Bombay High Court
Rohidas Sakharam Mistry vs Thane Municipal Corporation ... on 21 March, 2023
Bench: S. V. Kotwal
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.3007 OF 2023
Rohidas Sakharam Mistry .... Petitioner
versus
Thane Municipal Corporation
(Through its Commissioner) & Ors. .... Respondents
.......
• Mr. Saurabh Oka, Advocate for Petitioner.
CORAM : SARANG V. KOTWAL, J.
DATE : 21st MARCH, 2023
P.C. :
1. Heard Mr. Saurabh Oka, learned counsel for Petitioner.
2. The Petitioner is the Original Plaintiff in Regular Civil
Suit No.368 of 2008 before 3rd Joint, Civil Judge Senior Division,
Thane. The suit is filed for declaration that he is the owner of
the tenement admeasuring 600 sq.ft. in original survey No.341
Hissa No.2 (part), survey No.341 Hissa No.4 and survey No.341
Hissa No.5 corresponding to final plot No.280 in Town Planning
Scheme No.1, Panchpakhadi, Thane and for declaration that the
notice dated 25/04/2008 issued by the Assistant Director of
Nesarikar
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Town Planning of Thane Municipal Corporation is void ab-initio
and for permanent injunction.
3. The Petitioner had filed the application vide Ex.5 in
that suit for interim injunction. That application was rejected. At
the first instance, he had challenged that order before the
Appellate Court, which was allowed, but that order was set aside
by a Division Bench of this Court and the Appeal was remanded
back. The Misc. Civil Appeal No.135 of 2009 was heard afresh
and the impugned order dated 16/01/2023 was passed by the
District Judge-3, Thane. The Petitioner's Appeal was dismissed
and the order passed by the Trial Court refusing interim
injunction was upheld.
4. Learned counsel for the Petitioner submitted that the
observations in the impugned order are beyond the pleadings of
the parties. Learned Appellate Judge has not considered the
ratio of the judgments passed by Hon'ble Supreme Court
properly. He submitted that the interpretation of the bar u/s 149
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of Maharashtra Regional Town Planning Act (for short 'MRTP
Act') is not correct.
5. I have considered these submissions. Learned counsel
for the Petitioner has relied on the case of Dhulabai Vs State of
M.P., as reported in AIR 1969 Supreme Court Cases 78. Learned
Appellate Judge has reproduced some part of that ratio. Learned
counsel submitted that the provisions barring Civil Court's
jurisdiction do not include those cases where the provisions of a
particular Act had not been complied with.
6. Learned counsel for the Petitioner submitted that in
this case, the notices u/s 83(3) of the MRTP Act were not served
on the Original owner. He submitted that the Petitioner was
occupying the suit property since 1982 as a tenant and he
purchased the property in the year 1987. In the meantime, in
the year 1985, the Town Planning Scheme was sanctioned. He
submitted that the provisions of MRTP Act were not complied
with and in particular, there was violation of section 83 (2) &
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(3) and therefore bar u/s 149 of the MRTP Act would not apply.
He submitted that the Petitioner is occupying the premises since
1982. Without prejudice to his submissions he added that the
matter can be worked out if the Defendant No.3 accepts extra
FSI offered to him.
7. Considering these submissions, it is necessary to hear
the Respondents. Based on these submission ad-interim relief
also can be granted in favour of the Petitioner till the next date.
8. Hence, the following order :
ORDER
(i) Issue notice to the Respondents returnable on
05/07/2023.
(ii) Stand over to 05/07/2023.
(iii) Till then, there shall be ad-interim stay in terms
of prayer clauses (b) and (c).
(SARANG V. KOTWAL, J.)
