The Municipal Corporation v. A.S.OKA, J

JUDGMENT: JUDGMENT: ...Respondent A.S.OKA, J. CORAM: A.S.OKA, J. CORAM: A.S.OKA, J. CORAM: FEBRUARY 7,2005. DATED: FEBRUARY 7,2005. DATED: FEBRUARY 7,2005. DATED:

On 1st February 2005 I extensively Appeal. As sufficient time was not available on that day, Appeal was kept today for dictation of Judgment.

The challenge Appeal 13th January 2005 passed learned Judge City Civil Court a prayer Appellant -Plaintiff ad-interim injunction partly granted. The challenge Appellant City Civil Court notice 30th September 2004 issued Section 351 M.M.C.Act, 1888 (hereinafter referred Act)

10th November 2004 passed Assistant Commissioner Respondent-Corporation notice. The notice relates structure called - 2 - terrace described notice dated 30th September 2004. The learned Judge has protected only the terrace room from demolition.

The learned Counsel Appellant submitted ad-interim relief should extended existence 1975-1976. He placed reliance a Judgment learned Single Judge Gauhati High Court reported 1996 A.I.H.C. No. 2126 (Jadhav Chandra Das Vs. Gauhati Municipal Corporation others) Placing reliance Judgment submitted action demolition within reasonable should reasonable a governed Article 137 Limitation Act,

1963. He submitted existence sufficiently time, learned Judge should protected pending hearing Notice Motion. The learned Counsel Respondent-Corporation submitted documents annexed plaint itself unauthorizedly constructed. He submitted that no interference is called for.

With a appreciate submissions learned Counsel Appellant necessary averments plaint. The Plaintiff claims become entire property - 3 - structure situated 1974 virtue registered conveyance. He stated a building submitted through architect M/s.N.M.Barai approval granted Respondent-Corporation plans. He relied occupation certificate 18th November

1974. It stated plaint terrace situated premises annexed building premises consists ground mezzanine floor. In paragraph No.4 plaint, stated avoid misuse nuisance terrace room, Appellant constructed a M.S.Grills

1975. It stated terrace assessed municipal taxes. pertinent averment It plaint dispute constructed obtaining permission Respondent-Corporation. There specific averment submitted Appellant through M/s.N.M. Barai which was allegedly sanctioned was also in respect of the three sheds.

The Assessment record produced Appellant period between 1976 1982 terrace assessed municipal taxes. The extract inspection register 1981-1982 Respondent-Corporation existence sheds. Thus, existence

1982. As - 4 - existence terrace 1976, learned Judge protected same. The Appellant produced sanctioned plan. As stated earlier constructed accordance sanctioned plan. Moreover, existence is not shown in the assessment record prior to the year 1981-1982.

In Judgment of Gauhati High Court concerned, section 137 Limitation Act, 1963 cannot govern action demolition Respondent-Corporation. Article 137 article governs proceeding instituted parties Court law. I respectful disagreement learned Single Judge Gauhati High Court. It mention Apex Court M.I.Builders Pvt. Ltd. Vs. Radhey Shyam Sahu reported (1999) 6 S.C.C. page No.464 and particularly in paragraph No.73 thereof. The said paragraph read as thus : "73. The consideration unauthorised. bordering allottees discretion discretion High Court project original numerous decisions should directed condition. dismantling restoration This This appellant moulding person construction law. Stress relief. exercise Such cannot exercised Court builder almost prospective judicial a - 5 - Courts fetters. entitled illegality discretion accordance illegal demolished. encourages illegality. Judicial expediency. statutory rendered orders predilections Judicial the obligatory duties of the Mahapalika to construct and maintain parking lots. " parking discretion moulding exercised allowing solely perpetuates Unauthorised cannot There cannot Justice construction, compounded, law. guided Judges exercise judicial discretion discretion peculiar wherever principles. relief accordance As blocks guided out. wearing personal dispositions. required present

The Apex Court conclusion illegal structure erected without permission Competent Authority, demolished. I unless illegal structure tolerated accordance existing policies Respondent-Corporation, difficult accept the plea that as the construction is standing for a long time, it should be protected.

It injunction in mind temporary equitable discretionary relief. equitable relief cannot granted effect encouraging illegality. Therefore, learned Judge sheds were protected protection confined terrace room. The Appellant An - 6 - a equitable relief ad-interim injunction regards sheds. The reliance placed by the learned Counsel for the Appellant on the Judgment of Gauhati High Court is totally misplaced.

Hence, there is no merit in the Appeal. Appeal is dismissed with no order as to costs. Judge. Judge. Judge.