trial Court. Trial Court referred to
the Rulings and in Para 22 of its order, in a
cryptic manner observed that the plaintiff was
seeking relief in respect of construction
permission raising objections in respect of title
and not considering the same by Corporation while
granting construction permission. Trial Court then
went on to observe that the question raised could
be decided only by the Civil Court and observed
that the Plaintiff is claiming the relief about
the title which affects on the construction
permission of the suit property. Thus only because
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plaintiff refers to his title, the trial Court has
presumed that the suit was maintainable without
seeing the substance of the Suit and prayer
clauses and the fact that the suit did not at all
claim declaration of title nor Court Fee was paid
by the plaintiff. Thus, I find that the order
passed by the trial Court is not maintainable.
21. For reasons mentioned above, the impugned
order of the trial Court is found to be illegal
and not maintainable. Suit as brought is barred in
view of provision of Section 149 of the Act and
Plaint deserves to be rejected. I pass the
following order:
O R D E R
(A) The Revision Application is allowed.
(B) Impugned order of the trial Court
th
dated 6 August 2014* passed below
*See Speaking to Minutes Order Dt/30.3.15.
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Exhibit 1 in Regular Civil Suit No.41 of
2014 by Civil Judge, Senior Division,
Corporation Court, Aurangabad is quashed
and set aside.
(C) Regular Civil Suit No.41 of 2014 is
not maintainable under Section 149 of the
Maharashtra Regional and Town Planning Act,
1996 and Plaint is rejected.
[A.I.S. CHEEMA, J.]
asb/MAR15
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CIVIL REVISION APPLICATION NO.132 OF 2014
M/s. Arihant Construction,
Mahesh Nagar, Jalna Road,
Aurangabad,
Through its Partner
Shri Lalit s/o Vasantlal Gandhi,
Age42 years, Occu:Business,
R/oPlot No.18, MaheshNagar,
Jalna Road, Aurangabad.
...APPLICANT
(Orig. Defendant No.3)
VERSUS
1) Shri Subhash Kesharmal Barlota,
AgeMajor, Occu:Advocate
Through his Power of Attorney Holder
Mr. Mohd. Abdul Shakeel
s/o Mohd. Abdul Sami,
Age49 years, Occu:Business,
R/oBlock No.16, Model Colony,
Opp. Himayat Baugh, Delhi Gate,
Tq. & DistAurangabad.
(Orig. Plaintiff)
2) The Municipal Corporation,
Aurangabad, Through
its Commissioner at Aurangabad,
(Orig. Defendant No.1)
3) The Assistant Director of Town Planning,
Municipal Corporation,
Aurangabad. (Orig. Defendant No.2 )
...RESPONDENTS
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...
Mr. A.B. Kale Advocate for Applicant.
Mr. D.P. Palodkar Advocate h/f. Mr. Abhishek
C. Deshpande Advocate for Respondent No.1.
Mr. C.V. Thombre Advocate for Respondent Nos.
2 and 3.
...
CORAM: A.I.S. CHEEMA, J.
DATE OF RESERVING JUDGMENT : 24TH FEBRUARY,2015.
DATE OF PRONOUNCING JUDGMENT: 20TH MARCH, 2015.
JUDGMENT :
1. Heard learned counsel for the Applicant,
learned counsel for Respondent No.1 and learned
counsel for Respondent Nos.2 and 3 finally with
consent.
2. Respondent No.1 (original Plaintiff
hereafter referred as "Plaintiff") has filed
Regular Civil Suit No.41 of 2014 before Civil
Judge, Senior Division, Corporation Court,
Aurangabad against Planning Authority Respondent
Nos.2 and 3 (original Defendant Nos.1 and 2
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hereafter referred as “Defendant Nos.1 and 2”) and
present Applicant, arrayed in the Suit as
Defendant No.3 (hereafter referred as
"Defendant"). The Suit filed is for
suspension/cancellation of permission of
construction issued by the Municipal Corporation
and Assistant Director of Town Planning (Defendant
Nos.1 and 2) in favour of the Defendant No.3 on
21st March 2014. The Plaintiff claimed
suspension/cancellation of the permission of
construction and consequential relief of mandatory
injunction to demolish the construction made in
view of the permission and also has claimed
perpetual injunction that Defendant No.3 should
not carry out any construction over the suit plot.
Plaintiff filed application for temporary
injunction also. Defendant No.3 filed written
statement and interalia claimed that the suit was
barred in view of Section 149 of the Maharashtra
Regional and Town Planning Act, 1966 ("the Act" in
brief). In view of the question of jurisdiction of
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Civil Court being raised, trial Court framed
preliminary issue Whether the Civil Court is
having jurisdiction to decide subject matter of
the present suit. The trial Court answered the
same in the affirmative holding that it has
jurisdiction and held that the suit can proceed
further. Against the said impugned order of the
trial Court dated 6th August 2014, the present
Revision has been filed.
3. To put it in nutshell, the objections
raised by the Defendant No.3 are that the
Plaintiff is trying to say that the Plaintiff has
title to the suit property and thus the Municipal
Corporation should not have granted the permission
of construction and the Suit has limited prayer
for cancellation of the permission and
consequential reliefs sought are of mandatory and
permanent injunction and thus it is claimed that
the Suit is not maintainable in view of Section
149 of the Act.
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4. I have heard counsel for both sides. The
counsel for Applicant original Defendant No.3
claimed that the Suit filed by the Plaintiff
refers to an old litigation relating to properties
of Salarjung and Plaintiff claims to have acquired
title on the basis of purchase of decree which was
not executed. According to learned counsel, the
Defendant No.3 purchased the suit property from
one Mrs. Jayashree Admane, member of
Venkateshnagar Cooperative Housing Society. The
C.T.S. records for last many years showed clear
title and there was no litigation about the title
and Defendant No.3 had purchased suit property
after verifying title. The present dispute has
been raised only when Defendant No.3 applied for
permission of construction. According to the
learned counsel, the Suit filed by the Plaintiff
does not claim declaration of title of the
Plaintiff. The Suit does not show that the
Plaintiff was in possession before or when the
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Suit was filed. The Suit does not even claim
possession and according to the counsel, the only
relief sought is cancellation of the permission of
construction and the Suit is thus, according to
him, not maintainable. Under Section 149 of the
Act there is finality to the orders passed by the
Planning or Development Authority under this Act
and grant of commencement certificate is under
Section 45 of the Act and thus Civil Court has no
jurisdiction to consider whether or not the order
granting permission of construction is correct,
legal or proper.
5. Against this, learned counsel for
Respondent No.1 Plaintiff has claimed that the
Suit as has been filed, is maintainable in the
Civil Court. According to him, the Plaintiff has
title to the property and Defendant does not have
title. The Defendant and his predecessors claimed
title through the earlier Pattedars who were not
entitle to retain possession in view of the
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earlier litigation. The counsel submitted that the
Plaintiff need not claim his own title and without
claiming his own title, the Plaintiff can maintain
the Suit questioning the title of Defendant No.3.
According to him, even when Defendant No.3 moved
for permission to construct, Plaintiff had
objected and the Municipal Corporation sent letter
to the Plaintiff asking him to go to the Court.
The Corporation considered only revenue entries
while considering the grant of permission to
construct. The counsel submitted that Plaintiff
has sought mandatory and perpetual injunction
which can be granted only by the Civil Court and
thus the Suit is maintainable. Against permission
under Section 45 of the Act only the Applicant who
applied for the permission, can go in Appeal under
Section 47 of the Act and thus according to the
counsel, the Plaintiff, if he wants to challenge
the permission to construction, has no other
option but to file the present Suit. The counsel
for Respondent No.1 – original Plaintiff wants the
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Revision to be dismissed.
6. Question before me is – Whether the
impugned order is illegal or suffers from material
irregularity?
7. Looking to the controversy, it would be
appropriate to consider the Suit as has been
brought.
(A). Copy of the plaint is available at
Exhibit A in the Revision Application. In the
initial part, in bold, the plaint mentions that
the claim in the Suit is for :
“1) Cancellation/ Suspension of permission
of construction in file no.1045/17/201314,
dt.210314, granted by defendant no.1 and
2 on plot no.20 bearing C.T.S. No. 12486/1,
situated at Venkateshnagar, Baijipura,
Aurangabad, in favour of defendant no.3 in
contravention of settled norms and without
verifying the valid title and competency of
defendant no.3.
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2) Mandatory Injunction, thereby directing
the defendant no.3 to demolish the entire
construction carried on over the suit plot
in pursuance of permission of construction
in file no. 1045/17/201314, dt.210314
sought by misrepresentation besides being
illegal, invalid and vitiated by fraud and
misrepresentation.
3) Perpetual injunction, restraining the
defendant no.3 from carrying out or
erecting any construction over the suit
plot and/or changing the nature of the suit
plot by any mode whatsoever and creating
any sort of charge, encumbrance or third
party interest over the suit property."
(B). The recitals in the plaint then refer to
the Suit property as C.T.S. No. 12486/1
corresponding to Plot No.20 at Venkateshnagar,
Baijipura, Aurangabad admeasuring 322.01 sq. mtrs.
The plaint gives boundaries and adds that the suit
plot partially falls in Survey No.14 and partially
in Survey No.15. The Plaintiff has then claimed
that he is one of the joint owners along with six
others, of Block No.5 situated at Baijipura and
gives reference of three registered sale deeds of
1984 claiming that “by virtue of the Sale Deed the
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Plaintiff and other coowners were put in
possession of the purchased properties by the
respective vendors”.
(C). The plaint then mentions that the village
Baijipura was private property of late Salarjung
Bahadur and was included in the properties in the
dispute in Civil Suit No.13 of 1958 for
distribution amongst LRs and successors of late
Salarjung. Various paragraphs of the plaint then
refer to the litigation of 1958 and the orders
passed by the Andhra Pradesh High Court as well as
subsequently by this High Court. After referring
to the long history, Paragraph No.12 mentions that
as per Application No.377 of 1961 in Civil Suit
No.13 of 1958 properties of Aurangabad such as
Baijipura, Maljipura (etc.) including suit
property were distributed by the Receivercum
Commissioner amongst the heirs of Salarjung such
as Turab Yar Jung group, Plaintiff's group and
One Ana's group and Two Ana's group. It is claimed
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11
that different groups of heirs of Salarjung were
put in possession of the property and thus suit
property Survey No.14 in suit Plot C.T.S. No.
12486/1 came in share of Turab Yar Jung group. It
is claimed that as the property was taken over by
the ReceivercumCommissioner for distribution and
ReceivercumCommissioner distributed the property
amongst the heirs of late Salarjung, concept of
Pattedar came to an end and that even otherwise
the Pattedar has no nexus over the ownership and
title of the property.
(D). It is claimed that Plaintiff under the
sale deeds mentioned, purchased entire Block No.5
from the group of Turab Yar Jung. Plaintiff claims
that Plaintiff and six others have right to deal
with the property. The plaint refers to the
earlier Pattedars and then it is claimed that
bogus and fake persons alienated part of the land
Surve No.14 of Baijipura in favour of
Venkateshnagar Cooperative Housing Society vide
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rd
sale deed dated 3 May 1975. The said purchaser
without title and competency prepared lay out and
laid plots over the land Survey No.14. Suit claims
that Defendant No.2 – Assistant Director of Town
Planning did not inquire and verify the title as
well as competency and blindly sanctioned the lay
out. One Mrs. Jayashree Admane appears to have
purchased suit plot and from her Defendant No.3
purchased the suit plot. The plaint further
mentions that the Pattedars laid out plots over
adjoining land of Survey No.14 i.e. part of Survey
No.15 and had got lay out sanctioned from the
Municipal Corporation.
(E). According to the Plaintiff, he had
th
objected on 28 February 2014 for grant of
permission of construction to Defendant No.3 but
the same was not accepted. According to him, the
Corporation without proper scrutiny granted
permission of construction and the Municipal
Corporation Authorities are guilty of non
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discharge of statutory and official duties.
Property Card of C.T.S. Office or revenue record
(7 X 12 Extract) are not conclusive proof of
ownership of title or rights. Title of properties
can only be decided by competent Civil Court.
According to the Plaintiff, Municipal Corporation
should have looked into the matter of illegality
committed by Defendant No.3 and his predecessors
intitle. Without giving opportunity to Plaintiff
on the point of objection, the objection was
rejected.
(F). Perusal of the plaint shows that for the
purpose of Court Fees and Jurisdiction, the claims
are as under:
“A) For the Relief of Cancellation and
Suspension of construction permission in
file no. 1045/17/201314, dt.21032014;
the relief is also being nonsuspectable to
monitory evaluation, the relief is valued
of Rs.2000/ and fixed court fees of
Rs.200/ is also paid herewith.
B) For the Relief of Mandatory Injunction,
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being a consequential relief, based on the
relies of suspension and cancellation. The
same need not to be valued and no separate
court fees is required. However, to avoid
any technicality, the relief being non
suspectable to monitory evaluation, the
relief is valued of Rs.2000/ and fixed
court fees of Rs.200/ is paid herewith.
C) For the Relief of Perpetual Injunction,
the relief is valued at Rs.2000/ and fixed
court fees of Rs.200/ is paid herewith.
Thus, the total court fees of Rs.600/ is
paid herewith, which is sufficient."
(G). It would be appropriate to refer to the
prayers made in the Suit also. It has been
prayed:
“1. The suit of the plaintiff may kindly be
decreed.
2. The permission of construction, granted
by the defendant no.1 & 2, in favour of the
defendant no.3 in and or vide file no.
1045/17/201314, dt.21.03.2014 for proposed
construction over the suit plot, be
suspended and cancelled, being
contravention of the settled norms and
without verifying the valid title and the
competency of defendant no.3.
3. In consequences of cancellation /
suspension, the construction carriedout in
pursuance of the impugned permission
challenged, may kindly be ordered to be
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demolished, by the defendant no.3, in the
event of the failure of defendant no.3 to
comply the order, the said construction may
kindly be ordered to be demolished by the
defendant no.1 and 2.
4. The defendant no.3 may kindly be
restrained by way of decree of perpetual
injunction restraining them from carrying
out the erection of any construction over
the suit plot and/or changing the nature of
the suit plot by any mode, whatsoever and
creating any sort of charge, encumbrance or
third party interest over the suit
property.
5. The cost of the suit may kindly be
awarded.
6. Any other equitable relief which this
Hon'ble Court deems fit may kindly be
awarded in favour of the plaintiff."
8. Keeping the above Suit filed by
Respondent No.1 – Plaintiff in view, if the
impugned permission to construct is perused, it
st
shows that the permission was granted on 21 March
2014 (Page No.248 of the Petition). Interalia the
Commencement Certificate relies on Section 45 of
the Act and in addition to other conditions, it
has been added that if there is any dispute
regarding ownership, the same would be
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responsibility of the Applicant (i.e. Defendant
No.3), to whom the permission was given.
9. With reference to the objections raised
by the Plaintiff Subhash, the Municipal
th
Corporation informed him vide letter dated 15
March 2014 (Page No.252 of the Petition) that he
has filed objections. Corporation mentioned that
for building permission, Property Card, sale deed,
documents relating to title are filed by the
parties. The objection of the Plaintiff was
regarding title. The Corporation is concerned
whether or not the permission sought is as per the
Development Plan and the Corporation informed the
Plaintiff that regarding his objection, he may
move the concerned authorities or Court. The
corporation informed the Plaintiff that they have
considered the sale deed in favour of Defendant
No.3 and the Property Card, measurement map etc.
and the property was standing in the name of
Defendant No.3. There was no suit pending with
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reference to the property and the record showed
the title for more than twelve years and
considering the title deeds and the possession,
the permission was given and his objection was
being disposed of.
10. Record shows that Defendant No.3 filed
written statement and claimed that the Plaintiff
is in no way concerned with the suit plot.
Defendant purchased the plot from Jayashree
th
Admane. Earlier on 29 June 2013 public notice was
given calling objections regarding the sale but
Plaintiff did not file any objections. This
Defendant obtained search reports from 1984 till
2013 and found that there was no dispute.
Referring to an earlier dispute with one Sanjay
Bassaiye, Defendant claimed that in view of that
dispute, compound wall was constructed by Smt.
Admane after taking permission from Municipal
Corporation. The permission was granted after
measurement was carried out by Town Planning
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Officer. After the wall was constructed, the
Defendant No.3 purchased the property and applied
for permission to construct, which has been
granted. Defendant claimed that Plaintiff has
not shown his possession or title over the suit
property and not filed any document to show the
same. Name of Plaintiff was not at all shown in
any of the documents between 1984 to 2014. The
suit was not maintainable in view of Section 149
of the Act. Venkateshnagar Cooperative Housing
Society has not been added as party. The Plaintiff
has not prayed for declaration of ownership and
title over suit property and Suit merely claiming
injunction is not maintainable.
11. Before referring to the Rulings relied on
by the counsel for both sides, in order to
appreciate the relevant provisions, the same need
to be reproduced for the sake of convenience.
Section 45 to 47 of the Act read as under:
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“ 45. Grant or refusal of permission
(1) On receipt of an application under
section 44 the Planning Authority may,
subject to the provisions of this Act, by
order in writing
(i) grant the permission, unconditionally;
(ii) grant the permission, subject to such
general or special conditions as it may
impose with the previous approval of the
State Government; or
(iii) refuse the permission.
(2) Any permission granted under sub
section (1) with or without conditions
shall be contained in a commencement
certificate in the prescribed form.
(3) Every order granting permission subject
to conditions, or refusing permission shall
state the grounds for imposing such
conditions or for such refusal.
(4) Every order under subsection (1) shall
be communicated to the applicant in the
manner prescribed by regulations.
(5) If the Planning Authority does not
communicate its decision whether to grant
or refuse permission to the applicant
within sixty days from the date of receipt
of his application, or within sixty days
from the date of receipt of reply from the
applicant in respect of any requisition
made by the Planning Authority, whichever
is later, such permission shall be deemed
to have been granted to the applicant on
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the date immediately following the date of
expiry of sixty days:
, the development proposal,
Provided that
for which the permission was applied for,
is strictly in conformity with the
requirements of all the relevant
Development Control Regulations framed
under this Act or byelaws or regulations
framed in this behalf under any law for the
time being in force and the same in no way
violates either the provisions of any draft
or final plan or proposals published by
means of notice, submitted for sanction
under this Act:
that, any development
Provided further
carried out in pursuance of such deemed
permission which is in contravention of the
provisions of the first proviso, shall be
deemed to be an unauthorised development
for the purposes of sections 52 to 57.
(6) The Planning Authority shall, within
one month from the date of issue of
commencement certificate, forward duly
authenticated copies of such certificate
and the sanctioned building or development
plans to the Collector concerned."
46. Provisions of Development Plan to be
considered before granting permission
The Planning Authority in considering
application for permission shall have due
regard to the provisions of any draft or
final plan or proposal, (published by means
of notice) submitted or sanctioned under
this Act.
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47. Appeal
(1) Any applicant aggrieved by an order
granting permission on conditions or
refusing permission under section 45 may,
within forty days of the date of
communication of the order to him, prefer
an appeal to the State Government or to an
officer appointed by the State Government
in this behalf, being an officer not below
the rank of a Deputy Secretary to
Government; and such appeal shall be made
in such manner and accompanied by such fees
(if any) as may be prescribed.
(2) The State Government or the officer so
appointed may, after giving a reasonable
opportunity to the appellant and the
Planning Authority to be heard, by order
dismiss the appeal, or allow the appeal by
granting permission unconditionally or
subject to the conditions as modified."
. Then there is Section 147 of the Act
which says that no suit, prosecution or other
legal proceeding shall lie against any person for
anything which is in good faith done or intended
to be done under this Act or in rules or
regulations made thereunder.
. Section 149 of the Act reads as follows:
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“ 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."
12. Counsel for Applicant – Defendant No.3
relied on the case of Smt. Sujala Yeshwant Nitsure
and others vs. The Municipal Corporation of City
of Pune and others, reported in 1996(2) Bom.C.R.
503 . That was matter which related to challenge to
sanction for construction of Mangal Karyalaya in
residential area by the Municipal Commissioner
under his discretionary powers. It was Second
Appeal before the High Court. Suit had been
brought by Plaintiff in that matter in
representative capacity claiming that the
permission granted by the Municipal Corporation to
the plot holders for construction of Mangal
Karyalaya was illegal, ultra vires. In such suit,
injunction was claimed that the construction work
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should be stopped. This Court considered the facts
and circumstances of that matter and observed in
Para 70 as follows:
“70. Therefore, taking into consideration
all the facts and circumstances as obtained
in the matter herein and the findings
rendered herein above, I do not find any
merits in the appeal. The 1st Appellate
Court has dismissed the appeal although
reasoning assigned were different to
certain extent as have been clarified in
the Judgment herein above. In as much as,
the bar of suit under section 149 of the
M.R.T.P. Act was not argued over before the
trial Court or before the 1st Appellate
Court. But same being a point of law, this
Court has allowed the parties to address it
on the said point. The plaintiffs have
failed in the said legal point and as the
same goes to the root of the matter the
suit of the plaintiffs consequently has to
be dismissed."
13. Learned counsel for Applicant – Defendant
No.3 further relied on the case of Kalyan Dombivli
Municipal Corporation, Through Commissioner vs.
Prakash Mutha, reported in 2008(3) Bom.C.R. 720 .
In that matter the plaintiff and other persons had
raised objections to the development plan. It was
claimed that the draft development plan was not
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prepared as per the procedure laid down under the
M.R.T.P. Act. Mainly relief sought was of
declaration of the draft development plan to be
illegal, ultra vires of the M.R.T.P. Act. In that
matter the Civil Judge, Junior Division held that
the suit was not barred under Section 149 of the
Act. However, this Court found that the suit was
barred under Section 149 of the Act.
14. The learned counsel for Applicant further
relied on the case of Bales Sardara Paracha vs.
Municipal Corporation of Greater Bombay and
another, reported in 2005(4) Bom.C.R. 577 . That
was a matter in which notice under Section 55(1)
of the Act had been issued. Section 55 deals with
removal or discontinuance of unauthorized
temporary development summarily. The notice issued
was challenged by way of suit. Objection of
jurisdiction was raised and after considering the
material and evidence, the suit was dismissed for
want of jurisdiction by the City Civil Court and
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the appeal was carried to this Court. Dispute was
raised in the High Court that M.R.T.P. Act does
not make provision under which notice under
Section 55(1) of the Act could be challenged and
thus it was claimed that Civil Court's
jurisdiction will not be excluded. This Court
referred to the case of Dhruv Green Field Ltd. vs.
Hukam Singh and others, reported in 2002 (6)
Supreme Court Cases 416 and observed in Paragraphs
18 and 19 as under:
“18. In Dhruv's case (supra), on which the
learned Counsel has placed reliance, the
Supreme Court was dealing with section 13
read with section 10A of the Punjab
Village Common Lands (Regulation) Act, 1961
(the Act, for short). A suit was filed by
the respondent therein, challenging the
validity of the lease of land granted by
Gram Panchayat Madnaka for a period of 10
years in favour of the appellant on 1st
October, 1997. The question was whether in
view of section 13 read with section 10A
of the Act, a civil suit could be
entertained. After taking a resume of the
relevant cases on the point, the Supreme
Court stated the principles which a Court
has to follow while ascertaining whether
Civil Court's jurisdiction is excluded or
not. I may quote the principles enunciated
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by the Supreme Court:
(1) If there is express provision in any
special Act barring the jurisdiction of a
Civil Court to deal with matters specified
thereunder the jurisdiction of an ordinary
Civil Court shall stand excluded.
(2) If there is no express provision in the
Act but an examination of the provisions
contained therein leads to a conclusion in
regard to exclusion of jurisdiction of a
Civil Court, the Court would then inquire
whether any adequate and efficacious
alternative remedy is provided under the
Act; if the answer is in the affirmative,
it can safely be concluded that the
jurisdiction of the Civil Court is barred.
If, however, no such adequate and effective
alternative remedy is provided then
exclusion of the jurisdiction of the Civil
Court cannot be inferred.
(3) Even in cases where the jurisdiction of
a Civil Court is barred expressly or
impliedly, the Court would nonetheless
retain its jurisdiction to entertain and
adjudicate the suit provided the order
complained of is a nullity.
19. From the above observations of the
Supreme Court, it is clear that where the
bar in the Special Act is express and
clear, the jurisdiction of the Civil Court
stands excluded. The question of the Court
embarking upon any enquiry to find out
whether there is any adequate or
efficacious remedy provided under the
Special Act would arise only when there is
no express bar but the examination of the
provisions of the Special Act leads to a
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conclusion that the Civil Court's
jurisdiction is barred. In such cases,
availability of effective alternative
remedy assumes importance because the
legislative intent to bar the jurisdiction
of the Civil Court is not explicit. In such
cases, on the principle that ordinarily
every person has a right to approach a
Civil Court to redress his grievance, it
becomes necessary to investigate whether
other efficacious remedy is available or
not. However, in cases where the order
complained of is a nullity, even if the
jurisdiction of the Civil Court is barred
expressly or impliedly, the Court would
still retain its power to entertain the
suit. 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."
(Emphasis supplied)
. For these and other reasons arising from
the facts of that matter it was found that the
trial Court had rightly dismissed the suit of
plaintiff on the ground that in view of Section
149 of the Act the same could not be entertained.
The appeal was dismissed.
15. The counsel for Applicant relied on yet
another Judgment in the case of Mohan N. Bhawe
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(Dr.) vs. Municipal Corporation of Greater Bombay,
reported in 2005(3) Bom.C.R. 300. Like the matter
of Bales Sardara Paracha (supra) this was also
relating to notice under Section 55(1) and it was
held that Section 149 applies.
16. Relying on the above Judgments, the
counsel for Applicant has argued that Section 149
applies in present matter also and the suit should
have been dismissed as not maintainable.
17. Counsel for Respondent No.1 – original
Plaintiff relied on the case of Malad Kokil Co
operative Housing Society Ltd. vs. Modern
Construction Co. Ltd. and others, reported in
2012(6) A.I.R. Bom. R 257 . Referring to Para 50 of
that Judgment it has been submitted that
provisions of Section 149 do not bar suit whereby
a party can be prevented from acting on an action
and order made under the Act.
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. This matter arose in a suit filed by the
plaintiff society for decree directing the
Defendant Nos.1 and 2 to convey the suit property
and for declaration that the concessions/
relaxations granted by Defendant No.7 on the
th
approval report dated 5 December 2009 were bad in
law, malicious etc. In that suit, plaintiffs
further prayed for declaration that the
th
commencement certificate dated 13 October 2010
was null and void. Thus, in this matter the suit
was mainly for directing Defendant Nos.1 and 2 to
convey the suit property and further reliefs were
sought regarding the declaration relating to
commencement certificate. In that context, in Para
50, the observations appear to be that Section 149
does not bar the suit whereby a party can be
prevented from acting on an action and order made
under the Act.
. In para 49 of that Judgment, reliance was
placed on the matter of Raja Bahadur Motilal and
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another vs. State of Maharashtra and others,
reported in 2003 (1) Bom.C.R. 251 . That matter of
Raja Bahadur related to dispute between
Respondent No.7 and the Petitioner of that matter
as to who has the right to use the TDR on the
construction already made by the Petitioner and
Respondent No.7 and observations were made that
suit or legal proceedings for quashing deemed
permission under Section 45(5) was maintainable
and that even otherwise Section 149 does not bar
a party from acting on an action and order made
under the Act.
18. Keeping Rulings referred to by the
parties in view, when present suit is perused,
although it refers to an old earlier history of
litigation, it does not seek declaration of the
ownership of the plaintiff. It does not even seek
possession of the property although from the
plaint itself it can be made out that plaintiff
was not supported by the revenue entries also
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regarding the possession. At the time of argument,
I had asked the learned counsel for Respondent
No.1 – how plaintiff without seeking declaration
of title the plaintiff was claiming mere
cancellation of building permission. The counsel
submitted that plaintiff was claiming mandatory
and perpetual injunction also. The counsel was
asked if without seeking declaration of title the
suit could be maintained, the counsel submitted
that present suit was only to the effect that
Defendant No.3 should be restrained from acting on
the permission of construction given by the
Corporation. According to the counsel, the
Corporation had given permission merely relying on
revenue entries and he submitted that this was not
appropriate. According to the counsel for
Respondent No.1, the Respondent No.1 had raised
objections but the Corporation still granted the
permission. I find that the suit in its present
form is hit by Section 149 of the Act. It merely
seeks cancellation of the permission of
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construction on the basis that the plaintiff had
raised question of title before Planning Authority
and thus according to the plaintiff the permission
should not have been granted. Merely because
plaintiff raised dispute of title with the
Corporation, would not be sufficient. The
st
commencement certificate dated 21 March 2014
issued to the Defendant No.3 and before issuing
th
the certificate, letter dated 15 March 2014
issued to the Plaintiff by the Corporation shows
that the Corporation considered entries in P.R.
Card and sale deed relied on by the Defendant No.3
and measurement map and found that the entries
showed title of the Defendant No.3 and accordingly
granted permission for construction. Planning
Authority cannot sit down and give Judgment on
th
title. The letter dated 15 March 2014 clearly
informs the plaintiff that when he is asserting
title, he may file appropriate suit. The plaintiff
has filed the suit but did not claim declaration
of his title. Although learned counsel for
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plaintiff has argued that the plaintiff can
maintain the suit without asking for declaration
of his own title but can seek declaration that
Defendant No.3 does not have title, even that is
not done. The suit does not even seek to set aside
Sale Deed relied on by Defendant. I do not find
substance in the arguments.
19. It is not a case that while granting the
permission, the planning authority did not give
regard to the provisions of draft or final plan as
is required to be considered under Section 46 of
the Act. Even in that case what would be
appropriate relief or forum would be matter of
consideration. The basic reason for objecting to
the building permission given in Plaint is that
plaintiff had raised the question of title and so
the permission should not have been granted.
Looking to the Court Fee clause of the suit as
well as the prayers of the suit reproduced above,
it is quite clear that the only relief sought is
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to cancel the construction permission given to
Defendant No.3 and “in consequences of
cancellation/suspension” of permission the
mandatory injunction to remove structure and
further perpetual injunction is claimed that
Defendant No.3 should not do any construction at
the suit property.
20. I have gone through the impugned order
passed by the trial Court. Trial Court referred to
the Rulings and in Para 22 of its order, in a
cryptic manner observed that the plaintiff was
seeking relief in respect of construction
permission raising objections in respect of title
and not considering the same by Corporation while
granting construction permission. Trial Court then
went on to observe that the question raised could
be decided only by the Civil Court and observed
that the Plaintiff is claiming the relief about
the title which affects on the construction
permission of the suit property. Thus only because
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plaintiff refers to his title, the trial Court has
presumed that the suit was maintainable without
seeing the substance of the Suit and prayer
clauses and the fact that the suit did not at all
claim declaration of title nor Court Fee was paid
by the plaintiff. Thus, I find that the order
passed by the trial Court is not maintainable.
21. For reasons mentioned above, the impugned
order of the trial Court is found to be illegal
and not maintainable. Suit as brought is barred in
view of provision of Section 149 of the Act and
Plaint deserves to be rejected. I pass the
following order:
O R D E R
(A) The Revision Application is allowed.
(B) Impugned order of the trial Court
th
dated 6 August 2014* passed below
*See Speaking to Minutes Order Dt/30.3.15.
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Exhibit 1 in Regular Civil Suit No.41 of
2014 by Civil Judge, Senior Division,
Corporation Court, Aurangabad is quashed
and set aside.
(C) Regular Civil Suit No.41 of 2014 is
not maintainable under Section 149 of the
Maharashtra Regional and Town Planning Act,
1996 and Plaint is rejected.
[A.I.S. CHEEMA, J.]
asb/MAR15
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