Whether Small cause court can entertain a suit if tenant challenges notice issued by Municipal Corporation U/S 53 of MRTP Act?

  But, if it is held that section 53(3) of the MRTP Act was the remedy available to respondent No.1, it would mean that on an application moved by respondent No.1, the Competent Authority could either withdraw the notice or permit retention of only some part of the premises or the application would stand rejected. In either case, it would directly impinge upon the protection available to respondent No.1 as a tenant under the provisions of the Rent Control Act. If the Competent Authority would grant permission to retain only some portion of the premises, it would clearly impinged upon the rights of respondent No.1 as a tenant to continue in possession of the entire premises. This would lead to a situation where the original defendant No.1- landlord would successfully circumvent the provisions of the Rent Control Act to get rid of respondent No.1. Even otherwise, this would lead to a situation of foisting jurisdiction on the Competent Authority under the MRTP Act, regarding protection available to tenants under the Rent Control Act, which cannot be contemplated. It is in this context that respondent No.1 is justified in pleading before the Small Causes Court that the action of the  defendants is unsustainable, as it amounts to denying respondent No.1 the protection available under the Rent Control Act. Therefore, the contentions raised on behalf of the revisional applicants on the basis of section 53 of the MRTP Act cannot be accepted. {Para 22}

23. Although, a perusal of merely the prayer clause in the suit filed by respondent No.1 at first blush, may give an impression that such a prayer cannot be made before the Small Causes Court in the face of the bar contained in section 149 of the MRTP Act, a proper appreciation of the pleadings in the plaint clearly demonstrates that the Small Causes Court can certainly exercise jurisdiction to consider the grievance raised by respondent No.1. The contention raised on behalf of the revisional applicants Municipal Corporation that in a suit between the landlord and tenant it could never be made a party, is wholly misplaced because of the specific pleadings raised on behalf of respondent No.1 in the suit filed before the Small Causes Court. It is only as a matter of fair procedure, that the Municipal Corporation is made a party before the Small Causes Court, since certain pleadings are raised by respondent No.1 concerning the action undertaken by the Municipal Corporation. In this context, the learned counsel for respondent No.l is justified in contending that any such enquiry undertaken by the Small Causes Court regarding actions of the Municipal Corporation, would be incidental to the main enquiry regarding protection available to respondent No.l under the provisions of the Rent Control Act. Thus, there is no substance in the said contention also. 

Bombay High Court

Municipal Commissioner, Nagpur ... vs M/S Shivdatt And Sons, Proprietor ... on 28 November, 2019

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

When a person is not entitled to get deemed permission for construction?

 Moreover, in order to get the benefit of deemed permission, apart from the ownership or the status of the lessee, the Petitioner was required to comply with some mandatory conditions. She has to apply for the permission in the prescribed format. Bye-Law No. 4.1 clearly provides that such application is required to be given in the Form given in Appendix A and it shall be accompanied by the plans and statement in triplicate drawn or prepared in accordance with the Bye-Law No. 5. The said Bye-Law, as reproduced above, also provides that such notice has to be accompanied by the documents mentioned therein, like, 7/12 extracts or the property register card, the copy of the sale/lease-deed and other documents, which may be acceptable to the authority. Such application or notice is also required to be accompanied with the challan showing the payment of requisite fees and also the site plan in triplicate. Unless all these documents are accompanied with the notice given, as per Bye-Law No. 4.1 of D.C.R., the law is well settled that, the Petitioner cannot be entitled to avail the benefit of deemed permission. The application given by the Petitioner to the Respondent No. 1 seeking permission is not at all accompanied with all these documents. No challan is produced to show that fees are paid along with application. In such situation, there is no question of Respondent-Municipal Corporation giving any reply to the said notice or the Petitioner claiming benefit of deemed permission on the basis of the said notice. Moreover, as observed by the trial Court, this application seeking permission was given on 5th February 2016, whereas impugned notice is issued by the Municipal Council on 6th April 2016. It does not appear that the Petitioner could have erected this structure within two days. It clearly indicates that the Petitioner has not even waited for sixty mandatory days, so that she can claim the benefit of deemed permission.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 5396 of 2018

Decided On: 04.05.2018

 Sulochana Dattatraya Bavlekar  Vs. The Chief Officer, Mahabaleshwar Giristhan Nagar Parishad and Ors.

Hon'ble Judges/Coram:

Dr. Shalini Phansalkar Joshi, J.

Citation: 2018(5) MHlJ 175

Print Page

What is difference between expressions "within 30 days" and "not less than 30 days"?

 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 Income-tax (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.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal No. 491 of 2012

Decided On: 20.01.2015

Kishor Vs.The Municipal Commissioner and Ors.

Hon'ble Judges/Coram:
A.S. Chandurkar, J.

Citation: 2015 (4) Mh.L.J. 836

Print Page

When civil court will not have jurisdiction to try suit in which notice U/S 149 of MRTP Act is challenged?

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.



IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Civil Rev. Appln. No. 41 of 2017

Decided On: 16.06.2017

 Prashant Dattatraya Wazalwar Vs. Sudha Baburao Lokhande and Ors.

Hon'ble Judges/Coram:
S.B. Shukre, J.
Citation:2017(5) MHLJ696

Print Page

Whether jurisdiction of civil court is barred if notice issued U/S 149 of MRTP Act is challenged?

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 A.P., C.A. No. 315 of 1962 D/25-1-1963 = AIR 1964 SC 322 where Gajendragadkar J. speaking for the Court said:

“Non-compliance 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 347-E 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 v. 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 v. 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 v. State of J. and 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, inasmuch 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.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH
NAGPUR.
SECOND  APPEAL   NO.   491     OF     2012
APPELLANT:

Kishor Ramalu   @   Rambhau Telang,  Vs The   Municipal   Commissioner, Nagpur   Municipal   Corporation,

CORAM:   A. S. CHANDURKAR  J.
                                  Dated    :   JANUARY   20, 2015.

Citation;2016(1)ALLMR175,2015 SCC OnLine Bom 3168 : (2015) 4 Mah LJ 836 : (2015) 5 AIR Bom R 671 : AIR 2016 (NOC 96) 36 : (2016) 2 Bom CR 416 at page 840

Print Page