Whether a party can claim protection from demolition if he has not complied with requirements of Gunthewari Act?

  As far as Second Appeal Nos. 48 of 2018,35 of 2018, 37 of 2018 & Second Appeal (ST) no.2243 of 2019 are concerned, learned counsel for the appellant would urge that Gunthewari Act prescribes a procedure for regularisation of unauthorised properties at the behest of holder of such unauthorised plots/structures.According to him, amongst other, concerned plot holder is required to place on record documentary proof of ownership or lawful possession of plot, existing lay out plan, plan of existing construction of such plot,rectification plan, an undertaking by the applicant to rectify uncompoundable infringements and demand draft of scheduled bank to cover the amount due as compounding fee and development charges. According to him, as far as appellants in the aforesaid four appeals are concerned, appellant has submitted an application for compounding alongwith location plan of the proposed site and also deposited the amount of compounding fees as is acknowledged by receipt no.1896 issued on 21/01/2010. {Para 10}

12. Learned counsel for the respondent-Corporation, Mr. Patil and other respondents would support the judgment of the Courts below, as according to them, both the Courts below have rightly held that the suit was not maintainable in view of bar under Section 433(A) of the Act.

13. By inviting attention of this Court on the various documents in the backdrop of pleadings, the submissions are, the appellant is trying to take disadvantage of certain procedural steps taken by erstwhile owner. According to him, even if presuming certain steps taken by erstwhile owner under the Gunthewari Act, for regularisation of the structure, the corresponding responsibility and the compliances are not reported. As such, the appellants are trying to take disadvantage of their own fault. As such, it is prayed in the given set of facts and documentary evidence on record, the suit is rightly held to be not maintainable. 

15. The appellant has placed on record acknowledgment depicting payment of Rs. 5275/- on 21/01/2010 under the head of Gunthewari for regularisation. However, this Court is required to take note of the fact that predecessor of the appellant on 16/05/2002 was served with a notice to comply with requirement under the Gunthewari Act and subsequent thereto, certain compliance not stricto sense in accordance with under Section 4 of the Act were sought to be relied. It appears that appellant after payment in 2010, has not complied with other terms of Gunthewari Act. Rather the appellant is trying to shift burden on respondent-Corporation to carve out the case of nullity in law for the issuance of impugned notice by the Corporation.

16. This Court has already observed that appellant cannot take undue advantage of its own wrong as appellant was not diligent in pursuing its case of regularisation under the Gunthewari Act.

18. Admittedly, there is no sanction from the Planning Authority i.e. respondent-Corporation to the structure in question and that being so, the appellant has come out with a case that regularisation proceedings were taken recourse to under Gunthewari Act.

20. Rather the documents produced on record demonstrates that except moving an application, no further steps are taken by the  appellant. Rather the plans which were called by the respondent- Corporation were not submitted. On one hand, the appellant is not pursuing the claim under the Gunthewari Act and on other hand are trying to take disadvantage of their own shortfall.

21. In the aforesaid background, considering the conduct of the appellant, the claim as is sought to be put-forth, based on the judgment in the matter of Akola Municipal Corporation and Yogesh Gada cited supra cannot be termed to be of no assistance. 

26. In view of the aforesaid observations that the predecessor- in-title of the appellant namely Shelke or the appellant himself has not complied with further requirement under the Gunthewari Act, the said ground of seeking protection under the Provisions of Gunthewari Act is not available to the appellant.

27. In the aforesaid background, in my opinion, the view expressed by both the Courts below of non-maintainability of suit, in view of statutory embargo under Section 433 (a) of the Maharashtra Municipal Corporations Act appears to be just and proper.

Bombay High Court

Sau.Sulochana Kantilal Shelke ... vs Shri.Prashant Pannalaji ... on 18 February, 2020

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Whether Civil court can entertain a suit against Municipal Corporation even if its jurisdiction is barred S 433A of the MMC Act?

 Now, Section 433A of the Maharashtra Municipal Corporations Act creating a bar of jurisdiction of the Civil Court, being relevant, is reproduced below :

"433A. Bar of jurisdiction - Save as otherwise provided in this Act, any notice issued, order passed or direction issued by the Designated Officer, under sections 260, 261, 264, 267 or 478 shall not be questioned in any suit or other legal proceedings."

Undoubtedly, if the plaintiff comes before the Civil Court alleging that a notice issued under Section 260 of the said Act is illegal in any manner and seeks a declaration to that effect, then the bar of jurisdiction to try such a suit under Section 433A of the said Act shall operate. However, nonetheless, the inherent jurisdiction of a Civil Court in a suit challenging the notice under Section 260 of the said Act, on the limited grounds, viz. that the act of issuance of such notice is nullity, or that while issuing such notice, the mandatory provisions of the said Act have not been complied with, or that the Authority issuing such a notice has not acted in conformity with the fundamental judicial procedure, or that it is an abuse of exercise of power, or that the offending act has not been done in good faith, remains intact, in view of the aforestated law laid down in judicial pronouncement. The Civil Court is not precluded of its inherent jurisdiction to entertain and decide such challenge to a notice under Section 260 of the said Act, on such limited grounds, particularly when there is no forum available under the said Act to ventilate such grievances in respect of it. {Para 7}

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

R.K. DESHPANDE, J.

The Commissioner, Akola Municipal Corporation Vs. Bhalchandra S/O. Govind Mahashabde

Civil Revision Application No. 14 of 2013

29th April, 2013

Citation:  2013 (4) MHLJ 45 Bom,2013(5) ALL MR 190

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Important provisions of Maharashtra Municipal Corporation Act(Part 2)

 Works unlawfully carried on

267. Powers of 485[Designated Officer] to direct removal of person directing unlawful work.—(1) If 486[the Designated Officer] is satisfied that the erection of any building or the execution of any such work as is described in Section 254 has been unlawfully commenced or is being unlawfully carried on upon any premises he may, by written notice, require the person directing or carrying on such erection or execution to stop the same forthwith.

{Enforcement date of this sub-section is yet to be notified}

(2) If such erection or execution is not stopped forthwith, the 487[Designated Officer] may direct that any person directing or carry on such erection or execution shall be removed from such premises by any police officer and may cause such steps to be taken as he may consider necessary to prevent the re-entry of such person on the premises without his permission.

(3) The cost of any measure taken under sub-section (2) shall be paid by the said person.

488[267-A. Levy of penalty on unlawful building.—(1) Whoever unlawfully constructs or reconstructs any building or part of a building,—

Provided that, such levy and collection of tax and penalty shall not be construed as regularization of such unlawful construction or reconstruction for any period whatsoever of its such unlawful existence.

(2) Penalty payable under sub-section (1) shall be determined and collected under the provisions of this Act, as if the amount thereof were a property tax due by such person.]

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