Case Note & Summary
The appellant, Kishor S/o Ramalu 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. The notice pointed out deficiencies in the use of the land and required corrective action within one month. The appellant filed a civil suit seeking a declaration that the Municipal Corporation (respondents 1 and 2) were not entitled to demolish the suit property and for a direction to grant a sanctioned map. The Municipal Corporation filed preliminary objections under Section 9A of the Code of Civil Procedure, 1908, contending that the civil court had no jurisdiction due to the bar under Section 149 of the MRTP Act. The trial court framed a preliminary issue on jurisdiction and held that the suit was barred by Section 149. The appellant's first appeal was dismissed by the District Court, leading to the present second appeal. The legal issue was whether the bar under Section 149 applies when the notice under Section 53 is challenged as a nullity because the period given (one month) was less than the statutory period. The appellant argued that the notice was invalid and thus the bar did not apply. The respondents contended that the bar was absolute. The High Court, after hearing counsel, framed a substantial question of law and held that the bar under Section 149 does not apply when the notice itself is challenged as a nullity for non-compliance with the statutory period. The court reasoned that a notice that does not conform to the statutory requirement is a nullity and can be challenged in civil court. The appeal was allowed, the judgments of the lower courts were set aside, and the suit was restored to the trial court for disposal on merits.
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 does not apply when the notice under Section 53(1) is challenged as a nullity for failing to provide the statutory period. The civil court has jurisdiction to examine the validity of such 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 that prescribes a period shorter than the statutory period is a nullity and can be challenged in civil court despite Section 149. (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
Appeal allowed. Judgments of trial court and first appellate court set aside. Suit restored to trial court for disposal on merits. No order as to costs.
Law Points
- Section 149 of MRTP Act
- 1966 bars civil suits only when notice under Section 53 is valid
- notice under Section 53(1) must give statutory period
- notice with lesser period is nullity
- civil court jurisdiction not barred for challenging nullity
