Case Note & Summary
The case involves a civil revision application filed by Prashant Dattatraya Wazalwar, the original defendant No.3, challenging an order dated 16.08.2016 passed by the 6th Joint Civil Judge, Junior Division, Nagpur. The trial court had rejected applications (Exhs.8, 11, and 28) that raised a plea of bar of jurisdiction under Section 9A of the Code of Civil Procedure, 1908. The suit was filed by respondent No.1, Sudha Baburao Lokhande, against the appellant and the Nagpur Municipal Corporation (respondent Nos.2 and 3). The foundation of the suit was a notice issued under Section 53(1) of the Maharashtra Regional and Town Planning Act, 1966 (M.R.T.P. Act) by the municipal authorities. Respondent No.1 contended that the notice was illegal and issued in collusion with the appellant, who was her neighbour, and that the appellant had encroached upon her property. She claimed her construction was as per sanctioned plan and no violation had occurred. The trial court found that the notice under Section 53(1) prescribed a period lesser than the statutory minimum of 30 days, rendering the notice void ab initio, and therefore the civil suit was maintainable. The trial court relied on the judgment of the Bombay High Court in Kishor Ramalu Telang v. Municipal Commissioner, Nagpur Municipal Corporation, reported in 2015 (4) Mh.L.J. 836. The High Court, in this revision, upheld the trial court's order, holding that there can be no two opinions about the principle laid down in that case. The revision application was dismissed, and the rule was discharged with no order as to costs.
Headnote
A) Civil Procedure - Jurisdiction - Section 9A CPC - Bar of jurisdiction - The trial court rejected the defendant's application under Section 9A CPC challenging jurisdiction, holding that a notice under Section 53(1) of M.R.T.P. Act prescribing less than 30 days is void ab initio, thus civil suit is maintainable. (Paras 2-4)
B) Town Planning - Notice under Section 53(1) M.R.T.P. Act - Void ab initio - Where a notice under Section 53(1) of the Maharashtra Regional and Town Planning Act, 1966 prescribes a period lesser than the statutory minimum of 30 days, the notice is void ab initio and the civil court has jurisdiction to entertain a suit challenging such notice. (Paras 4-5)
Issue of Consideration
Whether the Civil Court has jurisdiction to entertain a suit challenging a notice issued under Section 53(1) of the Maharashtra Regional and Town Planning Act, 1966 when the notice prescribes a period lesser than the statutory minimum of 30 days.
Final Decision
The High Court dismissed the civil revision application, upholding the trial court's order. The rule was discharged with no order as to costs.
Law Points
- Section 53(1) of M.R.T.P. Act prescribes minimum 30 days notice period
- notice prescribing lesser period is void ab initio
- civil suit maintainable despite bar under Section 149 of M.R.T.P. Act
Case Details
2017 LawText (BOM) (06) 158
Civil Revision Application No. 41 of 2017
Shri S.S. Sharma for applicant, Shri S.D. Khati for Respondent No. 1, Shri A.M. Quazi for Respondent Nos. 2 and 3
Prashant Dattatraya Wazalwar
Smt. Sudha Baburao Lokhande, City of Nagpur Corporation, Nagpur, The Assistant Municipal Commissioner and Section Officer, Nagpur Municipal Corporation Zone Sokhta Bhawan, Nagpur
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Civil revision application challenging rejection of applications raising plea of bar of jurisdiction under Section 9A CPC.
Remedy Sought
The appellant (original defendant No.3) sought to set aside the trial court's order rejecting his application (Exh.28) and other applications challenging the jurisdiction of the civil court to try the suit.
Filing Reason
The appellant contended that the civil court lacked jurisdiction to entertain the suit in view of the bar under Section 149 of the M.R.T.P. Act, as the suit challenged a notice issued under Section 53(1) of the Act.
Previous Decisions
The trial court rejected the applications (Exhs.8, 11, and 28) holding that the notice under Section 53(1) prescribing less than 30 days is void ab initio, thus civil suit is maintainable.
Issues
Whether the Civil Court has jurisdiction to entertain a suit challenging a notice issued under Section 53(1) of the M.R.T.P. Act when the notice prescribes a period lesser than the statutory minimum of 30 days.
Submissions/Arguments
The appellant argued that the civil court had no jurisdiction to try the suit due to the bar under Section 149 of the M.R.T.P. Act.
The respondent No.1 contended that the notice was illegal and void ab initio as it prescribed a period lesser than 30 days, and therefore the civil suit was maintainable.
Ratio Decidendi
A notice under Section 53(1) of the Maharashtra Regional and Town Planning Act, 1966 that prescribes a period lesser than the statutory minimum of 30 days is void ab initio, and therefore the civil court has jurisdiction to entertain a suit challenging such notice, notwithstanding the bar under Section 149 of the Act.
Judgment Excerpts
the notice is void ab initio and therefore, civil suit is maintainable.
There can be no two opinions about the principle laid down in the case of Kishor Ramalu Telang vrs. Municipal Commissioner, Nagpur Municipal Corporation, reported in 2015 (4) Mh.L.J. 836 in this regard.
Procedural History
The suit was filed by respondent No.1 before the 6th Joint Civil Judge, Junior Division, Nagpur. The appellant (defendant No.3) filed an application (Exh.28) under Section 9A CPC challenging jurisdiction. The trial court rejected the application along with others (Exhs.8 and 11) on 16.08.2016. The appellant then filed the present civil revision application before the High Court.
Acts & Sections
- Code of Civil Procedure, 1908: Section 9A
- Maharashtra Regional and Town Planning Act, 1966: Section 53(1), Section 149
