1 fa1276-11 rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 1276 OF 2011 ALONGWITH CIVIL APPLICATION NO. 2286 OF 2011 Mithulal Hariprasad Gupta .. Appellant V/s. Municipal Corporation of Greater Mumbai .. Respondent .... Mr. Ashutosh Gole i/b. Mr. Sagar Ambedkar for the appellant. Mr. Vinod Mahadik for respondent – BMC. .... CORAM : A.S.OKA, J. DATE : JUNE 20, 2011. P.C.: Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondent. By the impugned Judgment and decree, the suit for declaration and injunction filed by the appellant has been dismissed by the trial Court. The suit was filed for challenging a notice under Section 55(1) of the Maharashtra Regional and Town Plaining Act, 1966 (hereinafter referred to as “the said Act”). One of the grounds on which the suit has been dismissed is that under Section 149 of the said Act, the jurisdiction of the Civil Court is expressly ousted. The said view is taken on the basis of the decision of this Court in the case of Mohan N. Bhave 2 fa1276-11 (Dr.) V/s. Municipal Corporation of Greater Bombay [2005(3) Bombay Cases Reporter Page 300]. The said decision has been later on explained by this Court by holding that the bar under Section 149 of the said Act of 1966 will not be apply when the case of the plaintiff is that the action under Section 55(1) of the said Act is nullity. 2. A copy of the plaint is tendered across the bar. There is neither any assertion nor a declaration sought that the notice under Section 55 of the said Act of 1966 is nullity. The learned counsel appearing for the appellant submits that on the basis of the averements made in the plaint, it can be said that the action is nullity. 3. Perusal of the plaint shows that there is absolutely no case made out that the action of the issuance of notice is nullity. Hence, the bar under Section 149 of the said Act, will squarely apply. Hence, no fault can be found with the finding of the trial Court that the suit was barred by virtue of Section 149 of the said Act. Therefore, no interference is called for. However, to enable the appellant to adopt appropriate remedy, ad-interim relief granted earlier deserves to be extended for a reasonable time. 3 fa1276-11 4. Hence, I pass the following order: :: O R D E R :: i. The First Appeal is dismissed. ii. It is made clear that the Appeal is dismissed only on the ground that the jurisdiction of the trial Court was ousted by virtue of Section 149 of the said Act. Hence, it is clarified that the finding recorded on all other issues except issue No.2-A are inoperative in as much as the said findings have been recorded by the Court which had no jurisdiction. iii. It will be open for the appellant to file appropriate proceedings in accordance with law for challenging the impugned notice under Section 55 of the said Act. iv. Ad-interim relief granted on 14th June, 2011 will continue to operate for a period of four months from today. (A.S.OKA, J)