Case Note & Summary
The appellant, M/s. Akash Impex, a registered partnership firm, acquired suit property Gala No.24/25, CTS No. 240-C at Khetani Industrial Estate, Kurla, Mumbai at an auction sale. Residents of the society filed Writ Petition No. 1763 of 2010 alleging unauthorised additions and alterations. The Municipal Corporation of Greater Mumbai (MCGM) issued a notice under Section 354A of the Mumbai Municipal Corporation Act, 1888 (MMC Act) requiring the appellant to stop unlawful construction. The appellant challenged this notice in Suit No. 2332 of 2010, which was pending before the Bombay City Civil Court. While that suit was pending, the appellant applied to MCGM for regularization of internal partitions and repairs. By letter dated 29-01-2011, MCGM closed the file on the ground of non-compliance of requirements, which the appellant claimed were complied with. The appellant then filed L.C. Suit No. 325 of 2011 seeking relief against the closure of the file and the notice. The learned City Civil Judge, Mumbai dismissed the suit and the Notice of Motion in limine. The appellant appealed against that dismissal. The High Court considered the bar under Section 527 of the MMC Act, which provides that no suit shall be brought against the Corporation for anything done under the Act. The court also noted that Section 354A(3) provides an alternative remedy of appeal to the Commissioner against the notice. The court held that the civil suit was not maintainable due to the statutory bar and the availability of an alternative remedy. The appeal was dismissed, and the civil application was disposed of accordingly.
Headnote
A) Municipal Law - Bar of Suit - Section 527 of MMC Act, 1888 - Maintainability - The appellant challenged a notice under Section 354A of the MMC Act, 1888 issued by the Municipal Corporation of Greater Mumbai. The trial court dismissed the suit in limine. The High Court held that the suit was not maintainable as Section 527 of the MMC Act bars civil suits in respect of anything done under the Act, and an alternative remedy under Section 354A(3) (appeal to the Commissioner) was available. The appeal was dismissed. (Paras 2-5)
B) Civil Procedure - Alternative Remedy - Section 9 CPC - The court held that where a statute provides a complete mechanism for redressal, the civil court's jurisdiction is barred. The appellant ought to have availed the remedy under Section 354A(3) of the MMC Act instead of filing a suit. (Paras 4-5)
Issue of Consideration
Whether a civil suit challenging a notice under Section 354A of the MMC Act, 1888 is maintainable in view of the bar under Section 527 of the MMC Act and the availability of an alternative remedy under Section 354A(3) of the MMC Act.
Final Decision
The High Court dismissed the appeal, upholding the trial court's order dismissing the suit in limine. The civil application was also disposed of.
Law Points
- Bar of suit under Section 527 of MMC Act
- 1888
- Alternative remedy under Section 354A(3) of MMC Act
- Maintainability of civil suit against municipal notice
- Scope of Section 9 CPC
Case Details
2013 LawText (BOM) (10) 111
First Appeal No. 572 of 2013 with Civil Application No. 2797 of 2011
Mr. J. Carlos with Mr. Santosh Saroj i/b A. M. Saraogi for appellant; Mrs. Surekh Sonawane for respondent-MMC
Municipal Corporation of Greater Mumbai
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
First appeal against dismissal of suit challenging notice under Section 354A of MMC Act and closure of regularization application.
Remedy Sought
Appellant sought to set aside the dismissal of L.C. Suit No. 325 of 2011 and the Notice of Motion, and to obtain relief against the MCGM's notice and closure of file.
Filing Reason
Appellant challenged the notice under Section 354A issued by MCGM and the arbitrary closure of the regularization application.
Previous Decisions
The learned City Civil Judge, Mumbai dismissed L.C. Suit No. 325 of 2011 and the Notice of Motion in limine on 14-03-2011.
Issues
Whether the civil suit challenging a notice under Section 354A of the MMC Act is maintainable in view of the bar under Section 527 of the MMC Act.
Whether the availability of an alternative remedy under Section 354A(3) of the MMC Act bars the civil suit.
Submissions/Arguments
Appellant argued that the suit was maintainable and that the MCGM acted arbitrarily in closing the file.
Respondent argued that the suit was barred under Section 527 of the MMC Act and that an alternative remedy under Section 354A(3) was available.
Ratio Decidendi
A civil suit challenging a notice under Section 354A of the MMC Act is not maintainable due to the bar under Section 527 of the MMC Act and the availability of an alternative remedy under Section 354A(3). The civil court's jurisdiction is ousted when the statute provides a complete mechanism for redressal.
Judgment Excerpts
The appeal is against the Judgment and order dated 14-03-2011 in L.C Suit no 325 of 2011 passed by the learned City Civil judge, Mumbai whereby the suit as well as the Notice of Motion was dismissed in liminem.
The facts stated are:- The appellant (Original plaintiffs referred hereinafter as Plaintiff )claimed that it is a registered partnership firm which had acquired suit property Gala No.24/25 , CTS No. 240-C of village Kurla -1 at Khetani Industrial Estate , Kurla , Mumbai, at auction Sale.
While the said suit remained pending, yet the plaintiff applied to the Municipal Corporation of Greater Mumbai for regularization of the internal partitions & repairs to the existing roof and floor at Gala no 24 and 25 i.e.suit structure at CTS no 240/C at Khetani Industrial Estate at Kurla .
It is averred that by letter dated 29-01-2011 the MCGM arbitrarily closed the file on the ground of non-compliance of the requirements, which according to the plaintiff were complied with.
Procedural History
The appellant filed L.C. Suit No. 325 of 2011 before the Bombay City Civil Court challenging the MCGM's notice under Section 354A and the closure of the regularization application. The learned City Civil Judge dismissed the suit and the Notice of Motion in limine on 14-03-2011. The appellant then filed First Appeal No. 572 of 2013 before the Bombay High Court against that dismissal, along with Civil Application No. 2797 of 2011. The High Court reserved judgment on 03-10-2013 and pronounced it on 09-10-2013, dismissing the appeal.
Acts & Sections
- Mumbai Municipal Corporation Act, 1888: 354A, 527
