Final Order 1

Order Details: Copy of Judgment
Pdf Text: Common order in
N/M No. 2581 of 2023 1
& N/M No. 2582 of 2023
in Suit No.220 of 2023
MHCC010073192023
IN THE BOMBAY CITY CIVIL COURT FOR
GREATER MUMBAI
NOTICE OF MOTION NO.2581 of 2023.
IN
S. C. SUIT NO.220 of 2023.
The Board of Mumbai Port Authority. ...Defendant/
Applicant.
In the matter of :-
Amit Hasmukhbhai Patel. ..Plaintiff
V/s.
The Board of Mumbai Port Authority. ..Defendants.
ALONG WITH
NOTICE OF MOTION NO.2582 of 2023.
IN
S. C. SUIT NO.220 of 2023.
The Board of Mumbai Port Authority. ...Defendant/
Applicant.
In the matter of :-
Amit Hasmukhbhai Patel. ..Plaintiff
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Common order in
N/M No. 2581 of 2023 2
& N/M No. 2582 of 2023
in Suit No.220 of 2023
V/s.
The Board of Mumbai Port Authority. ..Defendants.
Appearances :-
Adv.M.H.Mulla for plaintiff
Adv. Roop Basu i/b M/s. The Law Point for defendants
Coram : U. C. Deshmukh.
C.R. No.: 59.
Date : 18/03/2024.
ORAL ORDER
Both Notice of Motions are moved by defendants. Notice of
Motion No. 2581 of 2023 is moved under Order VII Rule 11(d) of the
Code of Civil Procedure, 1908 ( In short ‘the Code’) to reject the plaint
and Notice of Motion No.2582 of 2023 is taken out to permit
defendants, to file the written statement, if the suit survives.
2. The plaintiff failed to file reply and argue, hence, Notice of
Motions are proceeded unchallenged.
3. It is contention of the defendants that the plaintiff vide this
suit has challenged the notice under Section 53 (1) (A) of Maharashtra
Regional and Town Planning Act, 1966 ( In short ‘the Act’) therefore,
this Court has no jurisdiction to entertain the suit in view upon the
Section 149 of the Act. Defendants placed reliance upon the decision of
the Hon’ble High Court in Sarina Esmeralda Lopez V/s. Vijay
Goverdhandas Kalantri and Another; 2015(2)Mh.L.J 603.
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Common order in
N/M No. 2581 of 2023 3
& N/M No. 2582 of 2023
in Suit No.220 of 2023
4. It is also submission of the defendant that Notice of Motion
No. 531 of 2019 moved by the plaintiff was pending, hence, they could
not file written statement. Therefore, if the suit survives then they may
be permitted to file the written statement. Hence, prayed to allow the
Notice of Motions.
5. Advocate for defendants reiterated the contents of the
Notice of Motions and prayed to allow both Notice of Motion Nos. 2581
of 2023 and 2582 of 2023 and to reject the plaint. It is his alternative
submission that if the suit survive, defendants be permitted to file
written statement .
6. Defendants have challenged the maintainability of the Suit
in view of the Section 149 of the Act. Hence, reference to Section 149 is
inevitable. Hence, Section 149 of the Act is reproduced as under :
149. Finality of orders.
Save as otherwise expressly provided in this Act, every order
passed or direction issued by the State Government or order passed or
notice issued by any Regional Board, Planning Authority or
Development Authority under this Act shall be final and shall not be
questioned in any suit or other legal proceedings.
7. Once the provision of the Section 149 of the Act invoked, it
has to see whether the plaint survive. Therefore, reference to the plaint
is inevitable. The plaintiff has come with the specific case to declare
that the Notice No.EM/U/Plot No.88,89/3916 dated 10th January, 2019
(in short ‘impugned notice’) be declared to be void and null and also
relief of permanent injunction. It is case of the plaintiff that he received
impugned notice from defendants in respect of the structure situated at
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Common order in
N/M No. 2581 of 2023 4
& N/M No. 2582 of 2023
in Suit No.220 of 2023
Plot No. 88-89,Mazgaon Recamation Estate, Mumbai – 400 010 (In
short ‘Suit Premises’). Defendant No.1 is a body corporate constituted
and governed by the Provision of Major Port Trust Act, 1963, whereas
defendant No.2 is a designated officer of defendant No.1. Defendants
issued impugned notice on the ground that the plaintiff has
unauthorizedly constructed a tin partition in Gala No.2 and constructed
22 nos. of toilet blocks. The plaintiff has given reply to the impugned
notice, but defendants are trying to demolish the alleged structure.
Hence, the plaintiff constrained to institute the suit.
8. It is specific contention of the plaintiff that defendants have
charged a premium for said unauthorised construction and regularized
the same by accepting the premium. To fortify its contention he has
filed true copy of calculation sheet submitted by defendants themselves
against the suit premises, whereby they have received additional
premium against unauthorised construction as per the direction of the
Hon’ble Supreme Court. Therefore, defendants now cannot issue
impugned notice and direct the plaintiff to remove such construction.
9. It is also contention of the plaintiff that Assistant Engineer
(B & F) E Ward, Byculla, Mumbai had issued notice on 13th June, 2018
which was pasted on the structure of the plaintiff. It means the
defendants have knowledge of the alleged structure since 2018.
Therefore, defendants are precluded from taking action under the
impugned notice. Hence, this suit.
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Common order in
N/M No. 2581 of 2023 5
& N/M No. 2582 of 2023
in Suit No.220 of 2023
10. On perusal of impugned notice, it is seen that the notice is
issued under Section 35(1) (a) of the Act, to direct the plaintiff to
remove unauthorised construction over the suit premises. Therefore,
prima-facie there is strength in submission of Ld. Advocate for the
defendants that the provision of Section 149 of the Act are attracted.
11. In Sarina Lopes (supra) the Hon’ble Supreme Court has
specifically observed that the object of the Act is to have to proper
development in the areas to which it applies. Therefore, the Civil Court
has no jurisdiction to entertain the suit against the act done by the
Authority under the Provision of Act because of the Section 149 of the
Act. Section 149 of the Act gives finality to the order passed by the
Authority under the Act.
12. It is necessary to note that sub-Section 3 of Section 53 of
the Act provides the remedy to the person aggrieved by the notice under
Section 53 to apply for permission under Section 44 for retention of the
land or any building or works or for the continuous of any use of the
land. Therefore, the Act provide remedy to the plaintiff. It is not case of
the plaintiff that he has availed such remedy. Rather it is case of the
plaintiff that defendants have charged additional premium against the
unauthorized construction and accordingly they have issued calculation
sheet which is at Exh E.
13. On perusal of the calculation sheet at Exh. E, it is seen that
it was prepared and issued as per direction of the Hon’ble Supreme
Court judgment dated 13.01.2004 in Jamshed Wadia case. It is also
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Common order in
N/M No. 2581 of 2023 6
& N/M No. 2582 of 2023
in Suit No.220 of 2023
seen that calculation sheet is prepared to charge the additional
premium in respect of the construction, change the user or subletting
till 31.03.1994. The plaintiff has come with the case that the impugned
notice is issued on 10.01.2019 and prior to that another notice was
issued on 23.03.2010 in respect of the suit premises on account of
unauthorized construction. Therefore, it cannot be said that the
calculation sheet at Exh. E pertains to the unauthorized construction
under question. Hence, the plaintiff cannot take benefits of such
calculation sheet. It is prepared in respect of the unauthorized
construction and use of the premises till 31.03.1994. Thus, case of the
plaintiff is squarely falls within the ambit of the Section 53 (1) (a) r/w
Section 149 of the Act.
14. From the language of this Section 149, it is clear that
every order passed on direction issued by the State Government or
notice issued by any Regional Board, Planning Authority or
Development Authority under this Act, shall be final and shall not be
questioned in any suit or other legal proceedings. Object of the
exclusion of the jurisdiction of the Civil Court under section 149
appears to be avoiding unnecessary litigation in respect of any order
or notice that may be issued under the Act in respect of any acts,
which are required to be done by different authorities under the Act.
Taking the case of the development plan itself, if the jurisdiction of
the Civil Court would not be excluded, any person, whether it is
genuinely interested in the development of the town or with some
ulterior motive could file a suit, obtain some stay and then see that
the suit is not disposed off for a long period. As a result of this,
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Common order in
N/M No. 2581 of 2023 7
& N/M No. 2582 of 2023
in Suit No.220 of 2023
preparations of the development plan and the actual development of
the city itself may be unnecessarily prevented or stopped. This
would not be in large interest of the society and particularly the
people living in the city.
15. Considering the provision of Section 149 of the Act and
dictum of the Hon’ble High Court in Sarina (supra) vis-a-vis the
contents of the plaint, it is held that the suit is not maintainable. Hence,
the plaint is liable to be rejected. Upon the rejection of the plaint, the
Notice of Motion No. 2581 of 2023 deserves to be allowed and Notice of
Motion No.2582 of 2023 filed to permit defendants to submit written
statement looses its importance. In the result following order is passed :
ORDER
1. Notice of Motion No. 2581 of 2023 is allowed in terms of prayer
clause (a). Accordingly plaint is rejected.
2. In view of the rejection of the plaint, Notice of Motion No. 2582 of
2023 is disposed off accordingly.
3. Notice of Motion No.2181 of 2023 is disposed off accordingly.
4. Suit No. 220 of 2023 is disposed off accordingly.
5. Suit No. 220 of 2023 is sent to R & P Department.
(Dictated and Pronounced in open Court)
(U.C.Deshmukh)
Judge,
City Civil and Sessions Court
Date.:20.03.2024 Greater Bombay (CR 59).
Declared on : 20.03.2024
Dictated on : 20.03.2024
Transcribed on : 22.03.2024.
Checked on : 26.03.2024.
Signed on :
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Common order in
N/M No. 2581 of 2023 8
& N/M No. 2582 of 2023
in Suit No.220 of 2023
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
26.03.2024 at 3.21 -p.m. Mrs. P.R.Wagh
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court
Room No.)
HHJ SHRI.U.C.Deshmukh(C.R.No.59)
Judge.,City Civil & Sessions Court,
Date of pronouncement of /Order 20.03.2024
Order signed by P.O. on 26.03.2024
order uploaded on 26.03.2024
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