Bombay High Court
Pratibha Satish Mistri And ... vs The State Of Maharashtra Thro. ... on 5 July, 2021
Bench: V. V. Kankanwadi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.189 OF 2021
PRATIBHA SATISH MISTRI AND ANOTHER
VERSUS
THE STATE OF MAHARASHTRA AND OTHERS
...
Advocate or Appellants : Mr. G. S. Rane
AGP for Respondent No.1-State : Mr. A. M. Phule
Advocate for Respondent No.5 : Mr. Borulkar h/f Mr. Apparao
Yenegure
...
CORAM : SMT.VIBHA KANKANWADI, J.
DATE OF RESERVING THE ORDER :
29-06-2021
DATE OF PRONOUNCING THE ORDER :
05-07-2021
ORDER :
1. The present second appeal challenges the concurrent Judgment
and decree passed in Regular Civil Appeal No.147 of 2013 dated 08-
01-2020, passed by learned District Judge-3, Dhule whereby the
Judgment and decree passed on 08-08-2013 by learned Joint civil
Judge, Senior Division, Dhule in Regular civil Suit No.58 of 2007 came
to be confirmed. The said suit was decreed and the declaration and
injunction as prayed by the original plaintiff was granted. Since this is
a second appeal we will have to consider that unless the appellant
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shows that there are substantial questions of law then only we can
go ahead with the appeal. In Ashok Rangnath Magar vs. Shrikant
Govindrao Sangvikar, reported in 2015 (16) SCC 763, Court held as
under : -
"18. In the light of the provision contained in S.100,
CPC and the ratio decided by this Court, we come to
the following conclusion :
(i) On the day when the second appeal is listed for
hearing on admission if the High Court is satisfied
that no substantial question of law is involved, it shall
dismiss the second appeal without even formulating
the substantial question of law ;
(ii) In cases where the High Court after hearing the
appeal is satisfied that the substantial question of law
is involved, it shall formulate that question and then
the appeal shall be heard on those substantial
question of law, after giving notice and opportunity of
hearing to the respondent;
(iii) In no circumstances the High Court can reverse
the judgment of trial Court and the first appellate
Court without formulating the substantial question of
law and complying with the mandatory requirements
of S.100 of CPC."
It is reiterated recently in Kirpa Ram (since deceased through L.Rs.)
and Others vs. Surendra Deo Gaur and Others, reported in 2021 (3)
3 SA 189-2021
Mh.L.J. 250, by the three Judges Bench of the Hon'ble Apex Court, it
has been held that,
"High Court is not obliged to frame substantial
question of law when it finds no error in findings
recorded by the First Appellate court. Formulation or
reformulation of the same in terms of proviso arises
only if there are some questions of law and not
otherwise."
Therefore, for grant of interim relief also it is required to be
considered as to whether the second appeal is worth
admitting/giving rise to the formulation of a substantial question of
law.
2. Heard learned Advocate Mr. Girish Rane for the appellants-
original defendants No.5 and 6 and learned Advocate Mr. Borulkar
holding for Mr. Apparao Yenegure for respondent No.5-original
plaintiff, as well as learned Additional Government Pleader Mr. A. M.
Phule for respondent No.1-State.
3. It has been submitted on behalf of the appellants that both the
Courts below have not considered the point of limitation and
resjudicata in view of the order passed by the Co-operative Court in
Lawad Suit No.156 of 1986. Both the Courts have wrongly decreed
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the suit. Unnecessary weightage has been given to the other factors
such as allegations about influence by the appellants. Plaintiff being
a member of the society had every knowledge or presumed to have
every knowledge about submission of revised plan and creation of
plot No.66. The said plot came to be sold by the defendant No.4
society to the present appellants by sale deed dated 05-11-2003 and
since then they are the owners of the plot. Further, the point of
alleged right of the plaintiff to receive light and air is also not
properly considered and, therefore, substantial questions of law are
arising in this case. Another most important point is that in view of
provisions of Section 149 of The Maharashtra Regional and Town
Planning Act, 1966 (hereinafter referred to as 'MRTP Act' for the
sake of brevity), the jurisdiction of the Civil Court is barred, the
layout which was given for sanction after the creation of additional
plots could have only been challenged under the provisions of MRTP
Act and not by way of a civil suit, therefore, the question of
jurisdiction was also important which has not been properly
addressed.
4. Learned Advocate for the appellants has been relied on the
decision in, Nashik Industrial Co-op. Estate Ltd., Satpur vs. Nandlal
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Nevandram Chhabriya (Since deceased) through his L.Rs. Smt.
Nirmala Nandlal Chhabriya and Another, reported in 2020 (1)
Mh.L.J. 625, wherein there was a dispute between the petitioner
society and its members pertaining to encroachment committed by
them on adjoining plot of land belonging to petitioner-society then it
was held that the dispute is maintainable before the Co-operative
Court. Further reliance has been placed on the decision in Kalyan
Dombivli Municipal Corporation vs. Prakash Mutha, reported in
2008 (3) Mh.L.J. 686, wherein it has been held that,
"From the language of section 149 of Maharashtra
Regional and Town Planning Act, it is clear that every
order passed or direction issued by the State
Government or order 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.
The notice of intention to prepare draft Development
Plan as well as the notice of the preparation of the
draft Development Plan inviting objections and
suggestions from the public and all acts done by the
Planning Authority under the provisions of the
Maharashtra Regional and Town Planning Act and,
therefore, all such orders and notices get the finality
and are immune from being challenged or questioned
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in any suit under section 149 of the Maharashtra
Regional and Town Planning Act. Thus, the
jurisdiction of the Civil Court is expressly and clearly
excluded under section 149 of the Maharashtra
Regional and Town Planning Act. Impugned order
passed by the trial Court is set aside and Revision
Application is allowed."
"Object of the exclusion of the jurisdiction of the Civil
Court under section 149 of the Maharashtra Regional
and Town Planning Act appears to be avoiding
unnecessary litigation in respect of any order or
notice that may be issued under the Maharashtra
Regional and Town Planning Act in respect of any
acts, which are required to be done by different
authorities under the Act. Taking the case of the
development plan itself, if the jurisdiction of the Civil
Court would not be excluded, any person, whether he
is genuinely interested in the development of the
town or with some ulterior motive could file a suit,
obtain some stay and then see that the suit is not
disposed off for a long period. As a result of this
preparation of the development plan and the actual
development of the city itself may be unnecessarily
prevented or stopped. This would not be in larger
interest of the society and particularly the people
living in the city."
Similar view has been taken in Satish s/o Gayacharan Trivedi vs. Dr.
7 SA 189-2021
Gopal Ramnarayan Mundhada and others, reported in 2015 (5)
Mh.L.J. 463.
5. Per contra, the learned Advocate appearing for the
respondent/original plaintiff has taken this Court through various
documents and the pleadings as well as the observations by both the
Courts below and submitted that the highhanded act on the part of
the defendants No.5 and 6 can be seen from the written statement
filed by the Municipal Corporation. In fact, the original plan was
sanctioned in the year 1965. Plot No.66 was never shown in
existence, there were only 59 plots, but it appears that original
defendant No.2-the town planner, had issued a letter on 13-12-
2006 showing the existence of 80 feet DP road, thereby there is
illegal creation of certain plots and we are especially concerned with
plot No.66 which is adjacent to the plot of the plaintiff. Due to the
constructions of defendants No.5 and 6, the plaintiff is deprived of
his right to air, light, water and road. The said construction has
been raised without any permission. The defendant corporation has
specifically stated in the written statement that as per the amended
development scheme dated 06-04-1983, the 80 feet road was
cancelled and in the amended layout plot No.66 was proposed. The
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plaintiff and other members had filed a proceeding in Co-operative
Appellate Court at Mumbai, but then an application seeking
permission for construction on plot No.66 was filed with the
corporation on 01-12-2004. That permission was refused as that
plot was affecting a development scheme of a 15-meter road.
Therefore, whatever construction has been carried out by the
plaintiff is affecting the rights of the society and also the plaintiff
who is the adjacent owner. Issues were properly framed, evidence
has been led and those findings of the lower Court have been
confirmed by the First Appellate court and, therefore, they are not
giving any rise to any substantial question of law. The learned
Advocate for the original plaintiff also pointed out the sale deed of
defendants No.5 and 6 which specifically mentions that the premises
is on the internal road, "varxZr jLR;kojhy c[kG IykWVps ," and in the
description, further there is mention of plot No.66 which was never
sanctioned at all. It is further submitted that the issue before the
Co-operative Court was different and, therefore, there is no question
of resjudicata. The suit is also not affected by Section 149 of the
MRTP Act. He relied on the decision of this Court in Gadre
Constructions, Pune and Others vs. Sadashiv Keshav Sathe and
Others, reported in 2004(3) Mh.L.J. 875, wherein it has been held
9 SA 189-2021
that,
"Where suit was filed seeking declaration that
amalgamation of two plots by the defendants was
illegal with a further prayer that the building
permission granted in respect of the amalgamated
property be revoked, the dispute was one that arose
out of the terms and conditions of the contract and
power of attorney executed by the plaintiff, bar of
civil suit under section 149 of the Maharashtra
Regional and Town Planning Act, 1966 would not be
applicable and such suit was maintainable."
6. At the outset, at this stage, what is required to be seen is
whether substantial questions of law are arising. The consideration
that is required at this stage from this Court is to take a overview of
the pleadings, evidence and then both the decisions, and then come
to a conclusion whether a substantial question of law is arising.
Here, it appears that the layout was sanctioned in 1965 and,
thereafter, the plaintiff had purchased his plot. Thereafter, it
appears to be the fact that there was an amendment to the
development scheme in 1983 and at that time in place of the said 80
feet road, plot No.66 was proposed. It appears that neither the
plaintiff nor any other person from the society i.e. its members had
challenged the sanction of that layout. Defendants No.5 and 6 have
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purchased plot No.66 from defendant No.4 by registered sale deed
dated 05-11-2003. It appears that the said action is also not
challenged. But then there appears to have been a suit filed way
back in 1986 i.e. Suit No.156 of 1986 before the Co-operative Court.
However, as regards the point of resjudicata is concerned, both the
Courts have consistently held that, no material was produced before
the Trial Court to compare that suit before the co-operative Court
with the present suit and come to a conclusion that whether the
issues, in this case, were directly and substantially in issue in the
earlier suit. Suffice it to say that defendants No.5 and 6 would be
relying to the extent of creation of the plot and its sanction in 1983
was involved in the suit before the Co-operative Court as well as in
this suit. But except for that issue, for other issues would not have
been a part of the suit before the co-operative Court and, therefore,
even at this stage, it can be said that no substantial question of law
on the point of resjudicata appears to be arising in this case.
7. The pleadings of the original plaintiff would show that he was
alleging that there is 30 feet encroachment by the defendants in his
plot and then he is deprived of his right to air, light, water and road.
Here, both the Courts have absolutely not discussed as to under
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which provisions of law the plaintiff was claiming the right to air,
light, water and road. If it was by way of easement, then the
pleadings and the evidence ought to have been on that basis. If it is
to be connected to the easementary right then the plaintiff should
accept the ownership of defendants No.5 and 6 over the plot No.66
as the concept of dominant heritage and servient heritage.
Presupposes that the person claiming easementary right to light and
air should accept the ownership of the person on the plot or
immovable property of the other against whom the right is claimed.
Unless it is crystallized as to under which provisions of law the right
has been claimed, both the Courts ought not to have proceeded
further. It can be seen that there is absolutely no framing of issue
in respect of 30 feet encroachment on the plaintiff's plot by the
defendants No.5 and 6 and then whether the suit was maintainable
in the form it was filed and the other consequential things ought to
have been considered is the prima facie fact and the law that is
required to be considered and, therefore, definitely though there is a
concurrent finding, substantial questions of law are arising in this
case. Further, in view of the above said ruling in case of Ashok
Rangnath Magar vs. Shrikant Govindrao Sangvikar (Supra), this
Court will have to formulate the questions of law first and then issue
12 SA 189-2021
notice to the respondents; following substantial questions of law are
framed : -
(1) Whether the Civil Court had jurisdiction to decide
the suit in view of fact that plaintiff as well as defendants
No.5 and 6 were the members of defendant No.4 and the
creation of plot amounted to "dispute touching the
business of the society" and, therefore, covered under
Section 91 of the Maharashtra Co-operative Societies
Act?
(2) Whether both the Courts below have considered
and appreciated the provisions of Section 149 of MRTP
Act and whether the suit was barred under the said
provisions ?
(3) Whether the suit was within limitation ?
(4) Whether the Courts below were justified in holding
that the plaintiff had right to light, air, water and road ?
(5) Whether both the Courts below erred in not
framing issue and point in respect of averment by the
plaintiff that the defendants No.5 and 6 have made
encroachment of 30 feet in his plot ?
(6) Whether both the Courts below have totally erred
in not considering the averments about encroachment on
his plot and thereby ignoring the provisions of Order 7
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Rule 3 of the Code of Civil Procedure and not considering
the format of the suit where no prayer was made for the
removal of encroachment, payment of Court fee etc.?
(7) Whether both the Courts below have considered
the evidence properly and whether the Judgment and
decree passed and confirmed deserves any interference
by this Court ?
8. As aforesaid, the point in respect of bar of jurisdiction under
Section 91 of the Maharashtra Co-operative Societies Act and
Section 149 of MRTP Act deserves to be considered in the second
appeal, and for the above said stated reasons, the second appeal
stands admitted.
9. Issue notice to the respondents, returnable on 30-08-2021.
10. Learned Advocate Mr. Borulkar h/f Advocate Mr. Apparao
Yenegure, waives notice for respondent No.5, and learned Additional
Government Pleader waives notice for respondent No.1-State.
11. Call for record and proceedings.
(SMT. VIBHA KANKANWADI)
JUDGE
vjg/-.
