Monday, 7 March 2016

When jurisdiction of civil court is not barred in view of S 149 of Maharashtra regional and town planning Act?

It is well settled that despite exclusion of jurisdiction of the
Civil Court, where the grievance is in relation to failure to comply with
statutory provisions, such cases can be examined by the Civil Court.  In
State of Kerala Vs. M/s. N. Ramaswami Iyer and Sons, AIR 1966 SC
1738 in para 8 it has been held thus:
“8. It is true that even if the jurisdiction of
the civil court is excluded, where the provisions of
the   statute   have   not   been   complied   with   or   the
statutory tribunal has not acted in conformity with
the fundamental principles of judicial procedure, the
civil courts have jurisdiction to examine those cases:
Secretary of State v. Mask and Co., 67 Ind APP 222:
(AIR 1940 PC 105).  
In Firm Seth Radha Kishan Vs. Administrator, Municipal Committee,
Ludhiana, AIR 1963 SC 1547 which considering the aspect of ouster of
jurisdiction of the Civil Court by a special statute, it was held as under:
“7. Under S. 9 of the Code of Civil Procedure
the Court shall have jurisdiction to try all suits of
civil nature excepting suits of which cognizance is
either   expressly   or   impliedly   barred.     A   statute,
therefore, expressly or by necessary implication, can
bar the jurisdiction of civil Courts in respect of a
particular matter.   The mere conferment of special
jurisdiction on a tribunal in respect of the said matter
does   not   in   itself   exclude   the   jurisdiction   of   civil
Courts.     The   statute   may   specifically   provide   for
ousting the jurisdiction of civil Courts, even if there
was no such specific exclusion, if it creates a liability
not existing before and gives a special and particular
remedy for the aggrieved party, the remedy provided
by it must be followed.   The same principle would
apply if the statute had provided for the particular
forum in which the remedy could be had.   Even in
such   cases,   the   Civil   Court's   jurisdiction   is   not

completely ousted.  A suit in a civil Court will always
lie to question the order of a tribunal created by a
statute, even if its order is expressly or by necessary
implication, made final, if the said tribunal abuses its
power or does not act under the Act but in violation
of its provisions.”
Similarly, in Krishanlal Vs. State of J & K (1994) 4 SCC 422, it was
held that violation of a mandatory statutory provision while passing the
impugned order would not amount to an act done under the Act.   In
para 11 it was observed thus:
“11. We may not labour much on this point
because of the aforesaid legal proposition and also
because of what was pointed out by a Constitution
Bench in Dhulabhai v. State of M.P. That exclusion of
jurisdiction   of   civil   court   should   not   be   readily
inferred.  So we agree with Shri Mehta that the High
Court erred in law in holding that the civil courts'
jurisdiction was barred, in as much as there being
violation   of   mandatory   provision   as   contained   in
Section 17(5) of the Act, it can well be said that the
respondents   had   no   jurisdiction   to   pass   the
impugned order and by doing so they committed a
“jurisdictional error”.                             
15] From the aforesaid it is clear that the jurisdiction of the civil
Court is available for determining the question as to whether infirmity in
the  action impugned goes to  the root of  the proceedings making  it
invalid or where the basic procedural requirements which are vital in
nature have not been followed.  The jurisdiction to that extent has been
held to be preserved.  
16] Thus,  from the aforesaid, it is clear that the jurisdiction of
the   Civil   Court   for   the   purposes   of   examining   as   to   whether   the
statutory  requirements have been  duly  complied or not or whether
basic   procedural   requirements   have   been   followed   or   not   can   be
examined.   In   that  background,   if   the   notice   dated   18­10­2011   is
examined, it is clear that the same grants time of period of less than

one month to  the  plaintiff to  take  corrective steps  in terms of  the
deficiencies pointed out therein. Provisions of Section 53(1) of the said
Act prescribe period of not less than one month for taking necessary
steps.   If the jurisdiction of the Civil Court is invoked for considering
the validity of such notice on the ground that the same prescribes a
lesser   period than  that prescribed by  the statute and hence  clearly
contrary to the statute, then the jurisdiction of the Civil Court will not
be barred.  Hence, aforesaid submission made on behalf of the plaintiff
regarding maintainability of the suit will have to be accepted.
17] Before the first appellate Court, it was argued on behalf of
the plaintiff that as the period prescribed in the notice was less than that
prescribed by the Section 53(1) of the said Act, the notice was contrary
to law.  The first appellate Court, however, has not specifically adverted
to said aspect of the matter and has relied upon provisions of Section
149 of the said Act to hold that the Civil Court had no jurisdiction to
entertain the suit. As observed herein above, the jurisdiction of the Civil
Court to examine said aspect is not barred by provisions of Section 149
of the said Act. In Ramchandra Keshav Adke (supra), in para 25 it has
been observed as under:
“A century ago, in Taylor V Taylor, Jassel,
M. R. adopted the rule that where a power is given to
do a certain thing in a certain way, the thing must be
done in that way or not at all and that other methods
of performance are necessarily forbidden.   This rule
has stood the test of time.”
The Civil Court was competent to consider validity of the notice dated
18­11­2011   in   that   background.     It   is   to   be   noted   that   as   per   the
application at Exhibit­19, a preliminary issue in that regard was also
prayed for being framed.
18] From the aforesaid discussion, it is clear that both the Courts

have erred in holding that the suit as filed was not maintainable in view
of   the   bar   prescribed   by   Section   149   of   the   said   Act.     From   the
discussion already made, it is clear that such jurisdiction was not barred.
It is however to be noted that as no arguments were advanced in respect
of tenability of prayer clause (iv) of the plaint, the trial Court is free to
consider the entitlement of the plaintiff in that regard in accordance
with law.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH
NAGPUR.
SECOND  APPEAL   NO.   491     OF     2012
APPELLANT:

Kishor   S/o   Ramalu   @   Rambhau
Telang,   
                                                                                                 
­VERSUS
RESPONDENTS:


 The   Municipal   Commissioner,
Nagpur   Municipal   Corporation,

CORAM:   A. S. CHANDURKAR  J.
                                  Dated    :   JANUARY   20, 2015.
Citation;2016(1)ALLMR175

Heard.  Admit on the following substantial  question of  law: 
  

      Whether   the   bar   under   Section   149   of   the
Maharashtra Regional and Town Planning Act, 1966
applies   in   the   present   case   when   the   notice   issued
under Section 53 of the said Act is challenged on the
ground that the period prescribed therein falls short of
the statutory period and is therefore a nullity?
2] Considering the issue involved the learned counsel for the parties
have been heard on aforesaid substantial question of law.  
3] The appellant is the original plaintiff who had been issued notice
dated 18.11.2010 under the provisions of Section 53(1) of the Maharashtra
Regional and Town Planning Act, 1966 (for short the said Act).   As per said
notice certain deficiencies in the user of the land in question were pointed
out   and   it   was   stated   that   within   one   month   from   receiving   the   notice
corrective action should be taken.  Plaintiff therefore filed suit for declaration
that  the  defendant   nos.   1  and  2   were  not  entitled  to  demolish  the  suit
property.  Further prayer was made to direct the defendant nos. 1 and 2 to
grant the sanctioned map.   The defendant nos. 1 and 2 filed preliminary
objections under Section 9­A of the Code of Civil Procedure vide Ex. 19.  The
objection raised was that the trial Court had no jurisdiction to decide the suit
in view of the bar contained in Section 149 of the said Act.  The plaintiff in
his reply took the stand that the construction in question had come up prior
to the said Act being enacted.  Further stand was taken that the due process
of law, rules and regulations were not followed.   The trial Court therefore
framed the following preliminary issue: 
      “Whether this Court has jurisdiction to entertain,
try and decide the present suit?”

Thereafter   the   plaintiff   examined   himself   vide   Ex.   25.     By   order   dated
17.10.2011 the trial Court recorded a finding that the civil Court had no
jurisdiction to entertain the suit in view of bar under Section 149 of the said
Act.  It, therefore, rejected the plaint under provisions of Order 7 Rule 11(d)
of the Code of Civil Procedure.  
4] The plaintiff being aggrieved by aforesaid adjudication preferred
appeal.   First appellate Court confirmed the findings recorded by the trial
Court and dismissed the appeal.  
5] Shri N. B. Kalwaghe, learned counsel appearing for the appellant
submitted that the suit as filed was maintainable and the bar under Section
149 of the said Act was not attracted.  He submitted that the notice dated
18.11.2010 under Section 53 of the said Act required the plaintiff to take
corrective steps within a period of one month.   According to him under
provisions of Section 53(1) the notice that is required to be served requires
the owner to take necessary steps within such period being  not less than one
month.  He, therefore, submitted that the aforesaid notice that gave cause of
action to the plaintiff was not in accordance with provisions of Section 53(1)
of the said Act and hence the same could be challenged in the suit.   He
submitted that if the notice as issued was not in accordance with provisions
of said Act, then the bar under Section 149 of the said Act would not apply.
In support of his submission that there is a distinction between steps required
to be taken within a period of one month and that to be taken within a period
being not less than one month and in this regard he relied upon the decision

of the Division Bench of this Court in Commissioner of Income­tax  Vs.  Ekbal
& Co. A. I. R. (32) 1945 Bombay 316.   To buttress his submissions as regards
tenability of suit in such circumstances he placed reliance upon the decision
of supreme Court in Shiv Kumar Chadha  Vs.  Municipal Corporation of Delhi
and others (1993) 3 Supreme Court Cases 161, Addanki Tiruvenkata Thata
Desika Charyulu (since deceased)  Vs.  State of Andhara Pradesh and another
AIR 1964 Supreme Court 807 and Ramchandra Keshav Adke (Dead) By LRs.
And others  Vs.  Govind Joti Chavare and others (1975) 1 Supreme Court Cases
559.
6] Smt. S. S. Jachak, learned counsel appearing for respondent nos.
1 and 2 supported the impugned orders.  According to her the suit as filed
was not maintainable in view of the bar under Section 149 of the said Act.
As the plaintiff was seeking relief in relation to a notice issued under Section
53 of the said Act such suit was not maintainable.   
Shri V. R. Chaudhari, learned counsel appearing for respondent
no.3 and M. M. Deshmukh, learned counsel appearing for respondent no.4
also supported the impugned orders. 
7] In the suit as filed, the reliefs sought vide prayers (i) to   (iii) read
as under:
i) the   decree   be   passed   in   favour   of   plaintiff   and
against defendant nos.1 to 4. 
ii) To   restrain   the   defendant   nos.1   and   2   for
demolishing   the   house   property   of   the   plaintiff

permanently;
iii) To declare that the defendant nos.1 and 2 is not
entitled for demolishing the house property of the
plaintiff.
The objection to bar of jurisdiction was raised under Section 9A
of the Code of Civil Procedure by the defendant No.2.
8] As the issue of jurisdiction relates to the notice dated 18.11.2010
issued under Section 53 of the said Act it is necessary to note its contents.
After stating the irregularities/deficiencies in the user of the land in question
it has been stated that “within a period of one month” necessary steps to
remove said deficiencies should be taken.  
It   would   therefore   be   necessary   to   refer   to   the   provisions   of
Section 53(1) of the said Act.  The said provisions in so far as the same are
relevant read thus: 
  “53.   Power   to   require   removal   of   unauthorised  
   development
(1) Where development of land has been carried out
as   indicated   in   sub­section   (1)   of   section   52,   the
Planning Authority may, subject to the provisions of
this section, serve on the owner a notice requiring him,
within such period,  being not less than one month, as
may   be   specified,   therein   after   the   service   of   the
notice, to take such steps as may be, specified in the
notice. 
(a) in case specified in clause (a) or (c) of sub section
(1) of section 52, to restore the land to its condition
existing before the said development took place,
(b) in cases specified in clause (b) or (d) of sub section
(1)   of   section   52,   to   secure   compliance   with   the

conditions or with the permission as modified:
Provided   that,   where   the   notice   requires   the
discontinuance   of   any   use   of   land,   the   Planning
Authority shall serve a notice on the occupier also.” 
It is, therefore, clear that under Section 53(1) of the said Act the
planning authority is required to serve on the owner a notice requiring him to
take such steps as may be specified within such period “being not less than
one month”.
9] The issue therefore to be considered is firstly whether the notice
dated 18.10.2011 can be challenged on the ground that the same is not in
accordance with provisions of Section 53 of the said Act and if found so
whether the bar under Section 149 of the said Act would apply in such a
case.
10] While   the   impugned   notice   calls   upon   the   plaintiff   to   take
necessary steps within a period of one month, Section 53(1) of the said Act
requires taking of steps within a period being not less than one month.  In
Commissioner of Income­tax (supra) the Division Bench considered the effect
of   words   “within   such   period   not   being   less   than   thirty   days”.     While
considering  aforesaid   expression   along  with   the   expression   “within   thirty
days”, it was observed thus: 
            “In my judgment expressions “within 30 days”
and “not less than 30 days” are two quite different
things.  “Within 30 days” is within  two points of time,
one at which the period begins and the other at which
it expires.  On the other hand, “not less than 30 days”
is outside these two points of time.  There must b e an
interval of not less than 30 days and that means 30
days clear: see (1885) 29 Ch. D. 204.  The period must

continue   beyond   the   expiration   of   the   stated   time.
Whereas “within” the stated period must mean what it
says, something less than the moment of expiration.
In my opinion, therefore, the notice is invalid and the
question   referred   to   must   be   answered   in   the
negative.”
11] From the aforesaid, it is clear that both the said expressions are
different.  While “within thirty days” is a shorter period, expression “not less
than thirty days” connotes larger period of time.   It was then held that by
using the expression “within thirty days” the noticee did not get thirty clear
days period as was contemplated by the expression “not less than thirty
days”.  The factual position in the present case is some what similar.  While
provisions of Section 53(1) of the said Act prescribe period being not less
than one month, the impugned notice grants time for steps to be taken within
a period of one month.  Thus there is no notice of period of not less than one
month as contemplated by Section 53(1) of the said Act.   Hence, there is
considerable force in the submission of the learned counsel for the appellant
that notice dated 18.11.2010 by prescribing a shorter period than the one
prescribed by Section 53(1) of the said Act cannot be called a notice under
Section 53(1) of the said Act.  
12] It   is   in   this   backdrop   that   the   applicability   of   the   bar   under
Section 149 of the said Act is required to be considered.  Section 149 of the
said Act reads thus: 
“149: Finality of order
      Save as otherwise expressly provided in this Act,
every order passed or direction issued by the State
Government or other 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.”
13] In Addanki Tiruvenkata (supra) while considering the question as
regards jurisdiction of the civil Court being barred in view of such   bar
contained in a special statute, in para 26 it has been observed thus: 
          “The scope of the exception here made was the
subject of examination by this Court in the case of
Firm   of   Illuri   Subbayya   Chetty   v.   State   of   Andhra
Pradesh, C. A. No. 315 of 1962 D/­25­1­1963: (AIR
1964 SC 322) where Gajendragadkar J. speaking for
the Court said: 
“Non­compliance with the provisions of the statute to
which reference is made by the Privy Council must, we
think,   be   non   compliance   with   such   fundamental
provisions   of   the   statute   as   would   make   the   entire
proceedings   before   the   appropriate   authority   illegal
and without jurisdiction.   Similarly, if an appropriate
authority  has  acted  in violation  of  the  fundamental
principles or judicial procedure, that may also tend to
make   the   proceedings   illegal   and   void   and   this
infirmity may affect the validity of the order passed by
the authority in question.  It is  cases of this character
where the defect or the infirmity in the order goes to
the root of the order and makes it in law invalid and
void that these observations may perhaps be invoked
in support of the plea that the civil court can exercise
its   jurisdiction   notwithstanding   a   provision   to   the
contrary contained in the relevant statute.”
In  Shiv   Kumar   Chadha  (supra)   the   Supreme   Court   in
paragraph 28 of its decision observed thus: 
“In spite of the bar prescribed under sub
sections (4) and (5) of Section 343 and Section 347­E
of the Corporation Act over the power of the courts,
under   certain   special   circumstances,   the   court   can
examine, whether the dispute falls within the ambit of
the Act.  But once the court is satisfied that either the
provisions of the Act are not applicable to the building
in   question   or   the   basic     procedural   requirements
which are  vital in nature, have  not  been  followed,  it 

shall   have   jurisdiction,   to   enquire   and   investigate     while
protecting the common law rights of the citizens.”
14] It is well settled that despite exclusion of jurisdiction of the
Civil Court, where the grievance is in relation to failure to comply with
statutory provisions, such cases can be examined by the Civil Court.  In
State of Kerala Vs. M/s. N. Ramaswami Iyer and Sons, AIR 1966 SC
1738 in para 8 it has been held thus:
“8. It is true that even if the jurisdiction of
the civil court is excluded, where the provisions of
the   statute   have   not   been   complied   with   or   the
statutory tribunal has not acted in conformity with
the fundamental principles of judicial procedure, the
civil courts have jurisdiction to examine those cases:
Secretary of State v. Mask and Co., 67 Ind APP 222:
(AIR 1940 PC 105).  
In Firm Seth Radha Kishan Vs. Administrator, Municipal Committee,
Ludhiana, AIR 1963 SC 1547 which considering the aspect of ouster of
jurisdiction of the Civil Court by a special statute, it was held as under:
“7. Under S. 9 of the Code of Civil Procedure
the Court shall have jurisdiction to try all suits of
civil nature excepting suits of which cognizance is
either   expressly   or   impliedly   barred.     A   statute,
therefore, expressly or by necessary implication, can
bar the jurisdiction of civil Courts in respect of a
particular matter.   The mere conferment of special
jurisdiction on a tribunal in respect of the said matter
does   not   in   itself   exclude   the   jurisdiction   of   civil
Courts.     The   statute   may   specifically   provide   for
ousting the jurisdiction of civil Courts, even if there
was no such specific exclusion, if it creates a liability
not existing before and gives a special and particular
remedy for the aggrieved party, the remedy provided
by it must be followed.   The same principle would
apply if the statute had provided for the particular
forum in which the remedy could be had.   Even in
such   cases,   the   Civil   Court's   jurisdiction   is   not

completely ousted.  A suit in a civil Court will always
lie to question the order of a tribunal created by a
statute, even if its order is expressly or by necessary
implication, made final, if the said tribunal abuses its
power or does not act under the Act but in violation
of its provisions.”
Similarly, in Krishanlal Vs. State of J & K (1994) 4 SCC 422, it was
held that violation of a mandatory statutory provision while passing the
impugned order would not amount to an act done under the Act.   In
para 11 it was observed thus:
“11. We may not labour much on this point
because of the aforesaid legal proposition and also
because of what was pointed out by a Constitution
Bench in Dhulabhai v. State of M.P. That exclusion of
jurisdiction   of   civil   court   should   not   be   readily
inferred.  So we agree with Shri Mehta that the High
Court erred in law in holding that the civil courts'
jurisdiction was barred, in as much as there being
violation   of   mandatory   provision   as   contained   in
Section 17(5) of the Act, it can well be said that the
respondents   had   no   jurisdiction   to   pass   the
impugned order and by doing so they committed a
“jurisdictional error”.                             
15] From the aforesaid it is clear that the jurisdiction of the civil
Court is available for determining the question as to whether infirmity in
the  action impugned goes to  the root of  the proceedings making  it
invalid or where the basic procedural requirements which are vital in
nature have not been followed.  The jurisdiction to that extent has been
held to be preserved.  
16] Thus,  from the aforesaid, it is clear that the jurisdiction of
the   Civil   Court   for   the   purposes   of   examining   as   to   whether   the
statutory  requirements have been  duly  complied or not or whether
basic   procedural   requirements   have   been   followed   or   not   can   be
examined.   In   that  background,   if   the   notice   dated   18­10­2011   is
examined, it is clear that the same grants time of period of less than

one month to  the  plaintiff to  take  corrective steps  in terms of  the
deficiencies pointed out therein. Provisions of Section 53(1) of the said
Act prescribe period of not less than one month for taking necessary
steps.   If the jurisdiction of the Civil Court is invoked for considering
the validity of such notice on the ground that the same prescribes a
lesser   period than  that prescribed by  the statute and hence  clearly
contrary to the statute, then the jurisdiction of the Civil Court will not
be barred.  Hence, aforesaid submission made on behalf of the plaintiff
regarding maintainability of the suit will have to be accepted.
17] Before the first appellate Court, it was argued on behalf of
the plaintiff that as the period prescribed in the notice was less than that
prescribed by the Section 53(1) of the said Act, the notice was contrary
to law.  The first appellate Court, however, has not specifically adverted
to said aspect of the matter and has relied upon provisions of Section
149 of the said Act to hold that the Civil Court had no jurisdiction to
entertain the suit. As observed herein above, the jurisdiction of the Civil
Court to examine said aspect is not barred by provisions of Section 149
of the said Act. In Ramchandra Keshav Adke (supra), in para 25 it has
been observed as under:
“A century ago, in Taylor V Taylor, Jassel,
M. R. adopted the rule that where a power is given to
do a certain thing in a certain way, the thing must be
done in that way or not at all and that other methods
of performance are necessarily forbidden.   This rule
has stood the test of time.”
The Civil Court was competent to consider validity of the notice dated
18­11­2011   in   that   background.     It   is   to   be   noted   that   as   per   the
application at Exhibit­19, a preliminary issue in that regard was also
prayed for being framed.
18] From the aforesaid discussion, it is clear that both the Courts

have erred in holding that the suit as filed was not maintainable in view
of   the   bar   prescribed   by   Section   149   of   the   said   Act.     From   the
discussion already made, it is clear that such jurisdiction was not barred.
It is however to be noted that as no arguments were advanced in respect
of tenability of prayer clause (iv) of the plaint, the trial Court is free to
consider the entitlement of the plaintiff in that regard in accordance
with law. As the suit has been dismissed after framing the preliminary
issue, it would be necessary to direct the Civil Court to entertain the suit
on merits.
19] In view of aforesaid, the following order is passed:
(1) The order dated 17­10­2011 passed by the trial Court below
Exhibit­1   and   confirmed   by   the   first   appellate   Court   in   R.C.A.   No.
536/2011 by order dated 12­4­2012 is set aside.
(2) The   proceedings   are   remanded   to   the   trial   Court   for
deciding Regular Civil Suit No.211/2011 in accordance with law.
(3) It is clarified that the suit shall be decided in accordance
with law.  The trial Court shall independently consider the evidence on
record while deciding aforesaid suit.
(4) The order of status quo granted by this Court on 1­11­2012
shall continue to operate till the trial Court decides the application for
temporary injunction.  It is, however, clarified that said application shall
be   decided   on   its   own   merits   and   the   trial   Court   should   not   be
influenced by continuation of the order of status quo passed by this

Court.
(5) The second appeal is allowed in aforesaid terms with no
order as to costs.

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