Bombay High Court
Bales Sardara Paracha vs The Municipal Corporation Of Greater ... on 30 March, 2005
Equivalent citations: 2005(4)BOMCR577
Author: Ranjana Desai
Bench: Ranjana Desai
JUDGMENT Ranjana Desai, J.
1. The appellant ("the plaintiff ", for convenience) has challenged in this appeal Judgment and Order dated 5th February, 2005 passed by the City Civil Court at Mumbai in Long Cause Suit No. 90 of 2005.
2. Respondent No. 1 ("defendant No.1", for convenience) is the Municipal Corporation of Greater Bombay. Respondent No. 2 ("defendant No.2", for convenience) is the landlord.
3. The suit was filed praying for a declaration that the notice issued by defendant No. 1 under Section 55(1) of the Maharashtra Regional and Town Planning Act, 1966 ("the MRTP Act", for convenience) dated 15th December, 2004 is bad in law, void ab initio and not enforceable. The plaintiff had also prayed for an injunction restraining the defendants from taking any action of demolishing the suit premises, i.e., a structure admeasuring 17'4" x 8'9" and 9' x 5'4" situate at Rita Building Compound, Telli Galli, Shahu Maharaj Road, Mumbai 400 093 (suit structure, for short).
4. In short, the case of the plaintiff is that the plaintiff is employed as a sweeper for the last about 25 to 30 years by defendant No. 2. She was allowed to occupy the suit premises as a tenant. Her monthly remuneration was Rs.200/- after deducting the rent amount, including the water and electricity charges. The impugned notice issued under Section 55(1) of the MRTP Act directed the plaintiff to vacate the suit structure within 15 days from the receipt thereof; and hence, the plaintiff filed the aforesaid suit.
5. At the trial, defendant No.1 filed affidavit- in- reply, contending therein, inter alia, that a suit challenging the notice issued under Section 55(1) of the MRTP Act is not maintainable in view of Section 149 thereof.
6. Defendant No.2 also filed affidavit- in- reply in which he, inter alia, contended that there was no privity of contract between the plaintiff and defendant No. 2, and the suit suffered from non- joinder and misjoinder of parties. Defendant No.2 also contended that the City Civil Court had no jurisdiction to entertain the suit.
7. As the point of jurisdiction was raised, the trial court framed the necessary issue as regards jurisdiction. The plaintiff led her evidence. Defendant No.2 crossexamined her. Defendant No.1 did not cross-examine the witness. After perusing the evidence on record, the trial court held that it had no jurisdiction to entertain the suit. The suit was dismissed for want of jurisdiction, and hence, this appeal.
8. I have heard at some length Mrs. Nutan S. Moily, learned counsel appearing for the appellant/plaintiff. The learned counsel contended that exclusion of civil court's jurisdiction cannot be readily inferred. She submitted that the MRTP Act makes no provision under which a notice issued under Section 55(1) of the said Act can be challenged. Absence of provision for adequate and effective alternative remedy under the MRTP Act is itself an indication of the fact that the civil court's jurisdiction is not excluded. The learned counsel contended that the trial court has misconstrued the provisions of the MRTP Act and has failed to appreciate the settled principles which the court has to follow while ascertaining whether the civil court's jurisdiction is excluded or not. The learned counsel further contended that even in cases where the jurisdiction of the civil court is barred expressly or impliedly, the court could, nonetheless, retain its jurisdiction to entertain the suit if the order impugned is a nullity. The learned counsel contended that the trial court has wrongly observed that the plaintiff has not challenged the impugned notice on the ground that it is a nullity. She drew my attention to the prayer clause of the plaint, and submitted that the plaintiff has prayed for a declaration that the impugned notice is void ab initio. The learned counsel submitted that the said declaration is equivalent to the declaration that the impugned notice is a nullity.
9. In support of her submission that the civil court's jurisdiction is not barred in the instant case, the learned counsel for the plaintiff relied on Dhruv Green Field Ltd. v. Hukam Singh and Ors., (2002) 6 SCC 416, and Shiv Kumar Chadha v. Municipal Corporation of Delhi and Ors., (1993) 3 SCC 161.
10. Mr. J. Xavier, the learned counsel for respondent No. 1 / defendant No.1, on the other hand, contended that the trial court has correctly appreciated the relevant provisions of the MRTP Act. Section 149 of the MRTP Act clearly bars the jurisdiction of civil court. The language of the section is unambiguous and, therefore, the trial court cannot be faulted for having taken a view that the instant suit was not maintainable. In order to appreciate the submissions of the learned counsel, it is necessary to see what are the principles on the basis of which the Court has to ascertain whether there is exclusion of civil court's jurisdiction.
11. In Firm of Illuri Subbayya Chetty & Sons v. State of A.P., AIR 1964 SC 322, the Supreme Court was dealing with the Madras General Sales Tax Act, 1939. Section 18- A thereof provided that no suit or other proceeding shall, except as expressly provided in this Act, be instituted in any court to set aside or modify any assessment under the said Act. It was common ground that there was no express provision made in the said Act under which the suit of the appellant therein against the State of Andhra Pradesh seeking to recover a sum of Rs.8,349/- on the ground that it was illegally recovered under the said Act could have been filed. The prohibition was express and unambiguous, and the Supreme Court observed that on a fair construction of the section, there could be no doubt that a suit could not be entertained by a civil court if, by instituting the suit, the plaintiff wanted to set aside or modify assessment made under the said Act. While coming to this conclusion, the Supreme Court observed that in dealing with the question whether civil court's jurisdiction to entertain a suit was barred or not, it was necessary to bear in mind the fact that there was a general presumption that there must be a remedy in the ordinary civil court to a citizen claiming that an amount had been recovered from him illegally and that such a remedy could be held to be barred only on very clear and unmistakable indications to the contrary. It was further observed that the exclusion of the jurisdiction of the civil court to entertain civil causes would not be readily inferred, unless the relevant statute contained an express provision to that effect or led to a necessary and inevitable implication of that nature.
12. It is necessary to examine the provisions of the MRTP Act in the light of the above observations of the Supreme Court:
13. Section 52 of the MRTP Act provides for penalty for unauthorised development or for use otherwise than in conformity with Development Plan.
14. Section 55 of the MRTP Act, under which the impugned notice is issued, reads as under:-
"Removal or discontinuance of unauthorised temporary development summarily. (1)Notwithstanding anything hereinbefore contained in this Chapter (Chapter IV), where any person has carried out any development of a temporary nature, unauthorisedly as indicated in sub-section (1) of section 52, the Planning Authority may by an order in writing direct that person to remove any structure or work erected, or discontinue the use of land made, unauthorisedly as aforesaid, within fifteen days of the receipt of the order; and if thereafter, the person does not comply with the order within the said period, the Planning Authority may request the District Magistrate or the Commissioner of Police, as the case may be, or authorise any of its officers or servants, to have such work summarily removed or such use summarily discontinued without any notice as directed in the order, and any development unauthorisedly made again, shall be similarly removed or discontinued summarily without making any order as aforesaid.
(2)The decision of the Planning Authority on the question of what is development of a temporary nature shall be final."
15. Section 149 which gives finality to the orders passed or directions issued by the State Government or orders passed or notices issued by any Regional Board, Planning Authority or Development Authority under the MRTP Act, reads thus:-
"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. "
16. In my opinion, the language of Section 149 is unambiguous and clear. The bar is clear and admits of no confusion. If Section 149 is read in the light of the Supreme Court's judgment in Illuri Subbayya's case, there can be no doubt that jurisdiction of the civil court is barred.
17. It is, however, necessary to deal with Mrs. Moily's contention that the MRTP Act provides no adequate and effective alternative remedy, and, therefore, the exclusion of jurisdiction of the civil court cannot be inferred.
18. In Dhruv's case (supra), on which the learned counsel has placed reliance, the Supreme Court was dealing with Section 13 read with Section 10-A of the Punjab Village Common Lands (Regulation) Act, 1961 ("the Act", for short). A suit was filed by the respondent therein, challenging the validity of the lease of land granted by Gram Panchayat Madnaka for a period of 10 years in favour of the appellant on 1st October, 1997. The question was whether in view of Section 13 read with Section 10-A of the Act, a civil suit could be entertained. After taking a resume of the relevant cases on the point, the Supreme Court stated the principles which a court has to follow while ascertaining whether civil court's jurisdiction is excluded or not. I may quote the principles enunciated by the Supreme Court:-
" (1) If there is express provision in any special Act barring the jurisdiction of a civil court to deal with matters specified thereunder the jurisdiction of an ordinary civil court shall stand excluded.
(2) If there is no express provision in the Act but an examination of the provisions contained therein leads to a conclusion in regard to exclusion of jurisdiction of a civil court, the court would then inquire whether any adequate and efficacious alternative remedy is provided under the Act; if the answer is in the affirmative, it can safely be concluded that the jurisdiction of the civil court is barred. If, however, no such adequate and effective alternative remedy is provided then exclusion of the jurisdiction of the civil court cannot be inferred.
(3) Even in cases where the jurisdiction of a civil court is barred expressly or impliedly, the court would nonetheless retain its jurisdiction to entertain and adjudicate the suit provided the order complained of is a nullity."
19. From the above observations of the Supreme Court, it is clear that where the bar in the Special Act is express and clear, the jurisdiction of the civil court stands excluded. The question of the court embarking upon any enquiry to find out whether there is any adequate or efficacious remedy provided under the Special Act would arise only when there is no express bar but the examination of the provisions of the Special Act leads to a conclusion that the civil court's jurisdiction is barred. In such cases, availability of effective alternative remedy assumes importance because the legislative intent to bar the jurisdiction of the civil court is not explicit. In such cases, on the principle that ordinarily every person has a right to approach a civil court to redress his grievance, it becomes necessary to investigate whether other efficacious remedy is available or not. However, in cases where the order complained of is a nullity, even if the jurisdiction of the civil court is barred expressly or impliedly, the court would still retain its power to entertain the suit. There can be, therefore, no doubt that since in the present case, Section 149 creates an express bar whether the alternative efficacious remedy is available or not need not be investigated into.
20. On the basis of the judgment of the Supreme Court in Shiv Kumar's case (supra), Ms. Moily contended that the notice issued by defendant No. 1 under Section 149 of the M.R.T.P. Act is a nullity and, therefore, civil court could entertain the suit. It is, therefore, necessary to see what the Supreme Court has said in Shiv Kumar's case.
21. In Shiv Kumar's case, on which the learned counsel has placed reliance, the Supreme Court was dealing with the Delhi Municipal Corporation Act, 1957 ("the Corporation Act", for short). Section 347-E of the Corporation Act contained the provision regarding bar of jurisdiction of courts. Sub-section (5) of Section 343 of the Corporation Act provided that no court shall entertain any suit or application or order or proceeding for injunction or other relief to restrain from taking any action or making any order in pursuance of the provisions of the said section. Sub- section (5) provided that subject to an order made by the Administrator on appeal under Section 347-D, every order made by the Appellate Tribunal on appeal under the said section, and subject to the orders of the Administrator and the Appellate Tribunal on an appeal, the order of demolition made by the Commissioner shall be final and conclusive. The Supreme Court was considering whether in the face of these provisions, a suit could be filed in a civil court challenging an order of demolition or stoppage of construction. The Supreme Court observed that the court should not, ordinarily, entertain a suit in connection with the procedure initiated for demolition by the Commissioner. In terms of Section 343(1) of the Corporation Act, the court should direct the persons aggrieved to pursue the remedy before the appellate tribunal, and then before the administrator, in accordance with the provisions of the Corporation Act. The Supreme Court then observed that the court could entertain a suit questioning the validity of an order passed under Section 343 of the Corporation Act, only if the court is of prima facie opinion that the order is nullity in the eyes of law because of any jurisdictional error in exercise of the power by the Commissioner or that the order is outside the Corporation Act.
22. Ms. Moily would have been justified in submitting that the judgment of the Supreme Court in Shiv Kumar's case is applicable to the present case only if the notice challenged in the suit was a nullity. It is only then that the civil court could have retained its jurisdiction. However, in this case, it is not possible to hold that the impugned notice is a nullity because of any jurisdictional error in the exercise of power by respondent No. 1. Hence, this submission of Ms. Moily must fail. She has also submitted that the trial court had failed to notice that the plaintiff had asked for a declaration that the impugned notice is void ab initio and that the said declaration is equivalent to a declaration that the impugned notice is a nullity. In my opinion, the plaintiff has not specifically urged that the impugned notice is a nullity. The declaration sought is that the impugned notice is void ab initio. Even if it is assumed that the words "void ab initio" and "nullity" are equivalent, since I have already held that there is no jurisdictional error in exercise of power by defendant No.1 while issuing the impugned notice, this argument of Ms. Moily must also fail.
23. Having read the relevant provisions of the MRTP Act, I am of the confirmed opinion that Section 149 of the MRTP Act clearly excludes the jurisdiction of civil courts so far as the challenge to the orders passed or directions issued by the State Government or orders passed or notices issued by any Regional Board, Planning Authority or Development Authority under the MRTP Act are concerned. I am supported in my view by a decision of this Court (F.I. Rebello, J.) dated 18th October, 2002 in Appeal from Order No. 912 of 2002 and judgment dated 29th November, 2004 in Dr. Mohan N. Bhawe v. The Municipal Corporation of Greater Bombay, delivered by Smt. Nishita Mhatre, J., in Appeal from Order No. 634 of 2003.
24. In view of the above, in my opinion, the trial court has rightly dismissed the plaintiff's suit on the ground that in view of Section 149 of the MRTP Act, it cannot be entertained. There is no merit in the appeal. The appeal is, therefore, dismissed.
25. Consequently, the Civil Application does not survive, and the same is also dismissed.
26. At this stage, the learned counsel for the appellant states that the appellant is desirous of taking such other action as she may be advised to challenge the impugned notice. It is contended that the suit premises are in existence for a long time. In the circumstances, in my opinion, interests of justice demand that the appellant should be given some time to take such other steps as she maybe advised to challenge the impugned notice. Hence, the respondents are directed not to take any coercive step against the appellant, pursuant to the impugned notice, for a period of 8 weeks from today.