Bombay High Court
Muncipal Corporation Of Greater Mumbai ... vs Rajendra Phulchand Gupta on 28 February, 2022
Author: Sandeep K. Shinde
Bench: Sandeep K. Shinde
Rane 1/19 AO(ST)-16017-2021&AO-528-2021-
JUDGMENT.odt
28February, 2022
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER (ST.) NO. 16017 OF 2021
IN
NOTICE OF MOTION NO. 944 OF 2021
IN
L.C. SUIT NO. 770 OF 2021
MUNICIPAL CORPORATION OF
GREATER MUMBAI } APPELLANT
V/S.
RAJENDRA PHULCHAND GUPTA
AND ORS. } RESPONDENTS
ALONGWITH
INTERIM APPLICATION (ST.) NO. 16020 OF 2021
AND
APPEAL FROM ORDER NO. 528 OF 2021
IN
NOTICE OF MOTION NO. 944 OF 2021
IN
L.C. SUIT NO. 770 OF 2021
ALONGWITH
INTERIM APPLICATION NO. 4345 OF 2021
M/S. CHHAYA CONSTRUCTION CO. } APPELLANT
(ORIG. DEFENDANT NO.3)
V/S.
RAJENDRA PHULCHAND GUPTA } RESPONDENTS
------
Rane 2/19 AO(ST)-16017-2021&AO-528-2021-
JUDGMENT.odt
28February, 2022
Mr. Prateek Seksaria a/w. Mr. Saket Mone, Mr. Nishant
Chothani, Mr. Subit Chakrabarti i/by. Vidhi Partners,
Advocate for the appellant in AO-528-2021 and for
respondents in AO(St.)-16017-2021 and IA(St.)-
16020-2021.
Mr. A.Y. Sakhare, Senior Advocate a/w. Mr. Ravindra
Sirsikar, Advocate for appellant in AO(St.)-16017-
2021.
Mr. J.K. Shah i/by. R.J. Law, Advocate for respondents no.1
and 2 in AO-528-2021 and IA-4345-2021.
CORAM : SANDEEP K. SHINDE, J.
CLOSED FOR JUDG. ON : 10.02.2022
JUDG. PRONOUNCED ON : 28.02.2022
JUDGMENT :
1) The Mumbai Municipal Corporation (defendant no.1) and M/s. Chhaya Construction Company (defendant no.4) in the Long Cause Suit No.770/2021 then, instituted by respondents no.1 and 2 herein, have challenged order dated 29th July, 2021 passed in Motion No.944/2021 by which Learned Judge, City Civil Court, restrained the Corporation from demolishing or pulling down the suit structure, till the disposal of the suit. Rane 3/19 AO(ST)-16017-2021&AO-528-2021- JUDGMENT.odt 28February, 2022 Factual matrix :
2) The Mumbai Municipal Corporation issued a notice dated 26th October, 2020 under Section 351 of the Mumbai Municipal Corporation Act ("M.M.C. Act" for short) to the respondents-plaintiffs, to show suffcient cause as to why the alleged unauthorised construction, should not be removed or pulled down. The notice was responded by the plaintiffs on 2nd November, 2020 whereby they placed on record, certain documents, for the consideration of Designated Offcer, of the Corporation. The Offcer, in turn, vide speaking order dated 12 th March 2021, held that, documents produced by the plaintiffs did not prove, that the notice structure was in existence prior to 1st April, 1962- a datum line fxed for tolerable commercial structure. Whereafter, the plaintiff instituted the suit and challenged the impugned notice dated 26th October, 2020 issued under Section 351 and the speaking order dated 12rd March, 2021 passed by the Designated Offcer.
3) Vide order dated 29th July, learned trial Court injuncted the Corporation, from demolishing suit Rane 4/19 AO(ST)-16017-2021&AO-528-2021-
JUDGMENT.odt 28February, 2022 structure. That order is under challenge is these, two Appeals from Order, fled under Order 43 Rule (1) read with Section 104 of the Code of Civil Procedure.
4). Mr. A.Y. Sakhare, learned Senior Counsel appearing on behalf of the appellant-Corporation, in essence, contended that, the trial Court ought not to have entertained the suit itself, in view of the provisions of Section 515A of the M.M.C. Act, by which, remedy of fling a civil suit to challenge the order passed by the Designated Offcer under Section 354-A of the Act has been taken away. Mr. Sakhare, supplementing the point of maintainability of the suit, contended that in, Affdavit-in- reply, Corporation had raised the issue of jurisdiction in terms of Section 515A, yet the trial Court, instead of deciding jurisdiction as preliminary issue, granted the interim relief and therefore according to Mr. Sakhare, impugned order needs to be set aside. To put it differently, Mr. Sakhare, would argue when issue of jurisdiction was raised, trial Court could not have granted interim relief, but at the most, could have granted ad-interim relief, Rane 5/19 AO(ST)-16017-2021&AO-528-2021- JUDGMENT.odt 28February, 2022 pending decision on preliminary issue. Thus, Mr. Sakhare argued that, the parties be relegated to the trial Court, with further directions to the trial Court to decide the issue of jurisdiction, as a preliminary issue. Mr. Sakhare, in support of the submission, relied on the judgment of this Court in the case of Yogesh Meghaji Gada V.s. NCT (Writ Petition No.2243/2013). In the said case, the petitioners had challenged the action taken by the Municipal Corporation in respect of their structures by issuing notices under Section 351 and 354 of the M.M.C. Act. The Court, while examining the scope of writ jurisdiction while considering challenge to action of Corporation, has held that by newly introduced Section 515A, the remedy of fling civil suit to challenge the order and directions passed by the Designated Offcer under Section 351 and 354A has been taken away; However, held that, even if jurisdiction of civil court has been excluded by section 515A, it is still open, if the petitioners show, that there is jurisdictional error on the part of the authority issuing order or direction under Section 351 or 354A of the M.M.C. Act Mr. Sakhare, learned Senior Counsel, would rely on para-22 of the Rane 6/19 AO(ST)-16017-2021&AO-528-2021- JUDGMENT.odt 28February, 2022 judgment in Yogesh Gada (supra), to contend that Section 515A of the M.M.C. Act, has narrowed down the scope to challenge notice issued under Section 351 and there is no unlimited scope to challenge the orders under Section 351 or 354A. Additionally, Mr. Sakhare, would also rely on the observations, in paragraph no.23 of the cited judgment, to contend that, once there is a legislative policy to narrow down the scope of litigation, it cannot be defeated by entertaining unlimited challenge, unless there is manifest jurisdictional error on the part of the authority while issuing notice or passing order under Section 351 or 354A of the M.M.C. Act. Mr. Sakhare, to buttress the submissions, has taken me through the plaint. Mr. Sakhare, would therefore submit that, the trial Court having failed to appreciate the scope of Section 515A, committed obvious jurisdictional error and therefore impugned order calls for interference.
5) Mr. Seksaria, learned Counsel appearing for M/s. Chhaya Construction, defendant no.4 in Appeal No.528/2021, would contend, that impugned order Rane 7/19 AO(ST)-16017-2021&AO-528-2021- JUDGMENT.odt 28February, 2022 granting protection, is perverse for want of building permission. Mr. Seksaria, nextly submitted that the learned trial Court, has failed to appreciate that the, Decree dated 17th July, 2000 drawn in L.C. Suit No.5437/1987 ("previous suit" for short), would not place an embargo on powers of the Planning Authority from taking action against the suit unauthorised construction. Mr. Seksaria, submitted that, the learned Judge has committed an error, by largely relying on the decree passed in previous suit, while granting relief or protecting the suit structure. In addition, he would adopt, submissions of Mr. Sakhare, as to and concerning the issue of jurisdiction. Mr. Seksaria, therefore submitted that, on facts and on law, the impugned order is not sustainable and therefore interference is called for.
6). Mr. Vishal Kanade, learned Counsel appearing for the original plaintiffs-respondents no.1 and 2, would contend that, there was suffcient evidence on record conveying and establishing that, the suit construction was in existence prior to datum line. To support the Rane 8/19 AO(ST)-16017-2021&AO-528-2021- JUDGMENT.odt 28February, 2022 submission, Mr. Kanade, relied on a letter dated 5 th March, 2009 (page-238 of compilation to Interim Application), addressed by Assistant Assessor and Collector (PN-Ward) to Phulchand F. Gupta (father of plaintiffs), which shows, the suit structure i.e. Chana Shop admeasuring 41.00 sq.mtrs was assessed to Municipal taxes, prior to 1961-62. Mr. Kanade, therefore submitted, this communication, produced by the Corporation, supports the plaintiff's case as to existence of the suit structure prior to datum line. His next contention is that, in respect of the same suit structure, on 7th July, 1987, the Corporation had issued notice (page-58 of Interim Application), under Section 351 of the M.M.C. Act, which was challenged by plaintiff's father in L.C. Suit No.5437/1987. That suit was decreed on 17th July, 2000. However, that Decree has not been challenged by the Corporation till date. For that reason, Mr. Kanade, submitted, the Corporation could not have issued the suit notice dated 26 th October, 2020. In so far as, issue of 'jurisdiction' is concerned, Mr. Kanade submits that, one of the grounds, challenging the impugned notice was that, the notice and order passed by the Designated Rane 9/19 AO(ST)-16017-2021&AO-528-2021- JUDGMENT.odt 28February, 2022 Offcer, was bad in law, which according to Mr. Kanade, admits and requires liberal construction, to hold, notice was issued in arbitrary exercise of powers. Mr. Kanade, in this way, supports the impugned order.
DISCUSSION-REASONS :
7). I have carefully considered the submissions of the Counsel for the parties and perused the documents placed on record. The frst question, that falls for consideration is, "Whether Corporation in-law was justifed in issuing the notice under Section 351 of the M.M.C. Act dated 26th October 2020, concerning the suit structure for which, in past, notice was issued on 7 th July, 1987 under Section 351 of the M.M.C. Act and decree being passed in L.C. Suit No. 5437/1987?" Second question is, "Whether evidence on record, prima-facie, shows existence of suit structure prior to 1st April, 1961?" AND third question is, "Whether trial Court, could entertain the suit in view of prohibition contained in Section 515-A of the M.M.C. Act ?"
Rane 10/19 AO(ST)-16017-2021&AO-528-2021- JUDGMENT.odt 28February, 2022
8). It is not in dispute that, on 7 th July 1987, the Corporation had issued notice under Section 351 of the M.M.C. Act to plaintiff's father, to show cause, as to why suit structure should not be removed or pulled down. The suit structure described therein was "unauthorised extension to Jagdish Niwas", tin shed chawl on north side with B.M. Walls and A.C. sheets roof as per measurement shown in the sketch; overleaf; Whereas, the notice in question dated 26th October, 2020, describes suit structure as "unauthorised construction of structure with the help of brick masonry walls and A.C. sheet roof admeasuring as shown in sketch. Therefore, notice issued in past and notice in question, relating to Jagdish Niwas, (suit structure), in no way, differs from the past notice.
Neither, it's Corporation's case, that notice in question relates to additional construction put up by the plaintiffs' after the Decree was passed in L.C. Suit No.5437/1987. Indisputably, the previous notice dated 7 th July 1987 was challenged by plaintiffs' father in L.C. Suit No.5437/1987. The suit was decreed on 17th July, 2000 in terms of prayer clauses (a) and (b). By which, notice dated 7th July, 1987 Rane 11/19 AO(ST)-16017-2021&AO-528-2021- JUDGMENT.odt 28February, 2022 was held illegal, bad in law and ultravires, the powers and function of the Corporation and further the defendants were restrained by an order and injunction from taking any steps in pursuance of or in purported enforcement of the notice dated 7th July, 1987. Admittedly, the said Decree has not been challenged by the Corporation. Thus, it is in force and binding on the Corporation. Indisputably, the Decree relates to the suit structure i.e. "Jagdish Niwas"
and therefore at the frst place, the Corporation could not have issued the notice on 26th October, 2020 and secondly the authorised Offcer ought to have considered the effect of the Decree drawn in the previous suit in respect of the suit structure when it was brought to his notice. In the circumstances, I hold that, the Offcers of the Corporation, as well as, authorised Offcer, both ignored the valid and binding Decree passed in the previous suit and ventured to issue a fresh notice. This was a manifest error on the part of Offcers of the Corporation in exercise of jurisdiction. The frst question is answered accordingly. Rane 12/19 AO(ST)-16017-2021&AO-528-2021- JUDGMENT.odt 28February, 2022 Second Question-existence/erection of suit structure before datum line :
9. In this case, the Corporation itself has brought on record document/letter dated 6th March, 2009, which I have referred to in earlier paragraphs. At the cost of repetition it may be stated that, this communication/letter addressed by the Corporation to the father of the plaintiffs' admits that, the suit shop admeasuring 41.00 sq.mtrs was assessed to tax prior to 1961-62. Relevant portion of the communication reads as below :
BRIHANMUMBAI MAHANAGARPALIKA No.APN/3893/08-09 6 MAR, 2009 Ref : Your letter dated 03-02-2009 To, Phulchand Nate Gupta, Jagdish Niwas Patra, Chawl, Channa Shop 6, Sainath Road, Kastruba X Lane, Malad (W), Mumbai-400 064.
Sir, The required information on payment of schedule fee Rs.690/- vide Receipt No.0689083 dated 04-03-2009 (Rs.345/- each for Inspection Extract & 1st Date of Assessment) 1 Chana Shop Area 41.00 m2 Rs.100.00 (R) R.V. Rs. 285/- NPA (R) (NR) R.V. Rs. 1885/- NPA (NR) Rane 13/19 AO(ST)-16017-2021&AO-528-2021- JUDGMENT.odt 28February, 2022
2) 1st Date of Assessment is prior to 61-62. (emphasis) Yours faithfully, Asstt. Assessor & Collector, (PN) Ward That being the case, I have no reason to overlook this vital piece of document to prima-facie hold that the suit structure was in existence prior to the datum line i.e. 1 st April, 1962.
10. The third question arising for consideration is, "Whether the suit challenging the notice of pulling down the unauthorised construction issued under Section 351 of the M.M.C. Act is barred under the provisions of Section 515A of the M.M.C. Act. Section 515(A), as incorporated by the Maharashtra Act, 2 of 2012 of the Act reads as under :
[515A. Save as otherwise as provided in this Act, any notice issued, order passed or direction issued by the Designated Offcer, under Section 351 or 354A shall not be questioned in any suit or other legal proceedings."
Rane 14/19 AO(ST)-16017-2021&AO-528-2021- JUDGMENT.odt 28February, 2022
11. Almost identical provision is, made under Section 433A of the Maharashtra Municipal Corporation Act. In the case of Commissioner, Akola Municipal Corporation vs. Bhalchandra s/o. Govind Mahashabde, 2013 (4) Mh.L.J. 45, the learned Judge of this Court, has examined the scope of Section 433A of M.M.C. Act and addressed the issue in following paras :-
"3. The questions of law, which arise for consideration of this Court, are--(i) Whether a suit challenging the notice of pulling down unauthorized construction, issued under section 260 of the Maharashtra Municipal Corporations Act, is barred under the provision of section 433-A of the said Act?, and (ii) Whether a suit is liable to be dismissed under Order VII, Rule 11(a) and
(b) of the Civil Procedure Code? Before dealing with such questions, the law laid down by the Apex Court and this Court need to be seen.
4. The learned counsel appearing for the parties have relied upon the decision of the Apex Court in the case of Dhruv Green Field Ltd. v. Hukam Singh, reported in (2002) 6 SCC 416, and the decision of this Court in Qari Mohammed Zakir Hussain v.
Municipal Corporation of Greater Mumbai, reported in 2002 (2) Bom.C.R 98.
5. In the decision of the Apex Court in the case of Dhruv Green Field Ltd., cited supra, the Apex Court has laid down that the question as to whether the jurisdiction of Civil Court is barred, must be answered on the basis of the following principles:
"(1) If there is express provision in any special Act barring the jurisdiction of a Civil Court to deal with matters specifed thereunder the jurisdiction of an ordinary Civil Court shall stand excluded.
Rane 15/19 AO(ST)-16017-2021&AO-528-2021- JUDGMENT.odt 28February, 2022 (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 effcacious alternative remedy is provided under the Act; if the answer is in the affrmative, 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."
It is thus apparent that if there is express provision in any special Act barring the jurisdiction of the Civil Court to deal with the matters specifed thereunder, the jurisdiction of the ordinary Civil Court shall stand excluded. It has been held that even in cases where the jurisdiction of the 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.
6. In the decision of this Court in the case of Qari Mohammed Zakir Hussain, cited supra, it has been held that even if the jurisdiction of the Civil Court is specifcally excluded, the Civil Court shall have jurisdiction to examine into the issues where the provisions of the Act have not been complied with, or statutory Tribunal has not acted in conformity with the fundamental judicial procedure. It has further been held that if the suit proceeds on the premises that the offending act has been done not in good faith, then there is no bar for such a suit. The Rane 16/19 AO(ST)-16017-2021&AO-528-2021- JUDGMENT.odt 28February, 2022 suit complaining that the offending action is mala fde and in transgression of authority, would not be barred.
7. Now, section 433-A of the Maharashtra Municipal Corporations Act creating a bar of jurisdiction of the Civil Court, being relevant, is reproduced below:
"433-A. Bar of jurisdiction. -- Save as otherwise provided in this Act, any notice issued, order passed or direction issued by the Designated Offcer, under sections 260, 261, 264, 267 or 478 shall not be questioned in any suit or other legal proceedings."
Undoubtedly, if the plaintiff comes before the Civil Court alleging that a notice issued under section 260 of the said Act is illegal in any manner and seeks a declaration to that effect, then the bar of jurisdiction to try such a suit under section 433-A of the said Act shall operate. However, nonetheless, the inherent jurisdiction of a Civil Court in a suit challenging the notice under section 260 of the said Act, on the limited grounds, viz. that the act of issuance of such notice is nullity, or that while issuing such notice, the mandatory provisions of the said Act have not been complied with, or that the Authority issuing such a notice has not acted in conformity with the fundamental judicial procedure, or that it is an abuse of exercise of power, or that the offending act has not been done in good faith, remains intact, in view of the aforestated law laid down in judicial pronouncement. The Civil Court is not precluded of its inherent jurisdiction to entertain and decide such challenge to a notice under section 260 of the said Act, on such limited grounds, particularly when there is no forum available under the said Act to ventilate such grievances in respect of it. Hence, the question of law at Serial No. (i) is answered accordingly.
10. A plea of bar to jurisdiction of the Civil Court to entertain and decide the challenge to a notice under section 260 of the said Act on Rane 17/19 AO(ST)-16017-2021&AO-528-2021- JUDGMENT.odt 28February, 2022 the limited grounds, has to be considered having regard to the contentions raised in the plaint, the averments disclosing the cause of action, and the reliefs sought for therein. All such averments must be considered as a whole and not in isolation. The plaint must contain all such statements of material facts, as are necessary to invest such jurisdiction with the Civil Court. The statements of facts must be very clear and specifc and not vague. The absence of a single material fact of jurisdiction, would entail the consequences of dismissal of suit, as barred by section 433-A of the said Act.
12. Thus, the aforesaid judgments, cull out the following limited grounds on which notice under Section 351 or 354A, may be questioned in the suit, when;
(a) act of issuance of notice is nullity,
(b)the authority issuing such a notice, has not acted in conformity with the fundamental judicial procedure.
(c)notice has been issued by misusing the power; and
(d) offending act has not been done in good faith.
. Herein, indisputably, decree in previous Suit No.5437/1987, injuncts the Corporation from taking any steps in pursuance of or in purported enforcement of previous notice dated 7th July, 1987. The notice in question Rane 18/19 AO(ST)-16017-2021&AO-528-2021- JUDGMENT.odt 28February, 2022 and previous notice is/was, in respect of the same structure. Although, the plaint, in precise words, do not advert to the decree drawn in the previous suit No.5437/1987, yet it was brought on record in Exhibit-C collectively. Moreover, it was also brought to the notice of the Designated Offcer to which he had referred to, in the speaking order. Therefore, although, the decree in previous suit was within the knowledge of the Designated Offcer, he conveniently overlooked it, either at the instance of M/s. Chhaya Construction Company or failed to understand its import and effect. The plaintiff in ground
(a) of paragraph-20, has averred that, notice and order passed by the Designated Offcer, are illegal, bad in law and ultravires to the provisions of the M.M.C. Act, 1988. In the backdrop of the facts of the case, this ground obviously calls for liberal construction. Therefore, in consideration of the facts of the case, it is to be held, the authority has issued the second notice, (notice in question) in breach of fundamental judicial procedure. Prima-facie, notice has been issued in wrong exercise of power. So, also, it is manifest from the pleadings in the plaint that, the Offcers Rane 19/19 AO(ST)-16017-2021&AO-528-2021- JUDGMENT.odt 28February, 2022 of the Corporation, have acted as, "desired", by M/s. Chhaya Construction Company as to ensure demolition of the suit structure, by one way or another. These acts of the Offcers, cannot be overlooked.
13. Therefore, I hold, although the learned Judge has not framed a preliminary issue as to maintainability of the suit challenging the notice under Section 351, yet having regard to the facts of the case, the impugned order, cannot be faulted with. For all that reasons, Appeals require no consideration. They are dismissed.
14. With dismissal of the Appeals, Interim Application (St.) No. 16020 of 2021 becomes infructuous and does not survive. The same is disposed of.
Digitally
signed by
NEETA (SANDEEP K. SHINDE, J.)
NEETA SHAILESH
SHAILESH SAWANT
SAWANT Date:
2022.02.28
17:44:55
+0530