Case Note & Summary
The appellant, Municipal Corporation of Greater Mumbai, filed a First Appeal under Section 96 of the Code of Civil Procedure, 1908 against the oral judgment dated 29th September, 2011 passed by the trial court in L.C. Suit No. 2608 of 2007. The trial court had decreed the suit filed by the predecessor of the respondents (original plaintiff) and declared the notice dated 17th January, 2004 issued by the appellant under Section 89 of the Maharashtra Regional and Town Planning Act, 1966 (MRTP Act) as invalid. The respondents are the legal heirs of the original plaintiff, Nawab Ali Suleman, who expired during the pendency of the appeal. The appellant contended that the notice under Section 89 MRTP Act was valid and the suit was barred by limitation. The respondents argued that the notice was invalid and the suit was within limitation. The court analyzed the provisions of the MRTP Act and the Limitation Act, 1963. It held that the Limitation Act applies to suits challenging notices under Section 89 MRTP Act, and the suit filed in 2007 challenging a notice dated 17th January, 2004 was within the three-year limitation period. However, the court found that the suit was premature because it was filed before the expiry of the period specified in the notice for compliance. The court also held that the notice under Section 89 MRTP Act is not a notice under Section 52 of the Transfer of Property Act, 1882, and the trial court erred in declaring it invalid. The court allowed the appeal, set aside the trial court judgment, and dismissed the suit with no order as to costs.
Headnote
A) Limitation Act - Applicability to Suits Challenging Notices - Section 89 MRTP Act - The court held that the Limitation Act, 1963 applies to suits challenging notices under Section 89 of the MRTP Act. The suit filed in 2007 challenging a notice dated 17th January, 2004 was within limitation as the period of limitation is three years from the date of notice. (Paras 10-12) B) MRTP Act - Notice under Section 89 - Validity - The court held that the notice under Section 89 of the MRTP Act is not a notice under Section 52 of the Transfer of Property Act, 1882. The notice is a statutory notice requiring the owner to remove unauthorized construction. The trial court erred in holding that the notice was invalid. (Paras 13-15) C) Civil Procedure Code - Suit for Declaration - Premature Suit - The court held that the suit filed by the plaintiff challenging the notice under Section 89 MRTP Act was premature as it was filed before the expiry of the period specified in the notice for compliance. The plaintiff ought to have waited for the defendant to take further action. (Paras 16-18)
Issue of Consideration
Whether the notice dated 17th January, 2004 issued under Section 89 of the Maharashtra Regional and Town Planning Act, 1966 is valid and not barred by limitation, and whether the suit challenging the notice was premature.
Final Decision
The court allowed the appeal, set aside the trial court judgment, and dismissed the suit with no order as to costs.
Law Points
- Section 89 MRTP Act notice is not a notice under Section 52 of the Transfer of Property Act
- Limitation Act applies to suits challenging notices under MRTP Act
- Suit filed before expiry of notice period is premature
