Nagar Parishad, Kalmeshwar ... vs Shri Ashok S/O Naryan Dhulandar
2017 Latest Caselaw 890 Bom

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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                        NAGPUR BENCH : NAGPUR



Civil Revision Application No. 21 of 2015



Applicant               :       Nagar Parishad, Kalmeshwar, through its

                                Chief Officer, Kalmeshwar, Dist. Nagpur

                                versus

Non-applicant           :       Ashok Narayan Dhulandar, aged about 54

                                years, Occ: Business, resident of MHADA

                                Colony, Kalmeshwar, Dist. Nagpur



Shri S. V. Bhutada, Advocate for applicant

Shri Anand Deshpande, Advocate for respondent

Coram : A. S. Chandurkar, J

Dated : 21st March 2017

Oral Judgment

1. This Civil Revision Application has been preferred by the

original defendant being aggrieved by the order passed by the trial Court

on an application filed under Section 9A of the Code of Civil Procedure,

1908 (for short, "the Code") rejecting said application after holding that

the Civil Court had jurisdiction to entertain the suit.

2. The brief facts relevant for the present purpose are that it is

the case of the non-applicant/plaintiff that he is owner of Plot No. 477

situated at mouza Kalmeshwar. According to the plaintiff, his father was

allotted the aforesaid plot in the year 1992 and on 1.1.2001 the plaintiff's

father had moved an application for grant of permission to construct a

house on said plot. A map indicating proposed construction was also

submitted along with the application. On 3.3.2001 and 2.5.2001

reminders were given by the plaintiff's father, but there was no response

from the defendant. Yet another reminder was given on 7.8.2001 after

which the plaintiff's father commenced construction on the plot in

question. It is the case of the plaintiff that there was deemed permission to

the aforesaid construction in view of the provisions of Section 44 of the

Maharashtra Regional and Town Planning Act, 1966 (for short, "the said

Act"). After almost twelve years, the defendant issued a notice on

17.12.2013 by which copy of the sanctioned map was demanded by the

defendant. Two other notices on 23.4.2014 and 6.5.2014 calling upon the

plaintiff to remove the construction in question came to be issued. These

notices were challenged by the plaintiff by filing the aforesaid suit. A

declaration was sought that the said notices were illegal, arbitrary and

issued in a discriminatory manner. Permanent injunction was sought

seeking to restrain the defendant from taking any action against the

plaintiff.

3. In the aforesaid suit, the defendant filed an application under

Section 9A of the Code raising objection to the jurisdiction of the Civil

Court. It was stated that in view of Section 149 of the said Act, the

jurisdiction of the Civil Court was barred for entertaining any challenge to

the notice issued under Section 53 (1) of the said Act. This application

was replied to by the plaintiff and by the impugned order dated 4.10.2014,

the Civil Court held that it had jurisdiction to entertain the suit. Being

aggrieved, said order is challenged in this Civil Revision Application.

4. Shri S. V. Bhutada, learned counsel for the applicant

submitted that in view of provisions of Section 149 of the said Act, the

jurisdiction of the Civil Court to entertain the suit is clearly barred. He

submitted that the documents sought to be relied upon by the plaintiff

were disputed by the defendant and the plea taken by the plaintiff that

there was deemed permission for the construction was not legal. Merely

because the notices were issued after period of about twelve years, the

same could not be a reason on the basis of which the Civil Court could

exercise jurisdiction. He submitted that the trial Court erroneously

proceeded on the assumption of deemed sanction to the alleged

construction. He then submitted that from the averments in the plaint, it

could not be said that the Civil Court had jurisdiction to decide the suit. It

was merely alleged that the action of the defendant was illegal and

arbitrary. The plaintiff did not lead any evidence to justify his case that the

Civil Court had jurisdiction to entertain the suit.

In support of his submissions, learned counsel placed reliance

on the decisions in Sarina Esmneralda Lopezs v. Vijay Goverdhandas

Kalantri & anr reported in 2015 (2) Mh. L. J. 603 and Prathamesh Tower

Cooperative Housing Society Limited v. Gorai Road (Borivali) Shree

Ganesh Cooperative Housing Society Ltd. and ors reported in 2013 (4)

Mh. L. J. 918. It was, therefore, submitted that the trial Court committed

an error in holding that it had jurisdiction.

5. Shri Anand Deshpande, learned counsel for the plaintiff

submitted that considering the application dated 1.1.2001 and the

subsequent reminders issued by the plaintiff's father and the fact that there

was no response from the defendant, it was clear that the construction in

question was deemed to be sanctioned. He referred to the provisions of

Section 45 (5) of the said Act in that regard. He then submitted that for a

period of almost twelve years the defendant did not take any action and in

a highhanded manner, the impugned notices had been issued. It was

further submitted that the deemed permission could also be be revoked by

the Municipal Council, but the same was not done despite passage of

number of years. The statutory procedure in that regard was not adopted.

He further submitted that the impugned notices were issued without

granting opportunity of hearing to the plaintiff and were, therefore, illegal.

He placed reliance upon the decision in Delhi Cloth & General Mills

Co.Ltd. & anr v. State of Rajasthan & ors reported in (1996) 2 SCC 449

and judgment of the Division Bench of this Court in Mahavir Enterprises

& ors v. Mahavir Enterprises & ors reported in 1990 Mh. L. J. 1015 in

that regard. He also referred to the decision in Sukhdev Singh & ors v.

Bhagatram Sardar Singh Raghuvanshi & anr reported in AIR 1975 SC

1331 and submitted that the trial Court rightly held that it had jurisdiction

to entertain the suit.

6. I have heard learned counsel for the parties at length and I

have given due consideration to their respective submissions. Perusal of

the plaint indicates that it is the case of the plaintiff that his father had

initially submitted an application on 1.1.2001 along with a map indicating

proposed construction which was followed by various reminders.

Thereafter the construction was carried out in the year 2001. It is then

pleaded that the defendant without verifying record, demanded the

sanctioned map from the plaintiff by issuing notices. Further, notices for

demolition came to be issued without granting any opportunity which

indicated that the action was illegal and in colourable exercise of the

power. It is pleaded that for a period of twelve years, no steps were taken

by the Municipal Council.

7. From the averments in the plaint, it can be seen that the

plaintiff is relying upon the aspect of deemed permission to his

construction on the ground that though such permission was sought

under Section 44 of the said Act, the permission was neither granted nor

refused. The plaintiff seeks to rely upon the provisions of Section 45 (5)

of the said Act in that regard. The other limb of challenge is the passage

of period of twelve years from the commencement of construction and

absence of any hearing before issuing the said notices.

8. Under Section 149 of the said Act, no order or notice issued by

the Planning Authority under the said Act can be questioned in any suit or

other proceedings and the same is open to challenge in the manner

prescribed by the said Act. While considering the bar to the jurisdiction

of the Civil Court in the light of aforesaid provisions, the nature of

challenge sought to be raised by the plaintiff is required to be taken into

consideration. In Kishor s/o Ramalu @ Rambhau Telang v. Municipal

Commissioner, Nagpur & ors reported in 2015 (4) Mh. L.J. 836, the

question for consideration was as to bar of jurisdiction of the Civil Court to

entertain challenge to a notice issued notice under Section 53 (1) of the

said Act and it was observed 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

In Sarina Esmneralda Lopezs (supra) challenge was raised

to a notice issued under Section 53 (1) of the said Act on the ground that

the notice was illegal and bad in law. In that context, , the ground raised

that the principles of natural justice were violated by issuing notice under

Section 53 (1) of the said Act without any prior notice, was not accepted.

9. In the light of aforesaid position, if the averments in the plaint

are seen, it is on the basis of deemed sanction that the plaintiff is justifying

his construction. The Division Bench of this Court in Court on its Motion

v. State of Maharashtra & ors reported in 2012 (1) Mh. L. J. 232 has

held that deemed permission could be considered to be granted only in

cases where permission is otherwise capable of being sanctioned in law. In

other words, it would require examination of the relevant facts before it is

held that the permission is deemed to have been granted. The aspect

regarding deemed permission is a matter to be examined by applying

various provisions under the said Act itself. Thus, deemed permission by

itself is not automatic and it requires examination of factual aspects. In the

present case, it is disputed by the defendant that the plaintiff had moved

an application for permission. Though the plaintiff seeks to rely upon the

acknowledgment in that regard, the said fact has not been brought on

record by leading evidence. There is no material on record to hold that

there was deemed sanction to the plaintiff's construction. As noted above,

the plea regarding breach of principles of natural justice would not apply

where the show-cause notice under Section 53 (1) of the said Act is issued.

Hence, the ratio of the decisions on which reliance has been placed by

learned counsel for the non-applicant would not apply to the facts of the

present case. Similarly, insofar as the aspect of delay of about twelve years

in issuing the notices in question is concerned, the same is also a matter

which by itself would not make the said notices null and void. The effect

of issuing such belated notice would have to be considered in the challenge

to such notice under the said Act.

10. The trial Court while passing the impugned order has given

importance to the fact that the defendant did not take any action for a

period of almost twelve years. However, as held hereinabive, the aspect of

deemed permission would have to be determined only after examining the

relevant facts under the said Act. In my view, it cannot be said that the

impugned notices were null and void so as to confer jurisdiction on the

Civil Court to examine a challenge to the same. Moreover, it is the case

of the plaintiff that the notices were merely illegal and contrary to law.

11. In view of the aforesaid discussion, the bar under Section 149

of the said Act is clearly attracted. Hence, the order passed by the trial

Court below Exhibit 1 dated 4.10.2014 is quashed and set aside. The

application moved by the defendant below Exhibit 11 (A) stands allowed.

The plaintiff is granted liberty to raise challenge to the

impugned notices by availing the remedy provided under the said Act. If

such remedy is invoked by the plaintiff by the end of April 2017, the said

challenge shall be entertained on merits and adjudicated in accordance

with law. It is made clear that such challenge shall be decided

uninfluenced by any observations made in this order. The order of status-

quo granted by the trial Court shall also continue to operate till 30 th April

2017. Civil Revision Application is allowed in aforesaid terms. No costs.

A. S. CHANDURKAR, J

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