A.S. CHANDURKAR, J.

1. Heard. Admit on the following substantial question of law:

Whether the bar under Section 149 of the Maharashtra Regional and Town Planning Act, 1966 applies in the present case when the notice issued under Section 53 of the said Act is challenged on the ground that the period prescribed therein falls short of the statutory period and is therefore a nullity?

2. Considering the issue involved the learned counsel for the parties have been heard on aforesaid substantial question of law.

3. The appellant is the original plaintiff who had been issued notice dated 18.11.2010 under the provisions of Section 53(1) of the Maharashtra Regional and Town Planning Act, 1966 (for short the said Act). As per said notice certain deficiencies in the user of the land in question were pointed out and it was stated that within one month from receiving the notice corrective action should be taken. Plaintiff therefore filed suit for declaration that the defendant nos. 1 and 2 were not entitled to demolish the suit property. Further prayer was made to direct the defendant nos. 1 and 2 to grant the sanctioned map. The defendant nos. 1 and 2 filed preliminary objections under Section 9A of the Code of Civil Procedure vide Ex. 19. The objection raised was that the trial Court had no jurisdiction to decide the suit in view of the bar contained in Section 149 of the said Act. The plaintiff in his reply took the stand that the construction in question had come up prior to the said Act being enacted. Further stand was taken that the due process of law, rules and regulations were not followed. The trial Court therefore framed the following preliminary issue:

“Whether this Court has jurisdiction to entertain, try and decide the present suit?”

Thereafter the plaintiff examined himself vide Ex. 25. By order dated 17.10.2011 the trial Court recorded a finding that the civil Court had no jurisdiction to entertain the suit in view of bar under Section 149 of the said Act. It, therefore, rejected the plaint under provisions of Order 7 Rule 11(d) of the Code of Civil Procedure.

4. The plaintiff being aggrieved by aforesaid adjudication preferred appeal. First appellate Court confirmed the findings recorded by the trial Court and dismissed the appeal.

5. Shri N. B. Kalwaghe, learned counsel appearing for the appellant submitted that the suit as filed was maintainable and the bar under Section 149 of the said Act was not attracted. He submitted that the notice dated 18.11.2010 under Section 53 of the said Act required the plaintiff to take corrective steps within a period of one month. According to him under provisions of Section 53(1) the notice that is required to be served requires the owner to take necessary steps within such period being not less than one month. He, therefore, submitted that the aforesaid notice that gave cause of action to the plaintiff was not in accordance with provisions of Section 53(1) of the said Act and hence the same could be challenged in the suit. He submitted that if the notice as issued was not in accordance with provisions of said Act, then the bar under Section 149 of the said Act would not apply. In support of his submission that there is a distinction between steps required to be taken within a period of one month and that to be taken within a period being not less than one month and in this regard he relied upon the decision of the Division Bench of this Court in Commissioner of Income-tax Vs. Ekbal & Co. A. I. R. (32) 1945 Bombay 316. To buttress his submissions as regards tenability of suit in such circumstances he placed reliance upon the decision of supreme Court in Shiv Kumar Chadha Vs. Municipal Corporation of Delhi and others (1993) 3 Supreme Court Cases 161, Addanki Tiruvenkata Thata Desika Charyulu (since deceased) Vs. State of Andhara Pradesh and another, AIR 1964 Supreme Court 807 and Ramchandra Keshav Adke (Dead) By LRs. And others Vs. Govind Joti Chavare and others (1975) 1 Supreme Court Case