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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
VIBHA KANKANWADI, J.
Municipal Council, Amalner Through Its Chief Officer - Appellant
Versus
Saraswati Keshav Pol - Respondent
Second Appeal No. 299 of 2016
Decided On : 28-02-2019
MRTP Act - Town Planning Scheme - Section 89, Rule 19 - Summary eviction, compliance with rules - Section 149 - Finality of orders - [The judgment discusses the application of Section 89 and Rule 19 of the Maharashtra Regional and Town Planning Act, 1966, which governs summary eviction by the Planning Authorities. The court emphasizes the importance of compliance with Rule 19, which requires serving a notice for eviction with a reasonable time of at least 30 days. The judgment also highlights the limitations of Section 149, which provides finality to orders but only protects legal notices. The court's decision is influenced by the finding that the notice issued by the defendant was illegal and did not comply with the rules, thus protecting the plaintiff's possession of the property.]
Fact of the Case:
The plaintiff, owner of a property, challenged a notice issued by the defendant Municipal Council for vacating the property, claiming reservation under the Town Planning Scheme. The suit was decreed in favor of the plaintiff, and the defendant's appeal was dismissed. The defendant filed a Second Appeal, arguing that the suit was not maintainable under Section 89 of the MRTP Act.
Finding of the Court:
The court found that the notice issued by the defendant was illegal and did not comply with the provisions of Section 89 and Rule 19 of the MRTP Act. It held that the plaintiff's possession was protected, and the defendant was restrained from dispossessing the plaintiff without following due procedure of law.
Issues: The main issue was the legality of the notice issued by the defendant and the applicability of Section 89 of the MRTP Act. The court also considered the plaintiff's claim of deletion of reservation and the defendant's contention of public purpose acquisition.
Ratio Decidendi: The court's decision was based on the finding that the notice issued by the defendant was illegal and did not comply with the rules prescribed under Section 89 and Rule 19 of the MRTP Act. It emphasized the importance of compliance with the statutory provisions for summary eviction.
Final Decision: The Second Appeal was dismissed, affirming the lower courts' decisions in favor of the plaintiff.
VIBHA KANKANWADI, J.
1. Present appeal has been filed by the original defendant challenging the Judgment and Decree passed in Regular Civil Appeal No.26/2008 by District Judge-1, Amalner, Dist. Jalgaon, whereby the present appellant's appeal came to be dismissed on 08.01.2015. In the said appeal, the Judgment and Decree passed by learned Civil Judge Junior Division, Amalner in R.C.S. No.49/1998 dated 16.04.2008 was challenged. Present respondents' predecessor had filed the said suit for declaration and injunction. It came to be decreed on 16.04.2008.
2. The original plaintiff had come with the case that she is the owner and possessor of CTS No.3282/A admeasuring 70 x 65 feet a constructed premises situated in Amalner. She was running a restaurant by name 'Saraswati Restaurant' in the said suit property and was also residing there since 1966 with her five sons and their families. It is stated that the defendant Municipal Council had reserved the said area in the year 1973 for the purpose of Octroi Naka. She had moved application to withdraw the said reservation. Thereafter, on her request the Municipal Council had deleted the suit property from the reservation and communication to that effect was made to her by letter dated 10.03.1975. She has further come with a case that the Chief Officer of the Municipal Council went to the suit property around 7.00 p.m. on 27.06.1998 and directed her to vacate the suit premises within 24 hours, claiming that there is reservation by this Municipal Council. When she tried to persuade, he did not listen and affixed the notice regarding vacating the property on the conspicuous part of the property and therefore she filed suit.
3. The suit was resisted by filing written statement. It was admitted that the plaintiff was the owner of the suit property since 1966 and she is running a restaurant as well as she is residing in the said property. However, the said property is reserved in the development plan of 1970 under the Town Planning Scheme. However, it was denied that the reservation was deleted on the request of the plaintiff. It was contended that the suit property has been acquired for the public purpose as per Amalner Town Planning Scheme No.1 and the final scheme has been sanctioned by the State Government on 15.12.1970. Plaintiff had knowledge about the same, however, she denied her unauthorized occupation in the suit property. Under that circumstance, notice came to be issued to her on 27.06.1998 for vacating and handing over the possession of the suit property to the defendant, and on this ground it was prayed that the suit should be dismissed.
4. Taking into consideration those rival contentions, issues came to be framed, parties have led oral as well as documentary evidence. Taking into consideration the evidence on record and heard both sides, the suit came to be decreed. It was declared that the notice dated 27.06.1998 is illegal. The defendant was restrained from dispossessing the plaintiff from the suit property in said premises on the basis of said notice, without following due procedure of law.
5. The original defendant preferred appeal bearing R.C.A. No.26/2008 and it came to be dismissed after hearing both sides on 08.01.2015 as aforesaid. Hence, the original defendant intends to file this Second Appeal.
6. Heard learned Advocate Mr. G.S. Rane for the appellant and learned Advocate Mr. S.B. Tiwari for the respondent Nos.1 to 5. It has been vehemently argued on behalf of the appellant that both the Courts below have not considered the basic point that the suit was not maintainable in view of Section 89 of the Maharashtra Regional and Town Planning Act, 1966 (hereinafter referred to as "MRTP Act"). When the suit itself was not maintainable, as the notice issued by the defendant cannot be questioned in any suit, the only course open to the Courts below was to dismiss the suit. Both the Courts below have not appreciated the provisions of Section 89 of MRTP Act and the Rule 19 i
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