First Appeal No.488 of 2014. Case: Vandana Cerations Pvt. Ltd. through Its Director Shri. Nanji Vershi Faria Vs The Municipal Corporation of Greater Mumbai. High Court of Bombay (India)
| Case Number | First Appeal No.488 of 2014 |
| Counsel | For Appellant: Mr. Rakesh M. Pandey a/w. Mr. Dhananjay Shukla, Advs. and For Respondents: Mr. Mohit Jadhav a/w. Mrs. Madhuri More, Advs. |
| Judges | Dr. Shalini Phansalkar-Joshi, J. |
| Issue | Maharashtra Regional and Town Planning Act, 1966 - Sections 149, 53(1), 55 |
| Judgement Date | September 14, 2016 |
| Court | High Court of Bombay (India) |
Judgment:
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This appeal takes an exception to the Judgment and Order dated 16th April 2014 passed by the City Civil Court, Mumbai in L.C. Suit No.1717 of 2013. By the impugned order, Trial Court has rejected the plaint on the count that jurisdiction to entertain the same is barred, in pursuance of Section 149 of Maharashtra Regional and Town Planning Act, 1966, (for short "the MRTP Act"). Needless to state that, appellantoriginal plaintiff is aggrieved by the order.
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Brief facts of the appeal are to the effect that the appellant is the owner of Shop No.2, situate in Rajdoot Co-operative Housing Society, 57, Linking Road, Khar (West), Mumbai - 400052. He has purchased the said shop from the Builder, namely, M/s. Ankur Developers, by virtue of an agreement dated 9th December 2010. Since the purchase of the said shop, the appellant is carrying on his business activities therein, after obtaining requisite permissions and licenses from the respondent- Municipal Corporation.
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On 17th May 2013, the respondent-Municipal Corporation served on the appellant the notice dated 7th May 2013, issued under Section 53(1) of the MRTP Act. By the said notice, the appellant was informed about certain unauthorized works carried out by him in the said shop premises and he was called upon to demolish or remove the same within the period stipulated therein; that of one month therefrom. The appellant has challenged this impugned notice by filing suit for declaration and injunction before the Trial Court contending, inter alia, that the said notice is issued without any application of mind; hence, it is illegal and bad in law. It is submitted by the appellant that the building proposal and plan for the said building was approved and in the year 2006 itself the occupation certificate was also issued in the year 2012. The appellant has produced on record the commencement certificate and occupation certificate also to prove that, in the year 2007 itself, the commencement certificate was granted. In the year 2009, occupation certificate was granted upto 9th floor and IOD was granted in the year 2006. Thus, the case of the appellant is that, when the construction was completed by the Builder and Developer himself, way back in the year 2009 and occupation certificate was also issued in the year 2009, the impugned notice, alleging therein that appellant has carried out some unauthorized constructions, which are beyond the approved plans dated 22nd May 2012, was totally illegal and on this count, it is required to be quashed and set aside.
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Along with the suit, the appellant had also filed Notice of Motion seeking relief of interim injunction restraining respondent-Municipal Corporation from taking any action in pursuance of the impugned notice.
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This Notice of Motion came to be resisted by the respondent- Municipal Corporation herein challenging the jurisdiction of the Trial Court to entertain such suit on the count that it is barred by section 149 of the MRTP Act.
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The Trial Court thereupon framed specific preliminary issue under Section 9A CPC relating to its jurisdiction to entertain the suit in view of bar under Section 149 of MRTP Act by its order dated 17th July 2013. The Trial Court observed that, as the said issue is clearly the question of law, it can be decided on the basis of oral submissions of the advocates for the parties.
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Accordingly, after hearing the oral submissions advanced by learned counsel for both the parties, the Trial Court has upheld the contention of respondent-Municipal Corporation herein that the suit is not tenable, in view of the bar under Section 149 of the MRTP Act. Accordingly, by its impugned order, the Trial Court was pleased to reject the plaint with costs.
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This order of the Trial Court is challenged in this appeal by learned counsel for the appellant, by advancing two fold submissions. In the first place, it is submitted that, when the Trial Court was pleased to frame the preliminary issue under Section 9A CPC relating to its jurisdiction to entertain the suit, it was...
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