PRATHAMESH TOWER CO-OPERATIVE HOUSING SOCIETY LIMITED Vs. GORAI ROAD (BORIVALI) SHREE GANESH CO-OPERATIVE HOUSING SOCIETY LTD

JUDGEMENT

(1.) Rule. Heard finally by consent pursuant to order passed by this Court on 1st April 2013. The Petitioner has challenged legality of the impugned order on preliminary issue framed under Section 9A of the Civil Procedure Code (Maharashtra Amendment). The issue framed was as to whether the suit is maintainable in view of Section 149 of the Maharashtra Regional Town Planning Act, 1966 (hereinafter referred as MRTP Act). Parties had chosen not to lead any oral evidence. The Court below decided the preliminary issue holding the suit as maintainable.

(2.) The facts briefly stated are:-

(3.) Learned Advocate for the Petitioner argued with reference to the structure of the compound wall in question (appearing in photograph marked for identification as 'A') to argue that the access gates which were available for years to the defendant (Petitioner Prathamesh Tower CHS Ltd.) hitherto were sought to be blocked by the plaintiff (Respondent no.1) by adopting a novel method executing unauthorized construction/work of compound wall by obtaining permission from the Police. By letter dated 25-10-2012 it appears that Petitioner had highhandedly applied to the local police for to permit construction of the wall in question blocking the access to the members of the Petitioner's Co-operative Housing Society which was till then freely available as approach way to the main Road by the existing gates. The first respondent surreptitiously invoked the police protection for sum of Rs 2319/-. The police protection was sought and the compound wall constructed/extended in such a manner to cover/block the access gates which were hitherto available as right of approach way to the Link road for Petitioner's members of the co-operative housing society. Photograph ('A' for identification) was taken while the construction was still in progress. No permission of the planning authority or Municipal Corporation of Greater Mumbai (MCGM) was sought as required according to law. According to learned advocate the Police could never have permitted illegal construction by providing police protection to illegal execution of the construction work for blocking the road access hitherto available to the Petitioners. Under these circumstances the Petitioner had brought this obvious illegality immediately to the notice of the MCGM/ planning authority. Thus statutory action was initiated against the plaintiff under the provisions of the MRTP Act. Learned Advocate for the Petitioner submitted that the remedy of a civil suit, which was not at all maintainable, was deliberately adopted by the respondent (plaintiff) as a ploy to procrastinate or to cause delay for the demolition of the illegal construction in suit by the competent town planning authority/ MCGM and to enjoy fruits of illegal offensive act for years together. He made reference to the ruling in Gopinath Ganpatrao Pensalwar v/s. State of Maharashtra and Anr. Reported in 2006(6) Bom.C.R.6,wherein it was held that where Revenue Officer purports to do act or pass an order which is invalid, his action does not operate to raise bar under Section 11 of Act. He also placed reliance on the ruling in Qari Mohammed Zakir Hussain & Others v/s. Municipal Corporation of Greater Mumbai & Others, reported in 2002(2) Bom.C.R.98 wherein it was observed that it is well settled that exclusion of the jurisdiction of the City Court is not to be readily inferred but such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if the jurisdiction it so excluded the Civil Courts have jurisdiction is examine into the issue where the provisions of the Act have not been complied with, or statutory Tribunal has not acted in conformity with the fundamental judicial procedure.