Sunil S/O Anandrao Domade And 2 ... vs The City Of Nagpur Corporation, ...
2017 Latest Caselaw 5915 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH : NAGPUR
                        Second Appeal No.289 of 2016


 1.      Sunil son of Anandrao Domade,
         aged 49 years,
         occupation - business,

 2.      Vijay son of Anandrao Domade,
         aged 46 years,
         occupation - private work,

 3.      Shekhar son of Anandrao Domade,
         aged 44 years,
         occupation - private work,

         all residents of Nawab Pura,
         Mahal, Nagpur.                        .....           Appellants.
                                                             Plaintiffs


                                  Versus


 The City of Nagpur Corporation,
 through its Municipal Commissioner,
 Civil Lines, Nagpur.                          .....          Respondent.
                                                              Defendant.



                                 *****
 Mr. S. D. Khati, Adv., for the appellants.

 Mr. H. A. Deshpande, Adv., for respondent.

                                   *****




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                                 CORAM :         A.S. CHANDURKAR, J.

                                 Date       :    14th August, 2017

 ORAL JUDGMENT:

01. Admit on the following substantial question of law:-

"Whether the bar under Section 149 of the Maharashtra Regional & Town Planning Act, 1966 could apply with regard to the notice dated 3.1.2006 when according to the appellant, a shorter period for compliance has been mentioned therein?"

Heard learned counsel for the parties on the aforesaid

substantial question of law.

02. The appellants are the original plaintiffs who had filed suit

for declaration that the notice issued by the defendant no.2 under

provisions of Section 53 (1) of the Maharashtra Regional & Town

Planning Act, 1966 [for short, "the said Act"] be declared as illegal and

void with further relief of permanent injunction so as to restrain the

defendants from acting on the same.

03. According to the plaintiffs, they were the owners of

Corporation House No. 533 and had submitted a plan to the Town

Planning Department. On 26th April, 2005, a Building Permit came to

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be duly issued. According to the plaintiffs, on 3rd January, 2006,

notice under Section 53 (1) of the said Act came to be issued calling

upon the plaintiffs to pull down the structure being erected by them.

According to the plaintiffs, they thereafter submitted a fresh plan on

4th February, 2006; but the same was kept pending till 19th April,

2006 and, therefore, it was deemed that this plan is sanctioned. The

suit accordingly came to be filed seeking aforesaid declaration.

04. The defendant no.2 - Municipal Corporation did not file its

Written Statement despite grant of several opportunities. The plaintiff

no.1 then led his evidence at Exh.24. He was not cross-examined.

The trial Court by its judgment dated 24th June, 2009 dismissed the

suit on the ground that the Civil Court had no jurisdiction to take

cognizance of the same. The appellate Court has confirmed this

finding.

05. Shri S.D. Khati, learned counsel for the appellants,

submitted by referring to notice dated 3rd January, 2006 issued under

Section 53 of the said Act that the defendant no.2 directed compliance

of this notice within a period of one month from receiving the same.

According to him, as per the provisions of Section 53 (1) of the said

Act, a period of one month was required to be given for making

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necessary compliance and notice issued giving shorter period was

contrary to the provisions of the said Act. He, therefore, submitted that

jurisdiction of the Civil Court to entertain such challenge was not

barred under Section 149 of the said Act. For said purpose, he placed

reliance on the judgment in Kishor Ramalu @ Rambhau Telang Vs.

Municipal Commissioner, Nagpur Municipal Corporation &

others [2015 (4) Mh. L.J. 836].

06. Shri H.A. Deshpande, learned counsel for the respondent-

Municipal Corporation, supported the impugned judgment. According

to him, after issuance of this notice, the plaintiffs had submitted a plan

on 4th February, 2006 and they were relying upon the deemed

sanction on account of expiry of sixty days. According to him, as the

plaintiffs themselves had submitted a fresh plan on 4th February,

2006, it was not permissible for them to fall back on the notice issued

under Section 53 (1) of the said Act. He submitted that though the

Corporation did not file its Written Statement, it was permissible to

agitate this stand in view of the admitted position on record. He,

therefore, submitted that both the Courts rightly held that the suit as

filed was not maintainable. He placed reliance on the judgment in

Nagpur Municipal Corporation Vs. Pandurang Paikuji Sawarkar

[2012 (3) Mh.L.J. 306].

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07. The learned counsel for the parties have been heard on the

aforesaid substantial question of law.

08. In the plaint, it was pleaded that notice dated 3rd January,

2006 was illegal and the defendant had no authority to demolish the

offending structure. It is also pleaded that on 4th February, 2006, a

fresh plan was submitted; but the same was kept pending, due to

which the plan is deemed to have been sanctioned. Admittedly, the

plaintiff no.1 after leading his evidence was not cross-examined.

Similarly, there is no written statement filed on record by the

Corporation. The trial Court has taken into consideration the

provisions of Section 149 of the said Act and has then held that

challenge to the notice dated 3rd January, 2006 was barred at the

instance of the Civil Court. This conclusion has been upheld by the

appellate Court.

09. Perusal of the notice issued under Section 53 (1) of the said

Act dated 3rd January, 2006 reveals that it calls upon the plaintiffs to

take remedial steps within a period of one month. Similar question has

been considered in Kishor Ramalu @ Rambhau Telang [supra] and in

the light of the law laid down by the Honourable Supreme Court, it has

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been held in paragraphs 15 and 16 as under:-

"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.

16. Thus, from the aforesaid, it is clear that the jurisdiction of the Civil Court for the purposes of examining as to whether the statutory requirements have been duly complied or not or whether basic procedural requirements have been followed or not can be examined. In that background, if the notice dated 18- 10-2011 is examined, it is clear that the same grants time of period of less than one month to the plaintiff to take corrective steps in terms of the deficiencies pointed out therein. Provisions of Section 53(1) of the said Act prescribe period of not less than one month for taking necessary steps. If the jurisdiction of the Civil Court is invoked for considering the validity of such notice on the ground that the same prescribes a lesser period than that prescribed by the statute and hence clearly contrary to the statute, then the jurisdiction of the Civil Court will not be barred. Hence, aforesaid submission made on behalf of the plaintiff regarding maintainability of the suit will have to be accepted."

10. In the present case, when the notice dated 3rd January,

2006 is examined on the basis of the aforesaid decision, it is clear that

said notice grants period of less than one month and, therefore,

cognizance of the civil suit was not barred under Section 149 of the

said Act.

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11. In the decision relied upon by the learned counsel for the

respondent, the provisions of Section 53 of the said Act were

considered along with Section 286 of the City of Nagpur Corporation

Act, 1950. It is in that context that the bar under Section 149 of the

said Act has been considered thereby dispensing service of notice

under Section 384 of the Corporation Act.

12. In so far as the submission made on behalf of the

respondent as to submission of a fresh plan by the plaintiffs on 4th

February, 2006 is concerned, firstly there was no written statement

filed on record. Moreover, the principal challenge is with regard to the

issuance of notice on 3rd January, 2006. If the challenge to that notice

ultimately succeeds, then all steps taken thereafter would merely be

consequential and those steps would depend on the adjudication of the

original challenge. Moreover, both the Courts have merely considered

the maintainability of the suit in the light of issuance of notice dated

3rd January, 2006 and not the actions taken thereafter. Hence, said

submission cannot be accepted.

13. Hence, the substantial question of law as framed is

answered in favour of the appellants by holding that the notice dated

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3rd January, 2006 stipulating a shorter period than that as

contemplated by Section 53 (1) of the said Act is bad in law.

14. As a consequence of this answer to the substantial question

of law, it is not necessary to again remand the proceedings to the trial

Court. The plaintiffs have, in fact, succeeded in their challenge to the

impugned notice. Instead, the course as followed in Second Appeal

No. 24 of 2013 can be adopted. Accordingly, the respondent is at

liberty to issue a fresh notice in accordance with provisions of Section

53 of the said Act, if it is so advised. If such notice is so issued, the

plaintiffs would be at liberty to challenge the same in accordance with

law. Any observations made in this order would not affect the rights of

either of the parties in those proceedings. Contentions on merits are

kept open.

15. Appeal is accordingly allowed in aforesaid terms. No costs.

Judge

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