Bombay High Court
Mrs. Pallavi W/O Abhijeet ... vs Milin Balaji Gandhi And 2 Others on 14 August, 2017
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Second Appeal No.422 of 2012
Mrs. Pallavi wife of Abhijeet
Mahashabde,
aged 36 years,
occupation - Legal Practitioner,
resident of Ram Mandir Galli,
Mahal, Nagpur. ..... Appellant.
Deft. No.3.
Versus
1. Shri Milind Balaji Gandhi,
aged about 42 years,
occupation - service,
resident of Ram Mandir Galli,
Mahal, Nagpur.
.....Plaintiff.
2. City of Nagpur Corporation,
through its Municipal
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Commissioner, Civil Lines,
Nagpur.
.....Defendant no.1.
3. Smt. Kalpana Patrale.
....Deleted as per order
dated 14-6-17. ..... Respondents.
Plaintiffs.
*****
Mr. B. G. Kulkarni, Adv., for the appellant.
Mr. V.K. Paliwal, Adv., for respondent no.1.
Mr. J. B. Kasat, Adv., for respondent no.2.
*****
CORAM : A.S. CHANDURKAR, J.
Date : 14th August, 2017
ORAL JUDGMENT:
01. This appeal has been filed by the original defendant no.3
who is aggrieved by the decree passed by the appellate Court granting
a declaration that notice dated 26th July, 2006 issued under Section 53
of the Maharashtra Regional & Town Planning Act, 1966 [for short, "the
said Act"] is illegal and void. Consequently, the defendant no.1 was
restrained from acting on said notice.
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02. It is the case of the original plaintiff that he was the co-
owner of house property purchased vide sale-deed dated 13th June,
1921. There was a dispute between him and other co-owners which
was amicably settled on 14th October, 2002. As per the said
agreement, the parties agreed to share the property jointly as per
Deed dated 19th March, 2005. According to the plaintiff, a plan was
submitted by him to the defendant no.1 seeking permission to
construct a residential house. This plan was sanctioned on 2nd
January, 2004. According to the plaintiff, though the construction was
in accordance with the Sanctioned Plan, at the behest of defendant
no.3, notice under Section 53 of the said Act came to be issued on
26th June, 2006. Hence, aforesaid suit challenging that notice along
with perpetual injunction came to be filed.
03. According to the Municipal Corporation, the notice was
issued in accordance with law after noticing the excess construction
undertaken by the plaintiff. According to the defendant no.3, the suit
was barred under Section 149 of the said Act and Civil Court had no
jurisdiction to grant any relief.
04. The trial Court held the suit to be barred by limitation and
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dismissed the same. The appellate Court held the suit to be
maintainable and declared the notice issued under Section 53 of the
said Act to be illegal.
05. Being aggrieved, the defendant no.3 has filed this appeal.
06. The following substantial questions of law were framed while
admitting the appeal:-
"[i] In the absence of a finding as to whether the
construction carried out was in accordance with
the sanctioned plan whether the appellate
Court committed an error in disbelieving the
report at Exh.107 along with the rough sketch
at Exh.86 and the oral evidence of one Arun
Bisne, Engineer at Exh.106.
[ii] Whether the jurisdiction of the Civil Court was
barred under Section 149 of the M.R.T. P. Act to
entertain, try and decide the suit challenging
the notices issued under Sections 53 and 54 of
the M.R.T. P. Act."
07. While considering substantial question of law no. [ii], the
learned counsel for the appellant when confronted with the judgment
of this Court in Kishor Ramalu @ Rambhau Telang Vs. Municipal
Commissioner, Nagpur Municipal Corporation & others [2015
(4) Mh. L.J. 836] fairly stated that in the present case, the notice under
Section 53 granted time of less than one month to the plaintiff to
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comply with the same. As held in Kishor Ramalu @ Rambhau Telang
[supra], clear notice of thirty days is statutorily required to be given
and grant of lesser period would result in vitiating said notice. On that
count, it was held in that the Civil Suit was maintainable. Hence,
substantial Question of Law No. [ii] is answered by holding that the
notice under Section 53 of the said Act was bad in law and, thus, the
suit was maintainable.
08. Shri B.G. Kulkarni, learned counsel for the appellant, then
submitted that in somewhat similar circumstances, this Court in
Section Appeal No. 24 of 2013 had granted liberty to the Corporation
to issue a fresh notice under Section 53 of the said Act after it was
found that the notice impugned therein was similarly found to be bad
in law.
09. Shri Kasat, learned counsel for the respondent no.1, does
not dispute the fact that such adjudication was made in Second Appeal
No. 24 of 2013.
10. Shri V.K. Paliwal, learned counsel for the original plaintiff,
however, submits that as the impugned notice is bad in law, it would
not be open for the Corporation to take any further steps in the matter.
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11. Once it is found that the impugned notice in the present suit
was not in accordance with Section 53 (1) of the said Act, no further
action can be taken on the basis of such notice. No further
adjudication on merits is, thus, warranted. It is always open for the
Corporation to take appropriate steps in accordance with law, if it finds
any offending construction. Needless to state that if such steps are
taken, it would be open for all the parties to agitate their respective
rights in accordance with law. In that view of the matter, it is not
necessary to decide substantial question of law No. [I] on merits.
12. Accordingly, following order is passed:-
ORDER
[a] Second Appeal No. 422 of 2012 is disposed by
upholding the finding of the appellate Court that
notice dated 26th July, 2006 issued under Section
53 of the said Act was illegal and contrary to
provisions of Section 53 (1) of the said Act.
[b] It is open for the Corporation to take such steps
as are permissible in law, including the course
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prescribed in Second Appeal No. 24 of 2013. If
such steps are taken, it would be open for the
plaintiff as well as defendants to agitate their
rights in accordance with law.
No costs.
Judge
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