M/S. Vora Automotives Pvt. Ltd. vs Gopalrao Namdeorao Pohre And … on 5 March, 1992

Bombay High Court
M/S. Vora Automotives Pvt. Ltd. vs Gopalrao Namdeorao Pohre And … on 5 March, 1992
Equivalent citations: AIR 1993 Bom 151 a
Bench: A Desai


JUDGMENT

1. The applicant is an owner of a double-storeyed building located on a suit plot. The non-applicants 1 to 8 purchased an adjoining plot situated on the western side of the suit plot. To construct a commercial complex, they obtained sanction to the plan under Section 189 of the Maharashtra Municipalities Act, 1965 (hereinafter referred to as ‘the Act of 1965’), from Municipal Council, Akola (non-applicant No. 9). According to the applicant, the sanction as accorded is contrary to the standardized bye-laws and development control rules. The open space of 10 feet, as required, has not been kept. The Municipal Council while granting sanction ignored the objections raised by the applicant. The Collector, therefore, in exercise of powers under Section 308 of the Act of 1965, by order dated 27-7-1991 directed the Municipal Council to consider the objections. However, the Municipal Council did not give any heed.

2. The applicant, therefore, on 22-6-1991 filed a suit claiming a decree of injunction against non-applicants 1 to 8 restraining them

from making construction as per the plan alleged to have been approved on 30-4-1991 particularly within 10 feet space adjoining to western side of the suit property. Further they claimed a mandatory injunction against the Municipal Council directing them to perform their mandatory duty to consider the question of permission only in accordance with law and direct non-applicants 1 to 8 not to make any construction within 10 feet open space touching the boundary of the applicant’s property. The applicant also prayed for temporary injunction. However, the trial Court by order dated 9-9-1991 rejected the application. However, the non-applicants 1 to 8 had been directed to maintain status-quo. The applicant, therefore, filed an appeal against the order refusing to grant temporary injunction, whereas the non-applicants 1 to 8 questioned the order directing them to maintain status-quo. The appellate Court by order dated 31-12-1991 dismissed the appeal presented by the applicant and allowed the appeal of the non-applicants 1 to 8. Hence, this revision application by the original plaintiff.

3. The question involved in this revision is whether the Civil Court possesses jurisdiction to try the suit for the relief as claimed. Undisputedly, Act of 1965 does not incorporate any express bar ousting the jurisdiction of the Civil Court. Now it is to be ascertained whether there is an ouster to the jurisdiction of the Civil Court by necessary implication?

4. Shri Daga, the learned counsel appearing for the applicant, urged that as per sub-sec. (2) of S. 189 of the Act of 1965, the person intending to construct is required to issue notice with a plan to the Municipal Council. Sub-sec. (4) provides for grant of sanction with or without condition. Sub-sec. (4) of S. 192 of the Act of 1965 provides for an appeal against the order either rejecting permission or imposing certain condition by the Municipal Council. Shri Daga made a submission that the remedy as provided is available only to a person who intends to construct a building. However, there is no remedy to a third person like applicant.

Such person, in the submission of the learned counsel, is, therefore, entitled to invoke the jurisdiction of the Civil Court. In support, reliance is placed on a decision in Bar Council of West Bengal v. Miss. Ajanta Aughstin, . It was held therein that an Advocate who has not been included in the voters’ list of Bar Council can challenge the election by filing a suit, despite bar under R. 35 of the Bar Council Rules. Having due regard, 1 am unable to agree. An advocate who claims to be a member though not included in the voters’ list, alone can challenge the election of Council. Such a person cannot take resort to a remedy other than one provided under the relevant Rules.

It is then pointed out that S. 172 in Chapter X of the Act of 1965 expressly creates a bar against any valuation, assessment, levy or liability from being questioned in any other manner than that provided under the Act. However, the Act of 1965 does not provide any such bar to question the act of the Municipal Council in granting sanction to the construction of building. On the contrary, S. 304 of the Act of 1965 provides for filing of suit against the Municipal Council or its officers or servants in respect of any act done in pursuance of execution of this Act or default in execution of the Act, after satisfying the necessary conditions as provided therein. The learned counsel, therefore, submits that this is a sufficient indication that the Act of 1965 sustains jurisdiction of the Civil Court.

It is further urged that the Municipal Council is charged with a statutory obligation. The tax payer like the applicant, who suffered a legal injury owing to omission, commission or breach by the Authority, can seek redress by approaching the Civil Court. In support, reliance is placed on a decision in K. Ramadas Shenoy v. The Chief Officer, Town Municipal Council, Udipi, . The Supreme Court while quashing the resolution of Municipal Council, sanctioning the construction of a cinema theatre, observed that the scheme of the Act is for the benefit of the residents of the locality and the illegal construction materially affects the

enjoyment of the property by the persons residing in the locality. The Supreme Court was dealing with the scope of Art. 226 of Constitution when the interest of the community at large was involved. The authority does, not assist to answer a question as involved.

5. Whether a particular statute creates a
bar against the jurisdiction of the Civil Court
by necessary implication? The Supreme
Court has laid down guidelines in a decision
in Dhulabhai etc. y. State of Madhya
Pradesh, . It is held (at
page 89) :

“Where there is no express exclusion, the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case, it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further fays down that all questions about the said right and liability shall be determined by the Tribunals so constituted, and whether remedies normally associated with actions in Civil Courts are prescribed by the said statute or not.”

Bearing in mind the guidelines as laid down, I propose to examine the scheme and intendment of the Act of 1965.

The Act of 1965 amongst others provides for regulating various municipal affairs. Chapter XX deals with control to be exercised by the Municipal Council over the construction of building.

Municipal Council constituted under the Act of 1965 is held to be a local authority under sub-sec. (15) of S. 2 of the Maharashtra Regional and Town Planning Act, 1966 (hereinafter referred to as ‘the Act of 1966). The council being a local authority is authorised to act also as a planning authority as defined under sub-sec. (19) of S. 2. The Municipal Council being a planning authority is empowered to regulate and also to exercise superintendence over the building operations as defined under sub-sec. (5) of S. 2 and development over any land which includes construction, as defined under

sub-sec. (7) of Section 2 of the Act of 1966.

The person intending to carry out any development is required to apply under S. 44 to the Planning Authority for permission in a prescribed manner. S. 45 of the Act of 1966 authorises the Planning Authority to grant permission either unconditionally or with certain conditions. Any person aggrieved by the order under S. 45 can appeal under S. 47 of the Act of 1966 either to the State Government or any officer appointed in that behalf. S. 149 attaches finality to every order passed under the Act excludes from being questioned in any legal proceedings.

6. It is urged that the bar under S. 149 operates only against the person seeking permission under S. 45 or the ultimate order under S. 47 of the Act of 1966. Moreover, this bar incorporated under the Act of 1966 cannot operate so far as matters covered by Chapter XII of the Act of 1965 are concerned. The applicant not being a person seeking permission under S. 44 of the Act of 1966 is at liberty to approach to the Civil Court for redressal of his grievance. In support, reliance is placed on a decision in Janta Janardan Shikshan Sanstha v. Dr. Vasant P. Satpute, 1986 Mah LJ 260 : (1986 Lab IC 1521). It is observed therein that–

“the language of S. 9 of the Maharashtra Employees of Private Schools Regulation Act nowhere provides that the remedy provided therein was intended to be an exclusive remedy.”

This Act has a different scheme and subject. The Authority as cited, has no applicability. The scheme and intendment of the Act of 1965 need to be examined independently. The ratio cannot be extended mutatis mutandis.

The Acts of 1965 and 1966 require permission for building construction. Municipal Council is an Authority common under both the Acts. The State Government in exercise of power under S. 323 of the Act of 1965 on 2-11-1979 framed standardized bye-laws and development control rules. These bye-laws replaced the earlier bye-laws framed under the Acts of 1965 and 1966. The provisions contained in these bye-laws are in addition

to the provisions contained in Ss. 183, 189, 190, 191 and 192 of the Act of 1965 and Ss. 44, 45, 58 and 69 of the Act of 1966. Appendix ‘A’ prescribes the application and information to be furnished for the purposes of Ss. 44 and 45 of the Act of 1966. The bye-laws are common for both the Acts.

The building construction or development is highly techinical and specialised branch. The Municipal Council being a Planning Authority is adequately invested with the power to take drastic and coercive measures to enforce the compliance of the provisions of the Acts, rules and bye-laws. Sub-sec. (5) of S. 189 of the Act of 1965 authorises the Council to revoke the permission already granted. Sub-sec. (8) authorises the Chief Officer to stop the construction, if it is in contravention. Sub-sec. (9) provides that in case of breach by a person, on conviction, be punished with fine to the extent of Rs. 5,000/-Sub-sec. (11) authorises the Council to demolish or alter the building construction. Sub-sec. (12) empowers the Chief Officer to take inspection at any time, of construction and if it is noticed to be in contravention either of the provisions or bye-laws, order to amend. The Act of 1965 thus maintains a complete domain over the building activity in the Municipal limits. It further provides a coercive measure for compliance of the provisions.

The Act of 1965, by S. 308, empowers the Collector to suspend execution of any order of the Municipal Council which is likely to cause injury or annoyance to the public or is against the public interest. S. 318 authorises the State Government to satisfy itself as to the legality or propriety of any order passed by the Council. The provision further authorises the State Government to vary or reverse the order after giving a notice to the interested party. S. 320 further empowers the State Government and Director to take a suo motu review of their order. It is thus explicit that any person interested including the person like applicant has been provided adequate remedy to redress the grievance.

As regards construction of building or development on land, the scheme of the Act of 1966 is analogous to that under Act of 1965. Ss. 51 to 56 of the Act of 1966, to enforce Compliance of provisions and bye-laws, authorise the Municipal Council to grant authority to revoke or modify the permission and also to impose penalty, remove, discontinue or stop if the development or construction is unauthorised.

Section 304 of the Act of 1965 no doubt
provides for filing of suit against the
Municipal Council. However, the suit as
envisaged does not include the suit as filed by
the applicant.

Chapter XII of the Act of 1965 as regards building construction, no doubt creates a statutory obligation on the Municipal Council to see enforcement and compliance of the provisions of the Act and bye-laws. The statutory obligation is for the public good. However, every individual wrong could not be enforceable. To redress the grievance in case of breach of statutory duty, the remedy as provided by the Act which creates a duty or obligation, can alone be availed. As a settled principle, Civil Court being a forum of general jurisdiction cannot be permitted to be approached. Under the scheme of Acts of 1965 and 1966, it is ordained to enforce the statutory duty in the manner specified therein, as discussed above. Under the scheme of the Acts, there is thus ouster to the jurisdiction of the Civil Court by necessary implication. The suit is, therefore, untenable and liable to be dismissed.

7. In the result, the revision application is dismissed. Regular Civil Suit No. 604/91 presented by the applicant is also hereby dismissed. No order as to costs.

At the request of Mr. Daga, effect and operation of the judgment is stayed for a period of two weeks.

8. Application dismissed.

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