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

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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

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