1 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVN. APPLICATION NO. 668 OF 2009 M/s.Joto Absrasiv Pvt. Ltd. & anr. ... Applicants v/s Nashik Industrial Co-operative Estate & ors. ... Respondents Mr.C.G.Gavnekar for the applicants. Mr.M.J.Patil h/for Mr.M.L.Patil for Respondent No.2. Mr.G.S.Hegde with Mr.C.M.Lokesh i/by A.R.Bhole & Co. for respondent Nos.5 and 6. CORAM: SMT.NISHITA MHATRE, J. DATED: 12TH MARCH, 2010 P.C.: 1. Rule. Rule made returnable forthwith. By consent, the matter is taken up for final hearing. 2. The challenge in this civil revision application is to the judgment and order dated 27.8.2009 in R.C. Suit No.361 of 2000. By this order, the Trial Court has decided the preliminary issue with respect to the jurisdiction. The Trial 2 Court has held that the suit filed by the plaintiff was maintainable before the Civil Court and that the Civil Court had jurisdiction to try the same. 3. The brief facts required to be noted for consideration of the present civil revision application are as follows :- The plaintiff i.e. the respondent No.1 obtained a plot on lease from defendant Nos.4 and 5 i.e. respondent Nos.5 and 6 herein, for a period of 95 years. This lease was obtained for the construction of 60 galas. The plans were submitted by the plaintiff for construction of 48 additional galas on the same plot on 2.5.2000. The said plans were rejected on 30.5.2000 by the Executive Engineer of M.I.D.C. i.e. respondent No.5, as the proposed construction was within the “margin area”. It appears that, thereafter on 14.8.2000 the M.I.D.C. sanctioned construction of the additional galas and the plaintiff commenced construction on that plot. The M.I.D.C., on receiving complaints from the existing gala holders, stayed the construction on 18.7.2002. A writ petition was preferred by the plaintiff being Writ Petition No. 6799 of 2002. This Court directed the M.I.D.C. to consider the representation made by the plaintiff. It appears that the plaintiff completed the construction of 48 additional galas. 3 The applicants as well as other gala holders complained to the authorities that the plaintiff has carried out construction illegally and in violation of the sanctioned plans as the same was encroaching on the D.P. Road. The Government, in exercise of its powers vested under the Maharashtra Regional and Town Planning Act (in short, the MRTP Act), issued a direction on 5.6.2006 to the Executive Engineer, M.I.D.C. to take steps for removal of the offending structures put up by the plaintiff. The Executive Engineer, M.I.D.C., therefore, called upon the plaintiff to show cause, by his notice dated 13.6.2006, as to why the structures should not be demolished. As a consequence, the plaintiff approached the State Government on 30.6.2006. The Chief Planner directed the Executive Engineer to execute the order dated 5.6.2006 issued by the State Government for removing the offending structures. Thereafter a fresh proposal was placed before the Municipal Corporation by the Chief Executive Officer of the M.I.D.C. to delete the D.P. Road which was encroached by the plaintiff. The Commissioner of Municipal Corporation, Nashik, forwarded the proposal of the plaintiff with his comment to the State Government, on 12.6.2007. The State Government rejected the proposal and directed the Chief Executive Officer of the M.I.D.C. to remove the offending structures. On receipt of the direction of the 4 Government, the Associate Planner of the M.I.D.C. directed the Executive Engineer to remove the offending structures on 10.9.2006. 4. The plaintiff has challenged the orders dated 5.6.2006 and 10.9.2007 in the present suit. 5. The applicants filed an application for being added as party defendants to the suit which was allowed by the Trial Court. After filing their written statement, the applicants also filed an application for framing a preliminary issue with regards to the jurisdiction of the Court. The applicants contended that in view of Section 149 of the MRTP Act and the provisions of Section 487 of the Bombay Provincial Municipal Corporation Act, the suit before the Civil Court was not tenable. Accordingly, an issue with respect to the jurisdiction was framed by the Trial Court on 17.3.2009. By the impugned order dated 27.8.2009, the Trial Court has decided the preliminary issue and has held that it has the jurisdiction to try the suit. 6. Mr.Gavnekar appearing for the applicants submits that the plaintiff has challenged the orders issued by the Planning Authority under the MRTP Act and, therefore, the Civil Court 5 had no jurisdiction to try the suit. He has relied on several judgments of this Court in support of his contention that, in view of the provisions of Section 149 of the MRTP Act, the jurisdiction of the Civil Court is barred. 7. Mr.Haridas appearing for the respondent No.1 submits that the Civil Court’s jurisdiction cannot be ousted only because the section of the MRTP Act has been mentioned in the impugned orders. He submits that in effect what is being challenged is the order of the MIDC and, therefore, the Civil Court will have jurisdiction to try the suit. He relies on the judgment of the Supreme Court in the case of Dwarka Prasad Agarwal & anr. v/s Ramesh Chandra Agarwala & ors., reported in A.I.R. 2003 SC 2696. 8. I have perused the plaint which is annexed to the appeal memo. The respondent No.1 plaintiff has sought the following prayers:- (i) An injunction restraining defendant Nos.1 and 2 from taking possession of the marginal space of 9 meters without acquiring the same; (ii) a declaration that the notice issued on 5.6.2006 by defendant No.3 is illegal and not binding on the plaintiff; (iii) a declaration that the letter 6 issued by the M.I.D.C. on 10.9.2007 is illegal and not binding on the plaintiff; and (iv) a perpetual injunction against the defendants from acting on the notices dated 5.6.2006 and 10.9.2007. 9. There can be no dispute that a notice was issued on 5.6.2006 by the State Government to the Executive Engineer of the M.I.D.C. directing the Executive Engineer under Section 40 sub-section (4) of the M.R.T.P. Act to take steps for removal of the offending structures. A notice was also issued on 10.9.2007 by the Associate Town Planner directing the Executive Engineer to remove the suit structures in view of the notice issued by the State Government on 5.6.2006. The challenge in the suit is to the notice issued by the Planning Authority which is a Special Planning Authority i.e. the M.I.D.C.. Therefore, in my opinion, the suit would not be maintainable in view of Section 149 of the M.R.T.P. Act. 10. I have taken this view earlier in the case of Mohan N. Bhave (Dr.) v/s Municipal Corporation of Gr. Bombay, reported in 2005 (3) Bom.C.R. 300. A similar view has been expressed by two learned Single Judges of this Court, those are, in the case of Bales Sardara Paracha v/s Municipal Corpn. Of Gr. Bombay & anr., reported in 7 2005(4) Bom.C.R. 577 and in the case of Kalyan Dombivli Municpal Corporation v/s Prakash Mutha, reported in 2008(3) All.M.R. 269. 11. The submission of Mr. Haridas that the jurisdiction of the Civil Court is not to be ousted easily, would be acceptable had there not been a specific restriction under Section 149 of the M.R.T.P. Act. This section specifically bars the jurisdiction of the Civil Court. In my view, the submission of Mr.Gavnekar appearing for the applicants must be accepted. The suit would not lie before the Civil Court. If the respondent plaintiff has any dispute with respect to the orders passed by the State Government or the Planning Authority, they would have to challenge in the proceedings before the Competent Authority under the M.R.T.P. Act. 12. Hence, the civil revision application is allowed in terms of prayer clause (a). 13. Rule made absolute accordingly. ..... 8