2013 Supreme(Bom) 759

High Court of Judicature at Bombay
A.P. BHANGALE, J.
Prathamesh Tower Co-operative Housing Society Limited
Versus
Gorai Road (Borivali) Shree Ganesh Co-operative Housing Society Ltd. & Others
Writ Petition No. 933 of 2013
Decided On : 04-04-2013

Headnote:Maharashtra Regional and Township Planning Act, 1966 - Section 53 - Obligation to remove unauthorised construction.

       Where owner was required to remove unauthorised construction within period of one month’s notice therefore applicability of exclusion of time where representation for regularization of construction was made, required to be decided in light of facts of case. - Even if for the sake of argument it is accepted that, civil suit is maintainable in town planning cases despite statutory bar, there also, unless the self, contained statutory remedy incorporated in the Act is fully exhausted such suit preventing planning authority from demolishing the illegal construction or unauthorized development would not lie in Civil Court. It must be borne in mind that under the provisions of the MRTP Act it is statutory responsibility of the local planning authority to execute the final development plan effectively without delay.

       The, planning authority is adequately armed under the statutory provisions to take prompt and effective steps to remove unauthorised development if unauthorised development in the form of illegal construction contrary to the town planning scheme is noticed in the city. Therefore Legislature in its wisdom, has made all the acts done by the Planning Authority to implement the town planning scheme final under the provisions of the M.R.T.P. Act and, therefore, all such notices and orders having the statutory finality are specifically made immune from being challenged or questioned in any civil suit in view of the provision under Section 149 of the M.R.T.P. Act. The MRTP Act is self-contained to provide the remedies when notice is issued under the Act. Because permission can be obtained under the Act to carry out or retain the alleged unauthorised development. Thus, the jurisdiction of the Civil Court is expressly and clearly excluded under Section 149 of the M.R.T.P. Act and a civil suit cannot be entertained, more so when motivated to perpetuate the criminal act or continuing offence of unauthorized construction.

       Section 52 of the Act contains penal provisions for to punish the offenders liable for unauthorized development or use which is contrary to provisions of the M.R.T.P Act by a punishment which is minimum one month and may extend up to three years and fine of Rs. 2,000/- to Rs. 5,000/- with additional daily fine up to Rs. 200/- if offence continue beyond the conviction for first commission of offence.

       Once therefore a notice under Section 52 of the MRTP Act is served, the persons aggrieved by such notice has statutory remedy within the period specified therein, which in the instant case is one month, must apply for permission for retention on the land of the building or works in question under Section 44 of the MRTP Act. Only when permission is granted, the notice/order would stand withdrawn. The question of grant of any permission would arise only if an application is made therefor. As the first respondent herein had not filed any such application, the Municipal Corporation as planning authority was obliged not only to prosecute the owner but also to carry out the demolition of illegal construction in terms of the aforementioned notice dated 29.10.2012 under Section 53 (1) of the MRTP Act. The terms of Section 44 of the MRTP Act are crystal clear that, a person intending to raise any construction is required to make an application in respect thereof to the Planning Authority for permission in such form and containing such particulars and accompanied by such documents, as may be prescribed. Filing of such application and obtaining such permission are imperative requirements of MRTP Act, 1966 (State law of town planning.) Such permission, if granted, remains in force for a period of one year unless extended by the Planning Authority.

       The Municipal Corporation of Greater Mumbai is a ’local authority’ as well as planning authority within the meaning of the provisions of Sections 2(15) and 2(19) of the MRTP Act and has requisite authority to initiate action under the provisions of the MRTP Act. Hence order passed by the MCGM as planning authority under the MRTP Act. The notice/or order issued under the provisions of the MRTP Act by or on behalf of the MCGM as planning authority cannot therefore be termed as ’nullity’, legally void in the eye of law.

       Moreover it appears in the present case that the amendment of introducing the word ’nullity’ was result of an afterthought ingenuity of lawyer’s drafting aimed to continue the suit indefinitely in the Bombay City Civil Court. The Civil Court must exercise caution and care before allowing such amendment in the plaint which may be mala fide, aimed at prolonging the litigation without legal justification or which may result in change in the nature of the suit or of the cause of action originally pleaded on the date of the institution of the suit. Dishonest amendment which would take away the legal right accrued in favour of the defendant, motivated to confer jurisdiction on the Civil Court and to prolong fate of the suit intending to perpetuate the wrong which amounts to continuing offence, cannot be allowed. Because the plaintiff cannot be allowed to circumvent the provisions of town planning law to suit his mission to perpetuate the criminal act of illegal construction of blocking the gates, obstructing approach way of the petitioner (defendant co-operative housing society) to the main road by obtaining interim protection therefor in a protractible proceeding filed as long cause civil suit in Bombay City Civil Court.

       The remedy when notice under Section 53 (1) is issued by the planning authority, is self contained under the MRTP Act in Section 44 read with Section 53 (3) of the MRTP Act. Planning authority’s power is confined to compounding the offences in certain cases. Permission may be granted for retention of the development/construction work in question. Thus alternative efficacious statutory remedy was available for the plaintiff- respondent to apply for permission for the retention of the offending notice structure.

       Section 52 provides for penalty for unauthorized development or for use otherwise than in conformity with the Development plan whereas Section 53 confers the powers to require removal of unauthorized development. Distinction between Sections 52 and 53 is obvious.

       The Legislature could not have intended that unauthorized development; illegal construction work should be visited merely with penal consequences. It was enacted for the sake of completeness of statutory action in public interest. Section 53 empowers the Planning Authority to require removal of unauthorized development. Thus, punishing the wrong doer is not enough. The unauthorised and illegal development also must be removed and for that purpose provisions are in place as enacted. In such case, therefore, the suit by the plaintiff who had bye- passed the statutory remedy under the provision in Section 44 read with Section 53 (3) of the MRTP Act, and approached the Bombay City Civil Court with a civil suit, seeking protection for the illegal construction raised contrary to the provisions of the MRTP Act could not have been entertained in the facts and circumstances brought to notice. More so, when subsequent amendment in the plaint is deliberately made to introduce the word ’nullity’ was nothing but ingenuity of lawyer’s drafting to any how trying to invest or confer jurisdiction in the Bombay City Civil Court with a view to buy time for unlawful retention of the suit structure. The Civil Court must been guard against such attempts before exercising its plenary jurisdiction available to do real justice between the parties. The action of the MCGM as planning authority to issue notice and to pass the necessary order to remove unauthorised development/work was within the scope of statutory power and authority under the MRP Act and can not be labeled as unconstitutional or beyond jurisdiction of the MCGM as planning authority. The Judge of the Bombay City Civil Court therefore erred to entertain the civil suit despite statutory bar under Section 149 of the MRTP Act as aforesaid.

       The discretion of the Civil Court cannot be used for to protect or perpetuate the offending act of illegal construction/unauthorized work actionable under the provisions of MRTP Act. If such civil suit is readily entertained by the Civil Court wherein the party has by passed the alternative and primarily available statutory remedy of filing the proceedings before the planning authority as is permissible under Section 44 read with Section 53(4) of the MRTP Act as stated above, it would defeat the salutary policy of the town planning law to implement the final development plan in expeditious planned and orderly manner in the City of Greater Mumbai. Therefore, the builder must understand that illegal construction cannot be protected by means of a long drawn out litigation like ordinary civil suit, even if police power is used to protect it while raising illegal construction. It shall never be beneficial without legal sanction by the competent authority.

       It is well known fact that the civil suit once instituted in city of Mumbai remain pending for years or for indefinite long period considering the immense docket pendency. When remedy by way of civil suit is statutorily barred the plaintiff is not precluded from resorting to alternative remedy which is self-contained and available under the provisions of the MRTP Act or to invoke writ jurisdiction, if so advised. In any event the plaintiff is not remediless and can exhaust remedies available under the MRTP Act and find remedy elsewhere if statute bar him to avail the remedy of instituting ordinary civil suit. Be that as it may, remedy available by way of civil suit cannot be utilized to perpetuate the continuing wrong continuing offending act of retaining unauthorized and illegal construction made punishable as continuing offence under the MRTP Act. Court must therefore quash and set aside the impugned order.