Bombay High Court
KAKAD CO-OP HSG. SOC. LTD AND ORS.versusMURZBAN NUSSERWANJI KHARIWALA AND ORS.
- Decided
- Disposal
- Disposed Off
Holding
A suit that merely challenges development permissions issued under the MRTP Act, without seeking a declaration of title, is barred by Section 149 of the MRTP Act and must be dismissed.
Summary
The applicants, who were original defendants in a suit filed by Kakad Co‑operative Housing Society Ltd., sought a civil revision under Section 115 of the CPC to set aside the City Civil Court’s order rejecting their Order VII‑Rule 11 application that the suit should be dismissed as barred. The suit challenged the building plans, permissions and the 12‑storey “White Orchid” building constructed on land for which the applicants held a 999‑year lease and alleged misuse of excess FSI. The core legal issue was whether the suit was barred by Section 149 of the Maharashtra Regional and Town Planning Act, 1966, which makes any order or permission issued by a planning authority final and non‑justiciable. The High Court examined precedent (Arihant Construction, Sujala Yeshwant Nitsure, Roha Municipal Council, Juhi Infra Build, etc.) and held that a suit that merely seeks to cancel development permissions, without a prayer for declaration of title, falls within the bar of Section 149. Consequently, the Court set aside the trial court’s order, allowed the revision, and dismissed the original suit. The judgment also clarified that the timing of the Order VII‑Rule 11 application and the failure to raise the bar in the written statement were irrelevant, as the bar is a point of law that the court can consider sua sponte.
Issues considered
- Whether the suit challenging the building permissions and plans is barred by Section 149 of the MRTP Act.
- Whether the Order VII‑Rule 11 application can be entertained despite being filed after issue of the plaint and framing of issues.
- Whether the failure to raise the bar of Section 149 in the written statement amounts to a waiver of jurisdiction.
- Whether the repeal of the ULC Act extinguishes the relief sought under that Act.
Legislation cited
- Code of Civil Procedure, 1908 — s. 115, Order VII Rule 11
- Companies Act, 1956
- Maharashtra Municipal Corporation Act, 1949 — s. 433A
- Maharashtra Regional and Town Planning Act, 1966 — s. 149
- Maharashtra Repeal Act, 2007 — s. 4
- Urban Land (Ceiling and Regulation) Act, 1976
Subjects
- development permission
- Section 149 MRTP Act
- Order VII Rule 11
- civil revision
- building demolition
- FSI
- title dispute
- jurisdictional bar
- urban planning law
Judgment
Renuka CRA 472 of 2009
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO. 472 OF 2009
1. Murzban Nusserwanji Khariwala ...Applicants
2. Manijeh Burjor Bandrawala
3. M.R.P. Enterprises
V/s.
1. Kakad Co-operative Housing Society Ltd. ...Respondents
2 The Municipal Commissioner of Greater
Bombay.
3. The Municipal Corporation of Greater Bombay
4. The Additional Collector and Competent
Authority (ULC)
5. Renu M. Tilwani
6. White Orchid Co-operative Housing Society Ltd.
WITH
INTERIM APPLICATION NO. 1587 OF 2026
IN
CIVIL REVISION APPLICATION NO. 472 OF 2009
Kakad Co-operative Housing Society ...Applicant
Limited
IN THE MATTER OF
Murzban Nusserwanji Khariwala and Ors. ...Applicants
V/s.
Kakad Co-operative Housing Society Ltd. ...Respondents
and Ors.
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Renuka CRA 472 of 2009
WITH
INTERIM APPLICATION NO. 7317 OF 2026
IN
CIVIL REVISION APPLICATION NO. 472 OF 2009
White Orchid Co-operative Housing Society ...Applicant
Ltd.
IN THE MATTER OF
Murzban Nusserwanji Khariwala and Ors. ...Applicants
V/s.
Kakad Co-operative Housing Society Ltd. ...Respondents
and Ors.
________________
Mr. Naushad Engineer, Senior Advocate with Mr. Aditya Kavale i/b
Zohair and Co., for the Applicant.
Mr. Jagdish N. Jayale i/b Mr. Rajesh Gehani, for Respondent No. 1.
Mr. Seegarla Shrikant, for Respondent No. 6 and for Applicant in IA No.
7317/2026.
Mr. Santosh Mali, for MCGM, Respondent.
________________
CORAM: SANDEEP V. MARNE, J
RESERVED ON: 8 SEPTEMBER 2026
PRONOUNCED ON: 22 SEPTEMBER 2026
JUDGMENT:
1) Applicants, who are original Defendant Nos. 4 to 6, have
invoked Revisional Jurisdiction of this Court under Section 115 of the
Code of Civil Procedure, 1908 (Code) for assailing the order dated 14 July
2009 passed by the learned Judge, City Civil Court dismissing the Notice
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of Motion taken out by them seeking rejection of the Plaint under Order
VII Rule 11 of the Code.
2) Briefly stated, facts of the case are that Applicants Nos. 1
and 2 / Defendant Nos. 4 and 5 conveyed a Plot of land admeasuring
2676.86 sq.m. situated at Pali Road, Bandra West, Mumbai alongwith FSI
admeasuring 18000 sq.ft. to one M/s. Kakad Investments vide Deed of
Conveyance dated 27 February 1979. According to them, under the
conveyance, the balance FSI over and above 18000 sq.ft. was to belong to
Applicant Nos. 1 and 2. On the same day i.e. 27 February 1979, Kakad
Investments executed Indenture of Lease in respect of land admeasuring
1005.03 sq.m. in favour of Applicant Nos. 1 and 2 for a period of 999
years at a nominal annual rent of Re. 1/-. According to Applicants, the
Lease Deed empowered Applicant Nos. 1 and 2 to utilize the balance FSI
over and above 18000 sq.ft. arising out of the larger property. On 21
December 1980, a Deed of Modification was executed, increasing FSI
share of Kakad Investments to 20662 Sq. Ft. During 1979-81, M/s Kakad
Investments constructed a building named Kakad Apartments and sold
flats therein to various purchasers, who formed Plaintiff-Society (Kakad
Co-operative Housing Society Ltd.), who is Respondent No. 1 in the Civil
Revision Application. In 1983, Plaintiff filed Suit No. 304 of 1983 against
Kakad Investments seeking conveyance of a larger property. On 23
February 1983, Consent Terms were filed in Suit No. 304 of 1983 between
Plaintiff-Society and Kakad Investments by which the entire larger
property admeasuring 2676.86 sq.m. was conveyed in favour of Plaintiff,
subject to 999-year lease in favour of Applicants Nos. 1 and 2.
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3) On 26 April 1996 and 13 May 1996, Applicants Nos. 1 and 2
executed registered Deeds of Assignment, assigning the lease to
Applicant No. 3 / Defendant No. 6. Applicants submitted plans for
construction of 12 story building known as ‘White Orchid’ in the leased
property in exercise of rights conferred under the lease by utilizing the
balance FSI of the larger property. Construction of the building White
Orchid was completed in 1998. On 7 September 1998, Plaintiff filed Writ
Petition No. 1801 of 1998 challenging the permissions in respect of the
building White Orchid. According to Plaintiff, the Petition was dismissed
on account of involvement of disputed questions of facts which
warranted filing of a suit. In the meantime, Occupancy Certificate (OC)
was issued in respect of the building White Orchid on 27 August 1999.
The flat purchasers of the building formed White Orchid Co-operative
Housing Society Ltd. (Respondent No. 6/ Defendant No. 8).
4) In the above background, Plaintiff has filed LC Suit No. 2591
of 2000 before the City Civil Court inter alia challenging building
permissions and sanctioned plans in respect of the building White
Orchid and seeking its demolition. Applicants filed written statements.
Issues were framed on 6 June 2005, which were recast on 18 January
2008. Applicants filed Notice of Motion at Exh-14 under Order VII Rule
11 of the Code seeking rejection of the Plaint on the ground that the suit
is barred under provisions of Section 149 of the Maharashtra Regional
and Town Planning Act, 1966 (MRTP Act). By order dated 14 July 2009,
Applicants’ motion has been dismissed by the City Civil Court, which
order is subject matter of challenge in the present Revision Application.
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By order dated 21 January 2010, the Revision Application has been
admitted and proceedings of the Suit have been stayed.
5) Mr. Engineer, the learned Senior Advocate appearing for
Applicants submits that the City Civil Court has grossly erred in rejecting
the Motion under Order VII Rule 11 of the Code. That the suit is clearly
barred under Section 149 of the MRTP Act. That the suit challenges
sanctions/permissions/plans granted by Municipal Corporation of
Greater Mumbai (MCGM) relating to the White Orchid building and that
therefore, there is express bar under Section 149 of the MRTP Act. He
takes me through the prayers of the suit and submits that the whole suit
is founded as a challenge to the plans and development permissions.
That development permissions are also to be considered as ‘orders’
passed under Section 45 of the MRTP Act and that therefore the suit
cannot be filed challenging the same under Section 149 of the MRTP Act.
In support, he relies on judgments of this Court in Arihant Construction
V/s Subhash Kesharmal Barlota and Ors.1, Sujala Yeshwant Nitsure V/s
Municipal Corporation of City of Pune and Ors.2, Roha Municipal
Council V/s Shahin Mohamed Akbar Alekar3 and Juhi Infra Build LLP
V/s Yasin Mahamudiya Patel4.
6) Mr. Engineer further submits that the impugned order
erroneously refers to the purported dispute as to title as a ground to
reject application under Order VII Rule 11 of Code though in fact no
reliefs are sought in the suit regarding title. He submits that only the
1 2015 (6) Mh.L.J. 262
2 1996 (2) BCR 503
3 2015 SCC OnLine Bom 5105
4 2025 SCC OnLine Bom 3828
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reliefs sought in the suit are required to be taken into consideration and
mere narration of events is irrelevant. That if reliefs are barred by law,
the plaint is required to be rejected under Order VII Rule 11 of the Code.
In support he relies on judgment of the Apex Court in Rajendra Bajoria
and Ors V/s Hemant Kumar Jalan And Ors.5 Mr. Engineer further
submits that since the primary relief is barred under Section 149 of
MRTP Act, the consequential reliefs can also not be granted. In support,
he relies on judgments of this Court in Prashant Dattatray Wazalwar
V/s Sudha Baburao Lokhande and Ors.6 and Nine Media and
Information Services Ltd. V/s Hero Honda Motors Ltd. 7 He submits that
prayer clause (g) in the suit regarding challenge to the permission under
the Urban Land (Ceiling and Regulation) Act, 1976 (ULC Act) stands
abated on account of repeal of the said Act.
7) Mr. Engineer further submits that the Trial Court has erred
in rejecting the application under Order VII Rule 11 of the Code on the
ground of the same being filed at a belated stage. Relying on judgments
of the Apex Court in Church of Christ Charitable Trust and Educational
Charitable Society V/s Ponniamman Educational Trust 8 and ITC Ltd.
V/s Debts Recovery Appellate Tribunal and Ors. 9, he submits that the
Application can be filed at any stage of the suit and that mere framing of
the issues is an irrelevant factor. He submits that the Trial Court has
erred in considering the factor of failure to raise objection of bar of
5 (2022) 12 SCC 641
6 2017 (5) MhLJ 696 : 2017 SCC OnLine Bom 2898
7 2017 (1) MhLJ 566 : 2016 SCC OnLine Bom 10706
8 (2012) 8 SCC 706
9 (1998) 2 SCC 70
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jurisdiction in the written statement when application under Order VII
Rule 11 of the Code can be filed even without filing written statement.
8) Lastly, Mr. Engineer submits that the application for
amendment of plaint filed by the Plaintiff itself indicates that the plaint
does not contain any relief for declaration of title. Relying on judgment
of this Court in Prakash G. Goyal and Ors. V/s Sayyed Ayaz Ali s/o
Makdoom Ali and Ors.10, he submits that Court need not await decision
of amendment application and can proceed to reject the plaint under
Order VII Rule 11 of the Code. He accordingly prays for setting aside the
impugned order.
9) Mr. Jayale, the learned counsel appearing for Respondent
No.1/Plaintiff opposes the Revision Application submitting that the Trial
Court has rightly rejected the baseless application filed by the Applicants
seeking rejection of the Plaint. That Applicants have erroneously eaten
into the lawful rights of the Plaintiff-Society by illegally constructing the
building White Orchid. That the suit clearly involves disputes relating to
title. That the challenge to development permissions is essentially raised
to protect rights of the Plaintiff-Society in the land and FSI flowing out
of the same. He relies on judgment of this Court in Raja Bahadur
Motilal and Anr. V/s State of Maharashtra and Ors. 11 in support of his
contention that suit is the correct remedy for challenging development
permissions. That when writ petition was filed challenging the
development permission, the same was opposed by Applicants
contending that complicated issues could not be decided in writ
10 2018 (5) Mh.L.J 830
11 2003 (1) Bom CR 251
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jurisdiction and when suit is filed, dismissal of the same is sought on the
ground that there is bar of jurisdiction under Section 149 of the MRTP
Act. He submits that White Orchid Co-operative Housing Society Ltd. has
filed Suit No. 1489 of 2019 in this Court claiming ownership in respect of
entire FSI (barring 20662 sq.ft.) in respect of larger plot of which
Plaintiff-Society is the owner. That therefore rejection of the Plaint
would cause severe prejudice to the Plaintiff since it wants to establish
its rights qua the entire larger plot as well as FSI flowing thereof. That
Plaintiff has already filed Chamber Summons for amendment of the suit
for adding necessary averments and reliefs relating to TDR in respect of
the land. That the Chamber Summons is not getting decided on account
of stay of the suit. He accordingly prays for dismissal of the Revision
Application so that the suit can be decided.
10) Rival contentions urged on behalf of the parties now fall for
my consideration.
11) Applicants are aggrieved by rejection of their application at
Exh-14 seeking rejection of the Plaint under order VII Rule 11 of the
Code. According to the Applicants, there is an express bar to the suit
under provisions of Section 149 of the MRTP Act.
12) Plaintiff-Society is aggrieved by construction of building
White Orchid by the Applicants on the leased property by consuming FSI
flowing out of the entire land conveyed in favour of the Plaintiff-Society.
The Plaintiff earlier filed Writ Petition No. 1801 of 1998 in this Court
challenging various development permissions issued in respect of the
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building White Orchid. The Petition came to be dismissed by this Court
on 5 October 1998. After dismissal of the Petition, LC Suit No. 2591 of
2000 is filed by the Plaintiffs. It is contended by Mr. Jayale that the Writ
Petition was disposed of on account of involvement of disputed
questions of fact. At this stage, I do not wish to delve deeper into the
aspect as to whether the suit is maintainable in the light of disposal of
the Writ Petition and whether the Suit is barred by the principles of res
judicata or not. The Plaint cannot be rejected under Order VII Rule 11 of
the Code on the ground that the Suit is barred by res judicata. In the
event the Plaint in the Suit survives and the Suit is taken to trial, the said
issue can be decided.
13) The Suit filed by the Plaintiff-Society is essentially directed
against construction of the building White Orchid. It would be apposite
to reproduce the substantive prayers in the Plaint, which read thus:
a) That this Hon’ble Court be pleased to grant leave under order 2 Rule 2 of the
Civil procedure Code.
b) That the building proposal plans bearing no. CE/414/WS/AH sanctioned on
13th July 1996 and the amended building proposal plans bearing no.
CE/414/WS/AH sanctioned on 24th September 1996 and 10th June 1997 and all
other amended building proposal plans sanctioned thereafter by defendant
nos.1 and 2 by themselves and their officers for the construction of the
proposed building comprising of stilts plus 12 upper floors known as "White
Orchid" on the said property situate at Plot no.4 TPS III, Pali Road, Bandra (W).
Mumbai 400 050 bearing CTS Nos. F/867 to F/869 admeasuring 2491.62 sq.
meters i.e. 2980 sq. yards or thereabouts more particularly described in Exhibit
"A" hereto be declared illegal, unenforceable, bad-in-law and null and void;
c) That the defendant nos.1 and 2 by themselves and their officers, be ordered
and decreed to quash cancel, revoke and/or set aside the building proposal
plans bearing no. CE/414/WS/AH sanctioned on 13th July 1996 and the
amended building proposal plans bearing no. CE/414/WS/AH sanctioned on
24th September 1996 and 10th June 1997 and all other amended building
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proposal plans bearing no. CE/414/WS/AH, sanctioned for the construction of
the proposed building comprising of stilts plus 12 upper floors known as
"White Orchid" on the said property situate at Plot no. 4 TPS III, Pali Road,
Bandra (W), Mumbai 400 050 bearing CTS Nos. F/867 to F/869 admeasuring
2491.62 sq. meter i.e 2980 sq.yards or thereabouts, more particularly described
in Exhibit "A" hereto;
d) That the new twelve storey building on stilts known as "White Orchid"
constructed by defendant nos.4, 5 and 6 without the consent of the plaintiffs as
additions and alterations to the existing ground floor cottage on the said
property situate at plot no.4, TPS III, Pali Road, Bandra (W), Mumbai 400 050
bearing CTS Nos. F/867 to F/869 admeasuring 2491.62 sq. meter i.e 2980
sq.yards or thereabouts, more particularly described in Exhibit "A" hereto
declared illegal;
e) That the defendant nos.1 and 2 by themselves, their officers, employees and
constructors be ordered and decreed to demolish and remove the said new
twelve "White Orchid" storey building on stilts known as constructed as
additions and alterations to the existing ground floor cottage on the said
property situate at plot no.4, TPS III, Pali Road, Bandra (W), Mumbai 400 050
bearing CTS Nos. F/867 to F/869 admeasuring 2491.62 sq. meter i.e 2980
sq.yards or thereabouts, more particularly described in Exhibit "A" hereto
wholly at their costs;
f) That all permissions/sanctions including the intimation of disapproval, and
commencement certificates bearing no. CE/414/WS/AH of 1996 granted by
defendant nos.1 and 2 by themselves and their officers for the construction of
the said proposed building comprising of stilts plus 12 upper floors known as
"White Orchid" on the said property situate at plot no.4, TPS III, Pali Road,
Bandra (W), Mumbai 400 050 bearing CTS Nos. F/867 to F/869 admeasuring
2491.62 sq. meter i.e 2980 sq.yards or thereabouts, more particularly described
in Exhibit "A" hereto be declared illegal bad-in-law and null and void and the
defendant nos.1 and 2 by themselves and their officers be ordered and decreed
to quash, cancel revoke and/or set aside all permissions and sanctions
including the said intimation of disapproval and the commencement certificate
bearing no. CE/414/WS/AH of 1996;
g) That the ULC permission LOI No. C/ULC/DIII/22/6011 dated 15th May 1996
and all other orders, permissions and sanctions granted by defendant nos.3 for
redevelopment of the said property situate at plot no. 4, TPS III, Pali Road,
Bandra (W), Mumbai 400 050 bearing CTS Nos. F/867 to F/869 admeasuring
2491.62 sq. meter i.e 2980 sq.yards or thereabouts, more particularly described
in Exhibit "A" hereto be declared illegal, bad-in-law and null and void and the
defendant no.3 be ordered and decreed to quash revoke cancel and/or set aside
the same;
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h) That the raise paved platform of about one feet from ground level
constructed by defendant nos.4, 5 and 6 on the east north and west sides open
space of the said new twelve storey building on stilts known as "White Orchid"
and upto the said Kakad sub-station on the said property situate at plot no.4,
TPS III, Pali Road, Bandra (W), Murnbai 400 050 bearing CTS Nos. F/867 to
F/869 admeasuring 2491.62 sq. meter i.e 2980 sq.yards or thereabouts, more
particularly described in Exhibit "A" hereto be declared unauthorized and illegal
and the defendant nos.1 and 2 by themselves their officers, employees workers
and contractors be ordered and decreed to demolish and remove the said raised
paved platform wholly at their cost;
i) That the water connection granted by defendant nos.1 and 2 by themselves
and their officers to the said twelve storied building on stilts known as "White
Orchid" on fraudulent misrepresentations be declared illegal and the
defendant nos.1 and 2 by themselves and their officers, employees and workers
be ordered and decreed to disconnect and remove the said water connection
wholly at their costs from the said property situate at plot no.4, TPS III, Pali
Road, Bandra (W), Mumbai 400 050 bearing CTS Nos. F/867 to F/869
admeasuring 2491.62 sq. meter i.e 2980 sq.yards or thereabouts, more
particularly described in Exhibit "A" hereto;
14) Thus, Plaintiff-Society has essentially challenged various
permissions issued by the Municipal Corporation for construction of the
building White Orchid. The gist of prayers in the Plaint and their exact
nature is as under:
(a) Grant of leave under Order II Rule 2 of CPC;
(b) Declaration that Building Plans sanctioned on 13.07.1996 and
subsequently amended in 1997 are unenforceable, illegal and bad
in law (relates to the validity of the building plans and permissions);
(c) Direction to Defendant Nos. 1 and 2 (viz. Municipal
Commissioner and the MCGM) to quash, cancel, revoke and set
aside the sanctioned plans (relates to the validity of the building
plans and permissions);
(d) Declaration that the White Orchid building is illegal (relates to
the validity of the building plans and permissions);
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(e) Direction to Defendant Nos. 1 and 2 (viz. Municipal
Commissioner and the MCGM) to demolish the White Orchid
building (consequential to challenge to the building plans and
permissions);
(f) That all the permissions and sanctions, including IOD and CC
be set aside, cancelled and revoked (relates to the validity of the
building plans and permissions);
(g) That the ULC permission dated 15.05.1996 granted by
Respondent No. 4 be cancelled and revoked (stands abated, as more
particularly set out below);
(h) That the paved platform be declared unauthorized and illegal
(consequential /ancillary to challenge to the building plans and
permissions);
(i) That the water connection in respect of the White Orchid
building be declared illegal (consequential/ancillary to challenge to
the building plans and permissions);
(j) Prayers (j) to (bb) are all interlocutory reliefs.
15) Thus, Plaintiff is essentially aggrieved by the manner in
which various permissions are granted by the MCGM. Prayer clauses (b)
to (d) and (f) relate to validity of building plans and permissions
sanctioned by the Municipal Corporation. Prayer clause (e) seeks
consequential relief of demolition of building White Orchid and prayer
clauses (h) and (i) seek consequential relief of demolition of paved
platform and disconnection of water supply. Prayer clause (g) challenges
ULC permission dated 15 May 1996 issued under the ULC Act. However,
since the Act itself is repealed, the relief sought in prayer clause (g) of
the Plaint does not really survive. Thus, the essence of the suit is
challenge to the development permissions issued by the MCGM. The
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other consequential reliefs are dependent on the main relief of challenge
to the development permissions.
16) There is express bar under Section 149 of MRTP Act for
maintenance of a Suit challenging any order passed or direction/notice
issued by the Planning Authority. Section 149 of MRTP Act seeks to give
finality to the orders passed or directions/notices issued under the Act
which cannot be questioned in any suit or any other legal proceedings.
Section 149 of the MRTP Act provides thus:
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.
17) It is thus more than apparent that the bar under Section 149
of MRTP Act would clearly be attracted qua prayer clauses (a) to (d) and
(f) in the plaint as observed above. Prayer clauses (e), (h) and (i) merely
seek consequential reliefs and depend on main relief of challenge to the
development permissions. In my view therefore, express bar under
Section 149 of MRTP Act would clearly be attracted to the reliefs sought
in the Plaint.
18) In Arihant Construction (supra), the plaintiff therein was
claiming title over the property in respect of which development
permission was granted by MCGM and a suit was filed challenging the
permissions and seeking demolition of the structure. However, there was
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no prayer seeking declaration of title or for recovery of possession. Thus,
factual situation in Arihant Construction was more or less similar to the
one involved in the present case. This is clear from observations made in
paragraph 3 of the judgment which reads thus:
3. To put it in nutshell, the objections raised by the defendant No. 3 are that
the plaintiff is trying to say that the plaintiff has title to the suit property and
thus the Municipal Corporation should not have granted the permission of
construction and the Suit has limited prayer for cancellation of the permission
and consequential reliefs sought are of mandatory and permanent injunction
and thus it is claimed that the Suit is not maintainable in view of section 149 of
the Act.
19) A coordinate bench of this Court in Arihant Constructions
held that if declaration of title is not sought in the Plaint but mere
challenge to development permissions is raised, bar under Section 149 of
the MRTP Act would get attracted. This Court accordingly proceeded to
reject the Plaint under order VII Rule 11 of the Code by holding in
paragraphs 18 and 19 of the judgment are as under:
18. Keeping Rulings referred to by the parties in view, when present suit is
perused, although it refers to an old earlier history of litigation, it does not
seek declaration of the ownership of the plaintiff. It does not even seek
possession of the property although from the plaint itself it can be made out
that plaintiff was not supported by the revenue entries also regarding the
possession. At the time of argument, I had asked the learned counsel for
respondent No. 1-how plaintiff without seeking declaration of title the plaintiff
was claiming mere cancellation of building permission. The counsel submitted
that plaintiff was claiming mandatory and perpetual injunction also. The
counsel was asked if without seeking declaration of title the suit could be
maintained, the counsel submitted that present suit was only to the effect that
defendant No. 3 should be restrained from acting on the permission of
construction given by the Corporation. According to the counsel, the
Corporation had given permission merely relying on revenue entries and he
submitted that this was not appropriate. According to the counsel for
respondent No. 1, the respondent No. 1 had raised objections but the
Corporation still granted the permission. I find that the suit in its present form
is hit by section 149 of the Act. It merely seeks cancellation of the permission
of construction on the basis that the plaintiff had raised question of title
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before Planning Authority and thus according to the plaintiff the permission
should not have been granted. Merely because plaintiff raised dispute of title
with the Corporation, would not be sufficient. The commencement certificate
dated 21st March, 2014 issued to the defendant No. 3 and before issuing the
certificate, letter dated 15th March, 2014 issued to the plaintiff by the
Corporation shows that the Corporation considered entries in P.R. Card and
sale deed relied on by the defendant No. 3 and measurement map and found
that the entries showed title of the defendant No. 3 and accordingly granted
permission for construction. Planning Authority cannot sit down and give
Judgment on title. The letter dated 15th March, 2014 clearly informs the
plaintiff that when he is asserting title, he may file appropriate suit. The
plaintiff has filed the suit but did not claim declaration of his title. Although
learned counsel for plaintiff has argued that the plaintiff can maintain the suit
without asking for declaration of his own title but can seek declaration that
defendant No. 3 does not have title, even that is not done. The suit does not
even seek to set aside Sale Deed relied on by defendant. I do not find substance
in the arguments.
19. It is not a case that while granting the permission, the planning authority
did not give regard to the provisions of draft or final plan as is required to be
considered under section 46 of the Act. Even in that case what would be
appropriate relief or forum would be matter of consideration. The basic reason
for objecting to the building permission given in Plaint is that plaintiff had
raised the question of title and so the permission should not have been
granted. Looking to the Court Fee clause of the suit as well as the prayers of
the suit reproduced above, it is quite clear that the only relief sought is to
cancel the construction permission given to defendant No. 3 and “in
consequences of cancellation/suspension” of permission the mandatory
injunction to remove structure and further perpetual injunction is claimed that
defendant No. 3 should not do any construction at the suit property.
20) The ratio of the judgment in Arihant Construction squarely
applies to the facts of the present case. Here also, Plaintiff has not
sought declaration of title or a prayer for possession. The Suit involves a
plain challenge to the development permissions and therefore the bar
under Section 149 of the MRTP Act would clearly get attracted in the
present case.
21) In Sujala Yashwant Nitsure (supra), a suit was filed seeking
a declaration that building permissions granted by the planning
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authority in respect of a Mangal Karyalay were illegal and injunction was
sought to restrain defendant from carrying out the work as well as for
demolition of the structure. This Court held that grant of development
permission amounted to passing of an ‘order’ under the MRTP Act and
that therefore bar under Section 149 of MRTP would apply to the suit
challenging the development permissions. This Court held in paragraphs
36, 37 and 41 of the judgment as under:
36. When any Statute seeks to expressly bar the jurisdiction of the Civil Court,
such bar must be clear and legislature's intendment must be very explicit. The
order passed by an Officer authorized to do so under the Act, rightly or wrongly
in ignorance of law or mis-application of law would be all the same order
passed under the Act imposing bar upon the suit.
37. This aspect has been highlighted by and on behalf of the respondents when
it was urged that undisputedly the said plot being a part of Town Planning
Scheme and being developed under the said Scheme, the permission applied
for and granted is under the provisions of Chapter IV of the M.R.T.P. Act, 1966.
The application was made for the grant of permission and permission has been
granted under the provisions as contained in Chapter IV of the M.R.T.P. Act,
1966. Therefore, there is no doubt the learned Counsel for the respondents
contends that in the instant case order has been passed under the provisions of
M.R.T.P. Act, 1966 and that being so as provided under section 149 there is a
express bar to the institution of the suit. Therefore, the suit is not
maintainable.
41. Provisions as contained in section 149 of the M.R.T.P. Act, 1966 makes any
order, direction, etc. of the Functionary under the said Act final and expressly
bars recourse to the Court. Section 147 in addition provides further protection.
It is significant to note that the Previous Statutes of 1915 and 1955 did not
contain the provisions as enjoined in section 149. The bar contained in section
149 is a general bar against any order or action taken under the said Act. The
provisions of M.R.T.P. Act as its preamble indicates are designed to ensure
planning and development of the lands in the regions, preparation and
implementation of the plans, etc. by the various authorities under the Act
exercising the power of eminent domain to serve the public purpose and
interest. The Act is a Complete Code in itself and is meant to serve public
purpose. The Legislative intent is very clear from its various provisions. In that
wherever it thought is necessary, it provides remedy for adjudication in the Act
itself by the Court. For instance issues as arising under section 71 and section
51(3) are made determinable by the Courts. The M.R.T.P. Act deals with the
specific subject matter of planning, development, construction of buildings,
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which are highly technical and specialized subjects and therefore orders and
steps by the authorities entrusted with the powers to implement the same have
been made final by the statute itself to avoid any impediments in its
implementation.
22) Thus, in Sujala Yashwant Nitsure though reliefs were
sought for demolition and injunction from carrying out the work, the
Suit was still held to be barred under Section 149 of the MRTP Act when
the main prayer in the Suit was challenge to the development
permission.
23) In Roha Municipal Council (supra), notices were issued by
the Municipal Council under Sections 53, 54 and 55 of the MRTP Act.
Plaintiff filed a declaratory and injunction suit without raising specific
challenge to the notices. This Court still held that bar under Section 149
of the MRTP Act would apply to the suit, by holding in paras 4, 5 and 7 of
the judgment as under:
4. Upon a meaningful reading of the plaints, it is clear that the challenge
therein is to the notice dated 6 December 2006 issued under Sections 53, 54
and 55 of the said Act. In the prayer clause though no direct reliefs have been
applied in respect of the said notice, it is clear that the reliefs applied for are
on the basis that the said notices are illegal or unenforceable. In fact, implicit
in the reliefs applied for, is the prayer challenging said notices issued under the
said Act.
5. In matters of exercise of powers under Section 9A of the CPC or for that
matter Order 7 Rule 11 of the CPC, meaningful reading of the plaint is
contemplated. In the case of T. Arivandandam v. T.V. Satyapal1, the Hon'ble
Supreme Court had held that merely because by some clever drafting illusion
of cause of action is created, that by itself will not preclude the Civil Court
from exercising powers under Order 7 Rule 11 of the CPC. In the present case,
merely on the basis of the manner of draft of the relief clause, it cannot be said
that the basic nature of the suit is anything other than challenge to the action
and notices under the provisions of the said Act. Section 149 of the said Act,
reads thus:
xxx
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7. Applying the law as laid down in the aforesaid decision, the impugned orders
shall have to be set aside. Accordingly, the impugned orders are set aside and
the plaint in each of the suits instituted by the respondents is rejected.
24) In Juhi Infra (supra), a suit was filed against CIDCO for
reallotment of the land and seeking injunction restraining the
development until reallocation of land were made. This Court held that
Plaintiff’s real grievance was against CIDCO’s decision of allocation of
land, which was an order passed under provisions of MRTP Act and that
therefore the suit was barred by provisions of Section 149. This Court
held thus:
15) Since the real grouse of the Plaintiff is about decision/order of CIDCO relating
to allotment of land, provisions of Section 149 of the MRTP Act would be applica-
ble. Section 149 of the MRTP Act provides thus:
xxx
16) Thus, no Suit can be filed challenging any order passed or direction issued by
State Government or order passed or notice issued by any Regional Board or Plan-
ning Authority or Development Authority under the MRTP Act. CIDCO is the Spe-
cial Planning Authority for Navi Mumbai Project notified under the provisions of
the MRTP Act. The decisions for allotment of land in Navi Mumbai are taken by
CIDCO under the provisions of New Bombay Disposal of Land Regulations, 1975,
which are formulated under the provisions of section 159 of the MRTP Act. CIDCO
itself is a creature under the MRTP Act which is appointed as New Town Develop-
ment Authority under the Act. Therefore, decision to allot land to various persons
whose lands are acquired would essentially be a decision taken under the MRTP
Act and bar of jurisdiction under Section 149 for maintainability of the Suit would
clearly apply. The whole case of the Plaintiff as pleaded in the Plaint is with regard
to alleged erroneous allotment made to him of area admeasuring 400.23 in Plot
Nos. 58 and 65 and he desires the land to be allotted in Plot no. 10A by deducting
the same from allotment made to Defendant Nos. 5 to 7. This prayer of the Plain-
tiff in the suit would be clearly barred under the provisions of Section 149 of the
MRTP Act. Thus, prayer clause (b) in the Suit, would be barred by the provisions of
section 149 of the MRTP Act.
17) Mr. Parkar has attempted to salvage the situation by contending that prayer
clause (c) in the Plaint is not barred by provisions of Section 149 of the MRTP Act
and that it is impermissible to reject part of the Plaint under Order VII Rule 11 of
the Code. However, in prayer clause (c), Plaintiff has sought an injunction against
Defendants No. 1 to 4 from granting any development permission to Defendant
Nos. 5 to 7 for carrying out construction in Plot No. 10A, Sector 39A till CIDCO al-
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lots a portion of land admeasuring 400.23 sq.mtrs. to the Plaintiff by deducting the
same from the land allotted to Defendant Nos. 5 to 7. The injunction is also for not
obstructing Plaintiff's business in the Suit property. The development permission
is granted under the provisions of Section 44 of the MRTP Act. The obstruction, if
any, to Plaintiff's business in Suit property can be done by CIDCO in exercise of
statutory powers under section 53 of the MRTP Act. Thus, even prayer clause (c) of
the Plaint is relatable to the provisions of the MRTP Act and therefore bar under
section 149 of the MRTP Act would apply even to prayer clause (c).
18) In my view, therefore the entire claim of the Plaintiff in the suit is hit by sec-
tion 149 of the MRTP Act. The whole Plaint therefore deserves to be rejected by
having recourse to the provisions of Order VII Rule 11 of the Code.
xxx
20) In the present case as well, Plaintiff's prayer for injuncting CIDCO from issuing
development permission to Defendant Nos. 5 to 7 would be barred by section 149
of the MRTP Act. The injunction sought by him to restrain Defendant Nos. 1 to 7
from obstructing his business also has connection with provisions of Section 53 of
the MRTP Act as CIDCO as a Planning Authority is required to follow the proce-
dure under Section 53 of the MRTP Act before taking any action against unautho-
rised constructions. Therefore, the entire prayer clause (c) in the Plaint is barred
by Section 149 of the MRTP Act.”
25) In Nashik Municipal Corporation V/s Sunil Baburao
Kshirsagar12, this Court has summarized the principles relating to
rejection of Plaint under Order VII Rule 11 of the Code when the suit is
filed before Civil Court challenging notice issued under Section 53 of
MRTP Act. This Court held that clever drafting of the Plaint by avoiding
to expressly challenge notice issued under Section 53 of MRTP Act or
under the provisions of Maharashtra Municipal Corporation Act, 1949
(MMC Act) cannot save the suit from the bar under Section 149 of the
MRTP Act or Section 433A of the MMC Act. The summary of principles is
as under:
36. From consideration of the ratio of various judgments as discussed above, following
conclusions emerge:
12 2025:BHC-AS:50496
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i) The objective behind enacting provisions in various municipal and planning
statutes for bar of jurisdiction of Civil Courts is to ensure minimum possible
court interference in actions initiated against unauthorised constructions so as
to achieve the goal of curbing the menace of unauthorized constructions in ur-
ban areas of State of Maharashtra.
ii) In the light of specific provision for bar of jurisdiction under Section 515A of the
Mumbai Municipal Corporation Act, Section 433A of the MMC Act, 149 of the
MRTP Act etc. the Civil Court shall ordinarily not entertain any suit challeng-
ing notice issued, order passed or direction issued under the provisions enu-
merated in those sections.
iii) The Civil Court must be mindful of the fact that there is legislative objective
behind enacting the provision of bar of jurisdiction and that its inherent juris-
diction is legislatively circumscribed by incorporating provisions for bar of ju-
risdiction. Therefore, it is in very rare cases where there are sufficient plead-
ings in the Plaint demonstrating nullity in the notice, order or direction that
Civil Court would tend in favour of retaining its jurisdiction.
iv) It is only in very rare cases where the Plaint contains averments demonstrating
that the notice, order or direction suffers from the vice of nullity that the Civil
Court would be justified in entertaining Suit challenging such notice, order or
direction in respect of unauthorized constructions.
v) The Civil Court must make meaningful reading of the Plaint to find that
whether the grievance expressed in the Plaint is a pure challenge to the notice,
order or direction for demolition of unauthorized construction. If it is a plain
challenge to such notice, order or direction, the Court must proceed to reject
the Plaint by referring to the provision for bar of jurisdiction. If on the other
hand, meaningful reading of the averments in the Plaint makes out case of
nullity in the notice, order or direction, the Civil Court can exercise jurisdiction
in respect of such notice, order or direction.
(vi) However, mere pleading of the word ‘nullity’ in the Plaint would not be suffi-
cient and the Court must find out from reading of the entire averments in the
Plaint as to whether a demonstrable case of nullity is made out or not.
(vii) For the purpose of meaningful reading of the Plaint, the Civil Courts would be
guided by the manner in which this Court read the Plaint in Akola Municipal
Corporation (supra) as well as the manner in which the Plaint has been read in
the present judgment.
26) Thus the Suit filed by Plaintiff-Society is a plain vanilla
challenge to the development permissions issued under the MRTP Act.
There is no declaration of title sought by the Plaintiff-Society in the suit.
Though Mr. Jayale has sought to contend that the suit is filed to protect
Plaintiff’s ownership rights in the suit property, there is no such
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declaration sought in the prayers. Though the plaint may set out the
history of alleged title of Plaintiff-Society, the suit ultimately does not
seek a declaration of ownership or recovery of possession. Mere
averments in the plaint about title without seeking any relief in respect
thereof would not convert a plain suit challenging the development
permissions into a suit for declaration of title.
27) While deciding the application under Order VII Rule 11 of
the Code, the Court needs to decide whether reliefs sought in the plaint
are barred by law. Reliance by Mr. Engineer in this regard on judgment of
the Apex Court in Rajendra Bajoria (supra) is apposite. It is held by the
Apex Court in Paragraphs 17 and 18 of the judgment as under:
17. It could thus be seen that the court has to find out as to whether in the
background of the facts, the relief, as claimed in the plaint, can be granted to
the plaintiff. It has been held that if the court finds that none of the reliefs
sought in the plaint can be granted to the plaintiff under the law, the question
then arises is as to whether such a suit is to be allowed to continue and go for
trial. This Court answered the said question by holding that such a suit should
be thrown out at the threshold. This Court, therefore, upheld the order passed
by the trial court of rejecting the suit and that of the appellate court, thereby
affirming the decision of the trial court. This Court set aside the order
[Manorama Sirsi v. Pearlite Liners (P) Ltd., 2001 SCC OnLine Kar 850] passed by
the High Court, wherein the High Court had set aside the concurrent orders of
the trial court and the appellate court and had restored and remanded the suit
for trial to the trial court.
18. Therefore, the question that will have to be considered is as to whether the
reliefs as claimed in the plaint by the plaintiffs could be granted or not. We do
not propose to do that exercise, inasmuch as the Division Bench of the High
Court has elaborately considered the issue as to whether, applying the
provisions of the said Act read with the aforesaid clauses in the partnership
deed, the reliefs, as claimed in the plaint, could be granted or not.
28) Even in Arihant Construction (supra), this Court has held
that a simplicitor suit seeking cancellation of building permissions
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without seeking declaration of title was not maintainable under Section
149 of the MRTP Act even though the plaint may make reference to the
history of plaintiff’s title. Paragraphs 18 and 19 of the judgment in
Arihant Construction are already reproduced above. It would be apposite
to reproduce the observations made by this Court in para 20 of the
judgment, which reads thus:
20. I have gone through the impugned order passed by the trial Court. Trial
Court referred to the Rulings and in Para 22 of its order, in a cryptic manner
observed that the plaintiff was seeking relief in respect of construction
permission raising objections in respect of title and not considering the same
by Corporation while granting construction permission. Trial Court then went
on to observe that the question raised could be decided only by the Civil Court
and observed that the plaintiff is claiming the relief about the title which
affects on the construction permission of the suit property. Thus only because
plaintiff refers to his title, the trial Court has presumed that the suit was
maintainable without seeing the substance of the Suit and prayer clauses and
the fact that the suit did not at all claim declaration of title nor Court Fee was
paid by the plaintiff. Thus, I find that the order passed by the trial Court is not
maintainable.
29) Therefore, mere reference to alleged title of the plaintiff in
the body of the plaint without seeking any relief of declaration of title
would not convert plaintiff’s suit to a declaratory one. In essence, the
suit is a plain vanilla challenge to the development permission without
seeking any declaration of title. Therefore, a bar under Section 149 of the
MRTP Act would clearly get attracted in the present case.
30) So far as the consequential reliefs for demolition of the
building White Orchid (prayer clause (e)), demolition of paved platform
(prayer clause (h)) and illegality in water connection to White Orchid
building (prayer clause (i)) are concerned, the same are consequential to
the main relief of challenge to the development permissions. They flow
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from the declaration that the building plans and permissions are illegal.
It is only if Plaintiff succeeds in obtaining reliefs under prayer clauses (a)
that further consequential reliefs can be granted. If Civil Court does not
have jurisdiction to grant principal relief, the prayer for consequential
relief is also barred. In Prashant Dattatraya Wazalwar(supra), plaintiff
had sought a declaration that notice issued under MRTP Act was illegal
alongwith consequential prayers for injunction. This Court held that
since main relief was barred under Section 149 of the MRTP Act, no
consequential relief could also be granted. It is held in paragraph 7 of the
judgment as under:
7. There is also a prayer made in the plaint for issuance of permanent
injunction. But this prayer flows from the prayer regarding a declaration that
notice issued under section 53(1) of M.R.T.P. Act is illegal. If the Civil Suit has
been seen as barred by law in view of section 149 of M.R.T.P. Act, in so far as
such a declaration is concerned, whatever relief that flows from such a
declaration would also have to be held as non maintainable before a Civil
Court, as a necessary corollary thereof.
31) In Nine Media and Information Services Ltd. (supra), the
Trial Court had refused to grant the principal relief holding that the
same was barred under the provisions of Companies Act, 1956 but had
granted consequential relief to the plaintiff. Setting aside the order of
the Trial Court, this Court held in paragraph 30 as under:
30. Thus, the trial Court also came to the categorical finding that it has no
jurisdiction to grant the relief as sought by the appellant of directing the
Registrar to issue duplicate share certificates. In such situation, the trial Court
should have restrained itself from entering into the discussion on issue
relating to the ownership and title of the appellant over the shares. As, the
relief of direction to the Registrar to issue duplicate share certificates was the
main relief, sought by the appellant and to enable the appellant to get that
relief, the consequential/ancillary relief of declaration was sought about his
title to shares. If the trial Court has held that it has no jurisdiction to grant the
main relief, then it follows that trial Court had no jurisdiction even to grant
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other consequential/ancillary relief of declaration. However, the trial Court has
entered into that issue and recorded findings. Needless to state that, the
findings of the trial Court on that issue being recorded by the Court having no
jurisdiction to record such findings, those findings cannot have any legal value.
Hence, it is not necessary, as such, to decide the legality of those findings on
analysis of evidence. Moreover, if the submission of learned counsel for
respondent No. 1 is accepted that this Court should, instead of deciding the
appeal at this stage of admission, admit the same and thereafter decide on
merits the legality of findings recorded by the trial Court, even then in my
considered opinion, as rightly submitted by the learned counsel for the
appellant, it would be a totally futile and infructuous exercise. The law is very
clear, which is not and cannot be disputed in the light of the Apex Court
Judgment that the Registrar is alone having jurisdiction to issue duplicate
share certificate and, therefore, once the Civil Court has no jurisdiction to do
so, even if I decide the appeal and ultimately hold in favour of the appellant
that the appellant is having title and ownership over the said shares,
respondent Nos. 1 and 2 are bound to challenge the said decision on the count
that if the trial Court has no jurisdiction, this Court was also not having the
jurisdiction to record such finding in the appeal. Therefore, it is going to be an
entirely futile and infructuous exercise in allowing the appeal to languish after
admission, till its final hearing, especially, when the cause of action for the suit
has arisen in the year 1995 and already it is more than 20 years. When the legal
position is crystal clear and learned counsel for the appellant has, relying upon
these provisions under section 84 of the Companies Act and the law laid down
in this authority of Shripal Jain (supra) has fairly conceded that the appellant
may be given liberty to approach the Registrar instead of prosecuting this
appeal, there is no point in proceeding with this appeal merely for academic
purpose to decide the legality and validity of the findings recorded by the trial
Court on Issue Nos. 3 and 4, pertaining to declaration of title over the share
certificates.
32) So far as prayer in clause (g) challenging ULC permission is
concerned, the ULC Act is itself repealed on 22 March 1999. Section 4 of
the Repeal Act provides thus:
4. Abatement of legal proceedings. —
All proceedings relating to any order made or purported to be made under the
principal Act pending immediately before the commencement of this Act,
before any court, tribunal or other authority shall abate:
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33) The Repeal Act has been adopted by the State of
Maharashtra on 29 November 2007. Thus, the suit qua challenge to the
validity of ULC permission has already abated.
34) The Trial Court has grossly erred in rejecting Applicants’
Application under Order VII Rule 11 of the Code on the ground that the
same was filed at a belated stage. As observed above, the issues in the
suit were framed on 6 June 2005 and the same was recast on 18 January
2008. Applicants filed Notice of Motion seeking rejection of plaint on 17
January 2009. The Trial Court has held that the motion was filed at a
belated stage after framing of issues. However, the finding appears to be
contrary to the settled position where powers under Order VII Rule 11 of
the Code can be exercised at any time prior to making of a decree.
Reliance by Mr. Engineer on judgment of Apex Court in Church of Christ
Charitable Trust (supra) in this regard is apposite, in which it is held in
paragraph 10 as under:
10. Since the appellant herein, as the first defendant before the trial Judge,
filed application under Order 7 Rule 11 of the Code for rejection of the plaint
on the ground that it does not show any cause of action against him, at the
foremost, it is useful to refer the relevant provision:
xxx
It is clear from the above that where the plaint does not disclose a cause of
action, the relief claimed is undervalued and not corrected within the time
allowed by the court, insufficiently stamped and not rectified within the time
fixed by the court, barred by any law, failed to enclose the required copies and
the plaintiff fails to comply with the provisions of Rule 9, the court has no
other option except to reject the same. A reading of the above provision also
makes it clear that power under Order 7 Rule 11 of the Code can be
exercised at any stage of the suit either before registering the plaint or
after the issuance of summons to the defendants or at any time before
the conclusion of the trial.
(emphasis added)
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35) Similarly in ITC Ltd. vs. DRAT (supra), the Apex Court has
held that mere framing of the issues in the suit cannot come in the way
of consideration of application under Order VII Rule 11 of the Code.
36) Another erroneous finding recorded by the City Civil Court
while rejecting the motion filed by the Applicants is failure to raise the
defence of bar under Section 149 of MRTP Act in the written statement.
The finding is egregiously erroneous since filing of written statement
itself is not necessary for deciding the Application under Order VII Rule
11 of the Code. As a matter of fact, even filing of application may not be
necessary in a given case and the Court can suo moto reject the plaint by
having recourse to Order VII Rule 11 of the Code.
37) In Sujala Yashwant Nitsure (supra), this Court held that
even if the plea of bar of jurisdiction under Section 149 of the MRTP Act
was not raised in the pleadings, the Court was not precluded from
considering the plea even at the appellate stage where the jurisdictional
bar went to the root of the matter. This Court held in paragraph 77 of the
judgment as under:
77. … Therefore, taking into consideration all the facts and circumstances as
obtained in the matter herein and the findings rendered hereinabove, I do not
find any merits in the appeal. The 1st Appellate Court has dismissed the appeal
although reasoning assigned were different to certain extent as have be
clarified in the Judgment hereinabove. In asmuch as, the bar of suit under
section 149 of the M.R.T.P. Act was not argued over before the trial Court or
before the 1st Appellate Court. But same being a point of law, this Court has
allowed the parties to address it on the said point. The plaintiffs have failed in
the said legal point and as the same goes to the root of the matter the suit of
the plaintiffs consequently has to be dismissed.
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38) It is also settled law that subject matter jurisdiction stands
on a different footing and can never be waived by a party. Therefore,
mere failure to raise a plea in the written statement that the suit is
barred under Section 149 of the MRTP Act can never amount to waiver
on the part of the Petitioners. Non-raising of such plea would not confer
jurisdiction on the City Civil Court, which is expressly barred under
Section 149 of the MRTP Act. Whether the bar to maintainability of the
suit would apply or not would not depend on the conduct of Defendants.
If there is a bar, the plaint in the suit must be rejected the moment such
bar is brought to the notice of the Court. It can be brought to the notice
of the Court either through written statement or through an application
or even orally. Even if Defendant does not bring the bar to the
maintainability of the suit to the notice of the Court, the Court can itself
notice such bar and proceed to reject the plaint. Thus, there is no
concept of waiver on the part of the Defendant who fails to aver in the
written statement that there is bar to the maintainability of the suit.
Reliance by Mr. Engineer on judgment of the Apex Court in Harshad
Chiman Lal Modi V/s DLF Universal Ltd. and Anr .13 in this regard is
apposite.
39) Reliance by Mr. Jayale on judgment of this Court in Raja
Bahadur Motilal (supra) is inapposite. The judgment is an authority on
the proposition that a writ petition cannot be entertained in the light of
existence of effective alternate remedy of filing a suit when the issue
involves right to use TDR. In the case before this Court, there was
dispute about ownership of TDR and in the light of that position, this
13 (2005) 7 SCC 791
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Court held that effective alternate remedy was to file a suit. The
judgment cannot be read in support of an abstract proposition that in
every case, where the permission granted by the Municipal Corporation
is challenged, the bar under provisions of Section 149 of the MRTP Act
would not apply. It is well settled position that the judgment is in
authority for what it decides and not what can be logically deduced
therefrom [SEE: Commissioner of Customs (Port), Chennai vs. Toyota
Kirloskar Motor (P) Ltd.14 and Secundrabad Club and Ors. Vs. CIT and
Ors.15]. The judgment in Raja Bahadur Motilal does not lay down a law
that a suit challenging permission by Municipal Corporation is
maintainable irrespective of provisions of Section 149 of the MRTP Act.
40) Faced with the situation that the suit does not contain any
prayer or relief for declaration of title, Mr. Jayale has submitted that
Plaintiff-Society has filed a Chamber Summons seeking amendment of
the plaint. In the schedule to the Chamber Summons, Plaintiff has
sought to seek a declaration that it is entitled to TDR of the suit property
and that TDR of 1000 sq.m. sanctioned vide the plans and used in
construction of the building White Orchid is illegal, null and void.
Proposed amendment also seeks to challenge the full OC in respect of
the building issued on 27 August 1999 and Building Completion
Certificate issued on 27 April 2000. The Application for amendment is
still not decided. Once the Application for rejection of plaint under Order
VII Rule 11 of the Code is pressed before the Court, the Court cannot
defer a decision thereon merely because application for amendment of
14 (2007) 5 SCC 371
15 2023 SCC OnLine 1004
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the plaint is filed or is pending. Application for rejection of plaint needs
to be decided on the basis of averments made and relief sought in the
plaint. The Application cannot be rejected on the ground that Plaintiff
may be granted permission in future to amend the plaint and that such
amendment may result in retention of the plaint. In Prakash G. Goyal
(supra), this Court has held in paragraph 15 of the judgment as under:
15. The trial Court despite noticing the fact that the relief of declaration with
regard to the nature of plaintiffs title not having been sought, committed an
error in granting time to the plaintiff to seek proper relief and pay Court fees
within a period of 15 days. From the provisions of Order VII, Rule 11 of the
Code and especially clauses (b), (c), (e) and (f) the Court can extend the time
for permitting the plaintiff to comply with its directions only in the situations
contemplated therein. Where the rejection of the plaint is sought under
provisions of Order VII, Rule 11(a) or (d) of Rule 11, there would be no question
of granting time to the plaintiff to rectify the defects in the plaint. In the
present case the trial Court having found that a case under provisions of Order
VII, Rule 11(d) of the Code had been made out, there was no occasion for the
trial Court to have granted further time of fifteen days to seek appropriate
relief. By granting that time the trial Court acted beyond its jurisdiction and
hence the order to that extent cannot be sustained. The submission made on
behalf of the plaintiff that the defect in question was curable and hence liable
to be rectified by placing reliance on the decisions in Mst
Rukhmabai and Vidyavati Gupta (supra) does not deserve acceptance. If the suit
appears from the statements in the plaint to be barred by any law, that defect
cannot be said to be curable as contended by the plaintiff. Needless to state
that recourse to provisions of Order VII, Rule 13 of the Code in that context is
always permissible in accordance with law.
41) Thus, mere filing of chamber summons by the Plaintiff to
amend the plaint could not have prevented the Trial Court from deciding
the application for rejection of plaint. The Trial Court has otherwise not
waited for decision of amendment application and has proceeded to
decide the application for rejection of plaint by taking into consideration
the averments and reliefs in the unamended plaint. It has however
faltered in not allowing the application by ignoring the position that all
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Renuka CRA 472 of 2009
the reliefs sought in the plaint are expressly barred under Section 149 of
the MRTP Act.
42) Mr. Jayale has also referred to filing of Suit No. 1489 of 2019
by Defendant No. 8-Society. In that suit, White Orchid CHSL has inter
alia sought a declaration that it is the sole owner and possessor of entire
FSI flowing out of larger land (except FSI of 20662 sq.ft. held by Plaintiff-
Society). Thus, Suit No. 1489 of 2019 clearly involves issue of title
relating to the FSI flowing out of the larger land. As against this, LC Suit
No. 2591 of 2000 filed by Plaintiff-Society does not contain any relief for
declaration of title. Mr. Jayale has placed on record copy of counterclaim
filed by Plaintiff-Society in Suit No. 1489 of 2019, in which Plaintiff has
challenged the Deed of Assignment dated 10 August 2016. Thus, Plaintiff
has joined issues relating to title by filing Counterclaim in Suit No. 1489
of 2019. Be that as it may. It is not necessary to take into consideration
the reliefs sought in Suit No. 1489 of 2019 or in Counterclaim No. 3 of
2023 filed by Plaintiff therein. Suffice it to observe that Plaintiff-society
has failed to seek declaration of title in LC Suit No. 1489 of 2019. The
Suit contains plain vanilla challenge to the development permissions,
thereby attracting clear bar under Section 149 of the MRTP Act. The City
Civil Court has erred in rejecting the motion filed by the Applicants.
43) The Revision Application accordingly succeeds, and I
proceed to pass the following order:
(i) Order dated 14 July 2009 passed by the City Civil Court
on Application at Exh-14 is set aside.
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Renuka CRA 472 of 2009
(ii) The Application at Exh-14 filed in LC Suit No. 2519 of
2000 is allowed in terms of prayers made therein and the
Plaint in LC Suit No. 2591 of 2000 is rejected.
(iii)Consequently, LC Suit No. 2591 of 2000 is dismissed.
44) Civil Revision Application is allowed in above terms. There
shall be no order as to costs.
45) Nothing remains to be adjudicated in the Interim
Applications. The same are accordingly disposed of.
[SANDEEP V. MARNE, J.]
Digitally
signed by
MEGHA
MEGHA SHREEDHAR
SHREEDHAR PARAB
PARAB Date:
2026.09.22
20:47:08
+0530
Page No.31 of 31
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