Important provisions of Maharashtra Regional and town planning Act 1966

 2. Definitions. - In this Act, unless the context otherwise requires,-

(9) "Development plan" means a plan for the development or re-development of the area within the jurisdiction of a Planning Authority [ [and includes revision of a development plan and] proposals of a special planning Authority for development of land within its jurisdiction];

[(9A) "development right" means right to carry out development or to develop the land or building or both and shall include the transferable development right in the form of right to utilise the Floor Space Index of land utilisable either on the remainder of the land partially reserved for a public purpose or elsewhere, as the final Development Control Regulations in this behalf provide;]

(12) "existing-land-use map" means a map indicating the use to which lands in any specified area are put at the time of preparing the map;

(13) "final plot' means a plot allotted in a final town planning scheme;

[(13A) "Floor Space Index" means the quotient or the ratio of the combined gross floor area to the total area of the plot, viz :-

Floor Space Index =

Total covered area of all floors Plot area

(17) "occupier" includes a tenant, an owner in occupation of, or otherwise using his land, a rent-free tenant in any land, and any person in lawful possession of any land who is liable to pay to the owner compensation for the use and occupation of the land;

44. Application for permission for development.

Print Page

Whether civil court has jurisdiction to try the suit if plaintiff challenges any notice or order passed under MRTP Act?

From aforesaid, it is, therefore, clear that if any notice or order issued under said Act by any authority is sought to be challenged before the Civil Court, then in view of the finality given to such order passed or notice issued, the jurisdiction of the Civil Court would be ousted. However, if any action sought to be taken under said Act is alleged to be null and void and sought to be taken without even issuing any notice or passing any order, then the jurisdiction of the Civil Court is not ousted and the Civil Court can examine the validity of such action which is alleged to be null and void. Similarly, the plaint must contain all statements of material facts that are necessary to invest such jurisdiction with the Civil Court. {Para 11}

 As held by the Division Bench in Digambar Sakharam Tambolkar Vs. Pune Municipal Corporation and others 1987 Mh.L.J. 419, the expression "permission granted under this Act or any other law" is wide enough to cover all kinds of permission granted to develop land. A person aggrieved by any permission to develop land can always move the Planning Authority to revoke or modify such permission. Hence, it cannot be said that no remedy whatsoever is available to a person who seeks to revoke or modify such permission. For aforesaid reasons, said submission cannot be accepted.

13. The trial Court while deciding the preliminary issue as regards jurisdiction of the Civil Court has, therefore, rightly found that the Civil Court had no jurisdiction to go into the validity of permission granted by the planning authority as per the sanctioned plan. It has further rightly found that the Civil Court had jurisdiction to the extent of examining whether the construction carried out by the respondent Nos.1 to 3 was contrary to the sanctioned plan.

2015(6) ALL MR 108
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)

A. S. CHANDURKAR, J.

Satish s/o. Gayacharan Trivedi Vs. Dr. Gopal Ramnarayan Mundhada & Ors.

Writ Petition No.3004 of 2014

18th April, 2015.

Print Page

Whether jurisdiction of civil court is barred as per S 149 of MRTP Act if dispute is arising out of terms and conditions of contract between parties?

 In the present case, the dispute between the parties is as to whether any permission was granted by the plaintiff to the defendants for the purpose of amalgamation of two plots or not and the plaintiff's specific case is that no such permission was given to the defendants either in the Development Agreement or in the Power of Attorney which was executed in their favour. The question which falls for consideration is as to whether the suit filed by the plaintiff can be tried in Civil Court or not. In order to appreciate the rival contentions, it would be necessary to examine relevant provisions. Section 149 of the M.R.T.P. Act, 1966 reads as under :-

"149. Finality of orders.- Save as otherwise expressly provided in this Act, every order passed or direction issued by the State Government or order passed or notice issued by any Regional Board, Planning Authority or Development Authority under this Act shall be final and shall not be questioned in any suit or other legal proceedings."

From the perusal of the said section, it is apparent that every order passed or direction issued by the State Government or order passed or notice issued by any Regional Board, Planning Authority or Development Authority under the Act shall be final and shall not be questioned in any suit or legal proceedings. The M.R.T.P. Act, 1966 empowers the Government to issue various orders or directions regarding numerous matters pertaining to either reservation or preparation of development plan etc. In my view, Civil Court's jurisdiction is ousted in respect of such matters where State Government or its authorities alone are empowered under the Act to adjudicate or decide any matter. In the present case, dispute is regarding the question as to whether the plaintiff had permitted the defendants to apply for amalgamation for the two plots or not. The dispute therefore is one which is arising out of the terms and conditions of the contract or the terms and conditions in the Power of Attorney which is executed by the plaintiff. In my view, therefore, bar of section 149 would not be applicable to the facts of the present case. 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

V.M. KANADE, J.

M/S. Gadre Constructions & Ors.Vs.Sadashiv Keshav Sathe & Ors.

Civil Revision Application No.2213 of 2002

10th March, 2004

Citation: 2004(4) ALL MR 374,2004(4) Bom CR 596 Bom

Print Page

Whether civil suit is maintainable for quashing a deemed permission under S.45(5) of MRTP Act is maintainable?

 An appeal is therefore provided against the order granting permission or refusing permission under section 45. There is obviously no appeal against deemed permission under section 45(5) of the Act. The necessary corollary of this legal situation is that there can be a deemed permission under section 45(5) of the MRTP Act against which there is no appeal provided and there being no order made by any of the authorities there is no question of which acquiring finality as contemplated by section 149. Section 149 reads thus :{Para 11}

"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. What is necessary under section 149 to acquire finality and invite the bar of civil suit is, it should be an order passed or direction issued by the State Government or it should be an order passed or notice issued by any Regional Board, Planning Authority or Development Authority under this Act. It is provided by this section that no such order shall be questioned in any suit or in any legal proceedings. It is obvious therefore that a suit or legal proceedings for quashing a deemed permission under section 45(5) is maintainable. Even otherwise under section 149 what is barred is questioning of an order made under the Act in the civil suit. It does not bar any suit whereby a party to it can be prevented from acting on an action and order made under the Act. The bar spelt out by section 149 is therefore very limited.

13. In our opinion therefore, the contention of Mr. V. V. Tulzapurkar that a civil suit is barred by reason of the provisions of section 149 of MRTP Act is unacceptable.

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

V.G. PALSHIKAR AND P.V. KAKADE, JJ.

The Raja Bahadur Motilal Poona Mills Ltd. & Anr. Vs. State Of Maharashtra & Ors.

Writ Petition No.2591 of 2001

26th July, 2002

Citation: 2002(4) ALL MR 429,2003(1) BOM CR 251

Print Page

Whether civil court has jurisdiction to try suit for cancellation of construction permission granted by Municipal Corporation?

 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 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 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.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY (AURANGABAD BENCH)

A. I. S. CHEEMA, J.

M/s. Arihant Construction Vs. Shri Subhash Kesharmal Barlota & Ors.

Civil Revision Application No.132 of 2014

20th March, 2015.

Citation: 2015(5) ALL MR 23

Print Page

Whether the civil court will have jurisdiction to try the suit against the demolition of the structure by Municipal Corporation if the plaintiff fails to reply to notice U/S 149 of the MRTP Act?

 If the plaintiff/respondent had really applied for sanction of the plan or the revised building plan and if he has

made construction after expiry of 60 days and if according to him, there was a deemed permission, he could have submitted an explanation before the respondents in response to the said notice. However, as the notice was issued under the provisions of the M.R.T.P. Act in view of language of section 149, issuance of such a notice cannot be questioned in any suit or other legal proceedings. The present case is squarely covered by the findings and observations in the above referred cases decided by different learned Single Judges of this Court. Therefore, it must be held that the suit filed by the plaintiff challenging the said notice is not tenable. The learned Judge was wrong in holding that the Civil Court has jurisdiction to entertain the suit.

 Bombay High Court

Before Bhatia J.H., J.

Ulhasnagar Municipal Corporation & anr. Vs  Kailash Tikamdas Mulchandani 

Civil Revision Application No. 132 of 2004

Decided on March 18, 2008

Citation: 2008 SCC OnLine Bom 305 : (2008) 3 Bom CR 725 : (2008) 5 AIR Bom R 520

Print Page

When jurisdiction of civil court will be barred if Municipal Corporation has issued notice U/S 149 of MRTP Act?

  The learned Civil Judge, however, has found that whenever it is seen that the notice issued under section 53(1) of M.R.T.P. Act prescribes period which is lesser than the period stipulated in this section which is of not less than 30 days, the notice is void ab initio and therefore, civil suit is maintainable. The learned Civil Judge has relied upon the judgment of this Court rendered in the case of Kishor Ramalu Telang v. Municipal Commissioner, Nagpur Municipal Corporation, reported in 2015 (4) Mh.L.J. 836 in this regard.{Para 4}

5. There can be no two opinions about the principle laid down in the above referred case of Kishor Telang. Whenever notice under section 53(1) of M.R.T.P. Act prescribing lesser period is issued and the jurisdiction of the Civil Court is challenged on the ground that the notice prescribes lesser period, the Civil Court would have the jurisdiction to entertain and try the suit. But the facts of the instant case are quite different and in my view these facts have not been appreciated at all by the learned Civil Judge.

6. A careful perusal of the plaint discloses that the respondent No. 1 has nowhere contended that the notice is illegal on the ground that it prescribes lesser period. Such ground is certainly a question of fact and not a mere matter of evidence and therefore, the law would require that such fact is specifically pleaded. When the fact is not pleaded, there would not be any question of leading evidence to prove a fact not pleaded. The only ground from the pleadings taken in the plaint raised by the respondent No. 1 is that the officials of the Municipal Corporation are helping the revision applicant in achieving his evil intention of taking control of the property of respondent No. 1 and that is why the notice in question has been issued illegally by the officials of Municipal Corporation. This ground would not be enough for bringing the civil suit within the purview of the jurisdiction of the Civil Court. Something more was required, it has been discussed just now, but that has not been done in the present case. Therefore, as rightly submitted by the learned counsel for the revision applicant as well as the learned counsel for respondent Nos. 2 and 3, the view taken by the learned Civil Judge would have to be held as contrary to the settled principles of law and I do so. The civil Court would have no jurisdiction in this case in view of bar of jurisdiction in section 149 of M.R.T.P. Act. The impugned order so far as it holds that Civil Court has jurisdiction, therefore, would have to be quashed and set aside.

9. The impugned order is hereby quashed and set aside. The application, Exh. 28, is allowed. It is held that Civil Court would have no jurisdiction to entertain and try the suit as filed by respondent No. 1. However, liberty is given to the respondent No. 1/original plaintiff to approach the Municipal Corporation i.e. respondent Nos. 2 and 3 by making appropriate representations/applications/appeals for redressal of her grievance in respect of the notice issued under section 53(1) of the M.R.T.P. Act as well as the construction made by her and in case, such representations/applications/appeals are filed, the same shall be disposed of by the competent authority of the Corporation in accordance with law as expeditiously as possible.

Bombay High Court

Prashant S/O Dattatraya Wazalwar vs Smt. Sudha Baburao Lokhande And 2 ... on 16 June, 2017

Print Page