Only question of law which involves is whether the relief of permanent injunction in the nature it is granted is sustainable in law. The learned trial court granted relief of permanent injunction as under:
"(iii) The defendant, its agents and servants are hereby restrained permanently from demolishing the suit house and to that effect permanent injunction is granted."
Ex-facie, in the facts and circumstances of the case, and particularly against the public authority, such relief cannot be granted. It should not have been in the nature of restraining the defendant permanently from taking steps of demolition in any circumstance. If such relief is allowed to operate, it would permanently restrain the defendant from taking steps despite the fact that the plaintiff carries out illegal alteration or construction against provisions of C.N.C. Act. In that view of the matter, the appeal will have to be allowed partly by modifying the Judgment and decree passed by the learned trial court and confirmed by the district judge as under:
Defendant, his agents, servants are permanently restrained from taking steps like demolition etc. of the suit house on the basis of the notice no.238/EPS/Z-10 dated 3.4.2002. {Para 8}
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)
M.N. GILANI, J.
The City Of Nagpur Municipal Corporation Vs. Shailendra Kumar
Second Appeal No.39 of 2011
15th June, 2012
Citation: 2013(1) ALL MR 850,
Admit on the following substantial question of law:
(A) Whether the relief granted in the nature of permanent injunction restraining the defendant, his agents, and servants from demolishing the suit house, is sustainable in law, particularly when defendant is a public authority and acts under the provisions of the City of Nagpur Corporation Act and holds the power to demolish illegal construction whenever it is noticed?
Notice to respondent.
Mr. Gadhiya h/f Mr. Ghare, accepts notice on behalf of respondent.
With the consent of the parties, the appeal is heard finally.
This second appeal is directed against the judgment and decree dated 3.3.2003 passed by the Joint Civil Judge, Junior Division, Nagpur in R.C.S.No.838/2002 and confirmed by the District Judge-7 Nagpur in R.C.A.No.209/2003 by judgment dated 28.4.2010.
2. The facts in nutshell are thus- The plaintiff-respondent herein is owner of the house bearing Municipal Corporation No.77 Sheet no.77, City Survey No.1913, situated at Residency Road, Sadar, Nagpur which is described in detail in paragraph 2 of the judgment of the trial court [in short suit house]. The suit house was constructed by the respondent in the year 1984. On 3.4.2002 the notice was issued under section 286(2) of the City of Nagpur Corporation Act [in short C.N.C.Act] stating that construction of the house is not in accordance with the map. In turn plaintiff issued a statutory notice under section 384 C.N.C.Act, which was followed by the filing of the suit.
3. The defendant resisted the suit. The learned trial court framed as many as three issues. It was held that the notice dated 3.4.2002 was illegal and void since it was proved by the plaintiff that whatever construction carried out by the him, was as per sanctioned plan.
4. The first appellate court dismissed the appeal by confirming the findings of facts recorded by the learned trial court.
5. Mr. Kasat, learned counsel appearing for the appellant invited my attention to the blanket relief of permanent injunction granted in favour of the plaintiff, which according to him is unsustainable particularly in view of the fact that the defendant being a public authority and acting under provisions of law has a right to take cognizance of illegal construction whatever & whenever made. In that view of the matter, granting relief of permanent injunction in the manner in which it is granted is wholly unsustainable and tantamount to preventing defendant from acting according to law.
6. Mr. Gadhiya h/f Mr. Ghare, learned counsel appearing for the respondent supported judgment and decree. According to him there is concurrent finding of facts and in that view of the matter, any interference by this court will not be justifiable.
7. Mr. Gadhiya rightly contended that answer to issue no.1 and consequently to issue no.2 is purely based on the facts. After examining the evidence brought on record the learned trial court held that whatever construction carried out is as per sanctioned plan. This view of the trial court came to the affirmed by the first appellate court. In that view of the matter, in so far as this finding of the trial court is concerned, same cannot be be said to be unjustified. Consequently, the relief granted by the trial court dated 3.4.2002 appears legal, valid and justified in the facts and circumstances of the case.
8. Only question of law which involves is whether the relief of permanent injunction in the nature it is granted is sustainable in law. The learned trial court granted relief of permanent injunction as under:
"(iii) The defendant, its agents and servants are hereby restrained permanently from demolishing the suit house and to that effect permanent injunction is granted."
Ex-facie, in the facts and circumstances of the case, and particularly against the public authority, such relief cannot be granted. It should not have been in the nature of restraining the defendant permanently from taking steps of demolition in any circumstance. If such relief is allowed to operate, it would permanently restrain the defendant from taking steps despite the fact that the plaintiff carries out illegal alteration or construction against provisions of C.N.C. Act. In that view of the matter, the appeal will have to be allowed partly by modifying the Judgment and decree passed by the learned trial court and confirmed by the district judge as under:
Defendant, his agents, servants are permanently restrained from taking steps like demolition etc. of the suit house on the basis of the notice no.238/EPS/Z-10 dated 3.4.2002.
Accordingly appeal stands allowed partly in the above terms.
Parties are left to bear their own costs.
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