1. The revisionary jurisdiction of this Court under Section 115 of the Code of Civil Procedure is invoked against the order dated 22/3/2013 passed by the learned Judge of the City Civil Court, (Borivali Division), Dindoshi thereby adjudicating upon the preliminary issue which is to the following effect:

“Whether the suit is not maintainable, the jurisdiction of the Court being ousted by virtue of Section 149 of the Maharashtra Regional Town Planning Act, 1966?

2. The factual matrix involved in the above Civil Revision Application can be stated thus:

At the outset it would be necessary to describe the parties to the Civil Revision Application. The Applicant herein is the original Defendant No.2 to the suit; Respondent No.1 herein is the original Plaintiff and the Respondent No.2 is the original Defendant No.1 to the suit. The Maharashtra Regional and Town Planning Act would be referred to hereinafter as the “MRTP Act”. The case of the Plaintiff is that by an Agreement of Sale dated 5/6/1982 between the Plaintiff and one Oriental Developers, the Plaintiff purchased a residential premises being Flat No.2 on the ground of the building now known as Wahedna Apartment, situated at 75, Hill Road, CPS No.B12, Bandra (West) Mumbai – 400 050 on ownership basis. The said Flat No.2 consists of 3 bedrooms, hall and kitchen. The said premises of the Plaintiff are abutting the open space of the Building. It is the case of the Plaintiff that he had also acquired a right in respect of the said open space. It is the case of the Plaintiff that the said open space is forming part of the said Flat No.2 and that the Plaintiff has a direct access to the said open space and has exclusive possession of it. The said open space is admeasuring 21 ft. x 9 ft. x 8.6 ft. It is the case of the Plaintiff that the said open space is enclosed by a brick masonry wall and the Plaintiff has a direct access to the said open space. It is further the case of the Plaintiff that the right of the Plaintiff has never been challenged by the society. It is the case of the Plaintiff that he has neither constructed the brick masonry wall nor has provided direct access to himself to the said enclosed passage nor has carried out any development. It is the case of the Plaintiff that a notice under Section 53(1) of the MRTP Act was suddenly issued by the Assistant Commissioner, `H' Ward of the Defendant No.1 – Municipal Corporation of Greater Mumbai ( herein after referred to for short “the MMC”), to the Plaintiff alleging that the Plaintiff has carried out unauthorized construction and therefore the Plaintiff was called upon to restore the status of the suit property to its original position, a copy of the sanctioned plan was enclosed with the said notice. A Reference to the said notice would be made in greater detail in the latter part of this judgment.

3. The said notice was replied to by the Plaintiff vide his letter dated 24/4/2012. He contended that he had not carried out any development as alleged. It was contended that the wall was constructed by the Developer, and that the Plaintiff was a bonafide purchaser of the Flat No.2 along with the enclosed open space. It is the case of the Plaintiff that the said reply was not considered and two days prior to filing of the suit, some persons posing to be officers of the MMC attached to the “H” ward of the MMC visited the suit premises and gave a threat to the Plaintiff that the said premises would be demolished. It is the case of the Plaintiff that as there is an apprehension which is generated on account of the said threat of demolition, the suit in question was filed.

4. In the suit in question the principal relief sought is for a declaration that the notice issued by the MMC under Section 53(1) of the MRTP Act dated 2/4/2012 is illegal and bad in law and the same is liable to be quashed and set aside. In the said suit a Notice of Motion for injunction was filed by the Plaintiff wherein ad-interim relief was granted by the