1 RCS No.

04/2025
Mahendrakumar and others
Vs. Nagar Panchayat +1
MHGA110002042025 IN THE COURT OF CIVIL JUDGE JUNIOR
DIVISION, KURKHEDA
(Presided Over by N.P. Deshpande)

RCS No. 04/2025

Plaintiffs :- 1. Mahendrakumar Nanaji Mohbansi,
Age:- 58 years, Occu:- Business,
2. Nirmalabai Nanaji Mohbansi,
Age:- 84 years, Occu:- Housewife,
3. Somendrakumar Nanaji Mohbansi,
Age:- 60 years, Occu:- Business,
4. Virendrakumar Nanaji Mohbansi,
Age:- 57 years, Occu:- Business,
All R/o. Shriram Nagar, Ambedkar Ward,
Kurkheda, Dist. Gadchiroli.

-VERSUS-
Defendants :- 1. Nagar Panchayat, Kurkheda
Through Chief Officer,
Nagar Panchayat Kurkheda,
Dist. Gadchiroli.
2. Bhaiyyalal Kanhaiyalal Raut,
Age:- 50 years, Occu:- Medical Officer,
R/o. Gandhi Ward, Division No.9,
Kurkheda, Dist. Gadchiroli.
-----------------------------------------------------------------------------------------------------
Ld. Advocate Shri D.I. Shukla for the Plaintiffs
Ld. Advocate Shri A. P. Nakade for the Defendant No.1
Ld. Advocate Shri I.K. Daudsare for the Defendant No.2
-----------------------------------------------------------------------------------------------------
ORDER BELOW EXH. 30
(Passed on 18.06.2025)
Defendant no.2 has filed the present application for rejection
of the plaint under provisions of Order VII, Rule 11(d) of the Civil
Procedure Code.

2. Brief contents of the application are as under :

The plaintiffs have filed the present suit for the Declaration,
and Perpetual Injunction against notice issued by the Defendant no. 1
Nagar Panchayat under Section 53(1) of the Maharashtra Regional and
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Mahendrakumar and others
Vs. Nagar Panchayat +1
Town Planning Act on the ground of illegality of the notice. The suit filed
by the plaintiffs is not maintainable as per section 149 of the Maharashtra
Regional and Town Planning Act (Hereinafter referred as the M.R.T.P.
Act) and the Civil Court is barred for challenging the notice under
Section 53(1) of the Act issued by the Planning Authority Defendant no.
1 before this Court. Hence Defendant no. 2 prayed to reject the plaint
under the provisions of order VII, Rule 11(d) of the Civil Procedure Code.

3. Plaintiffs filed their say on Exh.36 and resisted the

application on the following grounds. Application filed by Defendant no.2
is not maintainable. Plaintiffs have made construction over the suit
property with due permission from Defendant no.1. under Section 189(4)
of the Maharashtra Municipal Counsil, Nagar Panchayat and Industrial
Township Act 1965 read with Section 44 of M.R.T.P. Act the construction
made by the plaintiffs is in accordance with the rules and regulations of
the aforementioned statutes. They denied that they made encroachment
on 12 meter service road as alleged by the defendants. As per contention,
Government of Maharashtra Urban Development Department issued
circular in pursuance of the amendment to the MRTP Act Amendment Act
1983 bearing No.TPB 4385/3883/UD5 dated 29.10.1985 regarding
unauthorized development. The aforementioned circular issued elaborate
guidelines regarding procedure to be followed to deal with the
unauthorized constructions under Section 52 to 55 of the MRTP Act and
it is imperative upon the planning authorities to avail both curative and
punitive remedies to combat unauthorized constructions like institution
of the criminal complaint in Appendix A of the Circular and to serve upon
him notice of removal of unauthorized constructions under Section 53 of
the MRTP Act. Therefore, the notice under Section 53(1) of the Act
required to be issued in consonance with Appendix A and notice without
accompanying Appendix A shall become null and vide as inoperative
from the moment of its issuance. However, in the present case, Defendant
no.1 issued notice dated 17.04.2025 without annexing Appendix A and
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Mahendrakumar and others
Vs. Nagar Panchayat +1
without giving mandatory details in Appendix A. Therefore it is null and
vide as well as in-operative. Therefore bar under Section 149 of the Act
shall not operate in the present case.

4. As per further contentions of plaintiffs M.R.T.P. Act does not

deal with encroachment on road and it deals with unauthorized
development and as per its Sections 53 to 55 of the Act, Planning
Authority Defendant no.1 has to give particulars of the unauthorized
development. Now the road claimed to be a service road of 12 meters
wide Korchi-Kurkheda road is no more a service road and the same has
become a city road in view of Clause no. 3.1.6 of the Unified
Development Control and Promotion Regulations for Maharashtra State
(U.D.C.P.R.)updated as on 30.01.2025. The alleged service road does not
continue throughout the town adjoining to the earlier highway i.e.
junction to junction and the same is available in piece-meal. Therefore as
per the Clause no. 3.1.6 of the U.D.C.P.R. 2020 amended in 2025 the road
cannot be treated as service road of highway and the same has become a
city road. The notice dated 17.04.2025 issued by Defendant no.1 is a
classic example of illegality and therefore the suit filed by the plaintiffs is
maintainable. Hence, plantiffs prayed to reject the application filed by the
Defendant no.2.

5. Heard learned advocate for defendant No. 1 & 2 and learned

advocate for plaintiffs. On the rival contentions of the parties, following
Points for my my consideration. My answers for the reasons thereof are as
under:

Sr. No. Points for Consideration Finding

1. Is the suit filed by the Plaintiffs is
liable to be rejected Order VII, Rule
11(d) of the Civil Procedure Code as
In the affirmative
bared under Section 149 of the
Maharashtra Regional and Town
Planning Act?
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Mahendrakumar and others
Vs. Nagar Panchayat +1
2. What order? As per final order.

REASONS
6. Heard Shri. I.K. Daudasare, learned advocate for defendant
No. 2 & learned advocate Shri. A. P. Nakade, for defendant No.1. and
learned advocate Shri. Shukla for plaintiffs. Learned advocate for
Plaintiffs also filed his written notes of arguments at Exh-46.

Point No.1 :-
7. Learned advocate for defendant No.1 argued that as per
Section 149 of the Maharashtra Regional and Town Planning Act there is
bar of jurisdiction of Civil Courts, Hon’ble Apex Court has issued
directions in In Re: Directions in the matter of demolition of structures
reported in 2024 INSC 866. The present suit is based on the legality of
the notice, as per notice validity of 30 days period is provided.
Admittedly there is no dispute for lesser period provided vide the notice.
The notice under section 53 (1) of the Act in the suit is not issued by the
defendant No.1 for contravention of the permission and it is in respect of
unauthorized construction of the Plaintiffs on the road. He argued that
Plaintiffs got sanctioned N.A. order and as soon as N.A. order is
sanctioned, plaintiffs remained no longer owner and they are care takers
of the road. The Service road is not property of plaintiffs. As per suit of
the plaintiffs, there is no description of the property in the notice.
However, road can not be described and defendant No.1 Municipal
Council can show its direction. Therefore, there is no substance in the
suit that description of the property is not mentioned in notice dated
17.4.25 under section 53 (1) of the M.R.T.P. Act issued by the defendant
No.1. He argued that the notice issued by the defendant No.1 which is in
respect of encroachment on the road and Civil Court is barred to
entertain the same in it by way of the suit vide section 149 of the Act and
the plaint be rejected.
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8. Learned advocate for Defendant no.1 relied upon following
decisions 1) Prashant S/o Dattatraya Wazalwar Vs. Smt. Sudha Baburao
Lokhande and 2 others reported in Civil Revision Application No.
41/2017 dated 16.06.2017 of the Hon’ble Bombay High Court, Nagpur
Bench. 2) Municipal Commissioner Nagpur, Municipal Corporation and
another Vs. M/s. Shivdatta and sons proprietor Shri. S.V. Grover and
another reported in AIR Online 2019 BON 1213 of Civil Revision
Application no. 79/2019 dated 28.11.2019. 3) In Re: Directions in the
matter of demolition of structures reported in 2024 INSC 866.

9. Learned advocate Shri. A.P. Nakade appearing for Defendant

no.1 argued that bar under section 149 of the M.R.T.P. Act is strict bar.
Although, plaintiffs has filed suit for invalid notice and not prescribing
the procedure etc., the notice is in respect of unauthorized construction
of the Plaintiff on the service road and it is not in respect of the
construction made as per the permission. He submitted that as the suit is
barred under section 149 of the Act and grounds mentioned by the
plaintiffs in the suit are not proper and legal it is not coming in
exceptions where Civil Courts to have a jurisdiction. Therefore, he
prayed to reject the plaint. He relied upon decisions in 1) Paresh Vaya Vs.
Municipal Corporation of Greater Mumbai and another reported in Writ
Petition No. 7499/2021 dated 15.12.2021. 2) The Ulhasnagar Municipal
Corporation Vs. Shri. Kailas Tikamdas Mulchandani reported in
MANU/MH/0289/2008 3) Dr. Mohan N. Bhawe Vs. Municipal
Corporation of Greater Mumbai reported in 2005(3) BOMCR300.

10. Learned advocate Shri. Shukla appearing for the plaintiffs

argued that plaintiffs cannot seek the remedies without approaching to
the Courts. Notice issued by the defendant No.1 under section 53 (1) is
for construction of private plot. Plaintiff already got sanctioned the
construction permission from defendant No.1 Municipal Council and
made development upon it. The notice dated 17.4.2025 issued by the
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defendant No.1 is without annexing Appendix A and without giving
mandatory details in Appendix A, measurement of the suit property is not
carried out and affected area without construction permission is not
mentioned in it. Thus, mandatory procedure required is not followed.
Therefore it is null and vide as well as inoperative. Therefore bar under
Section 149 of the Act shall not operate in the present case. So also he
argued that defendant No.1 only has locus standi to file application under
Order -VII, Rule-11 of the Civil Procedure, he may file present
application. However, defendant No.2 is added as per application under
Order-I, Rule-10 of the Civil Procedure and he is not being the necessary
party has no locus standi to file the present application. Hence, he prayed
that as the notice is invalid not being in mandatory format and
mandatory procedure is not followed. Therefore, the notice is nullity.
Hence, he prayed to allow the application. He has also filed his written
notes of arguments at Exh-46.

11. Learned advocate for Plaintiffs relied upon 1) Government

of Maharashtra Urban Development Department circular
no.TPB4385/3883/UD5 dated 29.10.1985. 2) U.D.C.P.R. relevant page
from 3.1.4 to 3.1.9 3) Kishor S/o. Ramalu @ Rambhau Telang Vs. The
Municipal Commisioner Nagpur Municipal Corporation reported in
Second Appeal No.491 of 2012 dated 20.01.2015 of the Hon’ble Bombay
High Court, Nagpur Bench. 4) Municipal Corporation of Greater Mumbai
Vs. Rajendra Fulchand Gupta and others reported in 2022 SCC Online
Bom 398. 5) The Nanded Town Market Area Housing Building Co-
operative Society Limited through its Chairman Vs. The State of
Maharashtra and others reported in Writ Petition No.7609 of 2022 dated
15.12.2022 of the Hon’ble Bombay High Court, Nagpur Bench. 6)
Mahabir Vegetable Oils Pvt. Ltd. And Ors. Vs. State of Haryana and Ors.
reported in 2006 INSC 152. 7) Gadre Constructions and Ors. Vs. Sadashiv
Keshav Sathe and Ors. Reported in AIR 2004 BOM 392. 8) State of
Andhra Pradesh Vs. Manjeti Laxmi Kamtharao (D) by Lrs. and Ors.
 7 RCS No. 04/2025
Mahendrakumar and others
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reported in AIR 2000 SC 2220. 9) Raziya Begam Vs. Sahebzadi Anwar
Begum and ors. reported in AIR 1958 SC 886.

12. As per Section 149 of the M.R.T.P. Act Finality of Orders- No

Civil Court shall have jurisdiction to entertain ay suit or proceeding in
respect of any matter which the State Government or a Planning
Authority or Development Authority is empowered by or under this Act to
determine. However, Plaintiffs have filed the present suit on the ground
that notice is invalid not being in mandatory format and mandatory
procedure is not followed. Before, it is required to see whether the
present suit is barred as per section 149 of the Act or it is in exception to
the bar. Therefore, it would be proper to see the decisions filed by the
parties.

13. I have gone through the decisions cited on behalf of

defendant No.1.
i) In the decision of 1) Prashant S/o Dattatraya Wazalwar Vs. Smt.
Sudha Baburao Lokhande and 2 others reported in Civil Revision
Application No. 41/2017 dated 16.06.2017 of the Hon’ble Bombay High
Court, Nagpur Bench, The suit was filed challenging the legality of the
notice under section 53 (1) of the M.R.T.P. Act on the ground that it is
illegal because it has been issued by Corporation officials in collusion
with the defendant who was neighbor of plaintiff and the construction so
far made was as per the sanctioned plan and there has been no violation
committed by her. The learned Civil Judge took an exception to the bar of
jurisdiction under section 149 of the M.R.T.P.Act without specific pleading
of the plaintiff to that effect in the plaint and rejected the application of
defendant mentioning in the order that prescribed period in the notice
was lesser than the period stipulated in the section. However, in fact
notice was challenged on the ground of collusion of officials of
corporation with any of the defendants. It is held that the application of
defendant was required to be rejected without plea of lesser period and
ground mentioned in the plaint were not legal and proper to consider as
per the settled principles of law exception to section 149 of the M.R.T.P.
Act. Thus, notice under section 53 (1) can be challenged as invalid being
notice period lesser than prescribed period. However, there should be
pleading of the party to that effect.
ii) In 2) Municipal Commissioner Nagpur, Municipal Corporation
and another Vs. M/s. Shivdatta and sons proprietor Shri. S.V. Grover and
another reported in AIR Online 2019 BON 1213 of Civil Revision
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Vs. Nagar Panchayat +1
Application no. 79/2019 dated 28.11.2019, facts of the decision are as
under. The subject matter of the revision was that in view of the specific
bar under section 149 of the M.R.T.P. Act, the Small Causes Court did not
have jurisdiction to entertain the suit filed by the respondent No.1 as the
subject matter of challenge in the suit was a notice used under section 53
of the M.R.T.P.Act. It is observed that even if there is a provision that
excludes jurisdiction of the Civil Court by specifically providing that any
action undertaken under the provisions of the statute shall not be called
into question in any suit, an absolute and complete bar on the jurisdiction
of the Civil Court cannot be inferred. Despite such a provision, in certain
contingencies, the Civil Court can exercise jurisdiction, depending upon
the facts and circumstances of the case on the limited grounds viz. that
the act of issuance of such notice is nullity, or that while issuing such
notice, the mandatory provisions of the said Act have not been complied
with, or that the Authority issuing such a notice has not acted in
conformity with the fundamental judicial procedure or that it is an abuse
of exercise of power, or that the offending act has not been done in good
faith, remains intact. The Civil Court is not precluded of its inherent
jurisdiction to entertain and decide such challenge to a notice under
section 53 of the M.R.T.P.Act. The Civil Court can exercise jurisdiction,
depending upon the facts and circumstances of the case. It is held that
considering the nature of pleading in the plaint have made out a case in
favour of respondent No.1 regarding jurisdiction of the Small Causes
Court, the appellate court has specifically adverted to the pleading in the
plaint and the prayers made therein to find that the Small causes Court
committed error in rejecting the plaint on the ground of jurisdiction
under section 149 of the M.R.T.P.Act, revisional applicants were unable to
demonstrate that respondent No.1 had any effective remedy for its
grievance within the provisions the M.R.T.P.Act. Thus, an absolute and
complete bar on the jurisdiction of the Civil Court cannot be inferred.
Despite such a provision, in certain contingencies, the Civil Court can
exercise jurisdiction, depending upon the facts and circumstances of the
case on the limited grounds viz. that the act of issuance of such notice is
nullity, or that while issuing such notice, the mandatory provisions of the
said Act have not been complied with, or that the Authority issuing such
a notice has not acted in conformity with the fundamental judicial
procedure or that it is an abuse of exercise of power, or that the offending
act has not been done in good faith, remains intact. Thus, the facts of
decision are not helpful for defendant No.1 and it is helpful for his
adversary.
iii) In 3) In Re: Directions in the matter of demolition of structures
reported in 2024 INSC 866, Defendant No.1 relied upon Para No.90, 91,
6,Para No.11 Exception 2, Highlighted Portions of Page No.21 to 25, 26,
87, 93 & 95.
Para No.6 : Hon’ble Apex Court issued guidelines vide order dated
17/09/2024 directing that there shall be no demolition anywhere across
the country without seeking leave of the Court. However, this decision
 9 RCS No. 04/2025
Mahendrakumar and others
Vs. Nagar Panchayat +1
clarifies that order dated 17/09/2024 will not be applicable if there is an
unauthorized structure in any public place such as road, street, footpath,
abutting railway line or any river body or water bodies and also to cases
where there is an order for demolition made by a Court of Law.
Para No.90 lays down that if the orders of demolition are passed the
affected party needs to be given some time so as to challenge the order of
demolition before an appropriate forum. Even in cases of persons who do
not wish to contest the demolition order, sufficient time needs to be given
to vacate and arrange their affairs.
Para No.91 lays down at the outsets, these directions will not be
applicable if there is an unauthorized structure in any public place such
as road, street, footpath, abutting railway line or any river body or water
bodies and also to cases where there is an order for demolition made by a
Court of Law. No demolition should be carried out without a prior show
cause notice returnable either in accordance with the time provided by
the local municipal laws or within 15 days time from the date of service
of such notice, whichever is later.
Para No.11 (which are the suggestions given by the SG as exceptions and
reproduced in the decision i.e. the highlighted portion on Page No. 21 to
25)
Exception 2 lays down that order dated 17.09.2024 carved out an
exception in case of unauthorized structures in any public place such as a
road, street, footpath, abutting railway line or any river body or water
bodies and also to cases where there is an order of demolition made by a
Court of Law. So also in such cases SOP may not provide for notice in
case the relevant municipal law also provides for situations where
demolitions may be carried out without notice.
Sub Para 3 of Para 11 lays down that SOP framed by the Hon’ble Court
may not allow for notice in case of encroachment on public land, if the
relevant municipal law allows for such demolition without notice. At best,
the illegal encroachers on the said public land/public place, may be
granted 48 hours to vacate such encroachment.
Sub Para 5 of Para 11 Procedure to be followed after service of notice : It
is suggested vide these suggestions that most municipal laws have a
specific procedure to be followed after service of notice- such as an
opportunity for hearing, before a final demolition order is passed. Further
the affected party in most cases also has a right to appeal to the Appellant
Authority designated by the statute. The procedure for hearing and
appeal as provided in the relevant stature must be strictly adhered to.
Where there is no such procedure prescribed and the case does not fall
within the exceptions outlined in Para No.2 & 3 above where demolition
without notice is authorized, natural justice requirements of a hearing
must be read into the statute-with the notice fixing a reasonable time of a
week to appear before the concerned authority for the personal hearing.
Para No.93 lays down that violation of directions would lead to initiation
of contempt proceedings in addition to the prosecution.
Para No.95 lays down that copy of the decision should be circulated to
 10 RCS No. 04/2025
Mahendrakumar and others
Vs. Nagar Panchayat +1
the Chief Secretaries of all the States/Union Territories and the Registrar
General of all the High Court, All the State Governments to issue circulars
to all the District Magistrates and local authorities intimating them about
the directions issued by this Court. Thus, Hon’ble Apex Court issued
guidelines vide order dated 17/09/2024 directing that there shall be no
demolition anywhere across the country without seeking leave of the
Court. However, this decision clarifies that order dated 17/09/2024 will
not be applicable if there is an unauthorized structure in any public place
such as road, street, footpath, abutting railway line or any river body or
water bodies and also to cases where there is an order for demolition
made by a Court of Law. The decision mandates that if the municipal law
does not required notice, notice shall not be issued or at the best, the
illegal encroachers on the said public land/public place, may be granted
48 hours to vacate such encroachment and if a municipal law provides
notice, prior show cause notice returnable either in accordance with the
time provided by the local municipal laws or within 15 days time from
the date of service of such notice, whichever is later shall be provided in
respect of unauthorized structures.

14. I have gone through the cited decisions of defendant No.1.

i) In the decision of 1) Paresh Vaya Vs. Municipal Corporation of

Greater Mumbai and another reported in Writ Petition No. 7499/2021
dated 15.12.2021,, facts show that Principal Judge Dindoshi refused to
grant leave under section 149 of the M.R.T.P. Act on the ground that
pursuant to the notice under section 53 (1) no reply was filed and the
plaintiffs are now apprehending an immediate action. The trial court
recorded that plaintiffs have failed to comply with the provisions of
M.R.T.P. Act, despite sufficient time, they cannot seek liberty, the leave
has been refused.
ii) In 2) The Ulhasnagar Municipal Corporation Vs. Shri. Kailas
Tikamdas Mulchandani reported in MANU/MH/0289/2008, the facts
show that defendants raised objection as suit is barred under section 149
of the M.R.T.P. Act. Plaintiff filed reply to the effect that he had made an
application for permission for erection and also submitted a revised
building plan. However, there was no response from corporation for 60
days and revised plan was deemed to have been sanctioned under section
45 (5) of the Act. Civil Court held that Court has jurisdiction. Thereupon
revision was filed and it is held that if the plaintiff was having
explanation that he had filed revised plan he could file his explanation to
the Corporation without disputing the notice. However, he could not
dispute the notice.
iii) In 3) Dr. Mohan N. Bhawe Vs. Municipal Corporation of Greater
Mumbai reported in 2005(3) BOMCR300, facts are as under. The notice
was issued for unauthorized construction of walls in the open terrace.
Trial Court held the suit barred under section 149 of the MRTP Act and
refused to grant any relief. The appeal from Order was made and
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decision of trial court was challenged. It is held that section 149 makes it
amply clear that an order passed by the Planning Authority is final and
cannot be challenged in a suit. Obviously, a suit questioning the notice
issued under section 55 will not lie.

15. I have gone through circular, U.D.C.P.R. and decisions filed

by the Plaintiffs.
i) 1) Government of Maharashtra Urban Development Department
circular no.TPB4385/3883/UD5 dated 29.10.1985 with Annexure A. The
circular shows that the Planning Authority to avail both remedies curative
and punitive in the light of offence under section 52 (1) and to serve
notice under section 53 of the M.R.T.P. Act in the form given in Appendix
A mentioning that he will be liable for prosecution under the said Act.
Object of Circular shows that to provide for deterrent penalties for
unauthorized development and to give speedy powers for demolition.
Part III shows Procedure Detection of unathorized development, lodging
of the complaint. Especially Part III Clause B (3) relates with
unauthorized development which has already been carried out is
subsequently detected, then a complaint under section 52 (1) should be
lodged with Police, the detecting officer should report the details of the
unauthorized development to the Competent Authority. Planning
Authority after verifying the report and making inquiry issue a notice of
not less than 30 days in Form Appendix 6 for demolition or alteration so
as to retore the land existing before the unauthorized development took
place, to discontinue the unauthorized use of the land or in the event of
breach of any of the permission conditions to rectify the breach and
ensure compliance with the said conditions. Part III Clause B (4) & (5)
lays down that if person whom the notice as aforesaid has been served is
aggrieved thereby it is open to him within the period specified in the
notice, to apply for permission under section 44 of the M.R.T.P. Act for
regularization of the development for which the notice action was
initiated. Once such an application is made, unless and until it is disposed
of, the question of filing any complaint for prosecution does for arise.
After lapse of notice period if the person on whom the notice was served
has not made any application for permission under section 44 or on such
an application having been made the permission applied for was rejected
by the competent authority, a fresh inspection of the site should be
undertaken and a report of such inspection should be made once again in
the form “Appendix 7”. If inspection reveals that the notice requisition
had not been complied with, a complaint in Appendix 8 should be
lodged.
ii) 2) U.D.C.P.R. relevant page from 3.1.4 to 3.1.9 especially 3.1.6
shows that the development along the highways shall be subject to the
provisions of State Highways Act, 1965 and National Highway Act, 1956.
All the classified roads passing through the Municipal Corporation/
Councils/ Nagar Panchayats shall be treated as city roads. The service
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road as specified in 3.3.8 shall be provided along State and National
Highways on both sides. Where service road of 12 meter is already
provided in the adjoining land, such service road of the same width may
be continued in the development permission. Such service roads may not
be insisted if it has no continuity from junction to junction due to existing
authrorized development/construction.
iii) In 3) Kishor S/o. Ramalu @ Rambhau Telang Vs. The Municipal
Commissioner Nagpur Municipal Corporation reported in Second Appeal
No.491 of 2012 dated 20.01.2015 of the Hon’ble Bombay High Court,
Nagpur Bench, facts are as under. The second appeal was on the
substantial question of law whether the bar under section 149 of the
M.R.T.P. Act applies in the notice under section 53 of the Act challenged
on the ground that period prescribed therein falls short of the statutory
period and is therefore a nullity? It is held that there is distinction
between steps required to be taken within one month and to be taken
within a period being not less than one month. Within 30 days is shorter
period and not less than 30 days is larger period of time and not less than
30 days is shorter and lesser period than prescribed. So also, it is held
that jurisdiction of the Civil Court is available or determining the
question as to whether infirmity in the action impugned goes to the root
of the proceedings making it invalid or where the basic procedural
requirements which are vital in nature have not been followed, the
jurisdiction to that extent has been held to be preserved.
iv) In 4) Municipal Corporation of Greater Mumbai Vs. Rajendra
Fulchand Gupta and others reported in 2022 SCC Online Bom 398, facts
are that corporation issued notice under the Provisions of the M. M.
Corporation Act, plaintiff challenged it vide suit and the suit is decreed.
The decree is not challenged by the Corporation and issued subsequent
notice. It is held that subsequent notice is illegal as the decree is passed
in respect of previous notice. The facts in the decision are totally different
than the case in hand. However, in the discussion decision of the Hon’ble
Apex Court in Dhruv Green Field Ltd. Vs. Hukam Singh and Others
reported in (2002) SCC 416 is discussed in which Hon’ble Apex Court has
laid down to test jurisdiction of the Civil Courts.
v) In 5) The Nanded Town Market Area Housing Building Co-
operative Society Limited through its Chairman Vs. The State of
Maharashtra and others reported in Writ Petition No.7609 of 2022 dated
15.12.2022 of the Hon’ble Bombay High Court, Nagpur Bench, facts of
the decision are that notice under section 53 of the M.R.T.P. Act was
issued by the corporation. T.I. was granted by the Civil Court in a suit
instituted by respondent No.3 and respondent No.2 was not able to take
further steps for pursuant to the notice and sought to withdraw the
petition. Thus facts are not clear on which ground suit was filed before
the Civil Court against notice of the corporation. Therefore, the decision
is not helpful to the instant case in hand.
vi) In 6) Mahabir Vegetable Oils Pvt. Ltd. And Ors. Vs. State of
Haryana and Ors. reported in 2006 INSC 152, facts in the decision are as
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under. Haryana General Sales Tax Act 1973 and Uttar Pradesh Sales Tax
Act conferred some rights and on the basis of it exemptions are granted
to the appellants. Later on, due to subsequent amendments government
withdrew the exemptions with retrospective effect. I respectfully submit
that the facts in the decision are totally different than case in hand.
Therefore, it is not applicable to the present case.
vii) 7) In Gadre Constructions and Ors. Vs. Sadashiv Keshav Sathe
and Ors. Reported in AIR 2004 BOM 392. The facts in the decision are
that Plaintiffs has permitted defendants to apply for amalgamation of two
plots arising out of the terms and conditions of the contract. It is held
that dispute is in respect of contract for amalgamation and bar under
section 149 would not affect to entertain the suit . The facts in the
decision are different than the case in hand. Therefore, it is not
applicable to the present case.
viii) In 8) State of Andhra Pradesh Vs. Manjeti Laxmi Kamtharao
(D) by Lrs. and Ors. reported in AIR 2000 SC 2220 the facts in the cited
dicision are different than the case in hand. Therefore, it is not applicable
to the present case.
ix) In 9) Raziya Begam Vs. Sahebzadi Anwar Begum and ors.
reported in AIR 1958 SC 886 facts are as under. Plaintiff appellant
instituted the suit against the respondent No.3 for declaration of his
legally wedded wife and for maintenance. Respondent No.3 filed his
written statement admitting the entire claim of the plaintiff. On that very
date, application under Order 1, Rule 10 of the Civil Procedure Code on
behalf of respondents No. 1 & 2 was made who were allegedly lawful
wife of respondent No.3 and her son. Plaintiff filed reply to the
application of the respondent No. 1 & 2 to the effect that possibility of the
rights of the petitioners being infringed are very remote, contingent. After
hearing Court added respondent No. 1 & 2 as party to the Suit. Plaintiff
challenged decision by way of revision and dismissed the same. Plaintiff
challenged decision before Hon’ble Apex Court and it is held that both
the Courts below were in error in supposing that this was a case in which
the provisions of O-1, Rule 10 applied and set aside the orders of the
Courts below.

16. Thus, in Dhruv Green Field Ltd. Vs. Hukam Singh and Others
reported in (2002) SCC 416, Hon’ble Apex Court has laid down to test
jurisdiction of the Civil Courts that the question as to whether the
jurisdiction of Civil Court is barred must be answered on the following
principles :
(1) If there is an express provision in any special Act barring the
jurisdiction of a Civil Court to deal with matters specified there under the
jurisdiction of an ordinary Civil Court stand excluded.
 14 RCS No. 04/2025
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Vs. Nagar Panchayat +1
(2) If there is no express provision in the Act, but an examination in
regard to exclusion of jurisdiction of a Civil Court, the Court would
inquire whether any adequate efficacious alternative remedy is provided
under the Act, if the answer is in the affirmative, it can safely be
concluded that the jurisdiction of the Civil Court is barred. If, however, no
such adequate and effective alternative remedy is provided then
exclusion of the jurisdiction of the Civil Court cannot be inferred.
(3) Even in cases where the jurisdiction of a Civil Court is barred
expressly or impliedly, the Court would nonetheless retain its jurisdiction
to entertain and adjudicate the to entertain and adjudicate the suit
provided the order complained of is a nullity.

17. Also the notice under section 53 (1) of the M.R.T.P. Act can
be challenged as invalid being notice period lesser than prescribed
period. However, there should be pleading of the party to that effect. The
Civil Court is not precluded of its inherent jurisdiction to entertain and
decide such challenge to a notice under section 53 of the M.R.T.P.Act
depending upon the facts and circumstances of the case on the limited
grounds viz. that the act of issuance of such notice is nullity, or that while
issuing such notice, the mandatory provisions of the said Act have not
been complied with, or that the Authority issuing such a notice has not
acted in conformity with the fundamental judicial procedure or that it is
an abuse of exercise of power, or that the offending act has not been done
in good faith, remains intact.

18. Before going to examine the plaint it is necessary to

mention here what is suit property and necessary facts relating to it in the
plaint or documents filed by the plaintiff at Ex-4 and 27.
i) The suit property as mentioned in the suit and specifically shown
in the plaint map is the 0.18 H.R. i.e. S.No.75/1 situated at Kurkheda
land belonging to the plaintiffs which is bounded at the East-Nagar
Panchayat Road and thereafter Nina Servo Petrol Pump, at West-Acquired
 15 RCS No. 04/2025
Mahendrakumar and others
Vs. Nagar Panchayat +1
land for bus stand Kurkheda, at North- Wadsa Kurkheda road at South-
Land S.No.74 belonging to Dr.Budhe.
ii) As per List Exh-4 document No.2, 0.18 H.R. land of the suit
property is converted into N.A. as per N.A. order dated 06.02.2009 into
Plot No.1, Plot No.2 and ‘T’ shape service road of 12 meter parallel to
Wadsa-Kurkheda Road and Perpendicular to it in between Plot No.1 & 2
as shown in the plaint map. As per N.A. Order Area of Plt No.1 is of
547.26 Sq. Mtrs, area of Plot No.2 is of 304.26 Sq. Mtrs (312.00 – corner
deduction 7.74 Sq. Mtrs), Area under Internal road (excluding T shaped
service road) is of 90.00 Sq. Mtrs and area of service road is of 858.48
Sq. Mtrs. There is no open space kept in N.A. order except the service
road. As per this document Plot No.1, Plot No.2 and T shaped service
road of 12 meter is already demarcated in 2009. As per pleading,
plaintiffs it is not mentioned that they have applied for conversion of T
shaped service as shown in list Exh-4 document No.2 as well as in plaint
map.
iii) As per commencement certificate 04.08.2021 at List Exh-4
document No.3 and sanctioned construction plan at List Exh-27
document No.1, plaintiffs applied for construction Permission of Plot
No.2 and permission is granted to them to the extent of 312 Sq. Mtrs area
of Plot No.2 in the suit property excluding the area of T shaped service
road of 12 Mtrs area 858.48 Sq. Mtrs. Thus, the construction permission
of Plot No.2 dated 4.8.21 is limited to the extent of for construction of
shops on Plot No.2 (312.00 Sq. Mtrs) and they have to construct shop on
its area 164.34 Sq. Mtrs and as per conditions plaintiffs did not make
construction/changes without prior permission. Sum and substance
construction permission obtained by the plaintiff dated 04.08.21 is only
and only for construction on Plot No. 2 to the extent of 164.34 Sq. Mtrs
area out of area 312. 00 Sq. Mtrs.
iv) As per list Exh-4 document No.4 to 8 plaintiffs received notices
dated 11.3.25, 3.4.25, 8.4.25 thereafter he filed reply to the notice dated
 16 RCS No. 04/2025
Mahendrakumar and others
Vs. Nagar Panchayat +1
16.04.2025 and thereupon notice under section 17.04.2025 under
section 53(1) of the M.R.T.P. Act is issued by defendant No.1. Thus,
notices dated 11.03.25 upto 8.04.25 are in respect of construction made
by the plaintiffs on T shaped 12 Mtrs service road and spot measurement
is carried out and it revealed that plaintiffs made construction on 12 Mtrs
service road in the layout by making encroachment on the service road.
During the correspondence of these notices Plaintiff No.1 submitted
documents of permission and other documents related with it on
21.03.25. Thereupon he filed his reply dated 16.04.25 and finally alleged
notice under section 53 (1) of the M.R.T.P. Act is issued by the defendant.

19. Thus, after discussion of present application, say thereon and

after considering the arguments of parties it will be proper to examine
the plaint on which ground notice under section 53 (1) of the M.R.T.P.
dated 17.04.2025 issued by defendant No.1 is challenged and whether
these grounds show any illegality or not following basic mandatory
procedural requirements of M.R.T.P. Act. The notice dated 17.04.2025 is
challenged on the ground not being in the prescribed form, issued
without following mandatory procedure, affected area of construction is
not shown in the notice and measurement is not carried out. On perusal
of notice under section 53 (1) of the M.R.T.P. Act dated 17.4.2025 it
appears that it is in respect of removal of illegal encroachments i.e.
unauthorized construction of Plaintiff on 12 Mtrs service road on Wadsa
Kurkheda road and Wadsa-Kurkheda road upto house of one Shamrao
Tulavi i.e. T shaped service road. Notice shows that as per documents
submitted by plaintiffs before defendant No.1, they took permission.
However, they have made unauthorized construction on the road
exceeding the permission and they are directed to remove the
unauthorized construction on the 12 Mtrs service road (i.e. T shaped 12
Mtrs service road (as shown in the Plaint map) within 30 days(30
Divsache Aat). Thus it is clear that lesser period as mentioned in the
decision of Kishor S/o. Ramalu @ Rambhau Telang mentioned at Supra
 17 RCS No. 04/2025
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Vs. Nagar Panchayat +1
Plaintiffs could challenge the validity of the notice not being the exact 30
days period. However, there is no pleading of the plaintiff that notice is
invalid due to lesser period less than 30 days given to them and they did
not challenge it for the reasons best known to them.

20. The notice dated 17.04.2025 issued by defendant No.1 is

challenged on the ground not being in the prescribed form, issued
without following mandatory procedure, affected area of construction is
not shown in the notice and measurement is not carried out. Learned
advocate for the Plaintiff placed reliance upon Government of
Maharashtra Urban Development Department circular
no.TPB4385/3883/UD5 dated 29.10.1985 with Annexure A and argued
that the notice dated 17.04.25 is not as per forms in Appendix-A and the
mandatory procedure of the circular is not followed and by way of notice
even though there is unauthorized development on the area other than
permitted area it should be mentioned in notice that punitive action for
offence under section 52 or other sections should be initiated, defendant
No.1 failed to mention in the notice about punitive action, so also it
failed to follow procedure as per the Circular and to give opportunity to
Plaintiffs for regularization of the unauthorized construction.

21. I have already gone through the above circular which shows
that the Planning Authority to avail both remedies curative and punitive
in the light of offence under section 52 (1) and to serve notice under
section 53 of the M.R.T.P. Act in the form given in Appendix A
mentioning that he will be liable for prosecution under the said Act. It is
seen that no such contents in respect of punitive action is mentioned in
the notice dated 17.04.25. Object of Circular shows that to provide for
deterrent penalties for unauthorized development and to give speedy
powers for demolition. Although circular shows the curative and punitive
actions are imperative on the part of planning authority, hardly in
absence of notice of punitive actions planning authority will not be able
 18 RCS No. 04/2025
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Vs. Nagar Panchayat +1
to lodge prosecution against plaintiff. Part III of the Circular shows
Procedure Detection of unathorized development, lodging of the
complaint. Especially Part III Clause B (3) relates with unauthorized
development which has already been carried out is subsequently detected
then a complaint under section 52 (1) should be lodged with Police, the
detecting officer should report the details of the unauthorized
development to the Competent Authority. Planning Authority after
verifying the report and making inquiry issue a notice of not less than 30
days in Form Appendix 6 for demolition or alteration so as to retore the
land existing before the unauthorized development took place, to
discontinue the unauthorized use of the land or in the event of breach of
any of the permission conditions to rectify the breach and ensure
compliance with the said conditions.

22. Part III Clause B (4) (5) of the Circular lays down that if
person whom the notice as aforesaid has been served is aggrieved thereby
it is open to him within the period specified in the notice, to apply for
permission under section 44 of the M.R.T.P. Act for regularization of the
development for which the notice action was initiated. Once such an
application is made, unless and until it is disposed of, the question of
filing any complaint for prosecution does for arise. After lapse of notice
period if the person on whom the notice was served has not made any
application for permission under section 44 or on such an application
having been made the permission applied for was rejected by the
competent authority, a fresh inspection of the site should be undertaken
and a report of such inspection should be made once again in the form
“Appendix 7”. If inspection reveals that the notice requisition had not
been complied with , a complaint in Appendix 8 should be lodged. Thus,
there are no contents in the notice dated 17.04.25 of punitive actions i.e.
consequences of launching prosecution and following the procedure for
launching prosecution is not followed for it. However, it does not cause
any loss to the plaintiffs.
 19 RCS No. 04/2025
Mahendrakumar and others
Vs. Nagar Panchayat +1

23. So far as opportunity as mentioned in the aforementioned

circular is to be given to the plaintiff by way of the notice is concern, as
per above discussion it was open to Plaintiffs within the period specified
in the notice, to apply for permission or regulization of the unauthorized
construction thereupon defendant No.1 could consider the application
and either grant or reject it pending the action under the notice. Thus,
from above discussion of circular, it is not mandatory for the planning
authority defendant No.1 to mention in the notice itself to avail remedies
for regularization of the unauthorized construction. So also for effective
implementation of curative remedies punitive remedies are prescribed to
be followed and as per above discussion Plaintiffs have to file any
application before defendant No.1 for regularization of unauthorized
development and thereupon defendant No.1 with his discretion and
considering the facts and circumstances to pass the decision on it.
However, it is not pleading of the plaintiffs that before filing of the suit,
plaintiffs filed any such application for permission before defendant No.1.
Sum and substance the procedure mentioned in the abovementioned
circular although shown an imperative, it does cause any loss of rights of
plaintiffs and it was open for plaintiffs to apply for
permission/regularization for uuauthorized construction of Plot No.2 of
S.No.75/1. Thus, plaintiffs failed to do so. Above discussion also shows
that although defendant No.1 did not followed Government of
Maharashtra Urban Development Department circular
no.TPB4385/3883/UD5 dated 29.10.1985 with Annexure A, it does not
cause any loss to plaintiffs therefore the procedure mentioned in it is only
directory and not mandatory.

24. So far as concerned ground of measurement and description

of the Property etc are concerned notice dated 17.04.2025 issued by
defendant No.1does not show any measurement. However, it is not in
respect unauthorized construction of the Plaintiffs upon the Plot No.2
 20 RCS No. 04/2025
Mahendrakumar and others
Vs. Nagar Panchayat +1
admeasuring 312.00 Sq. Mtrs. and it is in respect of unauthorized
construction of plaintiffs upon T shaped 12 Mtrs service road. Admittedly
construction permission dated 4.8.21 is issued for only Plot No.2 adm.
312. Sq. Mtrs and from perusal of List Exh-4, document No.4 to 6 i.e.
notice dated 11.3.25, 3.4.25 and 08.4.25 is seen that by this
correspondence defendant No.1 spot inspection and measurement of the
road and transpired that Plaintiffs made illegal
encroachment/unauthorized construction upon the 12 Mtrs service road.
Therefore it appears that notice dated 17.04.2025 is issued vide
directions in the matter of demolition of structures in series of notices
dated 11.03.2025, 03.04.2025 & 08.04.2025 so as to comply requirement
to give notice in accordance with municipal laws. Thus, aforementioned
correspondence shows that although only 12 Meter T shaped service road
is mentioned in notice dated 17.04.25 , previous notices shows sufficient
description i.e. S.No.75/2, Thus, the notice dated 17.04.25 shows that it
is issued in respect of illegal construction/ unauthorized construction of
the plaintiff upon the service road of 12 Mtrs other than the construction
of Plot No.2 area 312.00 Sq. Mtrs, which does not affect its construction.

25. It is the contention of Plaintiffs vide say Exh-36 that the road
is no more a service road as U.D.C.P.R. relevant page from 3.1.4 to 3.1.9
especially 3.1.6 shows that the development along the highways shall be
subject to the provisions of State Highways Act, 1965 and National
Highway Act, 1956. I have already gone through it. As per it, all the
classified roads passing through the Municipal Corporation/ Councils/
Nagar Panchayats shall be treated as city roads. The service road as
specified in 3.3.8 shall be provided along State and National Highways
on both sides. Where service road of 12 meter is already provided in the
adjoining land, such service road of the same width may be continued in
the development permission. Such service roads may not be insisted if it
has no continuity from junction to junction due to existing authrorized
development/construction. Thus, as per the arguments of Plaintiffs as the
 21 RCS No. 04/2025
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Vs. Nagar Panchayat +1
position of U.D.C.P.R. the service road is no more service road and it is
ciry road. However, it is not pleading that till date they have filed any
application for its conversion. Thus, by way of N.A. Permission dated
6.2.2009 T shaped service road admeasuring 851.52 Sq. is kept by the
plalintiffs in S.No.75/1, without keeping any other open space in the lay
out other than it. In absence of any pleading for filing the claim for
conversion of service road, Plaintiffs are estopped that it is not service
road. So also this ground it not taken in the plaint challenging the notice.
So also it appears that plaintiffs did not file reply of notice dated
17.04.2025 before the defendant No.1 on the grounds on which he has
filed the present suit.

26. Thus, the notice under section 53 (1) dated 17.01.2025

issued by the defendant No.1 is in series of previous notices and it is for
illegal construction/ unauthorized construction upon the T shaped
service road. It does not fall in any illegality or it does not seen that any
mandatory provision which creates loss to the Plaintiffs is not followed, it
does not affect any construction made by the Plaintiffs as per the
construction permission dated 04.08.21 on Plot No.2 admeasuring
312.00 Sq. Mtrs. Therefore, in view of the bar under section 149 of the
M.R.T.P. Act and as per my aforementioned discussion, I do not find any
exception to entertain the suit for its validity, non observing the
mandatory procedure causing loss to the Plaintiffs rights as pleaded in
the suit.

27. So far as concerned the arguments of learned advocate for

the plaintiffs for locus standi of defendant No.2 to file the present
application, Defendant No. 2 is joined in the present suit vide his
application Exh-22 being a proper party. In fact, it was required for
defendant No.1 to file the present application. Defendant No.1 pleaded in
his written statement to that effect. However, it did not file the present
application and surprisingly it is filed by defendant No.2 who is joined.
 22 RCS No. 04/2025
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Vs. Nagar Panchayat +1
Be that it may be once present application is filed in respect of
maintainability of the present suit, it is required for this Court to decide
the maintainability examining the plaint. In view of the bar u/s 149 of
the M.R.T.P. Act and case does not come under entertaining the suit and
passing the decision will be nullity. Thus, notice dated 17.04.2025 does
not affect any permitted construction on the Plot No.2 admeasuring 312
Sq. Mtrs out of S.No.75/1 of the Plaintiffs and it affects construction on
the T shaped service road kept by the plaintiffs admeasuring 858.48 Sq.
Mtrs. As the notice dated 17.04.2025 is issued by defendant No.1 causing
hurdle to Public in series of previous notices. Therefore, considering
above discussion, defendant No.2 filed the present application and that
the unauthorized construction of the plaintiffs is affecting the road i.e.
service road and considering that the notice dated 17.04.2025 is issued in
the directions of Hon’ble Apex Court In Re: Directions in the matter of
demolition of structures. Therefore considering facts and circumstances
of the present suit it would not be proper to reject the application for
mere technicality.

28. Thus considering aforementioned discussion, there is bar

under Section 149 of the Maharashtra Regional and Town Planning Act
and grounds mentioned in the plaint does not come under the exceptions
of settled principles of law so as to entertain jurisdiction for the limited
purpose. Hence, my finding to the Point No.1 is in the affirmative.

Point No.2 :-
29. In view of my finding as to Point No.1 as the suit is barred by
Section 149 of the Maharashtra Regional and Town Planning Act and it
does not come within the any of the exceptions. The plaint is liable to be
rejected. Hence, I pass following order.
 23 RCS No. 04/2025
Mahendrakumar and others
Vs. Nagar Panchayat +1
ORDER
1. Application Exh.30 allowed.
2. Plaint is rejected as barred under Section 149 of the
Maharashtra Regional and Town Planning Act vide Order VII Rule
11(d) of the Civil Procedure Code.
3. Earlier interim protection granted is hereby cancelled.
4. Decree be drawn up accordingly.
Digitally signed by
NAGESH PRABHAKAR
DESHPANDE
Date: 2025.06.19
15:21:21 +0530

Date: 18.06.2025. ( N. P. Deshpande )

Place : Kurkheda. Civil Judge Junior Division,
Kurkheda.