Nashik Municipal Corporation v. Sunil Baburao Kshirsagar & Ors.

4. It is the case of Respondent No.1 that the new purchasers (Defendant Nos.[3] and 4) complained to Nashik Municipal Corporation against the structure in occupation of Respondent No.1/Plaintiff and at their instance, the Municipal Corporation issued notice dated 12 December 2014 under provisions of Sections 260, 261, 264, 267 and 478 of the MMC Act. Plaintiff filed his response to the notice and by further final notice dated 30 January 2015, the Municipal Corporation directed the Plaintiff to remove the structure.

5. In the above background, Plaintiff has filed Regular Civil Suit No.130 of 2015 in the Court of Civil Judge Senior Division, Nashik seeking a declaration that Defendant Nos.[1] and 2 (Nashik Municipal Corporation) are not entitled to remove/demolish the suit property and seeking injunction against them from demolition of the suit property. Plaintiff has also sought a declaration that the notices issued by Defendant No.2 are illegal.

6. Defendant Nos.[1] and 2-Municipal Corporation appeared in the Suit and filed their Written Statement. They also filed Application at Exhibit-23 seeking rejection of the Plaint under Order VII, Rule 11 of the Code by referring to the provisions of Section 433A of the MMC Act. katkam Page No. 4 of 35 The Application was opposed by the Plaintiff by filing Reply. By order dated 18 June 2015, the Trial Court framed preliminary issue as to whether the Suit is barred in view of provisions of Section 433A of the MMC Act. By order dated 8 October 2015, the Trial Court has proceeded to decide the issue in the negative and held that the Suit is not barred under provisions of Section 433A of the MMC Act.

7. Defendant Nos.[1] and 2-Municipal Corporation are aggrieved by the order dated 8 October 2015 and have filed Civil Revision Application No.153 of 2016. Defendant Nos.[3] and 4 have also challenged the order dated 8 October 2015 by filing Civil Revision Application No.679 of

2016. In Civil Revision Application No.679 of 2016 Defendant Nos.[3] and 4 have also challenged order dated 23 February 2015 passed by the Trial Court by which issue with regard to bar of jurisdiction under Section 433A of the MMC Act was framed.

8. Plaintiff has appeared in both the Civil Revision Applications. During pendency of the Revision Applications, Plaintiff/Respondent No.1 has passed away. By order dated 11 November 2015 legal heirs of Respondent No.1/Plaintiff are permitted to be brought on record. The Revision Applications are called out for hearing and disposal with the consent of the learned counsel appearing for parties.

SUBMISSIONS

9. Mr. Sakhdeo, the learned counsel appearing for the Revision Applicants in Civil Revision Application No.153 of 2016 (Nashik Municipal Corporation) would submit that Plaintiff has essentially challenged notice dated 12 December 2014 in his Suit. That apart from specific prayer in the Suit for declaration of notices as invalid, the cause katkam Page No. 5 of 35 of action for filing the Suit is described as issuance of notices dated 12 December 2014 and 30 January 2015. That instead of straightaway challenging the notices dated 12 December 2014 and 30 January 2015, Plaintiff has cleverly couched the prayers in the Suit seeking declaration of absence of right in favour of Municipal Corporation to demolish the suit structure. That upon holistic reading of the Plaint, it is clear that Plaintiff is essentially challenging notices dated 12 December 2014 and 30 January 2015. That Suit challenging the said notices is expressly barred under provisions of Section 433A of the MMC Act. That the Trial Court has erred in not appreciating the real frame of the Suit, which essentially challenges notices issued under Section 260 of the MMC Act.

10. Mr. Sakhdeo would further submit that the Municipal Corporation has initiated action against suit structure as a matter of demolition drive and that the same has no connection with any request or demand by Defendant Nos.[3] and 4. That Municipal Corporation has contemporarily demolished several other structures within its jurisdiction and that therefore the allegation of demolition action orchestrated by Defendant Nos.[3] and 4 is wholly erroneous. He would rely upon judgment of this Court in M/s. Juhi Infra Build LLP vs. Yasin Mahamudiya Patel & Ors.,[1] in support of his contention that Civil Suit is held to be not maintainable under pari materia provision under Section 149 of the Maharashtra Regional Town Planning Act, 1966 (MRTP Act). Mr. Sakhdeo would accordingly pray for setting aside the impugned order.

11. Mr. Venkateshwar, the learned counsel appearing for Applicants in CRA No. 679 of 2016 would submit that the Plaintiff has converted mere tin-shed admeasuring 15 square meters into a permanent structure admeasuring 50.88 square meters. That illegal extension of 35.88 square 1 CRA No.273 of 2021, decided on 9 October 2025. katkam Page No. 6 of 35 metres is without authorisation as well as conversion of tin-shed into permanent structure by Plaintiff is without any development permission. He would submit that this Court in M/s. Akash Impex vs. Municipal Corporation of Greater Mumbai[2] has interpreted pari materia provision of bar of jurisdiction under Mumbai Municipal Corporation Act, 1888 and has upheld the bar of jurisdiction of Civil Court. He would accordingly pray for setting aside the impugned order.

12. Mr. Kirpekar, the learned counsel appearing for Respondent No.1/Plaintiff would oppose the Revision Applications submitting that the Trial Court has correctly appreciated the frame of the Suit which is not restricted only to the notice issued by Municipal Corporation. That Plaintiff's grievance in the Suit is essentially with regard to the actions of Defendant Nos.[3] and 4 in some how evicting the Plaintiff from Suit structure. The Suit is essentially filed for protecting possession of Plaintiff. There are prayers against Defendant Nos.[3] and 4 which again would show that the Suit is not restricted only in respect of notice issued by Municipal Corporation. That the notice is issued by Municipal Corporation only on account of complaints made by Defendant Nos.[3] and 4 who are illegally using the machinery of Municipal Corporation for illegally evicting the Plaintiff from suit premises. That there are several other issues involved in the Suit. That the Trial Court has rightly appreciated the fact that Municipal Corporation did not even bother to inspect the Suit premises which is sine qua non for issuance of any notice. That the Court has also appreciated difference in the measurements of the suit premises as compared to the one described in the notice. That the Court has also rightly appreciated reflection of the suit structure in the municipal assessment of years 1975-76 and 1999-2000. That the real nature of the Suit is to prevent Defendant Nos.[3] and 4 from using 2 2014(4) ALL MR 747 katkam Page No. 7 of 35 machinery of Municipal Corporation for unauthorizedly evicting the Plaintiff. That such suit is not barred by provisions of Section 433A of the MMC Act.

13. Mr. Kirpekar would further submit that in Commissioner, Akola Municipal Corporation vs. Bhalchandra[3] it is held that bar under provisions of Section 433A of the MMC Act does not apply when the act of issuance of notice is nullity or mandatory provisions of the Act are not complied with or where the issuance of notice is abuse of exercise of power or an act not done in good faith. That the Municipal Corporation has not acted in good faith in issuing the notice, which is one of the issues involved in the Suit. He would submit that judgment in Akola Municipal Corporation (supra) has been followed by the Division Bench in Western Refrigeration Engineering and Ors. vs. The State of Maharashtra & Ors.4. He would also rely upon judgment of this Court in Maya Shrikant Sawant Dessai vs. The Chief Secretary Government of Goa and Ors.[5] in support of his contention that similar bar under provisions of Section 50 of Goa Command Area Development Act, 1997 is held to be inapplicable in respect of jurisdiction of Civil Court. Mr. Kirpekar would accordingly pray for dismissal of the Revision Applications.

REASONS AND ANALYSIS

14. A short but very important issue which arises for consideration in the present Revision Applications is about applicability of bar of jurisdiction of Civil Courts to entertain Suits involving challenge to notices issued by the municipal or planning authorities alleging unauthorized construction in the light of the provisions in various statutes baring jurisdiction of the Civil Courts. So far as present Revision 3 2013 (5) Bom CR 124 4 2023 4 Bom CR 596 5 2016 (2) MhLJ 420 katkam Page No. 8 of 35 Applications are concerned, bar of jurisdiction is provided under Section 433A of the MMC Act and the notice has been issued by Nashik Municipal Corporation to the Plaintiff on 12 December 2014 under provisions of Sections 260, 261, 264, 267 and 478 of the MMC Act.

15. The notice alleges unauthorized construction of shop admeasuring about 25 feet x 15 feet comprising of two floors by the Plaintiff. Under Section 260 of the MMC Act, the Designated Officer designated by the Municipal Commissioner can require by written notice a person, who has erected any building or has executed any work as described under Section 254 contrary to the provisions of the rules or the bye-laws, to show sufficient cause as to why such building or work shall not be removed or pulled-down and after giving an opportunity to show cause, he can remove or pull-down the building or the work. Section 260 of the MMC Act provides thus:

260. Proceedings to be taken in respect of building or work commenced contrary to rules or by-laws.— (1) The Commissioner shall, by notification in the Official Gazette, designate an officer of the Corporation to be the Designated Officer for the purposes of this section and of sections 261, 264, 267 and 478. The Designated Officer shall have jurisdiction over such local area as may be specified in the notification and different officers may be designated for different local areas. (1A) If the erection of any building or the execution of any such work as is described in section 254 is commenced or carried out contrary to the provisions of the rules or by-laws the Designated Officer, unless he deems it necessary to take proceedings in respect of such building or work under section 264, shall,— (a) by written notice, require the person who is erecting such building or executing such work or has erected such building or executed such work on or before such day as shall be specified in such notice, by a statement in writing subscribed by him or by an agent duly authorised by him in that behalf and addressed to the Designated Officer, to show sufficient cause why such building or work shall not be removed, altered or pulled down, or katkam Page No. 9 of 35 (b) shall require the said person on such day and at such time and place as shall be specified in such notice to attend personally or by an agent duly authorised by him in that behalf, and show sufficient cause why such building or work shall not be removed, altered or pulled down. (2) If such person shall fail to show sufficient cause, to the satisfaction of the Designated Officer why such building or work shall not be removed, altered or pulled down the Designated Officer may remove, alter or pull down the building or work and the expenses thereof shall be paid by the said person.

16. Under Section 478 of the MMC Act, if any work or thing requiring written permission of designated officer is done without obtaining such written permission, the same is deemed to be unauthorized, empowering the designating officer to issue notice requiring removal of the same. Section 478 of the MMC Act provides thus:

478. Work of thing done without written permission of the Designated Officer to be deemed unauthorised.— (1) If any work or thing requiring the written permission of the Designated Officer under any provision of this Act, or any rule, regulation or by-law is done by any person without obtaining such written permission or if such written permission is subsequently suspended or revoked for any reason by the Designated Officer, such work or thing shall be deemed to be unauthorised and, subject to any other provision of this Act, the Designated Officer may at any time, by written notice, require that the same shall be removed, pulled down or undone, as the case may be, by the person so carrying out or doing. If the person carrying out such work or doing such thing is not the owner at the time of such notice then the owner at the time of giving such notice shall be liable for carrying out the requisitions of the Designated Officer. (2) If within the period specified in such written notice the requisitions contained therein are not carried out by the person or owner, as the case may be, the Designated Officer may remove or alter such work or undo such thing and the expenses thereof shall be paid by such person or owner, as the case may be.

17. Section 433A has been inserted in the MMC Act by Maharashtra Act-II of 2012 with effect from 22 March 2012, which provides for bar of jurisdiction in respect of notice issued or order passed or direction issued katkam Page No. 10 of 35 by designated officer under Sections 260, 261, 264, 267 and 478 of the MMC Act. Section 433A of the MMC Act provides thus: 433A. Bar of jurisdiction.— Save as otherwise provided in this Act, any notice issued, order passed or direction issued by the Designated Officer, under section 260, 261, 264, 267 or 478 shall not be questioned in any suit or other legal proceedings.

18. Before proceeding to examine the views expressed by this Court in various judgments with regard to jurisdiction of Civil Courts to entertain the Suits in the light of the provisions of Section 433A of the MMC Act, it would be apposite to take into consideration pari materia provisions in other statutes governing municipal and planning authorities. Section 515A of the Mumbai Municipal Corporation Act, 1888 provides for bar of jurisdiction of Civil Courts. Under Section 515A of the Mumbai Municipal Corporation Act, under which any notice issued, order passed or direction issued by designated officer under Section 351 or 354A cannot be questioned in any suit or other legal proceedings. Section 515A of the Mumbai Municipal Corporation Act provides thus: 515A. Bar of jurisdiction.— Save as otherwise provided in this Act, any notice issued, order passed or direction issued by the Designated Officer, under section 351 or 354A shall not be questioned in any suit or other legal proceedings.

19. In MRTP Act, the provision for bar of jurisdiction of Civil Court is to be found in Section 149 which provides thus:

149. 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. katkam Page No. 11 of 35

20. The issue of bar of jurisdiction of Civil Court to entertain Suits involving challenge to notices issued by municipal and planning authorities in the light of provisions of bar of jurisdiction under Section 433A of MMC Act, Section 515A of Mumbai Municipal Corporation Act and Section 149 of the MRTP Act has been considered in various judgments of this Court. It would be apposite to take quick stock of various judgments dealing with the issue.

21. In Akola Municipal Corporation (supra) one of the issues which had arisen for consideration before learned Single Judge of this Court was whether a suit challenging notice for pulling down unauthorized construction issued under Section 260 of the MMC Act is barred under provisions of Section 433A of the MMC Act. The issue has been captured in paragraph 2 of the judgment which reads thus:

2. 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 433A 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.

22. The learned Single Judge (R.K. Deshpande, J,) considered the ratio of judgment of the Apex Court in Dhruv Green Field Ltd. vs. Hukam Singh & Ors.[6] dealing with the issue of bar of jurisdiction of Civil Court and held that if there is express provision in statute barring jurisdiction of Civil Court to deal with the matters specified thereunder, jurisdiction of ordinary Civil Court shall stand excluded. This Court further held that even in cases where jurisdiction of Civil Courts is barred, expressly or impliedly, the Court would nonetheless retain its katkam Page No. 12 of 35 jurisdiction to entertain and adjudicate the suit provided the order complained of is a nullity. This Court also noted judgment of this Court in Qari Mohammed Zakir Hussain & others vs. Municipal Corporation of Greater Mumbai & others[7] in which it is held that even if jurisdiction of Civil Court is specifically excluded, the Civil Court shall have jurisdiction to examine the issues where provisions of the MMC Act are not complied with or the statutory tribunal has not acted in confirmatory with fundamental judicial procedure or where the offending act is not done in good faith. The Court summarized its conclusions in paragraph 6 of the judgment as under: “6. Now, Section 433A of the Maharashtra Municipal Corporations Act creating a bar of jurisdiction of the Civil Court, being relevant, is reproduced below: 433A. Bar of jurisdiction--Save as otherwise provided in this Act, any notice issued, order passed or direction issued by the Designated Officer, 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 433A 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.” (emphasis added)

23. After summarizing its conclusions on the issue of bar of jurisdiction of Civil Court, this Court in Akola Municipal Corporation 7 (2002) 2 Bom CR 98 katkam Page No. 13 of 35 (supra) proceeded to examine the second issue of rejection of Plaint under Order VII, Rule 11 of the Code and held that the plea of bar to jurisdiction of Civil Court to entertain and decide the challenge to notice under Section 260 of the MMC Act on the limited grounds has to be considered having regard to the contents of the Plaint, averments disclosing cause of action and reliefs sought therein. The Court held in paragraph 9 as under: “9. 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 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 specific and not vague. The absence of a single material fact of jurisdiction, would entail the consequences of dismissal of suit, as barred by Section 433A of the said Act”.

24. This Court in Akola Municipal Corporation (supra) thereafter examined the averments in the Plaint and held that the Plaint did not disclose as to how and in what manner the action of the Municipal Corporation in issuing notice under Section 260 of the MMC Act was null and void. The Court did not notice pleadings to show as to how the proposed action was not in good faith. It is held that the averments of notice being issued without grant of opportunity of hearing was futile and illusionary as the notice itself provided an opportunity to furnish explanation. It is further held that the plaint averments did not disclose as to how the proposed demolition was without following due procedure of law or the same was mala fide, high handed or disclosed colourable exercise of power. The Court accordingly proceeded to reject the Plaint by having recourse to provisions of Order VII, Rule 11 of the Code. This Court held in paragraphs 11 and 12 of the judgment as under: katkam Page No. 14 of 35 “11. Perusal of the communication dated 3-10-2012, placed by the nonapplicant/plaintiff on record along with the plaint and challenged as being null and void, shows that the non-applicant/plaintiff is merely called upon to stop the alleged unauthorized construction carried out without permission of the applicant/defendant and to submit the papers regarding ownership of the property and sanctioned plan. The notice dated 29-10- 2012 issued under Section 260 of the Bombay Provincial Corporation Act clearly discloses the specific area of unauthorized construction. The notice is absolutely clear and without any ambiguity. It calls upon the nonapplicant/plaintiff to show cause as to why such an unauthorized construction should not be pulled down within a period of fifteen days.

12. The averments in the plaint nowhere disclose as to how and in what manner the action of the applicant/defendant in issuing the notice under Section 260 of the said Act is null and void. The material facts showing as to how the action impugned is in breach or contrary to any specific statutory provisions of the said Act, are absent. It is not stated anywhere in the plaint as to how the action proposed to be taken is not in good faith. The averment that the notice issued under Section 260 of the said Act is without granting any opportunity of hearing to the non-applicant/plaintiff is futile and illusory, for the reason that the notice itself provides the nonapplicant/plaintiff an opportunity to furnish an explanation in respect of an unauthorized construction. Perusal/reading of the notice also makes the averment that the notice is absolutely vague, as futile and illusory. The plaint averments nowhere disclose as to how the proposed demolition is without following due procedure of law. The averments in the plaint fail to disclose the material facts as to how the conduct of the applicant/defendant is mala fide, high-handed or disclose colourable exercise of power. The entire reading of plaint as a whole makes it absolutely clear that the material facts investing the Civil Court with the jurisdiction to entertain, try and decide the suit are totally absent and hence the suit is liable to be dismissed under Order VII, Rule 11(a) and (d) of the Civil Procedure Code. The Trial Court has, therefore, committed an error of law in holding that such questions can be gone into in the suit. For the reasons stated above, the civil revision application is allowed. The order dated 4-1-2013 passed below Exhibit 12 in Regular Civil Suit No. 902 of 2012, by the learned 2nd Joint Civil Judge, Junior Division, Akola, is hereby quashed and set aside, and Regular Civil Suit No. 902 of 2012 is dismissed under Order VII, Rule 11(a) and (d) of the Civil Procedure Code, being barred by the provisions of Section 433A of the Maharashtra Municipal Corporations Act. No order as to costs.”

25. It must be observed here that the learned Trial Judge has only considered observations of this Court in Akola Municipal Corporation (supra) recorded in paragraph 6 of the judgment and has completely ignored the manner in which this Court has examined averments in the katkam Page No. 15 of 35 plaint in paragraphs 9, 11 and 12 of the judgment and how it proceeded to reject the Plaint under Order VII, Rule 11 of the Code. The consideration of the ratio of the judgment in Akola Municipal Corporation (supra) by the Trial Court is thus perfunctory. This folly is usually committed by Trial Courts in several cases where the judgment of this Court in Akola Municipal Corporation is routinely cited for retaining jurisdiction of Civil Court.

26. Mr. Kirpekar has contended that the judgment of the Single Judge in Akola Municipal Corporation (supra) has been followed with approval by the Division Bench in Western Refrigeration Engineering (supra). In case before the Division Bench, the challenge was not restricted to the notice issued under Section 260 of the MMC Act, but constitutional validity of Section 433A of the MMC Act was also questioned before the Division Bench. This is clear from paragraph 2 of the judgment which reads thus: “2. 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 433A 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.”

27. While examining aspect of constitutional validity of provisions of Section 433A of the MMC Act, the Division Bench considered the ratio of the judgment in Akola Municipal Corporation (supra) and proceeded to hold as under: “This decision of the learned Single Judge has been considered by the Division Bench of this Court in Abdul Karim Ahmed Mansoori Versus Municipal Corporation of Greater Mumbai & Another [MANU/MH/1531/2013: 2014(1) Mh.L.J. 227] in the context of pari materia provisions of Section 515-A of the Mumbai Municipal katkam Page No. 16 of 35 Corporation Act, 1888. Under the said provision too, recourse to civil remedy against issuance of a similar notice is barred. Referring to the judgment of the learned Single Judge in Commissioner, Akola Municipal Corporation (supra), the Division Bench observed that the consistent trend and the opinion of this Court was in favour of entertaining a suit subject to such bar and then applying it as and when invoked. The Division Bench agreed with the view taken by the learned Single Judge in the aforesaid decision. Aforesaid two decisions are an answer to the challenge raised to the constitutionality of Section 433-A of the Act of 1949. There is no absolute bar to question a notice issued, order passed or direction issued by the Designated Officer under Section 264 of the Act of 1949 in any suit or legal proceeding and if the aggrieved party is able to get over such bar by pointing the nullity of such notice on the basis of parameters warranting interference by the Civil Court notwithstanding the statutory bar, then such jurisdiction is preserved. It therefore cannot be said that the invocation of a civil remedy is totally barred by Section 433-A of the Act of 1949 and subject to the principles laid down by the Hon’ble Supreme Court as well as this Court, jurisdiction of the Civil Court could be invoked in a given case. That contention of the petitioners therefore cannot be accepted. For aforesaid reasons we are unable to uphold the challenge raised by the petitioners to the constitutionality of Section 433-A of the Act of 1949.”

28. Thus, the Division Bench in Western Refrigeration Engineering (supra) noted that the judgment of the learned Single Judge in Akola Municipal Corporation (supra) has been considered by the Division Bench in Abdul Karim Ahmed Mansoori vs. The Municipal Corporation of Greater Mumbai & Ors.[8] (to which reference is being made in latter part of the judgment). The Division Bench in Western Refrigeration Engineering held that the judgments in Akola Municipal Corporation and Abdul Karim Ahmed Mansoori (supra) are an answer to the challenge raised to the constitutionality of Section 433A of the MMC Act. It is held that there is no absolute bar to question notice issued, order passed or direction issued by the designated officer under Section 260 of the MMC Act in any suit or legal proceeding and if aggrieved party is able to get over such bar by pointing out nullity in such notice on the basis of parameters warranting interference by the Civil Court, the jurisdiction of Civil Courts is preserved. The Division Bench held that 8 2014 (1) MhLJ 227 katkam Page No. 17 of 35 invocation of civil remedy is not totally barred by Section 433A of the MMC Act.

29. Mr. Kirpekar has also relied upon judgment of learned Single Judge of this Court (N.M. Jamdar, J. as his Lordship then was) in Maya Shrikant Sawant Dessai (supra) in which the challenge in the Suit was to auction notice issued for allotment of land to farmers within the command area of Seraulim Irrigation Project (SIP), Goa. The objection to jurisdiction of Civil Court was raised by the Defendants by referring to provisions of Section 50 of the Goa Command Area Development Act,

1997. This Court referred to the judgment in Akola Municipal Corporation. Reference was also made to another judgment of learned Single Judge of this Court (A.S. Oka, J. as his Lordship then was) in the case of Laxman Barkya Wadkar vs. Mumbai Municipal Corporation[9] in which it is held that if allegations made in the Plaint are that the action under the Act is nullity, then bar to the jurisdiction of Civil Court would not come in the way of entertaining a Suit. This Court in Maya Shrikant Sawant Dessai also considered the ratio of the judgment of the Apex Court in Mafatlal Industries vs. Union of India10 dealing with the concept of nullity. This Court also considered judgment of this Court in Yogesh Megaji Gada vs. The Municipal Corporation of Greater Mumbai and another11 and held that the issue of bar of jurisdiction has to be determined on the basis of contents of Plaint. This Court emphasised the need to examine pleadings in the Plaint and reversed the order passed by the District Judge dismissing the Suit merely by relying on the bar without examining pleadings of the Plaint. The Application for rejection of Plaint was remanded for being decided afresh. The Court held in paragraphs 11 to 15 as under: 9 FA 1635 of 2010 order dated 5 May 2011 10 1997 (5) SCC 536 11 WP 2243 of 2013 decided on 10 April 2014. katkam Page No. 18 of 35

11. In case of bar created under section 149 of the Maharashtra Town Planning Act in respect of jurisdiction of the Civil Court, the learned Single Judge of this Court (A.S. Oka, J.) in the case of Laxman Barkya Wadkarv. Mumbai Municipal Corporation in First Appeal No. 1635 of 2010 after following the decision of the Apex Court in the case of Dhulabhai v. State of Madhya Pradesh, reported in 1969 Mh.LJ. (S.C.) 1: AIR 1969 SC 78 and Kamal Mills Ltd. v. State of Bombay, reported in 1966 (1) SCR 64, held that if the allegations made in the plaint are that the action under the Act is a nullity, then Bar to the jurisdiction of civil court will not come in the way of entertaining the suit.

12. In the case of Mafatlal Industries v. Union of India, reported in (1997) 5 SCC 536, the concept of jurisdictional error was considered by the Constitutional Bench. K.S. Paripooman, J. in his Judgment held that concept of nullity may arise during the course or conclusion of the inquiry. He observed as under: “338. The scope of the exclusionary clauses contained in the statutes has been considered in great detail with reference to the decisions of the superior courts in England and also the decisions of the Supreme Court of India by Justice G.P. Singh (former Chief Justice, M.P. High Court) in“Principles of Statutory Interpretation”, 6th edition (1996) at page

475. The law is stated thus: “A review of the relevant authorities on the point leads to the following conclusions: (1) An Exclusionary Clause using the formula ‘an order of the tribunal under this Act shall not be called in question in any Court’ is ineffective to prevent the calling in question of an order of the tribunal if the order is really not an order under the Act but a nullity. (2) Cases of nullity may arise when there is lack of jurisdiction at the stage of commencement of enquiry e.g., when (a) authority is assumed under an ultra vires statute; (b) the tribunal is not properly constituted, or is disqualified to act; (c) the subject-matter or the parties are such over which the tribunal has no authority to inquire; and (d) there is want of essential preliminaries prescribed by the law for commencement of the inquiry. (3) Cases of nullity may also arise during the course or at the conclusion of the inquiry. These cases are also cases of want of jurisdiction if the word ‘jurisdiction’ is understood in a wide sense. Some examples of these cases are (a) when the tribunal has wrongly determined a jurisdictional question of fact or law; (b) when it has failed to follow the fundamental principles of judicial procedure, e.g. has passed the order without giving an opportunity of hearing to the party affected; (c) when it has violated the katkam Page No. 19 of 35 fundamental provisions of the Act, e.g., when it fails to take into account matters which it is required to take into account or when it takes into account extraneous and irrelevant matters; (d) when it has acted in bad faith: and (e) when it grants a relief or makes an order which it has no authority to grant or make; as also (f) when by misapplication of the law it has asked itself the wrong question.” With great respect to the learned author, I would adopt the above statement of law, as my own.”

13. A review of all these decisions is taken in the decision of Mr. Yogesh Megaji Gada v. The Municipal Corporation of Greater Mumbai, in Writ Petition No. 2243 of 2013 and others in respect of bar contained in section 515-A of the Mumbai Municipal Act and the position that the bar of jurisdiction will not apply in aforesaid circumstances is restated. The jurisdiction has to be determined on the basis of the plaint. It will have to be seen whether the Appellant has based its case on the ground that the action complained is a nullity, being taken in bad faith or fraud.

14. Therefore the approach of the learned District Judge in dismissing the suit merely relying on the bar, without examining the pleadings in the plaint as to whether the grounds enumerated above exist or not, will have to be corrected.

15. In the present case, the Appellant has pleaded that the action is vitiated by fraud and the officers have acted in bad faith. The protection to the officers is not available if case of bad faith is made out and that is a matter to be considered on merits. The learned Judge will have to consider the effect of these pleadings, before coming to the conclusion, that the suit is barred in view of section 50(1) of the Act.

30. In Abdul Karim Ahmed Mansoori (supra) challenge before Division Bench of this Court was to a notice issued under Section 354A of the Mumbai Municipal Corporation Act. The Petitioner therein had filed a Suit challenging the said notice in which ad-interim relief was refused and Appeal from Order was also withdrawn. When the notice was questioned in a Petition filed under Article 226 of Constitution of India, one of the issues for consideration was bar of jurisdiction under Section 515A of the Mumbai Municipal Corporation Act. The Division Bench referred to the judgment of the Apex Court in Shiv Kumar katkam Page No. 20 of 35 Chadha vs. Municipal Corporation of Delhi12 dealing with pari materia provisions of Delhi Municipal Corporation Act in which it was held that Court should ordinarily not entertain a Suit in connection with demolition in terms of Section 343 of the Delhi Municipal Corporation Act but Suit can be entertained only if Court is of the prima facie opinion that the order is nullity in the eyes of law because of any jurisdictional error in exercise of power by the Commissioner or where the order is outside the law. The conclusions of the Apex Court in paragraph 29 of the judgment in Shiv Kumar Chadha (supra) read thus: “29. It is well-known that in most of the cities building regulations and byelaws have been framed, still it has been discovered that constructions have been made without any sanction or in contravention of the sanctioned plan, and such constructions have continued without any intervention. There cannot be two opinions that the regulations and bye- laws in respect of buildings, are meant to serve the public interest. But at the same time it cannot be held that in all circumstances, the authorities entrusted with the demolition of unauthorised constructions, have exclusive power, to the absolute exclusion of the power of the Court. In some special cases where "jurisdictional error" on the part of the Corporation is established, a suit shall be maintainable. According to us, (1) The Court should not ordinarily entertain a suit in connection with the proceedings 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 said Act. (2) The Court should entertain a suit questioning the validity of an order passed under section 343 of the 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 Act.”

31. The Division Bench in Abdul Karim Ahmed Mansoori (supra) also considered the judgment of this Court in Akola Municipal Corporation (supra) and agreed with a view expressed therein. The Division Bench held in paragraphs 6, 7 and 8 as under: 12 1993 (3) SCC 161 katkam Page No. 21 of 35 “6. In these circumstances and when the decision of the Hon'ble Supreme Court referred by us also considers the constitution bench judgment in the case of Dhulabhai and Others V/s. State of Madhya Pradesh and Another reported in AIR 1969 S.C. 78, then, the Division Bench judgment of this Court upholding the constitutional validity of Section 515 A does not hold that the ouster of the Civil Court's jurisdiction is so complete that a Civil Suit cannot be taken on file or the plaint cannot be registered at all. That is not the stand and which is rather extreme taken before us even by the Municipal Corporation. In fact, a learned Single Judge of this Court Hon'ble Mr. Justice R. K. Deshpande sitting at Nagpur in the case of Commissioner, Akola Municipal Corporation V/s. Bhalchandra S.P Govind Mahashabde reported in 2013 (4) Mh. L. J. 45 considered the bar to suit carved out in identical terms by Section 433-A of the Maharashtra Municipal Corporations Act. The learned Single Judge applied the same principle and held as under:xxxx We respectfully agree with this view. Thus, the consistent trend and opinion in this Court leans in favour of entertaining a suit subject to such bar and then applying it as and when invoked. To nonsuit somebody and prevent him from approaching a Civil Court merely because there is a statutory bar is not a correct understanding of the law.

7. In these circumstances, we do not find that we should entertain writ petitions under Articles 226 of the Constitution of India, merely because the understanding of an individual Petitioner is that a Civil Suit will not lie. That would not enable him to invoke the writ jurisdiction of this Court straight away or for this Court to exercise it. Ultimately everything depends upon the facts and circumstances of each case.

8. We have no doubt in our mind, therefore, that when the Petitioner in this petition has not withdrawn the Civil Suit, that he would be prevented in law from pursuing it and satisfying the Trial Court that the jurisdiction of the Trial Court is still intact and the subject matter of the Suit is within the competence of the Civil Court/Trial Court.”

32. In Abdul Razzaq Sunesra vs. Municipal Corporation of Greater Mumbai and others,13 Dr. D.Y. Chandrachud, J. (as his Lordship then was) speaking for the Division Bench has examined constitutional challenge to validity of Section 515A of the Mumbai Municipal Corporation Act. The Division Bench repelled the challenge holding that 13 WPL 1709 of 2013, decided on 17 July 2013. katkam Page No. 22 of 35 object of introducing Section 515A of the Mumbai Municipal Corporation Act was to ensure that recourse to civil remedy is not utilized with a view to abuse the process as would generally result when persons indulging in unauthorized constructions delay the action till disposal of proceedings by obtaining stay. This Court held in paragraph 17 as under: “17. The State of Maharashtra and more particularly its urban areas are plagued by a menace of unauthorized constructions. The object of introducing Section 515A was to ensure that recourse to civil remedies is not utilized with a view to abuse the process as would generally result when those responsible for unauthorized constructions use every possible means to ensure that a delay takes place in the disposal of proceedings, once a stay is obtained. In this background, the legislative provision cannot be regarded as being arbitrary.”

33. In Snehdeep Krida Mandal (supra), the Division Bench of this Court has examined the action by Maharashtra Housing & Area Development Authority and Municipal Corporation of Greater Mumbai in permitting construction of Community Hall on open space. The Municipal Corporation of Greater Mumbai adopted a defence before the Division Bench that it had issued several notices to the construction in question. Such notices were questioned in Civil Suits filed before City Civil Court. This Court expressed anguish at City Civil Court entertaining suits despite provisions of Section 515A of the Mumbai Municipal Corporation Act. Referring to judgments in Abdul Razzaq Sunesra (supra) and Abdul Karim Ahmed Mansoori (supra) this Court held in paragraphs 16 and 17 as under: “16) Therefore, in our view, when a Civil Court receives a plaint and an application for interim relief—such as a stay or status quo order— challenging notices issued by the Municipal Corporation under Sections 351 or 354 of the BMC Act, or under similar provisions (pari materia) of the Maharashtra Municipal Corporations Act, 1949 it must first determine whether the parties have exhausted the statutory remedies available to them. This includes pursuing the appropriate mechanisms for grievance redressal before seeking judicial intervention. katkam Page No. 23 of 35 17) The Trial Court must also address the issue of jurisdiction by examining the averments in the plaint. If these do not warrant the application of the legal principles in question, then provisions analogous to Section 515A of the BMC Act or Section 433A of the MMC Act, 1949, must be considered. Importantly, the Civil Court is duty-bound to take cognizance of the statutory provisions and any legal bar—whether or not such an objection is raised by any party thereto. Finally, the Civil Court must keep in mind the principles of law enumerated by the Division Bench of this Court in the case of Abdul Razzaq Sunesra (supra).”

34. In M/s. Juhi Infra Build LLP (supra), I had an occasion to consider provisions of Section 149 of the MRTP Act and prayer for rejection of Plaint under Order VII, Rule 11 of the Code. It is held in paragraphs 15 to 20 of the judgment as under: “15) Since the real grouse of the Plaintiff is about decision/order of CIDCO relating to allotment of land, provisions of Section 149 of the MRTP Act would be applicable. Section 149 of the MRTP Act provides thus:

149. 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) Thus, no Suit can be filed challenging any order passed or direction issued by State Government or order passed or notice issued by any Regional Board or Planning Authority or Development Authority under the MRTP Act.

CIDCO is the Special Planning Authority for Navi Mumbai Project notified under the provisions of the MRTP Act. The decisions for allotment of land in Navi Mumbai are taken by CIDCO under the provisions of New Bombay Disposal of Land Regulations, 1975, which are formulated under the provisions of section 159 of the MRTP Act.

CIDCO itself is a creature under the MRTP Act which is appointed as New Town Development Authority under the Act. Therefore, decision to allot land to various persons whose lands are acquired would essentially be a decision taken under the MRTP Act and bar of jurisdiction under Section 149 for maintainability of the Suit would clearly apply. The whole case of the Plaintiff as pleaded in the Plaint is with regard to alleged erroneous allotment made to him of area admeasuring 400.23 in Plot Nos.58 and 65 and he desires the land to be allotted in Plot no.10A by deducting the same from allotment made to Defendant Nos.[5] to 7. This prayer of the Plaintiff in the suit would be clearly barred under the provisions of Section 149 of katkam Page No. 24 of 35 the MRTP Act. Thus, prayer clause (b) in the Suit, would be barred by the provisions of section 149 of the MRTP Act.

17) Mr. Parkar has attempted to salvage the situation by contending that prayer clause (c) in the Plaint is not barred by provisions of Section 149 of the MRTP Act and that it is impermissible to reject part of the Plaint under Order VII Rule 11 of the Code. However, in prayer clause (c), Plaintiff has sought an injunction against Defendants No.1 to 4 from granting any development permission to Defendant Nos.[5] to 7 for carrying out construction in Plot No.10A, Sector 39A till CIDCO allots a portion of land admeasuring 400.23 sq.mtrs. to the Plaintiff by deducting the same from the land allotted to Defendant Nos.[5] to 7. The injunction is also for not obstructing Plaintiff’s business in the Suit property. The development permission is granted under the provisions of Section 44 of the MRTP Act. The obstruction, if any, to Plaintiff’s business in Suit property can be done by CIDCO in exercise of statutory powers under section 53 of the MRTP Act. Thus, even prayer clause (c) of the Plaint is relatable to the provisions of the MRTP Act and therefore bar under section 149 of the MRTP Act would apply even to prayer clause (c).

18) In my view, therefore the entire claim of the Plaintiff in the suit is hit by section 149 of the MRTP Act. The whole Plaint therefore deserves to be rejected by having recourse to the provisions of Order VII Rule 11 of the Code.

19) Reliance by Mr. Patil on judgment of this Court in Satish Gayacharan Trivedi (supra) is apposite, in which this Court has held that Civil Court has no jurisdiction to go into the validity of permission issued by the Planning Authority on account of provisions of Section 149 of the MRTP Act. This Court held in para 12 as under: According to the petitioner, there is no statutory remedy available to him for challenging grant of sanction under section 45 of the said Act. Hence, according to the petitioner, as the remedy of appeal under section 47 of the said Act cannot be invoked by him, the only remedy available was to approach the Civil Court. Under section 149 of the said Act, every order passed or notice issued by any Authority under said Act is final and cannot be questioned in any suit or other legal proceedings. Non-availability of a statutory remedy to challenge an order passed or notice issued under provisions of said Act by itself cannot be held to be the determinative factor for conferring jurisdiction on the Civil Court especially when such jurisdiction has been expressly barred by provisions of section 149 of the said Act. At this stage, provisions of section 51 of the said Act need to be noticed. Said provision empowers the Planning Authority to revoke or modify any permission granted or deemed to be granted under the said Act to develop land. As held by the Division Bench in Digambar Sakharam Tambolkar vs. Pune Municipal Corporation and others, 1987 Mh.L.J. 419, the expression “permission granted under this Act or any other law” is wide enough to cover all kinds of permission katkam Page No. 25 of 35 granted to develop land. A person aggrieved by any permission to develop land can always move the Planning Authority to revoke or modify such a permission. Hence, it cannot be said that no remedy whatsoever is available to a person who seeks to revoke or modify such profession. For aforesaid reasons, said submissions cannot be accepted.

20) In the present case as well, Plaintiff’s prayer for injuncting CIDCO from issuing development permission to Defendant Nos. 5 to 7 would be barred by section 149 of the MRTP Act. The injunction sought by him to restrain Defendant Nos.[1] to 7 from obstructing his business also has connection with provisions of Section 53 of the MRTP Act as CIDCO as a Planning Authority is required to follow the procedure under Section 53 of the MRTP Act before taking any action against unauthorised constructions. Therefore, the entire prayer clause (c) in the Plaint is barred by Section 149 of the MRTP Act.”

35. In Akash Impex (supra), learned Single Judge of this Court has highlighted the importance of Trial Judges indulging in meaningful reading of the Plaint while considering the issue of bar of its jurisdiction under Section 515A of the Mumbai Municipal Corporation Act. It is held in paragraphs 23 to 25 as under: “23. In these days trial courts are heavily burdened by huge dockets of pending suits, there is nothing wrong if the trial judge at the earliest possible opportunity on meaningful reading of the plaint record his satisfaction that the suit can not be entertained as it is barred by law and reject the plaint. Larger public interest would require the court to free itself from the heavy burden of dockets of the plaints lodged which are prima facie contrary to law, sometimes ill-motivated attempt only to buy time for sustaining illegality for lifetime of the suit.

24. When constitutionality of the Amendment introduced under Section 515 A of the MMC Act was challenged and it is upheld by this Court by the ruling of Division Bench of this Court in W.P. (L) 1709 of 2013:[2013(6) ALL MR 297] dated 17-07-2013 in Abdul Razzaq sunesra Vs MCGM and others this court have left the litigant to avail of the remedy of invoking writ jurisdiction under article 226 of the Constitution of India when the civil suit is barred by law. In the same manner, if the civil suit cannot be filed /instituted without the issuance and service of the pre-suit statutory notice as mandatorily required under section 527 of the MMC Act, the plaintiff should avail of the remedy under Art. 226 of the Constitution of India. Thus plaintiff-appellant is not rendered remediless even if civil suit is rejected as barred by law by the court below.

25. Recently in the ruling of Abdul Karim Ahmed Mansoori vs. The Municipal Corporation of Greater Mumbai and another, in Writ Petition katkam Page No. 26 of 35 (Lodging) No.2237 of 2013: [2013(6) ALL MR 323], a writ petition was filed under Article 226 of the Constitution of India in order to challenge the notice issued under Section 354A of the Mumbai Municipal Act, 1988. A Division Bench of this court after considering the ruling in Secretary of State V/s. Mask & Company, reported in AIR 1943 P.C. 105, and the ruling in Shiv Kumar Chadha V/s. Municipal Corporation of Delhi reported in 1993 (3) SCC 161, as also Dhulabhai and Others V/s. State of Madhya Pradesh and Another reported in AIR 1969 S.C. 78, and Commissioner, Akola Municipal Corporation V/s. Bhalchandra s.p Govind Mahashabde reported in 2013(4) Mh.L.J.45: [2013(5) ALL MR 190], considered the consistent trend and opinion of the courts which leans in favour of entertaining a civil suit subject to legal bar so as to apply the legal bar as and when invoked. Division Bench expressed its view thus: “It is not as if by our clarification and enabling parties to file a Civil Suit, that we have observed that the bar should be ignored or should not be taken note of. The Civil Court is obliged to take note of the provision and the statutory bar whenever that plea is raised by the Corporation before it. In such circumstances, no further clarification is needed. All that we state and observe is that we have not expressed any opinion on the rival contentions including on the point of jurisdiction of the Civil Court in this matter. Even if the Petitioner seeks to revive the Suit as it is still pending and seek interim relief therein, the Corporation can raise the plea of jurisdiction and the learned Judge should consider and decide in accordance with law.” To sum up discussion therefore, there cannot be a blanket bar for plaintiff to file a civil suit but the plaintiff do incur risk by approaching the civil court particularly when there is express or implied bar by any law because it is open for the civil court before entertaining the suit to go through averments in the plaint and if upon meaningful reading of the plaint, the court finds that there is legal bar to entertain the suit, it may reject the plaint irrespective of any contention on behalf of the defendant, who may have been served. Alternatively, if defendant has appeared before the court and raised a preliminary issue as to jurisdiction of the court to entertain the suit, in view of the legal bar, civil court shall try the preliminary issue and decide the same, in view of Section 9A of the Code of Civil Procedure, as applicable in State of Maharashtra. In case the plaintiff's civil suit is not entertained or dismissed in limine or for any reason as above, then even appeal may not be entertained and ultimately due to legal bar to the suit, the plaintiff will have to invoke writ jurisdiction available under Article 226 of Constitution of India.”

36. From consideration of the ratio of various judgments as discussed above, following conclusions emerge: i) The objective behind enacting provisions in various municipal and planning statutes for bar of jurisdiction of Civil katkam Page No. 27 of 35 Courts is to ensure minimum possible court interference in actions initiated against unauthorised constructions so as to achieve the goal of curbing the menace of unauthorized constructions in urban areas of State of Maharashtra. ii) In the light of specific provision for bar of jurisdiction under Section 515A of the Mumbai Municipal Corporation Act, Section 433A of the MMC Act, 149 of the MRTP Act etc. the Civil Court shall ordinarily not entertain any suit challenging notice issued, order passed or direction issued under the provisions enumerated in those sections. iii) The Civil Court must be mindful of the fact that there is legislative objective behind enacting the provision of bar of jurisdiction and that its inherent jurisdiction is legislatively circumscribed by incorporating provisions for bar of jurisdiction. Therefore, it is in very rare cases where there are sufficient pleadings in the Plaint demonstrating nullity in the notice, order or direction that Civil Court would tend in favour of retaining its jurisdiction. iv) It is only in very rare cases where the Plaint contains averments demonstrating that the notice, order or direction suffers from the vice of nullity that the Civil Court would be justified in entertaining Suit challenging such notice, order or direction in respect of unauthorized constructions. v) The Civil Court must make meaningful reading of the Plaint to find that whether the grievance expressed in the Plaint is a pure challenge to the notice, order or direction for demolition of katkam Page No. 28 of 35 unauthorized construction. If it is a plain challenge to such notice, order or direction, the Court must proceed to reject the Plaint by referring to the provision for bar of jurisdiction. If on the other hand, meaningful reading of the averments in the Plaint makes out case of nullity in the notice, order or direction, the Civil Court can exercise jurisdiction in respect of such notice, order or direction.

(vi) However, mere pleading of the word ‘nullity’ in the Plaint would not be sufficient and the Court must find out from reading of the entire averments in the Plaint as to whether a demonstrable case of nullity is made out or not.

(vii) For the purpose of meaningful reading of the Plaint, the

Civil Courts would be guided by the manner in which this Court read the Plaint in Akola Municipal Corporation (supra) as well as the manner in which the Plaint has been read in the present judgment.

37. Having broadly examined the effect of provisions relating to bar of jurisdiction of Civil Courts, I now proceed to examine whether Plaint contains necessary averments for retaining jurisdiction of the Civil Court.

38. Perusal of averments made in the Plaint would indicate that Plaintiff has given history of occupation of suit structure initially by his father and thereafter by him in alleged capacity as tenant of Tapkire family and thereafter of Defendant Nos.[3] and 4. Plaintiff has also referred to attempts made by Tapkire family to evict him leading to filing of Regular Civil Suit No.39 of 2013 and passing of order of status quo. Plaintiff has also referred to purchase of the suit structure by Defendant Nos.[3] and 4 on 20 April 2013 and thereafter attempt being made by katkam Page No. 29 of 35 Defendant Nos.[3] and 4 to oust him from suit structure. In paragraph 11 of the Plaint, Plaintiff has alleged that Defendant Nos.[3] and 4 are attempting to throw him out of the suit structure through Defendant Nos.[1] and 2. Plaintiff has thereafter raised averments as to how the suit structure is authorized in paragraph 17 of the Plaint. Plaintiff has averred as to how the notice issued by Municipal Corporation is illegal. It is averred in paragraphs 17 and 18 as under: १७) प्रति वादी नं. २ यांनी पाठविवलेले नोटीस पाठविवण्याचा त्यामागील त्यांचा हे ु, वस् ुस्थिस् ी व कायदेविवषयक र ुविद पाह ा े नोटीस बेकायदेशि%र, चुकीचे व अयोग्य असल्याने प्रति वादींना दावा विमळक ोडुन टाकण्याची कारवाई करण्याचा कोण ाही अति/कार प्राप्त हो नसल्याने, प्रति वादींनी दावा विमळक ोडुन टाक ु नये अ%ी विनरं रची ाविकद प्रति वादी नं. १ व २ यांचे विवरुध्द होणे गरजेचे आहे. प्रति वादींना वादीची विमळक ोडुन टाकण्याचा कोण ाही अति/कार नाही असे ठरवुन विमळणे गरजेचे असुन पया5याने ांवि6क दृष्ट्या प्रति वादी नं २ यांनी पाठविवलेले नोटीस बेकायदेशि%र व चुकीचे असल्याचे ठरवुन विमळणे देखि;ल गरजेचे आहे. १८) प्रति वादी नं. १ मंबई प्रांति क महानगर पालीका अति/विनयमान्वये आस्थिस् त्वा आलेली संस् ा असुन मा. आयुक्त हे संस् ेच्या कामास जबाबदार असल्याने त्यांचे मार्फ 5 संस् ेस प्रति वादीपणा सामील क े लेल आहे. प्रति वादी नं २ यांनी स्व ःचे स्वाक्षरीने, मा6 संस् ेच्या शि%क्क ् याविवना वादीस सूचनाप[6] पाठविवले असल्याने त्यांना या दाव्या प्रति वादीपणा सामील क े ले आहे. प्रति वादी १ व २ यांना वादीचे दुकान ोडुन टाकण्याचा कोण ाही अति/कार नाही सेच वादी ज्या जागे भाडेकरी म्हणून आहे ी जागा प्रति वादी नं १ या संस् ेच्या करपा6 विमळक ींच्या दप्तरी नोंदविवण्या आलेली असल्याने अ%ी विमळक ोडण्याचा व वादीस बेद;ल करण्याचा कोण ाही अति/कार नाही. या परिरस्थिस् ी प्रति वादी १ व २ यांचे विवरुध्द क े लेल्या मागण्या या कायदेशि%र व न्यायोतिच आहे.

39. Plaintiff has thereafter described cause of action for filing of the Suit in paragraph 20 of the Plaint as under: २०) दाव्यास कारणः प्रति वादी ३ व ४ यांनी विदलेल्या चुकीच्या माही ीवरुन उपरोक्त विमळक ी संबं/ाने प्रति वादी कमांक २ यांनी विदनांक १२/१२/२०१४, रोजीचे जा. क्र. नर/व%ी/नापुव5/६३८/१४ अन्वये महानगरपालीका अति/विनयम कलम २६०, २६१, २६४, २६७ व ४७८ नुसार नोटीस पाठवुन दावा विमळक ोडुन टाकण्याची कारवाई करण्याबाब ची कारणे दा;वा नोटीस पाठविवली. नोटीस प्राप्त झाल्या नं र वादीने विदनांक ३०/१२/२०१४ रोजी कागदप6ांसविह ले;ी;ुलासा प्रति वादी १ व २ यांना समक्ष हजर राहुन सादर क े ला. नोटीशि%प्रमाणे काय5वाही करण्याबाब कोण ेटही कारण नसल्याने त्याप्रमाणे काय5वाही करु नये असे कळविवले आहे. हा;ुलासा प्रति वादी १ व २ यांना प्राप्त झाल्यांन रही, दावा विमळक ोडुन टाकण्याची कारवाई करणार नाही असे आजपयR प्रति वादी १ व २ यांना वादीस कळविवले नाही. उलट विदनांक ०४/०२/२०१५ रोजी अंति म katkam Page No. 30 of 35 नोटीस पाठवुन दावा विमळक पाडण्याविवषयी कळविवले आहे. प्रति वादी १ व २ यांनी आपले अति/काराचा गैरवापर करुन, मनमानी करुन जागा मालक प्रति वादी ३ व ४ यांना गैरमागा5ने मद करावयाचे हे ुने दावा विमळक पाडुन टाकण्यास प्रति वादी १ व २ कमी करणार नाही अ%ी वादीचे मना शिभ ी विनमा5ण झाली असल्याने व प्रति वादी नं. १ व २ दावा विमळक पाडुन टाकणार असल्याने वादीस दावा करणेस कारण घडले असुन दाव्यास स कारण घड आहे. उपरोक्त कलम १८ या नमुद क े लेले नोटीस प्रति वादी १ व २ यांना प्राप्त झाल्यापासुन ीस विदवसांची मुद विदनांक ०९/०२/२०१५ रोजी संपल्यानं र वादीने विवनाविवलंब हा दावा मे. न्यायालयां दा;ल क े ला आहे.

40. Plaintiff has thereafter sought following prayers: अ) वादीचा दावा;चा5सह मंजुर व्हावा. आ) प्रति वादी नं. १ व २ यांनी अगर त्यांचे व ीने अन्य कोणाही व्यविक्त, संस् ा, अति/कारी, कम5चारी, क ं 6ाटदार, एजंट, मु;त्यार अगर अन्य कोणासही नाशि%क %हर व नाशि%क महानगर पालीका हद्दी ील, त्रिं6बक नाका परिरसरा ील, घर नं. १३७३ क, र्फायनल प्लॉट नं. १९३, सिस. स. नं. ६२७/अ/१/१ब, यावरील एक ब्लॉक, या ील ळ मजला व त्यावरील दुमजली बां/काम व त्या असलेले 'सुविनल हुड मेकर' या नावाचे क ु %न व्यवसायाचे दुकान ही विमळक ोडुन टाकण्याचा/पाडण्याचा अगर वादीस त्या विमळक ी ुन बेद;ल करण्याचा अति/कार नाही असे ठरवुन विमळावे. इ) प्रति वादी नं. १ व २ यांनी अगर त्यांचे व ीने अन्य कोणाही व्यविक्त, संस् ा, अति/कारी, कम5चारी, क ं 6ाटदार, एजंट, मु;त्यार अगर अन्य कोणासही नाशि%क %हर व नाशि%क महानगर पालीका हद्दी ील, त्रिं6बक नाका परिरसरा ील, घर नं. १३७३ क. र्फायनल प्लॉट नं. १९३, सिस. स. नं. ६२७/अ/१/१ब, यावरील एक ब्लॉक, या ील ळ मजला व त्यावरील दुमजली बां/काम या असलेले 'सुविनल हुड मेकर' या नावाचे क ु %न व्यवसायाचे दुकान ही विमळक ोडुन टाक ु नये/पाडु नये अगर वादीस त्या विमळक ी ुन बेद;ल करण्याचा कोण ाही प्रयत्न करु नये सेच वादीचे दुकान व /ंदा व्यवसाय बंद पडेल असे कोण ेही व 5न करु नये अ%ी विनरं रची ाविकद वादीचे लाभा विमळावी. ई) वरील आ%याचा व अ ा5चा ात्पुर ा मनाईहुक ू म वादीचे लाभा प्रति वादी नं. १ व २ यांचे सह प्रति वादी ३ व ४ यांचे विवरुध्द व्हावा. उ) प्रति वादी नं. २ यांनी वादीस पाठविवलेले नोटीस बेकायदेशि%र व चुकीचे असल्याचे ठरवुन विमळावे. ऊ) मे. न्यायालयास योग्य वाट ील असे न्यायाचे हुक ू म वादीचे लाभा प्रति वादी नं. १ व २ यांचे सह प्रति वादी नं. ३ व ४ यांचे विवरुध्द व्हावे.

41. Holistic reading of the Plaint would indicate that the only cause of action for filing of the Suit, as pleaded in paragraph 20 of the Plaint, is issuance of notices dated 12 December 2014 and 30 January 2015. Thus, though Plaintiff has attempted to mask his challenge to the notices by katkam Page No. 31 of 35 seeking declaratory and injunctive reliefs in first few prayers, prayer clause ‘उ’ would leave no manner of doubt that the real challenge in the Suit is to the notices. I am therefore of the view that Plaintiff has plainly challenged the action of Municipal Corporation in issuing notices dated 12 December 2014 and 30 January 2015. The allegations leveled against Defendant Nos.[3] and 4 are only for the purpose of escaping the bar of jurisdiction under Section 433A of the MMC Act. Seeking of mere declaration that Municipal Corporation does not have authority to demolish suit structure would not save the suit from bar under Section 433A of the MMC Act. Whether Municipal Corporation has acted on its own or at the behest of the owners is irrelevant. There is no allegation in the suit that the action of Municipal Corporation in issuing notices is actuated by malafides or that the same is an action in bad faith. There is no averment in the Plaint that the act of issuance of notice is abuse of exercise of power. There is no averment that the act of issuance of such notice is nullity. There is also no averment that the officer issuing notice does not have authority in law to issue such notice. Mere averment that notice does not bear stamp of Defendant No.2 is not sufficient to protect the suit from bar of jurisdiction under Section 433A of the MMC Act.

42. Therefore considering the parameters laid down in paragraph 6 of the judgment in Akola Municipal Corporation (supra) it is clear that the Plaintiff has not made the necessary averments in the Plaint to demonstrate that the notice suffers from the vice of nullity. The pleadings in the Plaint do not satisfy the parameters warranting exercise of jurisdiction by the Civil Court ignoring the provisions of Section 433A of the MMC Act.

43. If the documents produced alongwith Plaint are perused, it is seen that Plaintiff has relied upon municipal assessment of the year 1975-76 katkam Page No. 32 of 35 indicating the dimensions of suit structure as 5 meters x 3 meters (5x3=15 square meters). The next municipal assessment for the year 1999-2000 however indicates that the suit structure has expanded from 15 sq. meters to 50.88 sq. meters. Thus, the Suit notice is issued in respect of a structure which appears to have been expanded by the Plaintiff without securing any development permission. Thus, the only enquiry which can be conducted in the suit is whether the impugned extension has been made by Plaintiff and whether such extension is after procuring development permission. Jurisdiction of Civil Court to conduct such enquiry is barred in view of provisions of Section 433A of the MMC Act.

44. The Trial Court has grossly erred in ignoring the above position and in going into extraneous consideration of difference in dimensions of the structure indicated in the notices and in the municipal assessment. The Trial Court has also erred into going into contents of the Written Statement while deciding the objection of jurisdiction. The entire approach of the Trial Court is wrong. Defendant No.1 and 2-Municipal Corporation had filed Application at Exhibit-23 seeking rejection of Plaint under Order VII, Rule 11 of the Code. Instead of deciding an Application by applying strict parameters of enquiry under Order VII, Rule 11 of the Code, the Trial Court proceeded to frame a preliminary issue of maintainability of Suit in the light of provisions of Section 433A of the MMC Act and thereafter expanded the scope of enquiry by going into merits of the case and by considering the contents of the written statement. Therefore, the manner in which the application for rejection of Plaint is dealt with and decided by the Trial Court is clearly faulty.

45. The objective behind provision of Order VII, Rule 11 of the Code is to nip in the bud suits which are barred by express provisions of law. katkam Page No. 33 of 35 The present suit is also instituted by the Plaintiff with the objective of delaying the action against the structure which has apparently expanded from a tin shed of 15 sq. mtrs. to ground plus two structure admeasuring

50.88 sq. mtrs.

46. Considering the overall conspectus of the case, I am of the view that Defendant Nos.[1] and 2/Municipal Corporation had made out a perfect case for rejection of Plaint in view of bar of jurisdiction of Civil Court under Section 433A of the MMC Act. In my view therefore, the Trial Court has erred in ruling in favour of its jurisdiction and in rejecting the Application at Exhibit-23. The impugned order is thus indefensible and liable to be set aside.

47. Consequently, the Revision Applications succeed and I proceed to pass the following order: i) Order dated 8 October 2015 passed by the 2nd Joint Civil Judge Senior Division, Nashik on Application at Exhibit-23 filed in Regular Civil Suit No.130 of 2015 is set aside. ii) The Plaint in Regular Civil Suit No.130 of 2015 is rejected by under provisions of Order VII Rule 11 of the Code.

48. With the above direction, both the Civil Revision Applications are allowed. There shall be no order as to costs. (SANDEEP V. MARNE, J.)

49. After the judgment is pronounced, the learned counsel appearing for the Plaintiff prays for continuation of ad-interim order of status-quo katkam Page No. 34 of 35 granted by the Trial Court in the Suit for a period of four weeks in order to enable the Plaintiff to test the judgment before higher forum. Request is opposed by the learned counsel appearing for the Defendants. Considering the fact that the protection of status-quo has been continuing in favour of the Plaintiff for considerable period of time, the same shall continue to operate for a period of four weeks. (SANDEEP V. MARNE, J.) katkam Page No. 35 of 35