By accepting an undertaking, a person cannot be allowed to constrict maintain something, which is illegal, and contrary to law, merely by contending that the same will be demolished if the suit is dismissed. No construction can be raised without building plans being passed.
2. According to the petitioner, which is a Co-operative Housing Society, it had purchased plot No. 45 in T.P. Scheme No. 4, which was in Katargam in Survey No. 359/2 from Dhirajlal Gandhi, Pankajkumar Gandhi and Ajayakumar Gandhi. Price of Rs. 48,999/- was stated to have been paid to the said sellers and possession of a part of the land had been taken. It was further alleged that the plaintiff had obtained approval of the Lay Out plan of the defendant on 3rd of April, 1970 and the plan regarding construction was also approved by the respondent on 3rd Nov. 1972. The allegation of the petitioner herein was that when construction was started at the site, the original owners got an injunction issued against the plaintiff from the respondent herein against the construction. According to the plaintiff, construction had been raised upto the plinth level and injunction should be issued to the respondent, restraining it from removing the construction, which was existing on the said plots.
3. The trial court passed an order, directing the parties to maintain status quo. The said order was challenged by the respondents in appeal and by judgment dated 17th July, 1991, the District judge, Surat, allowed the appeal and set aside the order of status quo. It is against that order the present petition has been filed.
4. It is contended by the learned counsel for the petitioner that the building plan had been approved in the year 1972 and the petitioner was in occupation of the land and without a notice under Section 260(1)(a), what had been constructed could not be demolished. It is further submitted that the petitioner was prepared to give an undertaking to demolish if the suit, which was filed, was decided against the petitioner and, in this connection, reliance is sought to be placed upon the decision of this Court in the case of Gram Panchayat, Umergaon v. Navin C. Mehta, 1984 Guj LH 601.
5. From the facts found on the record, it is clear that a nortice under Section 260(1)(a) was issued by the Municipal Committee. The Committee is required to issue such notices only to those persons, whose names are recorded in the Municipal Register as the owners or occupiers thereof. Furthermore, admittedly, the building plan, which had been passed in the year 1972, had lapsed, though an application for renewal is stated to have been filed by the petitioner therein. What is also important to note is that the said building plans had been submitted and passed in the name of the previous owners and not in the name of the petitioner.
6. The decision in the case of Gram Panchayat v. Navin C. Mehta, (1984 Guj LH 601) is of little assistance to the learned counsel for the petitioner, because here, we are concerned with the case, where there is allegation of violation of the law and prima facie, it appears that the stand of the respondent is justified. By accepting an undertaking, a person cannot be allowed to constrict maintain something, which is illegal, and contrary to law, merely by contending that the same will be demolished if the suit is dismissed. No construction can be raised without building plans being passed but, in the present case, not only is the petitioner not a registered owner of the land in question, but valid building plans were not in existence. The construction, which was undertaken, was contrary to law and, therefore, action could and should have been taken under Section 260 of the Bombay Provincial Municipal Corporations Act. Under these circumstances, it was not correct for the trial court to have issued an interim injunction and the learned District Judge was right in his approach and in accepting the appeal.
7. For the aforesaid reasons, this petition is dismissed and the interim orders are vacated. Rule is discharged. There will be no order as to costs.
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Gujarat High Court
Swet Rajhansh Co-Operative ... vs Surat Municipal Corporation, ... on 30 April, 1994
Equivalent citations: AIR 1995 Guj 60, (1994) 2 GLR 1553
Bench: B Kirpal
1. The petitioner herein had filed a suit before the Civil Judge (Junior Division), Surat, for an injunction, to restrain the respondent from demolishing any construction, which had been raised by the petitioner, on a land situated within its jurisdiction.2. According to the petitioner, which is a Co-operative Housing Society, it had purchased plot No. 45 in T.P. Scheme No. 4, which was in Katargam in Survey No. 359/2 from Dhirajlal Gandhi, Pankajkumar Gandhi and Ajayakumar Gandhi. Price of Rs. 48,999/- was stated to have been paid to the said sellers and possession of a part of the land had been taken. It was further alleged that the plaintiff had obtained approval of the Lay Out plan of the defendant on 3rd of April, 1970 and the plan regarding construction was also approved by the respondent on 3rd Nov. 1972. The allegation of the petitioner herein was that when construction was started at the site, the original owners got an injunction issued against the plaintiff from the respondent herein against the construction. According to the plaintiff, construction had been raised upto the plinth level and injunction should be issued to the respondent, restraining it from removing the construction, which was existing on the said plots.
3. The trial court passed an order, directing the parties to maintain status quo. The said order was challenged by the respondents in appeal and by judgment dated 17th July, 1991, the District judge, Surat, allowed the appeal and set aside the order of status quo. It is against that order the present petition has been filed.
4. It is contended by the learned counsel for the petitioner that the building plan had been approved in the year 1972 and the petitioner was in occupation of the land and without a notice under Section 260(1)(a), what had been constructed could not be demolished. It is further submitted that the petitioner was prepared to give an undertaking to demolish if the suit, which was filed, was decided against the petitioner and, in this connection, reliance is sought to be placed upon the decision of this Court in the case of Gram Panchayat, Umergaon v. Navin C. Mehta, 1984 Guj LH 601.
5. From the facts found on the record, it is clear that a nortice under Section 260(1)(a) was issued by the Municipal Committee. The Committee is required to issue such notices only to those persons, whose names are recorded in the Municipal Register as the owners or occupiers thereof. Furthermore, admittedly, the building plan, which had been passed in the year 1972, had lapsed, though an application for renewal is stated to have been filed by the petitioner therein. What is also important to note is that the said building plans had been submitted and passed in the name of the previous owners and not in the name of the petitioner.
6. The decision in the case of Gram Panchayat v. Navin C. Mehta, (1984 Guj LH 601) is of little assistance to the learned counsel for the petitioner, because here, we are concerned with the case, where there is allegation of violation of the law and prima facie, it appears that the stand of the respondent is justified. By accepting an undertaking, a person cannot be allowed to constrict maintain something, which is illegal, and contrary to law, merely by contending that the same will be demolished if the suit is dismissed. No construction can be raised without building plans being passed but, in the present case, not only is the petitioner not a registered owner of the land in question, but valid building plans were not in existence. The construction, which was undertaken, was contrary to law and, therefore, action could and should have been taken under Section 260 of the Bombay Provincial Municipal Corporations Act. Under these circumstances, it was not correct for the trial court to have issued an interim injunction and the learned District Judge was right in his approach and in accepting the appeal.
7. For the aforesaid reasons, this petition is dismissed and the interim orders are vacated. Rule is discharged. There will be no order as to costs.
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