Bombay High Court
Dr, Tanaz Jehangir Irani Alias Dr. Tanaz ... vs The State Of Maharashtra Thr Collector ... on 21 March, 2025
Author: N.J.Jamadar
Bench: N.J.Jamadar
2025:BHC-AS:13326
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.9167 OF 2023
Dr. Tanaz Jehangir Irani @ Dr. Tanaz
Satish Reddy,
Samarth Angan, 3B, Plot No.1813/14/15,
Lokhandwala Complex, Andheri (W),
Mumbai - 400 053. ... Petitioner
versus
1) The State of Maharashtra,
through Collector Palghar,
Palghar Boisar Road,
Taluka and District Palghar
2) Tehsildar Palghar,
Taluka & Dist. Palghar
3) The Circle Officer, Boisar,
Taluka and Dist. Palghar
4) Firdos Marzban Irani
Near Aarman Hotel,
Above Digi 1, Opp. Boisar,
Railway Station, Boisar,
Tal & Dist. Palghar 401 501. ... Respondents
Mr. Agnel Carneiro with Mr. Smithg Colaco, Ms. Gayatri Sathe, Mr. Rupal
Mahimkar, Mr. Janmesh Vora i/by Mulla and Mulla and Craigie Blunt and
Caroe, for Petitioner.
Mrs. Sulabha Chipade, AGP for Respondent-State.
Mr. Prajakt M. Arjunwadkar with Mr. Raj S. Satam, for Respondent No.4.
CORAM: N.J.JAMADAR, J.
CLOSED FOR ORDERS ON : 9 JANUARY 2025
PRONOUNCED ON : 21 MARCH 2025
SSP 1/16
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JUDGMENT :
1. This Writ Petition is directed against an order dated 29 May 2023
passed by the learned Civil Judge, Senior Division, Palghar, whereby the
application preferred by the Petitioner - Defendant No.4 for the rejection of
the plaint under Order VII Rule 11(d) of the Code of Civil Procedure, 1908 (the
Code, 1908), came to be rejected.
2. Background facts leading to this Petition, can be stated in brief as
under :
2.1 The Petitioner-Defendant No.4 is the holder of the land bearing Survey
No.74/1/1/1 admeasuring 5H 11.20R. Mrs. Gover Jehangir Irani was the
original holder of the said land. Abutting the said land, the land of the Plaintiff
- Respondent No.4 and his sister Moti Viraf Khoramshahi are situated. The
Plaintiff claims, all the three parcels of land, including the area admeasuring
1H 60R, out of Survey No.74/1/1/1 (the suit property) are enclosed by one
compound.
2.2 The Plaintiff asserts, though the suit land stood in the name of Gover
Irani, the predecessor in title of the Defendant No.4, yet since prior to 1980-
81, the suit land has been in open, peaceful and uninterrupted possession
and cultivation of the Plaintiff to the knowledge of Mrs. Gover Irani. The
Plaintiff runs a poultry farm under the name and style of Boisar Poultry Farm.
The Plaintiff manufacturers Ice Candy in a portion of the suit land. There are
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other structures erected by the Plaintiff. Remaining land is used by the
Plaintiff for horticulture and floriculture.
2.3 In the year 2000, Smt. Irani had got the lands measured. In the said
measurement, the possession of the Plaintiff over the suit land was clearly
indicated. Somewhere in the year 2013, Smt. Irani took objection to the
supply of electricity connection. The Plaintiff approached the Civil Court by
instituting RCS No.185 of 2013, wherein interim order to restore the electric
supply was passed. Smt. Irani also instituted a suit being RCS No.93 of 2014
for removal of the encroachment. In the said suit, the Plaintiff has raised a
specific defence of acquisition of title by prescription.
2.4 During the pendency of the said suit, the Plaintiff alleges, Defendant
No.4, who is the donee of the suit land, has approached the authorities of the
State with an oblique motive to dispossess the Plaintiff by hook or crook. In
one of such complaints, the Tahasildar, Palghar - Defendant No.2, on the
directions of Defendant No.1, passed an order dated 10 October 2022 to
remove the structures standing on the suit land terming the same to be
unauthorized. A further notice was issued on 15 November 2022, that the
structures would be demolished on 17 November 2022. In fact, Defendant
Nos.1 to 3 have no authority to take such action in respect of the structures
which are situated on a private land. The revenue authorities have no
jurisdiction to embark upon an enquiry into the disputed acquisition of title and
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possession. Nor the authorities can direct the removal of encroachment on a
private land. As the Defendant Nos.1 to 3 were acting illegally, at the behest
of Defendant No.4, and the order dated 10 October 2022 was passed without
jurisdiction, the Plaintiff was constrained to institute the suit to restrain
Defendant Nos.1 to 3 from causing obstruction to the possession and
enjoyment of the Plaintiff of the suit land and also to restrain the Defendants
from committing any illegal act qua the suit property.
2.5 By an order dated 24 November 2022, the learned Civil Judge
restrained Defendant Nos.1 to 3 from taking any forcible action on the basis of
the notice dated 15 November 2022.
2.6 Defendant No.4 filed an application for rejection of the plaint,
purportedly under Order 7 Rule 11(d) of the Code, on the ground that there
was express bar to the suit under the provisions of Maharashtra Revenue
Jurisdiction Act, 1876. Since the order has been passed by the revenue
authorities under the provisions of the Maharashtra Land Revenue Code,
1966, the challenge to the said action is barred by the provisions of the
Maharashtra Revenue Jurisdiction Act, 1876.
2.7 Secondly, there is an implied bar under the Maharashtra Land
Revenue Code, as the orders passed by the Tahasildar are amenable to
appeal before the authorities under the Code. In fact, the Plaintiff had already
filed RTS Appeal No.6 of 2022 aggrieved by the order dated 10 October 2022.
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Thus, the civil Court has no jurisdiction to entertain the suit.
2.8 Thirdly, the Plaintiff has suppressed material facts, including the
fact that the Plaintiff had filed Writ Petition No.13625 of 2022 before this Court
and therein sought limited relief qua the notice dated 15 November 2022 till
the decision on the application for interim relief preferred by the Plaintiff in
RTS Appeal No.6 of 2022. It was further contended that the Plaintiff was
seeking relief of injunction simplicitor without seeking declaration. On this
count also, the plaint deserves to be rejected.
2.9 The learned Civil Judge did not accede to the contention on
behalf of Defendant No.4. As the Plaintiff claimed that the action of Defendant
Nos.1 to 3 was without jurisdiction, the bar under the Maharashtra Revenue
Jurisdiction Act, 1876, was not attracted, held the learned Civil Judge.
2.10 Being aggrieved, Defendant No.4 has invoked the writ
jurisdiction.
3. I have heard Mr. Carneiro, learned Counsel for the Petitioner, Mr.
Prajakt Arjunwadkar, learned Counsel for Respondent No.4 and the learned
AGP for the Respondent-State at some length. With the assistance of the
learned Counsel for the parties, I have perused the material on record.
4. Mr. Carneiro, learned Counsel for the Petitioner, submitted that the
order dated 10 October 2022 was in fact passed by the Defendant No.2 under
the provisions of Sections 52 to 55 of the Maharashtra Regional and Town
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Planning Act, 1966 (MRTP Act, 1966). The order for removal of the
unauthorized development under Section 55 of the MRTP Act, 1966 cannot
be challenged before the Civil Court, as there is an express bar under
Section 149 of the MRTP Act, 1966. Section 149 provides that every order
passed or directions issued by the State Government or the authorities under
the MRTP Act, shall be final and shall not be questioned in a suit or legal
proceedings. Since the order of removal of unauthorized construction is
referable to Section 55 of the Act, the jurisdiction of the Civil Court is
expressly barred.
5. To lend support to this submission, Mr. Carneiro placed reliance on two
judgments of this Court in the cases of Babar Sher Khan and Ors. V/s.
Municipal Corporation of Brihanmumbai and Anr.1 and Prathamesh Tower Co-
op. Hsg.Soc. Ltd. V/s. Gorai Road (Borivali) Shree Ganesh Co-op. Hsg. Soc.
Ltd. and Ors.2.
6. Mr. Carneiro further submitted that the learned Civil Judge was in error
in holding that the suit was not barred by the provisions of the Maharashtra
Revenue Jurisdiction Act, and the reliance on the Full Bench judgment of this
Court in the case of Gopinath Ganpatrao Pensalwar V/s. State of
Maharashtra and Anr.3 was misplaced. In the said case, the Full Bench had
considered the bar to the suit under Section 11 of the said Act, 1876. That is
1 2007 SCC Online Bom 744
2 2013 (4) Mh.L.J. 918
3 2007(1) Mh.L.J. 819
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not the controversy involved in the instant case. Laying emphasis on the
order passed by the Tahasildar, especially the finding that number of
structures have been erected without permission by the Defendants, Mr.
Carneiro submitted that the suit challenging the order of removal of
unauthorized structure on account of change of user of the land was clearly
not tenable before the civil Court.
7. Mrs. Chipade, learned AGP supplemented the submissions of Mr.
Carneiro. It was submitted that though Defendant Nos.1 to 3 had not filed an
application for rejection of the plaint, written submissions were tendered
before the trial Court seeking rejection of the plaint on the ground of bar of
jurisdiction.
8. Mr. Arjunwadkar, learned Counsel for Respondent No.4, stoutly resisted
the submissions on behalf of the Petitioner and the State. It was urged that
the action of Defendant No.2 to venture into disputed questions of title and
possession and the order of removal of alleged unauthorized structures when
the disputes are subjudice before the Civil Court, was a clear transgression of
the authority vested in Defendant No.2. Resort to the provisions contained in
Section 55 of the MRTP Act, 1966 was wholly uncalled for. Taking the Court
through the order passed by the Defendant No.2, Mr. Arjunwadkar would urge
that it revealed unabashed usurpation of the jurisdiction of the Civil Court.
Where the order passed by the authority is clearly in transgression of the
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jurisdictional limits and is a nullity, the Civil Court has jurisdiction to entertain
the action by way of a suit. To this end, Mr. Arjunwadkar placed reliance on
the Division Bench judgment of this Court in the case of SI Group India Pvt.
Ltd. V/s. The Tehsildar, Rasal - Sudhagad and Ors.4.
9. On the aspect of the bar of jurisdiction in view of the provisions
contained in Maharashtra Revenue Jurisdiction Act, 1876, Mr. Arjunwadkar
placed a very strong reliance on the Full Bench judgment in Gopinath
Ganpatrao Pensalwar V/s. State of Maharashtra and Anr. (supra).
10. I have given anxious consideration to the aforesaid submissions. I
have narrated above the case of the Plaintiff rather elaborately, on purpose. It
is well recognized that while considering the application for rejection of the
plaint, the Court is enjoined to read the plaint as a whole and read the plaint in
a meaningful and not formalistic manner. As is evident from the narration of
the facts, the substance of the claim of the Plaintiff is that the Plaintiff has
been in continuous, open, hostile and uninterrupted possession of the suit
land since prior to 1980-81 and has been carrying on various activities in the
suit land. He has erected various structures in the suit land and has
perfected the title to the suit land by prescription. Defendant Nos.1 to 3 have
no authority to determine the issues of title and possession over the suit land
and the Defendant Nos.1 to 3 have attempted to usurp the jurisdiction at the
4 WP 9918 of 2016 dated 29 March 2017
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behest of Defendant No.4. The action of Defendant Nos.1 and 2 is without
jurisdiction, and, thus, the order passed by the Defendant No.2 is a nullity.
11. In the backdrop of the aforesaid substratum of the Plaintiff's claim, the
grounds of bar to the suit deserve to be appreciated. At the threshold, it must
be noted that before the trial Court the thrust of the Defendant No.4 was on
the bar to the suit on account of the provisions contained in the Maharashtra
Revenue Jurisdiction Act, 1876. Before this Court, Mr. Carneiro laid a greater
emphasis on the purported bar contained in Section 149 of the MRTP Act,
1966 on the premise that the order passed by the Tahasildar - Defendant
No.2 draws support from the provisions contained in Section 55 of the MRTP
Act.
12. I will deal with these challenges in the aforesaid order. First, the
purported bar under the Maharashtra Revenue Jurisdiction Act, 1876. The
said Act was enacted as in certain parts of the Presidency of Bombay the
jurisdiction of the civil Court in matters connected with land revenue was more
extensive than it was in the rest of the Bombay Presidency and it was
considered expedient that the jurisdiction of all the civil Courts in the Bombay
Presidency should be limited in the manner provided under the said Act.
13. Section 3 of the said Act, 1876 defines the terms land, land revenue
and revenue officer. Section 4 enumerates the matters in which no civil Court
shall exercise jurisdiction, subject to the exception provided in the Act.
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Section 5 saves certain suits from the operation of Section 4, and, does not
preclude the civil Courts from entertaining and deciding those suits. It
appears that the instant suit does not fall within the ambit of any of the
clauses of Section 4 of the Act, 1876.
14. Section 11 of the Act, which might possibly be pressed into service in
this case, provides that except as otherwise expressly provided in the
Maharashtra Land Revenue Code, 1966, no civil Court shall entertain any suit
against the Government on account of any act or omission of any Revenue-
Officer unless the Plaintiff first proves that previously to bringing his suit, he
has presented all such appeals allowed by the law for the time being in force
as, within the period of limitation allowed for bringing such suit, it was possible
to present.
15. The phraseology of Section 11, in plain terms, provides that if against
an order passed by the authorities under the Maharashtra Land Revenue
Code, statutory appeals are provided therein, the Plaintiff must exhaust all
those appeals before approaching the Civil Court. This Section would come
into play where the order is passed by the Authority under the Maharashtra
Land Revenue Code within the bounds of its jurisdiction and such an order is
amenable to appeal before a superior authority under the Code, 1966.
16. In the context of Section 11, an endeavour was made on behalf of the
Defendants to urge that the Plaintiff had, in fact, availed the remedy under the
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Maharashtra Land Revenue Code, 1966 and preferred an appeal. The
Plaintiff had approached this Court seeking interim protection on the ground
that the Interim Application for stay to the order passed by the Tahasildar was
not being heard by the Appellate Authority. Having obtained interim protection
from this Court on the premise that the Plaintiff would move the Interim
Application before the Appellate Authority under the Code, 1966, the Plaintiff
could not have instituted the suit, was the fulcrum of the submissions on
behalf of the Defendants.
17. In the facts of the case, in my view, the fact that the Plaintiff had
approached the Appellate Authority under Section 247 of the Code, 1966,
against the order passed by the Defendant No.2 is not of decisive
significance. The remedy resorted to by the Plaintiff against the said order
would not cloth legality and validity to the said order, if it was not passed
within the bounds of the jurisdiction. If the challenge to the action of the
revenue authority is premised on the action being without jurisdiction, or in
violation of fundamental principle of judicial process, the bar under Section 11
of the Act, 1876 may not be attracted.
18. The Full Bench judgment in the case of Gopinath Ganpatrao Pensalwar
(supra), expounds this well recognized legal position, in clear and explicit
terms, as under :
"13. Section 11 of the Act of 1876 can not, in our view, be said
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to create a bar in entertaining the suit relating to an action of the
Revenue Officer, where he purports to do an act which is without
jurisdiction. It goes without saying that where an authority acts
without jurisdiction or purports to pass an order, that is without
jurisdiction, such order is void, non est and nullity. We do not think it
is necessary for us to deal with this aspect at length, as we are
benefited by the Full Bench decision of this Court in the case of
Abdullamiyan Abdulrehman V/s. The Government of Bombay 5. The
Full Bench of this Court had an occasion to consider Section 11 of
the Act of 1876. The Full Bench considered few decisions of this
Court in the cases of Suraannanna v. Secretary of State for India6;
Malkajeppa V/s. Secretary of State for India 7; Rasulkhan
Hamadkhan V/s. Secretary of State for India8; Dhanji V/s. The
Secretary of State9; Patdaya V/s. Secretary of State10; Sulleman V/s.
Secretary of State11 and Manibhai V/s. Nadiad City Municipality12,
and concluded the legal position thus :
"Those cases have established the principle that where an
authority which purports to pass an order is acting without
jurisdiction, the purported order is a mere nullity, as Sir Lawrence
Jenkins puts it, it is mere waste paper; and it is not necessary for
anybody who objects to that order, to apply to set it aside. He can
rely on its invalidity when it is set up against him, although he has
not taken steps to set it aside. The Advocate General does not
dispute the proposition established by those cases, but he says that
the principle does not apply to Section 11 of the Bombay Revenue
Jurisdiction Act, which operates when an appeal is possible, and not
merely when it is obligatory. I find it difficult to see why the principle
should not apply. If the true principle be, as those cases decided,
5 Vol XLIV (1942) the BLR 577
6 2 BLR 261
7 14 BLR 332
8 17 BLR 513
9 23 BLR 279
10 25 BLR 1160
11 30 BLR 431
12 28 BLR 1465
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that an order, or what purports to be an order, passed without
jurisdiction, is a nullity, it cannot give rise to any right whatever, not
even to a right of appeal."
14. It was held by the Full Bench that on a strict use of
language an order which is invalid, is not an order. It was further held
that where the revenue officer purports to do an act or pass an order
which is invalid, his action does not operate to raise a bar under
Section 11 of the Act of 1876."
19. In the case at hand, there are categorical averments in the plaint that
the Defendant Nos.1 to 3 have no jurisdiction to embark upon an inquiry into
the aspects of title and possession. The order passed by the Defendant No.2
is in clear usurpation of the jurisdiction of the Civil Court. Therefore, where it
is alleged that the order passed by Defendant No.2 is without jurisdiction, and,
thus, non-est in the eyes of law, the jurisdiction of the Civil Court is not barred.
20. This propels me to the crucial question as to whether there is prima
facie material to show that the action of Defendant No.2 is beyond his
jurisdictional competence. This consideration would also deal with the
second limb of the submission of Mr. Carneiro that the suit is barred by the
provisions of Section 149 of the MRTP Act, 1966.
21. Undoubtedly, under the provisions of Section 55 of the MRTP Act,
1966, the Planning Authority, if it is found that any person has carried out any
development of a temporary nature unauthorizedly as indicated in sub-section
(1) of Section 52, may by an order in writing direct that person to remove any
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structure or work erected, or discontinue the use of land made, unauthorizedly
and upon failure of such person to comply with the said order, to have such
work summarily removed or such use summarily discontinued without any
notice as directed in the said order.
22. The issue that warrants consideration is whether the order dated 10
October 2022, has been passed by the Tahasildar - Defendant No.2 in
exercise of the said power. For an answer, a reference to the order passed
by the Tahasildar becomes necessary. Upon the perusal of the said order, it
becomes evidently clear that after the enquiry, what the Tahasildar found was
that the Plaintiff has put the suit property to non-agricultural use and the said
action of the Plaintiff was in breach of, firstly, the user of the agricultural land
for non-agricultural purposes and user of the land for commercial purposes,
without the permission of the Competent Authority, and, thus, it constituted
breach of the provisions contained in Section 44 of the Act. And, therefore,
without resorting to the power to impose penalty under Section 45 of the
MLRC, 1966, Defendant No.2 proceeded to pass an order to remove the
unauthorized structure under Section 45(1)(b)(iii) of the Code, 1966. Thus,
the source of power for passing order of the removal of the structures and
development over the suit property is expressly referable to Section 45 of the
Code and not the provisions of MRTP Act, 1999. Therefore, the endeavour
on behalf of the Defendants to suit non-suit the Plaintiff by resorting to Section
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149 of the Act, 1966 does not merit countenance. Resort to the provisions
contained in Section 45(1)(b)(iii) directly without exercising the power to
impose pecuniary penalty, prima facie, gives heft to the challenge to the
legality and validity of the action of Defendant No.2.
23. At this stage, it is necessary to note that the suit instituted by the
predecessor in title of Defendant No.4 is subjudice before the Civil Court. In
the said suit, the Plaintiff - Defendant No.2 has raised a plea of adverse
possession and the said issue has also been settled. The action of the
revenue authorities when the dispute is subjudice before the Civil Court is ex-
facie debatable.
24. Reliance placed by Mr. Arjunwadkar on the Division Bench Judgment of
this Court in the case of SI Group India Pvt. Ltd. (supra), appears to be well
founded. In the said case as well, the action was initiated under Section 45 of
the Code, 1966, upon the failure to remove the construction which was
alleged to be by way of encroachment over the land of the third respondent
therein, who had filed a complaint alleging that the Petitioner company had
encroached upon his land. The Division Bench of this Court disapproved the
action of the revenue authorities in the following words :
"7. After having heard the learned counsel appearing for the
parties we find that the direction given by the Tahsildar to the
petitioner to remove the alleged encroachment made on the land
bearing survey No.148/1 allegedly held by the third respondent and
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to place the third respondent in possession of the alleged
encroached portion is completely illegal. No such power is vested in
the State Government under the Maharashtra Land Revenue Code,
1966. There is no power vested in the Revenue Authorities under the
said Code to remove encroachment on a private property. Only a
Civil Court could have issued such a direction. The impugned notice
proceeds on the assumption that the third respondent is the owner of
the land bearing survey No.148/1 and that the petitioner has
encroached upon it. We may note here that on 15 th February, 2017
the Civil Suit for removal of encroachment allegedly made by the
petitioner has been already filed by the third respondent and others.
8. The third respondent will have to establish before the Civil Court
that the petitioner has carried out encroachment as alleged by him."
(emphasis supplied)
25. The aforesaid pronouncement appears to be on all four with the facts of
the case at hand. Thus, the challenge to the legality and validity of the action
of Defendant Nos.1 to 3 and the order passed by Defendant No.2 on 10
October 2022 is required to be adjudicated by the Civil Court. The application
for rejection of the plaint on the ground of bar of statutory provisions was,
therefore, rightly rejected by the trial Court. No interference is, thus,
warranted in exercise of supervisory jurisdiction. Resultantly, the Writ Petition
deserves to be dismissed.
26. Hence, the Writ Petition stands dismissed.
27. No costs.
( N.J.JAMADAR, J. )
Signed by: S.S.Phadke
Designation: PS To Honourable Judge
Date: 21/03/2025 18:46:25
