Gurmukh Singh v. Municipal Council Khanna & Anr.

The plaintiff/petitioner filed a suit for permanent injunction, restraining the defendant-Municipal Council, Khanna, from demolishing or cause to demolish in any manner any part of the building bounded on the East-property of owner, West-property of Rupinder Singh etc., North PWD land/GT Road and South property of Ramesh, shown in red colour in the site plan attached with the plaint bearing unit No.487, situated at Malerkotla Road Chowk, Khanna, Tehsil Khanna, District Ludhiana. The petitioner has, in fact, challenged notice No.3412 dated 19.1.2006, which was issued by the Municipal Council, calling upon the petitioner Civil Revision No. 6128 of 2009 -2- to show cause as to why the illegal construction be not demolished. The notice was said to be illegal, null, void, arbitrary, against the principles of natural justice as well as the provisions of the Punjab Municipal Act, therefore nonest in the eye of law. After the written statement to the plaint was filed by the Municipal Council, the petitioner availed four opportunities to file replication, however, on the last date given for filing of replication, the petitioner chose to file application for amendment of the plaint by invoking the provisions of Order 6 Rule 17 of the Code of Civil Procedure claiming therein that he wished to amend the plaint to incorporate following amendment: - “That sub para (L) of para No.11 be added as under: - (L) That that plaintiff constructed his property on the already purchased constructed property which was in existence even prior to the partition of the country and at the time of purchase the construction was already existence which is apparently from the sale deeds of the property purchased by the plaintiff and the said construction already in existence was at a distance of more than 100 feet from the verm of the G.T. Road and many other owners of the buildings known as Abhishek Banquet Hall. Swagat Benquet Hall (Bombay Sweets), Modern Motors, G.T. Road: - Near Bhattian Khanna, ICICI Bank building, near OBC Bank, Khanna, Rasoi Building near Punjab National Bank, Bank Colony, G.T. Road, Khanna, Gopal Singh Grewal Advocate building near Satkartar Electronics G.T. Road, Khanna, Punjab National Bank Ltd. near Kartar Singh and Sons, G.T. Road Khanna, UTI Building Civil Revision No. 6128 of 2009 -3- near Guruduwara Kalgidhar Sahib G.T. Road, Khanna, J.S. Complex Lalheri Road, Khanna, New Building under construction (Dr. Shamsher Singh Hospital) near Bus Stand, Khanna, Mehar Plaza Complex, G.T. Road, Khanna, Prem Vaishnoo Dhaba, G.T. Road, Khanna Building near UTI Bank (under construction), G.T. Road, Khanna, Malhi Palace, Khanna, house of Vijay Sharma, M.C. Khanna, have constructed their properties and got sanctioned site plan from the Municipal Council Khanna in the same fashion in which the plaintiff/applicant has got sanctioned the site plans from M.C. Khanna and the Municipal Authorities have not taken any action against those persons for the reasons best known to the officials of the Municipal Council Khanna and is obviously apparent from the prevalent circumstances of the present society that why the action is not being taken against them and the plaintiff asked for the details of the said buildings, their site plans, notice if issued u/s 195-D of the Punjab Municipal Act, their inspection notes, inquiries reports under the Right Information Act 2005, through various letters but the defendants have failed to furnish the information to the plaintiff/applicant as for as such the action being taken against the plaintiff/applicant is discriminatory, malicious, malafide and is so the notice issued to the plaintiff. That sub para (M) of the para No.11 be read as under: - (M) That the plaintiff has already submitted applications to the defendants to compound the matter and is so provided by Punjab Ordinance No.2004 in the notification dated 22.1.2004 for one Civil Revision No. 6128 of 2009 -4- time voluntarily disclosure and settlement of violations of the buildings construction in violation of the building by laws in the corporation and the Municipalities and in view of the said notification the drastic steps of demolition is unwarranted under law.” The case set up by the petitioner was, that as the case is at initial stage, therefore, no prejudice was likely to be caused to the defendant/respondents if the amendment was allowed. The amendment sought has been declined by the learned trial Court by holding, that the first amendment could not be allowed, as the petitioner could not claim right to protect the illegal construction by raising plea that there was violation of law by other residents also. The other amendment, which the petitioner sought, was with regard to notification issued by the State Government wherein one time voluntary disclosure and settlement of violations of the buildings constructed in violation of the building by laws was allowed. The petitioner was, thus, claiming, by way of amendment, that he had a right to get the construction compounded and sought amendment. The learned trial Court held, that the ordinance was of 2004 and was within the knowledge of the petitioner when he initially filed the suit. The learned senior counsel for the petitioner contended, that the impugned order passed by the learned Civil Judge (Junior Division), Khanna, cannot be sustained in law, as the amendment sought was necessary to determine the real controversy between the parties and to adjudicate the right of the petitioner as to whether he could retain the Civil Revision No. 6128 of 2009 -5- construction by invoking the Punjab Government Ordinance No.2004. It was also the contention of the learned senior counsel for the petitioner, was that it was not for the learned trial Court to have gone into the merit of the case, at the time of allowing the amendment, as it was for the party to prove the purpose for which the amendment was sought. Once the amendment was necessary for the just and proper adjudication of the case and was relevant to the controversy, the Court should have allowed the amendment sought. The learned counsel for the petitioner also contends, that the learned trial Court wrongly proceeded on the presumption, that amendment could not be allowed in view of the proviso to Order 6 Rule 17 of the Code of Civil Procedure for the reason that the trial had already commenced, therefore, the amendment was not to be allowed. The trial in this case had not commenced on the date of moving of the application for amendment, as it was moved prior to filing of the replication. Finding force in the contention raised by the learned counsel for the petitioner, notice was issued to the respondents. One of the pleas raised was, that amendment was to seek compounding of the constructions raised, stand was taken by the petitioner, that his application for compounding be directed to be considered by the defendant/respondents. The case was, therefore, adjourned, on the request of the learned counsel for the respondents to seek instructions, with regard to compounding of the constructions. The learned counsel for the respondents has placed on record the letter received by him from the Municipal Council, Khanna Civil Revision No. 6128 of 2009 -6- (Ludhiana) stating that the petitioner has not made any application for compounding of the constructions, therefore, his prayer cannot be considered. The petitioner at this stage cannot seek compounding as period mentioned in application has already expired. Under the Ordinance, opportunity was given to the parties to get the constructions compounded by voluntary disclosure scheme, which has not been availed by the petitioner. Once, the petitioner has taken a wrong stand in this Court that his application was pending with the Municipal Council, though it was not so stated in the pleadings, he has lost the right to seek discretionary relief under Article 227 of the Constitution of India, as person not coming to Court with clean hands cannot invoke extra ordinary jurisdiction of this Court. The learned trial Court was right in rejecting the application, as the petitioner in spite of application under Order 6 Rule 17 of the Code of Civil Procedure allowed the framing of issue. The amendment sought was merely to delay the proceedings, as it was not open to petitioner to seek amendment only to plead that other residents had also violated the law. Nor petitioner could seek amendment for compounding as no application was moved by the petitioner under the Ordinance. The petitioner otherwise seeks to restrain Municipal Council from performing statutory duty. No merit. Dismissed. July 30, 2010 R.S. (Vinod K. Sharma) Judge