Nanded Municipal Council vs Mohd. Yusuf S/O Mohd. Ramzan
2004 Latest Caselaw 452 Bom

JUDGMENT

A.S. Bagga, J.

1. This Second Appeal is filed by Nanded Municipal Council and arises out of the judgment and decree dated 30-7-1983, passed by Joint Civil Judge, Junior Division, Nanded in Regular Civil Suit No. 454/1981 and the judgment and decree dated 30-6-1986, passed by learned Additional District Judge, Nanded in Regular Civil Appeal No. 229/1983.

2. A suit was brought by present respondent/original plaintiff against the present appellant/Municipal Council, Nanded for perpetual injunction. The plaintiff intended to undertake construction of a wooden and tin shed on an open land belonging to Gurudwara Board, Nanded in Survey No. 25. This land admeasuring 25' x 30' from Survey No. 25 was taken by the plaintiff on lease. The plaintiff sent a notice under the provisions of section 189 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 (hereinafter referred to as 'the Act' for short). After having sent the aforesaid notice, he took water connection and applied for electricity connection to M.S.E.B. No Objection Certificate was obtained from defendant - Municipal Council. The Municipal Council neither granted the permission nor refused it. After having waited for specified period, the plaintiff undertook the construction work and completed it. He erected tin shed, to which Municipal Council, Nanded allotted Municipal No.1-12-462/1.

3. The Municipal Council, however, after sometime, issued a notice to the plaintiff for demolition of the tin shed. The case of the plaintiff in the trial Court was that this act of defendant Council was illegal and in contravention of the provisions contained in section 189(6) of the Act.

4. The suit was contested by present appellant Municipal Council. Admitting that the plaintiff was in possession of the land, over which tin shed was constructed by him and that the plaintiff had indeed applied for permission for raising tin shed over the suit plot, it was the case of the Municipal Council that it has decided to get the tin shed demolished. According to the Municipal Council, the notice of demolition issued by it was perfectly legal as the construction was in contravention of the provisions contained in section 189(6) of the Act. It was stated by the Municipal Council that the application of the plaintiff was referred by it to the Assistant Director of Town Planning and his opinion was sought. The Assistant Director had stated that the land of the plaintiff was reserved for laying railway line as per the sanctioned development plan of Nanded and permission for construction on this land could not be granted. It was the specific plea of the Municipal Council that plaintiff cannot take the help of section 189(6) of the Act and that the Municipal Council has right to take action under the provisions of section 189(8)(4) of the Act if the construction under the deemed provisions of section 189(6) was found inconsistent with any of the provisions of the Act or any rule or bye-law for the time being in force thereunder.

5. Learned trial Judge, after framing necessary issues, recorded the evidence. The plaintiff led evidence, but no witness was examined on behalf of the defendant Municipal Council. Learned trial Judge recorded the findings which included : that the plaintiff was lessee on the land admeasuring 20' x 30' from Survey No. 25 from Gurudwara Road; that the construction was made by the plaintiff after sending the requisite notice under section 189 of the Act; that the plaintiff's construction could not be said to be without permission. Learned trial Judge, however, further held that such permission could not have been granted as the land was shown to be reserved for laying railway line. Holding finally that the demolition of the said structure was necessary and that the Municipal Council was justified in getting the construction demolished, learned Judge proceeded to dismiss the suit.

6. Against the aforesaid judgment and decree passed by learned trial Judge, appeal came to be preferred by the present appellant/original defendant. Learned first appellate Court allowed the appeal and set aside the judgment and decree passed by learned trial Judge. The suit of the plaintiff came to be decreed and the defendant/Municipal Council, by the impugned order, was restrained from demolishing the plaintiffs shed on the land except by due process of law.

7. I have heard Shri Natu, learned counsel for the appellant and Shri Godhamgaonkar, learned counsel for the respondent. I have gone through the judgments of both the Courts below.

8. The facts in this case are not in dispute. The present respondent/original plaintiff is lessee on the land admeasuring 25' x 30' owned by Gurudwara Board, Nanded. He sent requisite notice under the provisions of section 189 of the Act for undertaking construction work. Since permission was neither granted nor refused, the original plaintiff proceeded with the construction work and completed it. He applied to M.S.E.B. for electric connection and took water supply and got the house number also. Thereafter the Municipal Council initiated action for demolition on the ground that no permission could have been granted for construction on the land as the land was shown to have been reserved for laying down the railway line in the sanctioned development plan.

9. On perusal of the provisions contained in section 189 in Chapter XII of Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965, it would be seen that a notice is required to be given to the Chief Officer by the person intending to start construction of a building. The expression "to construct a building" has been defined and it includes material alteration, enlargement of building, compound wall and fencing, conversion of a place for human habitation of any building originally not constructed for human habitation, addition of any rooms or other structures to building, etc.

10. No construction, of which notice is required to be given, as stated above, is permissible without giving a notice to the Chief Officer and any construction without such notice and permission is prohibited under the provisions of sub-section (8) of section 189.

11. If it is not done by the person after service of notice, the expenses incurred in this regard are recoverable from the person who has made the construction. The Chief Officer has been authorised to require the construction to be stopped and to require demolition of the construction already made. The demolition can be done by the Chief Officer also.

12. After notice is given to the Chief Officer by a person intending to construct, the Chief Officer may call for the information or additional information and/or documents and after receiving such information or additional information or documents, the Chief Officer can grant necessary permission under sub-section (4)(a) or (4)(b). Such permission can be refused under the provisions of sub-section (4)(d). The grounds on which permission can be refused are enumerated in the next succeeding section i.e. section 190 of the Act.

13. Sub-section (6) of section 189 declares that the person intending to construct building is entitled to proceed with the construction in respect of which notice under section 189(2) has been given after the expiry of said period from the date of additional information sought by Chief Officer is furnished by the person intending to construct.

14. Sub-section (8) of section 189 deals with the cases under which the Chief Officer may require the person constructing a building to stop such construction and demolish any construction already made after service of notice.

15. The construction can be stopped and demolished in the following cases :

1. If the construction was without permission of the Chief Officer.

2. Having received permission under clause (a) sub-section (4), the construction was found to be contrary to the plans and information furnished by the applicant under sub-sections (2) and (3)

3. Having received permission under clause (b) of subsection (4) if it was found to be contrary to the conditions imposed under that clause or contrary to plans and information submitted under subsection (2).

4. If the construction has begun under the deemed provisions of subsection (6), if the construction is contrary to the provision of sub-section (6).

16. Sub-section (6), as pointed out above, entitles construction to be undertaken if the Chief Officer fails to issue order under clause (c) or (d) of sub-section (4) within the period prescribed in that sub-section, provided that the construction is :

(i) In the manner specified in the notice which is served already and provided further;

(ii) that such manner is not inconsistent with any provisions of this Act or any rule or bye-law for the time being in force therein.

17. On careful perusal of sub-section (6) of the provisions contained in section 189, it would thus be clear that a person who has given notice to the Chief Officer for permission for construction has been made entitled to undertake the construction if he is not communicated rejection of the application or grant of such application, but the construction under this deeming provision is required in the manner specified by him in the notice earlier sent to the Chief Officer and such manner should not be inconsistent with any provision of the Act or rule or bye-law for the time being in force thereunder. Thus, what is given by one hand is tried to be taken by another.

18. The scheme of the whole section seems to be that a person bona fide intending to undertake construction work of a house and who has arranged for the money, plans and material for construction, should not be inconvenienced on account of delay on the part of the Chief Officer. Bona fide house builders are allowed to proceed with the construction after having sent required notice under section 189 and after having waited for the specified period. The permission in such cases is deemed to have been given. This deemed permission, however, cannot be used for illegal construction which is inconsistent with the provisions of the Act. Anything illegal such as contravention of the earlier notice as also any provisions of the Act is not permitted. A person undertaking construction on the basis of deemed permission, will have to satisfy himself that no provision of law is violated and the construction is done by him in the manner indicated by him in the notice which he has given under section 189. It would thus be clear that the Municipal Council or the Chief Officer or the authorities would not be prevented to proceed against the person who has made construction under the deeming provision in contravention of the provisions contained in the Act or rules or bye-laws in force under the Act.

19. Learned first appellate Court, in para 13 of the judgment, has observed that the construction of temporary shed made by the plaintiff is not illegal and that the defendant has no right to remove the same under the provisions of section 189(8) of the Act. In the considered opinion of this Court, the construction which is made under the deeming provision has got to be in accordance with not only the notice served by the person making the constructions but should also be not inconsistent with any provision of the Act or any rule or bye-law for the time being in force thereunder. The purpose of allowing a person to go ahead with the construction after the expiry of two months from the date of sending the notice is to safeguard the interest of bona fide law abiding persons. There is no presumption that everything done after sending of the notice is in accordance with the provisions of the Act. The constructions made under the deemed provision is required to be in accordance with the provisions of the Act. The Municipal Council cannot be prevented to go ahead in requiring the demolition of the construction if it is found that the permission could not have been granted or that the construction made was in contravention of the provisions contained in the Act or any rule or bye-law for the time being in force thereunder. The impugned judgment and decree dated 30-6-1986 passed by the first appellate Court is, therefore, required to be set aside.

20. In the result, the Second Appeal is allowed. The judgment and decree dated 30-6-1986, passed by learned Additional District Judge, Nanded in Regular Civil Appeal No. 229/1983 is set aside. The Municipal Council, Nanded can proceed against the respondent under the provisions of Section 189(8)(4) of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965. No order as to costs.