The respondent Corporation's advocate appears to
have filed say under his own signature on reverse side of
page Nos. 3 and 4 of the plaint. This novel way of filing of
written statement cannot be said to be pleadings of the party
because they are neither signed by the representative of the
Corporation nor there is verification of the same. Though
the suit is contested, there is no written statement as
required by the law. {Para 3}
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 427 OF 2005
Ashabai Murlidhar Karpe Vs The Municipal Corporation of Aurangabad,
CORAM : P.R. BORKAR,J.
DATED : 30.06.2009
1.
Heard Adv. Shri S.V. Gangapurwala for the appellant
and Adv. Shri R.S. Deshmukh for the respondent. This appeal
is preferred by the original plaintiff whose suit bearing
Regular Suit No.1788 of 2000 for perpetual injunction against
the respondent was dismissed by the learned Jt. Civil Judge,
Senior Division, Aurangabad on 30.07.2003, which judgment and
decree is further confirmed by the IV Additional District
Judge, Aurangabad, while deciding Regular Civil Appeal No.246
of 2003 on 13.12.2004.
2. Briefly stated it is case of the appellant that she
is owner and possessor of C.T.S. No.910, admeasuring 231
sq.mtr. Situated at Bhausingpura, Aurangabad. Earlier
Regular Civil Suit No.317 of 1993 (Narayan V/s. Municipal
Corporation) was filed against the respondent. During
existence of order of statusquo
passed in that suit the
Corporation demolished the suit house of the plaintiff. In
that case, there was compromise between the plaintiff and the
Corporation. Compensation of Rs. 43000/was
received by the
plaintiff from the Corporation. The appellant carried out
minor repairs and renovations in the structure over the suit
property for making the structure habitable and proper.
However, the respondentCorporation
gave notice dated
22.11.2000 under Sections 260 and 478 of the Bombay
Provincial Municipal Corporation Act, 1949 (hereinafter
referred to as “the B.P.M.C. Act”). According to the
plaintiff the notice is illegal and therefore the injunction
is sought for restraining the respondent and its employees
from implementing notice dated 22.11.2000 and from
demolishing the structure which is situated in the suit
property.
3. The respondent Corporation's advocate appears to
have filed say under his own signature on reverse side of
page Nos. 3 and 4 of the plaint. This novel way of filing of
written statement cannot be said to be pleadings of the party
because they are neither signed by the representative of the
Corporation nor there is verification of the same. Though
the suit is contested, there is no written statement as
required by the law.
4. The main question for consideration of this Court
is whether the impugned notice is illegal. The original
notice is at page No.20 of part “C” of the record and
proceedings. It shows that according to the Administrative
Officer of the Municipal Corporation, the appellant had
carried out illegal construction of two rooms of 10' x 12'
size and the construction was being made in cement hallow
blocks. The doors and windows were also fixed and work for
putting of G.I.C. Sheets on the roof was going on. Therefore
notice was given to explain within 24 hours regarding the
illegal construction. It is also stated that if no
explanation is received within the prescribed time, the
construction would be pulled down. The notice also bears at
its bottom the sketch showing the place of construction which
is being made.
5. In the plaint the appellant has admitted that he
was carrying out minor repairs and renovations. For
ascertaining whether what was being constructed by the
respondent was within ambit of Section 254 of the B.P.M.C.
Act or not, the appellant ought to have given details as to
what she was doing and what she meant by minor repairs and
renovations. If the repairs and renovations which she has
carried out are covered by Section 254 of the B.P.M.C. Act,
in that case the appellant ought to have given notice to the
Commissioner of her intention to make repairs or additions
etc. Admittedly, no such notice was given. It is also not
case that any plan, structural drawing etc. were submitted as
per Section 255 of the B.P.M.C. Act. Even in oral evidence
that is led by the appellant, nowhere it is explained what
‘repairs & renovations’ she was carrying out to make house
habitable and proper. Infact,
the examination in chief is
nothing but almost copy of the plaint in the form of
affidavit. So, on the material before this Court and in
absence of any details, it cannot be said that the repairs or
renovations which the appellant was carrying out was not
covered by Section 254 of the B.P.M.C. Act.
6. This appeal is admitted on the following
substantial question of law, which is framed by order dated
05.08.2008.
“That, when oral permission to construct
the house is proved by the evidence of PW 2 Narayan,
the plaintiff in R.C.S. No.317 of 1993, the Court
below has erred in discarding the same and in
holding that the construction is unauthorized and
illegal”.
7. At the time of arguments it is submitted that
earlier Regular Civil Suit No.317 of 1993 was filed by the
husband of present appellant. In that case statusquo
order
was passed. Inspite of the order to maintain statusquo,
the
house of the appellant was demolished and at that time there
was compromise. Respondent corporation paid Rs. 43000/as
compensation and the suit was withdrawn. It is said that at
that time major repairs and construction was carried out as
there was demolition. If we consider the evidence of P.W.2Narayan
(the husband of the appellant) which is at Exh.25, it
is clear that his evidence is regarding oral permission
granted to him in 1996 when said demolition was carried out.
It cannot be said that the Commissioner had given oral
permission for construction when the impugned notice was
given on 22.11.2000. Even assuming for a moment that such
permission was granted orally for the sake of arguments, the
scheme of Chapter XV of the B.P.M.C. Act nowhere contemplates
oral permission by the Commissioner on oral request. The
scheme shows that person intending to carry out additions and
other repairs, alternations within meaning of Section 254 of
the B.P.M.C. Act was to give notice, submit plan etc. under
Section 255 of the B.P.M.C. Act and then it is for the
authorities to either refuse the permission under Section 258
of the B.P.M.C. Act or grant permission. They may also carry
out inspection under Section 259. of the B.P.M.C. Act.
8. In my considered opinion, having regard to the
provisions of the B.P.M.C. Act and the sequence of the
events, it cannot be held proved that there was oral
permission of the Commissioner to carry out repairs in 2000.
Accordingly I answer the substantial question of law.
9. In the circumstances of the case, the appellant has
not come out with clean hands. She has not explained what she
meant by ‘minor repairs and renovations’ which she intended
to carry out and how Section 254 of the B.P.M.C. Act is not
applicable. In these circumstances, it is not possible to
interfere with the discretion used by the Trial Court and the
First Appellate Court in refusing to grant injunction which
is a discretionery relief.
10. At this stage the learned advocate for the
appellant seeks liberty for the appellant to approach the
officers of the respondents to file reply in response to
notice dated 22.11.2000 within period of two weeks. In the
interest of justice considering that the appellant is poor
person coming from socially lower strata of the society,
liberty is given to approach the concerned authority and
submit her reply in response to notice dated 22.11.2000
within two weeks. The interim protection granted to continue
for a period of three weeks. The authorities are directed to
consider the reply of the appellant, if filed, according to
the Law.
11. The Second Appeal is disposed of. Parties are
directed to bear their own costs.
[P.R. BORKAR,J.]
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