Bombay High Court
Darshan Co-Operative Housing Society ... vs The Municipal Corporation Of Greater ... on 2 April, 2025
2025:BHC-AS:15210
FA 558-2012.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 558 OF 2012
Darshan Co-operative Housing Society Limited, ]
A Society duly registered under the ]
Co-operative Societies Act, at A-2/8, ]
Darshan, Gokuldham, ]
Gen. Arunkumar Vaidya Marg, ]
Goregaon (East), Mumbai - 400 063. ] ...Appellant.
Versus
1) Municipal Corporation of Greater Mumbai, ]
(Legal Department) A body Corporate ]
constituted under the Mumbai Municipal ]
Corporation Act and having their Principal ]
office at Mahapalika Bhavan, ]
Mahapalika Marg, C.S.T. Fort, ]
Mumbai - 400 101. ]
2) The Executive Engineer, ]
Building Proposal, ]
R& P Ward, C-Wing, BMC Godown Bldg., ]
90 Feet D.P. road, Kandivali (E), ]
Mumbai - 400 101. ]
3) M/s. Estate Investment Company Pvt. Ltd, ]
A company registered under Companies Act, ]
1956 having its registered address at ]
Saksaria Chambers, 139, ]
Nagindas Master Road, Mumbai - 400 023. ]
4) M/s. Conwood Construction & Developers ]
Pvt. Ltd., ]
A company registered under Companies At, ]
1956, A company in which Conwood ]
Construction Pvt. Ltd is amalgamated by ]
order dt. November, 2007 passed by the ]
Hon'ble High Court of Bombay in Co. Petition ]
No. 158 of 2007 being Respondent No. 4 and ]
having its Office address at Dynamix House, ]
Yashodham, Gen. A. K. Vaidya Marg, ]
Goregaon (East), Mumbai 400 063. ]
5) The Chief Fire Officer, ]
Mumbai Fire Brigade, ]
Byculla, Mumbai 400 008. ]
Patil-SR (ch) 1 of 24
FA 558-2012.doc
6) Gokuldham Residents Welfare Association, ]
[Deleted] ]
Sector I having its office at A-12, Sahyadri Co- ]
op. Hsg. Soc., Gokuldham, Goregaon (E), ]
Mumbai 400 063. ] ...Respondents.
------------
Mr. Sujeet Kurup for the Appellant.
Ms. Pallavi Khale for the Respondent-Corporation.
Mr. Mukthar Khan, Mr. R. Patil, Mr. Yohaan Shah i/b Negandhi Shah &
Himayatullah for the Respondent No. 3.
Mr. Surel S. Shah, Senior Advocate along with Mr. Saaksht Relekar, Mr. Parimal
Shroff, Mr. D. V. Deokar & Mr. Parikh i/b P. K. Shroff & Co., for Respondent No. 4.
------------
Coram : Sharmila U. Deshmukh, J.
Reserved on : March 7, 2025
Pronounced on : April 2, 2025.
Judgment :
1. First Appeal is at the instance of original Plaintiff challenging the
judgment dated 7th January 2012 passed by the City Civil Court
allowing the Notice of Motion No.820 of 2010 filed under Order VII
Rule 11(d) of the Code of Civil Procedure, 1908 [for short "CPC"]
resulting in dismissal of suit.
2. The Plaintiff-Co-operative Housing Society filed S.C Suit No 987
of 2009 inter alia seeking a declaration that the construction being
carried out by the Defendant Nos.3 and 4 of Building No 84 on area
reserved for Recreation Ground [for short "RG"] is illegal and
unauthorised, for mandatory injunction of demolition of construction
Patil-SR (ch) 2 of 24
FA 558-2012.doc
and cancellation of construction permissions.
3. The plaint pleaded that the Defendant No.3 who is the owner of
property bearing Survey No. 34, Hissa No. 2(part) and Survey No. 35 of
village Chincholi bearing Survey No. 51, Hissa No. 1(pt) aggregating to
2,64,228.75 square meter, entrusted the development work of the said
property to the Defendant No 4. The scheme approved by the Urban
Land Ceiling Authority provided for reservation of 15% of plot area as
recreation ground as per the planning regulations. As per the
sanctioned layout of 1981, Defendant No.4 constructed various
buildings on plot bearing CTS No.98A/4 admeasuring 61,331.00 square
meters including Plaintiff-Society. As of the year 1988, the balance
area available for development was 4409.62 square meters. In
response to the Plaintiff's letter dated 19 th July 1990, seeking
demarcation of Plaintiff's plot and reservations, Defendant No.3
provided the plan giving demarcation of Plaintiff's plot and
demarcation of other units as well as RG reserved thereon on CTS
No.98A/4. The Plaintiff's structure is constructed on an area
admeasuring 801.13 square meters and the Defendant Nos.3 and 4
have conveyed the plot area along with the building standing thereon
in favour of the Plaintiff by a Deed of Indenture dated 12 th November
1998 and plan annexed thereto provides the demarcation of Plaintiff's
units, other units and recreation ground on the CTS No 98A/4.
Patil-SR (ch) 3 of 24
FA 558-2012.doc
4. The recreation ground as per the approved layout plan of 2001
to 2003 was 4871.81 square meters adjacent to the Plaintiff's building,
which was reduced in the revised layout of year 2003. On 28th January
2004, Defendant No.3 submitted a fresh proposal for construction of
Building No.84 on RG area adjacent to the Plaintiff's building. The
letter dated 19th March 2004 addressed by the Defendant No.2 to the
Defendant No.4's architect shows that some of the reservations have
been relocated and not de-reserved the area.
5. The Defendant No.2 sanctioned the construction proposal on
12th February 2004 clearly mentioning that the plot under reference is
vacant and that the layout is already developed for FSI into the ratio of
1:1. The Defendant No.2 sanctioned the proposal on 17 th February
2004 as redevelopment proposal, IoD was issued on 4 th December
2004 for residential Building No.84 and Commencement Certificate
was granted on 25th January 2006 for construction on the plot reserved
as RG adjacent to the Plaintiff's building in violation of development
control regulations. In May 2006, the Defendant No.4 started activities
for construction on RG area and on 15th May 2006, the Plaintiff by letter
to the Chairman of Defendant No.4 raised objection and asked for
necessary documents, approved plans, sanctions for construction on
the said RG area which was not supplied to the Plaintiff. The
Defendant No.4 has illegally constructed 13 storey tower on RG area
Patil-SR (ch) 4 of 24
FA 558-2012.doc
adjacent to the Plaintiff-Society. The Plaintiff vide letter dated 6 th
January, 2007 addressed to Defendant Nos.1 and 2 requested for
action to be taken against the illegal construction and reminder letter
was sent on 9th May, 2007. Subsequently, various complaints regarding
unauthorised construction were made by the Plaintiff.
6. The cause of action is pleaded to have arisen in the month of May
2006 when the Defendant Nos.3 and 4 attempted to start the
construction work and thereafter in August 2006 on the basis of
alleged plans sanctioned by Defendant No.2. It is pleaded that IOD &
CC issued by the Defendant No.2 are still subsisting and the occupation
certificate for the building is yet to be issued and therefore suit is very
well within time. As there was no response from any of the concerned
authorities or from Defendant No.4, the Plaintiff had no option but to
obtain necessary documents under the RTI Act which took substantial
time and therefore suit is not barred by law of limitation. Along with
the plaint, about 30 documents were annexed.
7. Notice of Motion No.820 of 2010 was taken out by Defendant
No.4-Developer under Order VII Rule 11 of CPC. It was contended that
suit is in essence a suit for a declaration that the Plaintiff's plot and FSI
is encroached upon and used by the Defendants and as the Plaintiff
stands dispossessed long back, unless Plaintiff seeks the remedy of
restoring possession, they cannot seek relief of injunction. It was
Patil-SR (ch) 5 of 24
FA 558-2012.doc
pleaded that value of the plot so sought to be restored and handed
over is beyond the pecuniary jurisdiction of the Court. It was claimed
that suit is liable to be rejected under Order VII Rule 11(d) of CPC being
barred by law of limitation and also under Section 149 of the
Maharashtra Regional Town Planning Act, 1966 [for short "MRTP Act"].
It was pleaded that the Plaintiffs have sought a declaration in prayer
Clause (a) as regards the construction of Building No.84 on an area
allegedly reserved for RG. The cause of action, if any, arose in the year
1998 upon the execution of conveyance. It was contended that the
period of limitation under Article 113 of the Limitation Act, 1963 is 3
years and therefore suit is barred by limitation.
8. The Notice of Motion came to be resisted by the Plaintiff
contending that due to collusion between the Defendants inter se it
was difficult for the Plaintiff to obtain documents regarding illegal
construction activities and had to make an application under the RTI
Act. It was contended that suit is within limitation as the cause of
action arose in May 2006 when the construction activity commenced. It
was further pleaded that jurisdiction of Civil Court is not barred as the
sanctioned plan is a nullity and therefore the bar under Section 149 of
MRTP Act does not apply.
9. The Trial Court considered the averments in plaint and the fact
that fresh proposal for residential Building No.84 was submitted on
Patil-SR (ch) 6 of 24
FA 558-2012.doc
28th January 2004 and was sanctioned on 12 th February 2004. IoD for
residential Building No.84 was issued on 4th December 2004 and the
Commencement Certificate was issued on 25 th January 2006. The
cause of action is pleaded to have arisen in the month of May 2006.
The Trial Court held that there is no pleading as to the specific date on
which the Plaintiff acquired knowledge about the alleged illegal
construction. There is no specific date of knowledge pleaded by the
Plaintiff and admittedly the letter which is written by Plaintiff is dated
15th May 2006. The Plaintiffs have not come with the specific date of
cause of action to show that the suit is within limitation. The Trial
Court held that the cause of action arose on 25 th January 2006 and the
suit not being filed within the period of 3 years, is barred by law of
limitation.
10. On the aspect of maintainability of suit under Section 149 of
MRTP Act, the Trial Court observed that the Plaintiffs are challenging
the order made by competent authorities under the provisions of
MRTP Act. The Trial Court noted that the Plaintiffs have averred that
the Defendant Nos.3 and 4 have obtained the orders, IoD and
Commencement Certificate by fraud and collusion with the Defendant
Nos.1 and 2 but nowhere it is pleaded that the orders are passed
without jurisdiction so as to term it as nullity. The Trial Court further
held that there is no declaration sought by the Plaintiff that the
Patil-SR (ch) 7 of 24
FA 558-2012.doc
impugned orders are void ab initio and only a declaration of illegality
has been sought and there is no declaration of nullity of impugned
orders and therefore the Civil Court will not have jurisdiction and
hence rejected the plaint under Order VII Rule 11 of CPC.
11. Mr. Sujeet Kurup, learned counsel appearing for the Plaintiffs
would submit that there was specific pleading in the plaint that in the
month of May 2006 the cause of action arose which is substantiated by
the letter of 15th May 2006. He would submit that the suit came to be
rejected on the ground of limitation and maintainability under Section
149 of the MRTP Act. He submits that as far as the limitation is
concerned, the same is a mixed question of law and fact. Pointing out
to the prayers in plaint, he submits that the substantial relief sought is
that the construction of building on the area reserved for RG is illegal
and unauthorised. He submits that in Paragraph 9 of plaint, there is
specific pleading that the Defendant No.3 had demarcated the
Plaintiff-Society's plot as well as RG area and had informed the
Plaintiffs that they will call for a meeting if any proposal for
construction is submitted. He submits that in Paragraph 51 of plaint it
is specifically pleaded that as there was no response from any of the
concerned authorities, necessary documents were obtained under the
RTI Act which took substantial time and therefore suit is not barred by
limitation. He submits that it is well settled that while adjudicating an
Patil-SR (ch) 8 of 24
FA 558-2012.doc
application under Order VII Rule 11 of CPC there has to be a
meaningful reading of plaint and when the plaint is so read, it is clear
that suit is within limitation as the construction activity started in the
year 2006. In support of his submissions he relies upon the following
decisions:
Shakti Bhog Food Industries Ltd v. Central Bank of India1 ;
Chhotanben v. Kirtibhai Jalkrushnabhai Thakkar2 ;
Dhruv Green Field Ltd v. Hukam Singh3 ;
Babar Sherkhan v. MCGM4 ;
Rajabahadur Motilal Poona Mill Ltd. v. State of Maharashtra5 ;
Prem Lala Nahata v. Chandi Prasad Sikaria6 ;
Laxman Barkya Wadkar v. MCGM7 ; and
C. C. Natarajan v. Ashim Bai8 ;
12. Per contra Mr. Surel Shah, learned Senior Advocate appearing for
the Respondent No.4-Developer would submit that along with the
plaint, documents annexed to the plaint can also be looked into. He
points out to the IoD sanctioned by Corporation and would submit that
there was a specific condition in IoD that construction of compound
1 2020 (17) SCC 260.
2 2018 (6) SCC 422.
3 (2002) 6 SCC 416.
4 2007 (6) All MR 89.
5 2003 (1) BCR 251.
6 2007 AIR (SC) 1247.
8 AIR 2008 SC 363.
Patil-SR (ch) 9 of 24
FA 558-2012.doc
wall has to be carried out before the grant of CC. He submits that the
fact that CC was issued on 25th January 2006 would show that in fact
the compound wall was constructed prior thereto and therefore it
cannot be said that the Plaintiffs acquired knowledge only in May 2006.
He submits that the main relief sought by the Plaintiffs is prayer clause
(c) directing the Defendant Nos.1 and 2 to cancel the sanctioned plans,
IoD, CC, etc. and other reliefs are based on this relief. He submits that
there is no relief sought that the sanctioned plans are nullity. He would
further point out the pleadings in the plaint and would submit that in
Paragraph 15, the Plaintiff has averred that Defendant No.4 submitted
a revised plan which clearly shows reduction in RG area. He would
further point out the pleading in paragraph 16 of plaint that
Defendant No.4 has illegally merged the RG area adjacent to the
Plaintiff-society. He submits that plaint pleads conveyance of the year
1990 but does not seek enforcement of said conveyance as the
valuation would have taken the suit out of the jurisdiction of City Civil
Court. He submits that under the provisions of Section 34 of the
Specific Relief Act, 1963, the suit itself was not maintainable. He
submits that said issue was raised before the Trial Court however the
Trial Court has rejected the said contention. He would further submit
that in order to support the decree, findings arrived at against the
Defendants can be challenged without filing cross objection. He
Patil-SR (ch) 10 of 24
FA 558-2012.doc
submits that under the provisions of Section 47 of MRTP Act, remedy
of Appeal is provided and as the substantial relief sought is challenge
to the sanctioned plans, the provisions of Section 149 of the MRTP Act
expressly bar the jurisdiction of Civil Court. He would further submit
that as far as the issue of limitation is concerned, averments in the
plaint make it clear that the proposal was sanctioned on 12 th February
2004, the IoD was issued on 4 th December 2004 and the
Commencement Certificate was granted on 25 th January 2006. He
submits that in Paragraph 51 of plaint, the cause of action has been
pleaded. He submits that though a vague plea of fraud has been raised
in suit, there is no specific pleading as contemplated by Order VI Rule 4
of CPC. In support of his submissions he relies upon following
decisions:
Dahiben v. Arvindbhai Kalyanji Bhanushali9 ;
Shri Mukund Bhavan Trust v. Shrimant Chhtrapati Udayan
Raje Pratapsinh Maharaj Bhonsle10 ; and
Rajendra Bajoria v. Hemant Kumar Jalan11 .
13. In rejoinder, Mr. Kurup would submit that in fact prayer clause (a)
is the main relief and not the prayer clause (c), as it is only if a
declaration is obtained that construction of building on RG area is
9 (2020) 7 SCC 366.
10 2024 SCC OnLine SC 3844.
11 (2022) 12 SCC 641.
Patil-SR (ch) 11 of 24
FA 558-2012.doc
illegal and unauthorised, that the plans would be cancelled. Mr. Shah
would submit that since construction is consequent to the permission
granted, the prayer clause (c) is the main prayer claimed in suit.
14. Following points would arise for determination:
(1) Whether upon a meaningful reading of plaint, the suit is barred by
law of limitation having been filed after the period of three years from the
cause of action?
(2) Whether the jurisdiction of Civil Court is expressly barred in view
of the provisions of section 149 of MRTP Act ?
As to Point No.(1) :
15. It is well settled that while adjudicating an application under
Order VII Rule 11 of CPC, it is only the averments in plaint and
documents annexed thereto which are germane and there has to be
meaningful reading of the entire plaint. The application under Order
VII Rule 11 of CPC seeks rejection of plaint on the grounds of limitation
and maintainability in view of Section 149 of MRTP Act.
16. Dealing first with the issue of limitation, the Plaintiff has come
with the case that development was carried out by Defendant Nos.3
and 4 on the larger plot of land and as per the approved layout and
planning regulations, 15% of the area was to be reserved as Recreation
Ground. The demarcation of Plaintiff's unit and other units as well as
the recreation ground was given in the plan provided to the Plaintiff in
the year 1990 and in the plan annexed to the conveyance deed of 1998.
Patil-SR (ch) 12 of 24
FA 558-2012.doc
The plans were subsequently revised and proposal was submitted as
redevelopment of Plaintiff's society by illegally merging the RG area
adjacent to the Plaintiff's society on which building construction
started in the year 2006. The Plaintiff seeks to challenge the sanction
of plans for building construction on RG area and seeks a declaration
that the construction on RG is illegal and unauthorised.
17. The averments of the plaint are germane to understand the
cause of action pleaded. In paragraph 17, it is pleaded that the
Defendant No.3 on or about 28 th January, 2004 submitted a fresh
proposal for residential building No.84 on RG area adjacent to the
building of Plaintiff. In paragraph 18, it is pleaded that the letter dated
19th March, 2004 addressed by the Corporation to the Defendant No.4
shows that there is relocation of DP reservation. In paragraph 19, it is
pleaded Corporation has sanctioned the proposal on 12 th February,
2004. In paragraph 21 and 22, it is pleaded that IoD was issued on 4 th
December, 2004 and commencement certificate is granted on 25th
January, 2006.
18. The gist of the averments of paragraphs reproduced above
speaks about the issuance of permissions and approvals by the
Planning Authority. The Plaintiff-Society is part of the larger layout
and the proposed construction was on portion of the larger layout
which is alleged to be Recreation Ground. It is specifically pleaded in
Patil-SR (ch) 13 of 24
FA 558-2012.doc
paragraph 10 of the plaint that Defendant No.4 vide its letter dated
12th October, 1995 addressed to Gokuldham Residents Welfare
Association in response to their letter dated 10 th September, 1995
assured that they shall call for meeting if any proposal for construction
is submitted and decision will be taken with association's consultation.
The said communication is annexed at Exhibit-"E" to the plaint. It is
further pleaded in paragraph 23 as under:
"23. The Plaintiffs state and submit that in or around May,
2006, the Defendant No 4 started activities for construction on
the said recreation ground. The Plaintiffs thereafter
immediately wrote a letter dated 15.5.2006 addressed to the
Chairman Mr. K.M.Goenkaji, of Defendant No 4 and raised
objection for such construction thereby making a reference to
the understanding given by the Defendant No 4 that in the
event if there is any proposal for any construction in the said
recreation ground they will call for a meeting with the
Association and obtain permission from office bearers of
Gokuldham Residents Welfare Association, Sector-I, (G.R.W.A.S-
1) to that effect. The Plaintiffs state and submit that vide this
letter the Plaintiffs even had asked for necessary documents,
approved plan and sanctions etc for construction on the said
recreation ground. The same was never supplied to the
Plaintiffs with an intention of hiding the fraud, illegalities and
misrepresentation exercised by the Defendant No 4 in
obtaining approval to the proposal for relocation of the
Reservations and thereby using the said reserved plots for
construction of Building No 84 by denying the Plaintiffs the
promised recreation ground and other facilities. Hereto
annexed and marked Exhibit "O" is a copy of the said letter
dated 15.5.2006 addressed by Plaintiffs."
19. In paragraph 44, the Plaintiff has pleaded that the dealings and
transactions between the Defendants were never known to the
Plaintiffs nor the Plaintiffs were aware of the proposals/ application/
Patil-SR (ch) 14 of 24
FA 558-2012.doc
plans/DRCs/permissions as exchanged between the Defendant Nos.1
to 2 and the Defendant Nos.3 and 4 and they were not aware of the
proposals as exchanged between the Defendant Nos.1 to 2 and
Defendant Nos. 3 and 4. Paragraph 51 pleads the cause of action which
reads as under:
"51. The Plaintiffs states that the cause of action had
arisen in the month of May, 2006, when the Defendant Nos.3
and 4 made an attempt to start the work of construction and
thereafter on August, 2006 on the basis of the alleged plan
alleged to have been sanctioned by Defendant no.2. The said
IOD and CC issued by the Defendant No.2 are still subsisting
and Occupation Certificate in respect of the said building is
yet to be issued and as such the suit is well within time. The
Plaintiff States that as there was no response from any of the
concerned authorities or from the Defendants No.4, Plaintiff
had no option but to obtain the necessary documents under
R.T.I. Act and therefore in obtaining necessary documents
and/or the Plaintiffs took substantial period of time to collect
all the necessary documents from all the concerned
authorities. It is stated that all the authorities refused to help
the Plaintiffs and provide information, hence the Plaintiffs had
to ascertain all facts before approaching this Hon'ble Court.
Therefore, the suit is not barred by law of limitation."
20. There is specific pleading that the Plaintiffs were unaware of the
submission of proposal and sanctioning of plans and that the
Defendant No.4 though assured that the Association would be
consulted, did not do so and neither furnished the approved plans and
sanctions to the Plaintiff. The Plaintiff-Society obviously would not be
privy to the applications and proposals submitted to the planning
authority and the pleadings about the date of submission and issuance
of approvals and permissions cannot be read on isolation. The cause of
Patil-SR (ch) 15 of 24
FA 558-2012.doc
action is pleaded to have arisen in the month of May, 2006 when the
construction activities started on the plot. This is the date on which
the Plaintiffs acquired knowledge of the proposed construction.
21. Section 3 of the Limitation Act, 1963 provides that every suit
instituted after the prescribed period shall be dismissed. Period of
Limitation is defined in Section 2(j) of Limitation Act as the period of
limitation prescribed for any suit, appeal or application by the Schedule
and prescribed period means the period of limitation computed in
accordance with the provisions of this Act.
22. The applicable Article would be Article 113 of the Limitation Act
which provides for limitation of three years when the right to sue
accrues. Unlike Articles 58 or 59 of Limitation Act, which provides for
commencement of limitation when the right to sue "first" accrues, the
starting point of limitation under Article 113 is when the right to sue
accrued. The Hon'ble Apex Court has held in Shakti Bhog Food
Industries Ltd v. Central Bank of India (supra) that expression used in
Article 113 of Limitation Act is markedly distinct from the expression
used in other Articles which refer to the happening of a specified
event, whereas Article 113 being a residuary clause does not specify
happening of particular event but merely refers to the accrual of cause
of action on the basis of which the right to sue would accrue.
23. The right to sue would accrue, for the purpose of Article 113,
Patil-SR (ch) 16 of 24
FA 558-2012.doc
when there is unequivocal threat to the Plaintiff's right giving rise to
cause of action to the Plaintiff. The commencement of construction
activities gave rise to compulsory cause of action to the Plaintiff to
take steps against the proposed construction as the Plaintiff acquired
knowledge about the proposed Building No.84 on Recreation Ground
only when the Defendant No.4 commenced construction activities
which was immediately questioned by the Plaintiff by addressing
communication dated 15th May, 2006 to the Defendant No.4. The
starting point of limitation would be the commencement of
construction activities in May, 2006.
24. It is settled that an application under Order VII Rule 11(d) of
CPC proceeds on a demurrer which means that the party seeking
rejection of plaint assumes truth of the allegations but claims that by
legal reason, the proceedings should be terminated at the threshold.
The question of limitation is usually a mixed question of law and fact. In
Nusli Neville Wadia v. Ivory Properties [(2020) 6 SCC 557], the
Hon'ble Apex Court has held that where the plaint averments itself
indicates the cause of action to be barred by limitation and no further
evidence is required, the plaint can be rejected under Order VII Rule 11
of CPC.
25. For that purpose, averments in the plaint have to be read as a
whole and in a meaningful manner. It is only when the averments in
Patil-SR (ch) 17 of 24
FA 558-2012.doc
the plaint make it clear that the suit is barred by limitation, that the
proceedings can be terminated at the threshold. According to Mr.
Shah, reference in the plaint to the submissions of proposal, issuance
of IoD of the year 2004 and commencement certificate in the year 2006
infers knowledge about the proposals and therefore would be starting
point for limitation and thus the suit would be barred by limitation. I
am unable to subscribe to the reading of plaint as is done by Mr. Shah.
There cannot be dissection, segregation or reading of the plaint in
isolation. The plaint has to be read as a whole. Merely making
reference to the issuance of planning permissions cannot be construed
as knowledge about those permissions when there are specific
pleadings that the Plaintiff was unaware of the permissions and
sanctions granted and were not furnished with the plans though
sought by communication dated 15 th May, 2006. Pertinently in Shakti
Bhog (supra) the Hon'ble Apex Court noted the decision of Sopan
Sukhdeo Sable v. Asst Charity Commr [(2004) 3 SCC 137] which held
thus:
"15. There cannot be any compartmentalisation, dissection,
segregation and inversions of the language of various
paragraphs in the plaint. If such a course is adopted it would
run counter to the cardinal canon of interpretation according
to which a pleading has to be read as a whole to ascertain its
true import. It is not permissible to cull out a sentence or a
passage and to read it out of context in isolation. Although it
is the substance and not merely the form that has to be
looked into, the pleading has to be construed as it stands
without addition or subtraction or words or change of its
apparent grammatical sense. The intention of the party
Patil-SR (ch) 18 of 24
FA 558-2012.doc
concerned is to be gathered primarily from the tenor and
terms of his pleadings taken as a whole. At the same time it
should be borne in mind that no pedantic approach should be
adopted to defeat justice on hair-splitting technicalities".
26. The Trial Court has failed to consider the pleadings in the plaint
and has erred in holding that the cause of action arose on 25 th January,
2006 upon the issuance of commencement certificate. The issuance of
IoD or commencement certificate which was not within the knowledge
of Plaintiff cannot give rise to cause of action. The cause of action
would arise when the Plaintiff acquired knowledge about the
construction, when it commenced in May, 2006. The Trial Court failed
to appreciate that the question of limitation referable to the date of
knowledge of Plaintiff was a mixed question of law and fact which
required evidence to be led. The Trial Court opined that there is no
specific date of cause of action without noticing paragraph 51 of the
plaint which states that the cause of action arose in May, 2006 when
construction was attempted and the Plaintiff questioned the same by
issuing notice on 15th May, 2006.
27. Mr. Shah would point out the condition in IoD which contains a
condition that compound wall is required to be constructed to contend
that prior to the construction on RG area being carried out, upon
obtaining of CC in May 2006, the compound wall was already
constructed. The contention of Mr. Shah is that by reason of
Patil-SR (ch) 19 of 24
FA 558-2012.doc
preparatory work of construction work of compound wall, the Plaintiff
acquired knowledge prior to the construction activities commencing in
May, 2006. This contention of Mr. Shah would raise a disputed question
of fact as regards the date of acquisition of knowledge by the Plaintiff
which would require evidence to be led. The date of acquisition of
knowledge being a question of fact, the issue of limitation in the
present case is mixed question of law and fact.
28. There is no quarrel with the proposition of law laid down in the
decisions relied upon by Mr. Shah of Mukund Bhavan Trust (supra) and
Rajendra Bajoria (supra). However, in the present case upon reading
of the whole plaint, it cannot be said that the averments in the plaint
clearly demonstrate that the suit is barred by limitation requiring no
evidence to be led and can be rejected under Order VII Rule 7 of CPC.
29. Point No (i) is accordingly answered in favour of Plaintiff.
AS TO POINT NO (ii):
30. Coming now to the bar of jurisdiction under Section 149 of MRTP
Act, the said provision reads thus:
"149. Finality of orders- Save as otherwise expressly
provided in this Act, 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."
Patil-SR (ch) 20 of 24
FA 558-2012.doc
31. The bar under Section 149 of MRTP Act is not an absolute bar
and the jurisdiction of Civil Court is not excluded where the allegations
are of jurisdictional error or nullity. In the present case, Plaintiff seeks
cancellation of the plans sanctioned for construction of the building on
RG area. It is pleaded in paragraph 16, that the Defendant No.4 with a
view to defraud the Plaintiff as well as the Municipal authorities have
illegally shown the proposal as redevelopment of Plaintiff and has
illegally merged the RG area without consent of Plaintiff. In paragraph
17, it is pleaded that the Defendant No.3 while submitting the proposal
has submitted list of buildings in respect of which conveyance was
executed in which the Plaintiff's name is malafidely omitted thereby
submitting false facts and false misrepresentation. In paragraph 22, it
is pleaded that the Corporation while granting extension of
commencement certificate have overlooked the illegalities and fraud
played by the Defendant Nos.3 and 4 in hand in glove with the other
Defendant Nos.1 and 2. It is further pleaded in paragraph 39, that the
utilisation of excess TDR to the extent of area covered by RG is
unauthorised, illegal and void ab initio.
32. In the case of Laxman Barkya Wadkar v. Mumbai Municipal
Corporation of India [in FA No. 1635 of 2010 dtd. 5 th may 2011] a Co-
ordinate Bench of this Court has specifically held that notwithstanding
Patil-SR (ch) 21 of 24
FA 558-2012.doc
the clause expressly ousting the jurisdiction of Civil Court in section
149 of the MRTP Act, if there is allegation made in the plaint that
action of issuance of notice under Section 53(1) or Section 55 of the
MRTP Act is nullity or without jurisdiction, the express exclusion of
jurisdiction of Civil Court will not come in the way of Civil Court in
entertaining the said suit. It held that the suit cannot be dismissed at
the threshold on the ground of bar of Section 149 of MRTP Act if there
is case made out in the plaint that the action in question is nullity and if
the Plaintiff fails to establish the plea of nullity on evidence, the suit
will naturally be thrown out.
33. The pleadings in the plaint would show that case of the Plaintiff
is that permissions and sanctions have been brought about by mis-
representation and fraud which amounts to a case of nullity, even if the
plaint does not specifically spell out the word. Therefore it is not
necessary to avail the remedies available under the provisions of MRTP
Act for maintaining a challenge to those sanctions. Even if the prayer
clause does not specifically ask for a prayer that the sanctioned plans
are nullity, averments in the plaint clearly make out a case of nullity.
There can be amendment sought for incorporating a prayer of nullity.
As the averments in the plaint refer to misrepresentation and fraud,
the bar of Section 149 of MRTP Act will not apply.
Patil-SR (ch) 22 of 24
FA 558-2012.doc
34. Dealing with the next submission of Mr. Shah that as the plaint
pleads conveyance of the year 1990, but does not seek enforcement of
the said conveyance, the suit was not maintainable under Section 34 of
Specific Relief Act, 1963. The suit has been filed seeking declaration
that the construction carried out on recreation ground is illegal and
unauthorised, for cancellation of planning permissions and mandatory
injunction of demolition of unauthorised construction. The Plaintiff
does not say that under the Deed of Conveyance executed in favour of
the Plaintiff-Society, the RG area is conveyed to the Plaintiff. There is
no claim of dispossession of Plaintiff and the case is of illegal and
unauthorised construction on RG area meant for the benefit of entire
layout. The averment is that the plan furnished by the Defendant No.4,
which is annexed to the conveyance deed of Plaintiff shows the
demarcation of Plaintiff's unit, the other units and recreation ground.
It was, thus, not necessary to seek any further relief of enforcement of
conveyance and seek possession of the Recreation ground area.
35. Point No (ii) is accordingly answered in favour of Plaintiff.
36. Resultantly, the following order is passed :
-: O R D E R :-
(a) First Appeal is allowed.
(b) S.C. Suit No. 987 of 2009 is restored to file.
(c) The issue of limitation to be considered along
with the other issues.
Patil-SR (ch) 23 of 24
FA 558-2012.doc
37. In view of the disposal of First Appeal, nothing survives for
consideration in the pending civil/interim applications and the same
stand disposed of.
[Sharmila U. Deshmukh, J.]
Patil-SR (ch) 24 of 24
Signed by: Sachin R. Patil
Designation: PS To Honourable Judge
Date: 02/04/2025 20:36:21
