Case Note & Summary
The appellant, Kishor S/o Ramalu @ Rambhau Telang, was the original plaintiff who received a notice dated 18.11.2010 under Section 53(1) of the Maharashtra Regional and Town Planning Act, 1966 (MRTP Act) from the Nagpur Municipal Corporation (respondent nos. 1 and 2). The notice pointed out certain deficiencies in the user of the land and stated that corrective action should be taken within one month from receiving the notice. The appellant filed a civil suit seeking a declaration that the defendant nos. 1 and 2 were not entitled to demolish the suit property and for a direction to grant a sanctioned map. The defendant nos. 1 and 2 filed preliminary objections under Section 9A of the Code of Civil Procedure, 1908 (CPC), contending that the trial court had no jurisdiction to decide the suit due to the bar under Section 149 of the MRTP Act. The appellant replied that the construction had come up prior to the Act being enacted and that due process was not followed. The trial court framed a preliminary issue on jurisdiction and held that the suit was barred by Section 149 of the MRTP Act, thereby rejecting the plaint. The appellant appealed to the District Court, which dismissed the appeal. Hence, the appellant filed a second appeal before the High Court. The High Court admitted the appeal on the substantial question of law: whether the bar under Section 149 of the MRTP Act applies when the notice under Section 53 is challenged on the ground that the period prescribed falls short of the statutory period and is therefore a nullity. The High Court noted that the notice under Section 53(1) must give at least one month's period for compliance. The notice in question stated "within one month from receiving the notice," which could be interpreted as less than one month if the date of receipt is excluded. The court held that if the notice does not give the mandatory period, it is not a valid notice and is a nullity. Consequently, the bar under Section 149 does not apply, and the civil court has jurisdiction to examine the validity of the notice. The High Court set aside the judgments of the lower courts and remanded the suit to the trial court for fresh disposal on merits, directing the trial court to decide the suit within one year.
Headnote
A) Civil Procedure - Jurisdiction - Bar under Section 149 of MRTP Act - Applicability - The bar under Section 149 of the Maharashtra Regional and Town Planning Act, 1966 applies only when the notice under Section 53 is valid and in conformity with the Act. If the notice is challenged as a nullity for non-compliance with mandatory statutory period, the civil court has jurisdiction to examine the validity of the notice. (Paras 1-6) B) Town Planning - Notice under Section 53(1) - Statutory Period - Nullity - A notice under Section 53(1) of the Maharashtra Regional and Town Planning Act, 1966 must give at least one month's period for compliance. If the notice prescribes a period shorter than one month, it is not a valid notice and is a nullity. The civil court can entertain a suit challenging such a notice. (Paras 3-6)
Issue of Consideration
Whether the bar under Section 149 of the Maharashtra Regional and Town Planning Act, 1966 applies when the notice issued under Section 53 of the said Act is challenged on the ground that the period prescribed therein falls short of the statutory period and is therefore a nullity?
Final Decision
Second appeal allowed. Judgments of trial court and District Court set aside. Suit remanded to trial court for fresh disposal on merits. Trial court directed to decide suit within one year.
Law Points
- Section 149 of MRTP Act bars civil suits only when notice under Section 53 is valid
- notice under Section 53(1) must give at least one month period
- notice giving less than statutory period is a nullity
- civil court has jurisdiction to examine validity of notice
