Case Note & Summary
The petitioner, Prathamesh Tower Cooperative Housing Society Limited, challenged an order passed by the trial court on a preliminary issue under Section 9A of the Code of Civil Procedure (Maharashtra Amendment). The preliminary issue was whether the suit filed by the respondent (Gorai Road (Borivali) Shree Ganesh Cooperative Housing Society Ltd.) was maintainable in view of Section 149 of the Maharashtra Regional and Town Planning Act, 1966 (MRTP Act). The respondent had filed a civil suit seeking a declaration that a notice dated 29-10-2012 issued under Section 53(1) of the MRTP Act was illegal, bad in law, and not enforceable. The petitioner, who was defendant no. 4 in the suit, contended that the suit was barred by Section 149 of the MRTP Act. The trial court decided the preliminary issue in favor of the plaintiff, holding the suit maintainable. The petitioner challenged this order in the High Court. The High Court, after hearing the parties, upheld the trial court's decision. The court reasoned that Section 149 of the MRTP Act bars suits only in respect of certain matters, but a notice under Section 53(1) is not a final order; it is a preliminary step. Therefore, a challenge to such a notice is not barred. The court dismissed the writ petition, affirming the maintainability of the suit.
Headnote
A) Civil Procedure Code - Preliminary Issue under Section 9A (Maharashtra Amendment) - Maintainability of Suit - The court framed a preliminary issue under Section 9A of the CPC (Maharashtra Amendment) to decide whether the suit is maintainable in view of Section 149 of the MRTP Act. The parties did not lead oral evidence. The trial court held the suit maintainable. (Paras 1-2) B) Maharashtra Regional and Town Planning Act, 1966 - Section 149 - Bar of Jurisdiction - Section 149 of the MRTP Act bars civil suits in respect of certain matters, but the court interpreted that the bar does not apply to a challenge to a notice under Section 53(1) of the Act. The notice itself is not a final order but a step in the process. (Paras 3-5) C) Maharashtra Regional and Town Planning Act, 1966 - Section 53(1) - Notice for Removal of Unauthorized Structure - The plaintiff challenged a notice under Section 53(1) of the MRTP Act as illegal. The court held that such a challenge is maintainable in a civil court as the notice is not a final determination but a preliminary step. (Paras 2-4)
Issue of Consideration
Whether the civil suit challenging a notice under Section 53(1) of the MRTP Act is maintainable in view of the bar under Section 149 of the MRTP Act.
Final Decision
The High Court dismissed the writ petition, upholding the trial court's order that the suit is maintainable.
Law Points
- Section 9A CPC (Maharashtra Amendment) allows preliminary issue on maintainability
- Section 149 MRTP Act bars suits against certain actions but not against notices under Section 53(1)
- Section 53(1) MRTP Act provides for removal of unauthorized structures
- maintainability of civil suit is not barred when challenge is to notice itself
