Sidhi Vinayak Investment Ltd. & ... vs Nagar Nigam, Bhopal & Ors.
2022 Latest Caselaw 9805 MP

                                                              1
                                      IN THE HIGH COURT OF MADHYA PRADESH
                                                   AT JABALPUR
                                                           BEFORE
                                         HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
                                                     ON THE 20th OF JULY, 2022

                                                FIRST APPEAL No. 217 of 1997

                                   Between:-
                                   SIDHI VINAYAK INVESTMENT LTD. & ANR.
                                   (MADHYA PRADESH)

                                                                                            .....APPELLANT
                                   (BY SHRI ASHOK LALWANI, ADVOCATE FOR APPELLANTS )

                                   AND

                                   NAGAR NIGAM, BHOPAL & ORS. (MADHYA
                                   PRADESH)

                                                                                         .....RESPONDENTS
                                   (SHRI KAPIL DUGGAL-ABSENT)

                              This appeal coming on for admission this day, th e court passed the
                        following:
                                                          JUDGMENT

This first appeal has been filed by the appellants/plaintiffs 2-3

challenging the judgment and decree dated 28.01.1997 passed by f 4th

Additional Judge to the Court of District Judge, Bhopal in Civil Suit No.18-A/80 whereby suit filed by the appellants/plaintiffs has been dismissed.

2. Plaintiffs instituted a suit for declaration and permanent injunction with the reliefs that it be declared that the order dated 27.11.1980 (Ex.P/6) is null and void and the defendants be restrained from demolishing the wall in question and from interfering in the construction of shops. Signature SAN Not 3. The defendants/respondents filed written statement denying the Verified

Digitally signed by S plaint allegations and contended that construction of the wall is unauthorized HUSHMAT HUSSAIN Date: 2022.07.21 10:55:50 IST

and illegal, as no permission was taken by the plaintiffs. It was contended that no permission was taken for construction of wall in question, therefore, order in question has rightly been passed. On inter alia contentions, the suit was prayed to be dismissed.

4. On the basis of pleadings, learned trial Court framed as many as five issues and recorded evidence of the parties and after due consideration of the same, learned trial Court held that the plaintiffs constructed the disputed wall illegally and without taking any permission from the concerned authority. It was also held that in absence of any permission for construction of wall, order dated 27.11.1980 (Ex.P/6) cannot be said to be illegal. With the aforesaid findings,

suit was dismissed by learned trial Court vide judgment and decree dated 28.01.1997.

5. Learned counsel for the appellants/plaintiffs submits that the order dated 27.11.1980 (Ex.P/6) is illegal, null & void and without jurisdiction. He further submits that because of nuisance and illegal activities being done on the open land by some unsocial elements, temporary wall was constructed over the land of the ownership of the plaintiffs, for which plaintiffs are ready to pay the compounding fees and if any demolition is done, same would be national loss. He further submits that instead of demolishing the wall, plaintiffs should be granted opportunity to file an application compounding the construction of the Wall. With the aforesaid submissions, learned counsel for the appellants prays for allowing of the appeal.

6. Heard the learned counsel for the appellants/plaintiffs and perused the record.

7. Following point for consideration is arising in this appeal:- " Whether, learned trial Court has committed any illegality in dismissing

the suit ?"

8. There is no dispute about transfer of ownership of plaintiff-1 in favour of plaintiff 2-3, who are appellants before this Court. While deciding issue nos.1 and 2, learned Court below has on the basis of material available on record and also on the basis of admission of the plaintiffs held that before raising construction of disputed wall, no permission was taken by the plaintiffs, therefore, it cannot be said that the order dated 27.11.1980 (Ex.P/6) is illegal or without jurisdiction. As has been observed by learned trial Court in paragraph no.10 of the impugned judgment, plaintiff in his cross-examination has admitted that he did not take any permission for raising construction of wall, which is necessarily required under Section 293 of the Municipal Corporation Act, 1956.

9. Section 293 of the Municipal Corporation Act, 1956 reads as under:-

293. Prohibition of erection or re-erection of buildings without permission.(1) No person shall-

(i) erect or re-erect any building; or

(ii) commence to erect or re-erect any building; or

(iii) make any material external alteration to any building; or

(iv) construct or re-construct any projecting portion of a building which the Commissioner is empowered by section 305 to require to be set back or is

empowered to give permission to construct or re-construct,-

(a) unless the Commissioner has either by an order in writing granted permission or has failed to intimate within the prescribed period his refusal of permission for the erection of re-erection of the building or for the construction or re-construction of the projecting part of the building; or

(b) after the expiry of one year from the date of the said permission or such longer period as the Commissioner may allow or from the end of the prescribed period, as the case may be:

Provided that nothing in this section shall apply to any work, addition or alteration which the Corporation may by byelaw declare to be exempt.

(2) If a question arises whether a particular alteration in or addition to an existing building is or is not a material alteration the matter will be determined by the Commissioner.

(3) Any person aggrieved by the order of the Commissioner in this behalf may appeal to the district court within thirty days of such order in the manner prescribed therefor and the decision of the district court shall be final.

10. In view of the aforesaid provision, there is no illegality in passing of the order dated 27.11.1980 (Ex.P/6) and accordingly, learned Courts below have also not committed any illegality in dismissing the suit.

11. However, it is observed that if the wall is still in existence and is not obstructing the way of anybody, then plaintiffs/appellants are at liberty to file an application for compounding under Section 308-A of the Municipal Corporation Act, 1956 and if such application is filed before the concerned Authority, then that shall be considered in accordance with law.

12. With the aforesaid observations, this first appeal is dismissed. However, no order as to costs.

(DWARKA DHISH BANSAL) JUDGE sh