High Court

Legal Reasoning

1 CRA 99.23.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCIVIL REVISION APPLICATION NO.99 OF 2023Dilip Manik Naikage 70 years, Occ. Agriculturist,R/o. Mantha, Tq. Mantha,District Jalna...Applicant..Versus 1.Sudhir Shrinivas Joshi,age 52 years, Occ. Agriculture,R/o. Brahman Galli, Mantha,Tq. Mantha, Dist. Jalna.2.The Chief Officer,Municipal Council,Mantha, Taluka Mantha,District Jalna. ..Respondents.....Advocate for applicant : Mr. A.N. Sikchi Advocate for Respondent no.1 : Mr. A. G. Vasmatkar Advocate for Respondent no.2 : Mr. S.B. Paikrao ... CORAM :S. G. CHAPALGAONKAR, J.Reserved on :December 09, 2024Pronounced on December 19, 2024FINAL ORDER :-1.The applicant/defendant no.2 impugns the orderdated 14.3.2023, passed below exhibit-41 in R.C.S. No.17 of2017, pending before Civil Judge Junior Division, Mantha,thereby rejecting the prayer of applicant seeking rejection of 2 CRA 99.23.odtplaint under Order 7 Rule 11 of the Civil Procedure Code. (Forthe sake of brevity and convenience, hereinafter parties arereferred to as per their original status in the suit.)2.The plaintiff /Respondent No. 1 instituted R.C.S.No.17 of 2017 before Civil Judge J.D. Mantha, claiming reliefof perpetual injunction against respondent no.2 MunicipalCouncil from taking any action against completed constructionand not to demolish the construction. Plaintiff contends thathe owns ancestral property bearing house no.112/4, situatedat Brahman Galli, Mantha, admeasuring 20 x 50 feet. Heraised construction in the year 2014 in pursuance topermission granted by then village Panchayat, Mantha.According to plaintiff, Municipal council served a notice dated24.5.2017 purported to be under sections 45, 55 of theMaharashtra Regional Town Planning Act (for short MRTP Act)read with section 189 (8) of the Maharashtra MunicipalCouncils, Nagar Panchayats and Industrial Townships Act,1965 (for short Act of 1965) thereby directing him to removealleged illegal construction within a period of two days, else,construction would be removed by Municipal Council.Plaintiff replied said notice. Thereafter, on 9.6.2017, he was 3 CRA 99.23.odtcalled in the office of the Municipal Council and officersthreatened him of demolition of construction. Therefore, causeof action arose to file the suit.3.Applicant/defendant no.2 filed an applicationunder Order I Rule 10 of the Civil Procedure Code.Accordingly, he has been added as party defendant no.2 in thesuit. The applicant thereafter filed an application belowexhibit 41 under order VII Rule 11 of the CPC seekingrejection of plaint contending that suit has been instituted bysuppressing material facts. Plaintiff was already served withnotice dated 1.10.2016 under section 53 (1) of MRTP Actasking him to stop construction. However, he continued theconstruction. Thereafter, on 24.5.2017 District CollectorParbhani issued reminder to the Municipal Council, Mantha totake action against illegal construction. In deference tocollectors reminder, on 24.5.2017 notice under section 53 readwith section 155 of the Act has been served upon plaintiff toremove illegal construction within a period of two days.Suppressing all aforesaid proceedings, present suit has beeninstituted claiming relief of perpetual injunction against the 4 CRA 99.23.odtMunicipal Council. The suit is barred in view of section 149 ofthe M.R.T.P. Act.4.Trial Court upon consideration of rival contentionsobserved that plaintiff is merely seeking injunction againstdefendant no.1-Municipal Council to not to demolish suitproperty or carry out any illegal procedure for demolition ofthe same. Further, defendant no.2 has filed an application atExhibit-34 for framing of additional issue as to maintainabilityof suit. The said application is allowed and additional issuehas been framed. Thus application seeking rejection of plaintcame to be rejected vide impugned order dated 14.3.2023.5.Mr. Aditya Sikchi, learned advocate appearing forapplicant submits that powers under Order VII Rule 11 can beexercised by the Court at any stage of the proceeding. Inpresent case, suit is cleverly drafted, however, implicitly itchallenges notices issued by the Municipal Council/planningauthority in exercise of powers conferred under section 53 ofthe MRTP Act. According to him, bar under section 149 of theMRTP Act would hit the present suit. Therefore, plaint needsto be rejected as barred by law. 5 CRA 99.23.odt6.Mr. Sikchi, in support of his contentions placesreliance on law espoused in following judgments.i.Dahiben Vs. Arvindbhai Kalyanji Bhanusali (D)through L.Rs. And ors. Reported inMANU/SC/0508/2020.ii.R.K. Roja Vs. U.S. Rayadu and others reported inMANU/SC/0751/2016.Iii.Bales Sardara Paracha Vs. The MunicipalCorporation of Greater Bombay and ors reported inMANU/MH/0210/2005.iv.Satish Vs. Gopal Ramnarayan Mundhada andothers reported in MANU/MH/0680/2016.v.Kalyan Dombivali Municipal Corporation Vs.Prakash Mutha reported in MANU/MH/0177/2008.vi.Ramisetty Venkatanna and ors. Vs. Nasyam JamalSaheb and others reported inMANU/SC/0483/2023.vii.Rajendra Bajoria and others Vs. Hemant KumarJalan and others. MANU/SC/0678/2021.Viii.C.S. Ramaswamy Vs. V.K. Senthil and othersreported in MANU/SC/1268/2022.ix.Babar Sher Khan and others Vs. MunicipalCorporation of Brihanmumbai and others. Reportedin MANU/MH/1365/2007.7.Per contra, Mr. Vasmatkar, learned advocateappearing for the respondent/plaintiff supports the ordercontending that suit is instituted seeking relief of injunctionagainst proposed illegal action of the Municipal Council. Thereis no challenge to any order or notice as contemplated under 6 CRA 99.23.odtsection 149 of the Act. If the Municipal Council is proceedingahead on the basis of illegal notices, Civil Court has jurisdictionto try and entertain the suit and grant appropriate relief ofinjunction against proposed illegal action of the MunicipalCouncil. In support of his contentions, he placed reliance onlaw espoused in following judgments.i.Kishor Vs. The Municipal Commissioner and othersreported in MANU/MH/0213/2015.ii.Sanjay s/o Shankar Puppal Vs. Solapur MunicipalCorporation and others reported in 2022 (6) AIRBom.R.609.Iii.Nutan Digambar Jain Mandir Vs. Jain Tirth RakshTrust and others reported inMANU/MH/3881/2024.8.Having considered the submissions advanced andon perusal of record, it can be observed that plaintiff is seekingperpetual injunction against Municipal Council fromdemolishing construction. Pertinently, plaintiff pleaded that hehas completed construction in April, 2015 as per permissiongranted by the then Grampanchayat. He pleads that on24.5.2017 he was served with notice under section 53 and 152of MRTP Act read with section 189 (8) of the MaharashtraMunicipal Councils, Nagar Panchayats and IndustrialTownships Act, 1965. According to plaintiff, he replied saidnotice. However, he was threatened by officers of respondent 7 CRA 99.23.odtno.2 that they would be demolishing the construction withintwo to three days.9.Admittedly, plaintiff does not possess constructionpermission from the Municipal Council. Plaintiff has notchallenged legality and validity of the notice dated 24.5.2017,but simply seeks injunction against defendant/MunicipalCouncil from demolishing his construction. Plaintiff hasmerely averred that, notice is illegal since it sans the reason asto how construction of the plaintiff is illegal. It is not the caseof plaintiff that respondent/Municipal Council has no authorityto issue such notice or the notice violates particularrequirement of law. Except vague statement that notice dated24.5.2017 issued by the Municipal Council is illegal, no furtherstipulations are employed in plaint by which notice can beconsidered as invalid. Plaintiff has not sought declaration thatsuch notice is illegal, invalid or sans the particular requirementof law. 10.During course of arguments, Mr. Vasmatkar,learned advocate appearing for respondent no.1 endeavors tocontend that, in view of clause (1-a) of Section 53 of the Act,defendant Municipal Council ought to have given at least one 8 CRA 99.23.odtmonths advance notice to take necessary steps but notice dated24.5.2017 stipulates only two days period for removal of theconstruction thus notice is not in conformity with statutoryscheme of Section 53 (1-a) of the Act. It is difficult to accedewith aforesaid submissions of Advocate Mr. Vasmatkar. Clause1-a of section 53 applies only when the notice is given for thereasons as enumerated under clause (b) or (d) of Sub-section(1) of section 52 of the MRTP Act i.e. when the construction ismade inconsistent with the permission granted or incontravention of any condition of the permission or incontravention of the modified permission.11.In the present case, admittedly, construction raisedby plaintiff is not preceded by permission of Municipal Council.Further, as rightly pointed out by Mr. Sikachi, plaintiff waspreviously served with notice dated 1.10.2016 under section53 (1) of the MRTP Act directing him to stop the construction.Plaintiff has conveniently avoided to make reference of suchnotice in the plaint. 12.The Supreme Court of India in case of Dahiben Vs.Arvindbhai Kalyanji Bhanusali (D) through L.Rs. And ors.reported in (2020) 7 Supreme Court Cases 366 observed that it 9 CRA 99.23.odtis a duty of the Court to find out whether plaint discloses realcause of action or illusory cause of action created by cleverdrafting. The Court must be vigilant against camouflage orsuppression and if suit found to be vexatious and an abuse ofprocess of Court, it should exercise its drastic power underOrder VII Rule 11 of Civil Procedure Code to reject the plaint.It is further observed that the power under Order VII Rule 11can be exercised by the Court at any stage of the suit.13.In view of the aforesaid exposition of law, ifcontents of the plaint alongwith documents appended theretoare considered, it is apparent that applicant is in fact seekinginjunction against the planning authority thereby restrainingthem to do their lawful duty. Aforesaid prayer of the plaintiffneeds to be looked into in view of the specific provisionengrafted under section 149 of MRTP Act, which reads thus :-149. Finality of orders :- Save as otherwiseexpressly provided in this Act, every orderpassed or direction issued by the StateGovernment or order passed or notice issuedby any Regional Board, Planning Authority orDevelopment Authority under this Act shallbe final and shall not be questioned in anysuit or other legal proceedings.14.In case of Bales Sardara Paracha Vs. MunicipalCorporation Greater Bombay reported in 2005 (4) Bom.C.R. 10 CRA 99.23.odt577, this Court observed that when jurisdiction of the civilcourt stand excluded, no court shall entertain any suit or theapplication for injunction where an order is made by theAdministrator or the competent authority with a caveat thatcivil court would retain it’s jurisdiction to entertain andadjudicate the suit if the order is complained of nullity. It isfurther observed that when the specific bar is engrafted underthe statutory provisions, availability or non-availability ofalternate efficacious remedy cannot be the issue forconsideration. Plain reading of section 149 of the Act showsthat finality is given to the orders or direction or notices issuedby the planning authority under provisions of the MRTP Act.Language of section 149 is unambiguous and clear. Althoughplaintiff has cleverly avoided to seek any relief of declarationagainst notices served upon him by the planning authority, heseeks relief of perpetual injunction that the Municipal Councilshall be restrained from demolishing his construction.Indirectly, plaintiff is seeking injunction against the planningauthority from acting upon the order/notice issued in exerciseof the powers under section 53 of the MRTP Act. 11 CRA 99.23.odt15.The Supreme Court of India in case of SopanSukhdeo Sable & Ors vs Assistant Charity Commissioner & Orsreported in (2004) 3 SCC 137, observed that the Court mustremember that if on a meaningful and not formal reading ofthe plaint it is manifestly vexatious and meritless in the senseof not disclosing a clear right to sue, Court should exercise thepower under Order VII Rule 11 of the Code. It is furtherobserved that, if clever drafting has created the illusion of acause of action, it has to be nipped in the bud at the firsthearing by examining the party searchingly under Order X ofthe Code.16.At this stage, Mr. Vasmatkar, relying upon thejudgment of this Court in case of Kishor Vs. The MunicipalCorporation and others (supra) submits that when noticeissued under section 53 of the Act was challenged on theground that period prescribed therein falls short of statutoryperiod and was nullity, jurisdiction of the Civil Court toexamine the validity of such notice would not be barred andbar prescribed by section 149 of the Act would not impede theplaintiff from seeking relief. Pertinently, in the aforesaid case,plaintiff sought declaration that defendant nos.1 and 2 are not 12 CRA 99.23.odtentitled to demolish the suit property and further prayer wasmade to direct defendant nos.1 and 2 to grant sanctioned map.In that case, plaintiff had specifically plead that notice is not inconformity with the provisions of section 53 (1) as it prescribesshorter period than one prescribed under section 53 (1) of theAct. In that background, this Court observed that, that noticeitself was invalid. Therefore, jurisdiction of the Civil Court toentertain the suit cannot be excluded under section 149 of theMRTP Act. Similarly, Mr. Vasmatkar, relying upon thejudgment of this Court in case of Sanjay s/o Shankar Puppal(supra) submits that when the act of planning authority is ultravires, jurisdiction of the civil court would not be fated bysection 149 of the Act. However, as observed above, plaintnowhere discloses that notice dated 24.5.2017 served byMunicipal Council is ultra vires in any manner. In light ofaforesaid observations, apparently, suit instituted by plaintiffwill have to be treated as barred by section 149 of the MRTPAct and plaint is liable to be rejected under Order VII Rule 11(a), (b) of the Civil Procedure Code.17.Trial Court refused to entertain prayer for rejectionof the plaint on the ground that plaintiff is merely seeking 13 CRA 99.23.odtinjunction against the defendant no.1 for not to demolish thesuit property or carry out any illegal procedure for demolitionof the same and the issue as regards to bar under section 149of the MRTP Act has been already framed. However, thereasoning adopted by the Trial Court cannot be approved;since it is a duty of the Court to meaningfully examine theplaint and find out whether the suit is barred by law orwhether it sans the cause of action. If meaningful reading ofthe plaint discloses that the cause of action is camouflage orsuit is barred by specific provisions of law, the jurisdictionunder Order VII Rule 11 needs to be invoked. In the presentcase, bare reading of the plaint clearly depict that plaintiff isaggrieved by the notice issued under section 53 of the MRTPAct and without raising challenge to validity of said notice, hefiled the suit simplicitor for perpetual injunction. Mainpurpose behind the suit is to vitiate the action contemplated inpursuance to the notice issued by the planning authority. Inthat view of the matter bar under section 149 of the MRTP Actwould emerge requiring the Court to exercise jurisdictionunder Order VII Rule 11 (d) of the Civil Procedure Code. Thecorollary of aforesaid discussion takes this Court to concludethat impugned order is not sustainable in law and the 14 CRA 99.23.odtapplication Exhibit 41 filed in RCS No.17 of 2017 needs to beallowed. Consequently, following order is passed.O R D E R i.Civil Revision Application is allowed in termsof prayer clauses ‘A’ and ‘B’ which readsthus :-“A.The Hon’ble High Court may be pleased toissue appropriate writ, order or direction inthe nature of writ and thereby quash and setaside the order dated 14.3.2023 passed belowExhibit 41 in Regular Civil Suit No.17 of 2017by the learned Civil Judge Junior Division,Mantha. B.The Hon’ble High Court may be pleased toissue appropriate writ, order or direction inthe nature of writ and thereby allow theapplication of the applicant filed belowExhibit-41 in Regular Civil Suit No.17 of 2017filed before the learned Civil Judge JuniorDivision, Mantha and thereby reject theplaint.” ii.Civil Revision application stands disposed off.No costs. ( S. G. CHAPALGAONKAR ) JUDGE.aaa- (f)…..