Municipal Corporation Gwalior vs Jagdish Prasad Saxena Died Thr. ...
2023 Latest Caselaw 16737 MP

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        IN THE HIGH COURT OF MADHYA PRADESH
                    AT GWALIOR
                      SECOND APPEAL (SA) No.392 of 2010
                      [MUNICIPAL CORPORATION GWALIOR THR.]
                                     Versus
               [JAGDISH PRASAD SAXENA DIED THR. Lrs.1 SMT. UMA & ORS.]

Dated :10-10-2023
      Shri Kamal Kumar Jain - Advocate for the appellant.
      Shri Anil Kumar Shrivastava - Advocate for the respondents/intervenors.

Shri Prakash Chandra Chandil - Advocate for respondent [R-1] [LR/S].

Heard on I.A.No.3884 of 2011, an application under Order 1 Rule 10 r/w. Section 151 of CPC filed by Radha Mohan Saxena, Girish Chandra Kulshrestha & Rakesh Chandra Agrawal.

This appeal is preferred against the judgment and decree dated 22.04.2010 passed by Fourth Additional District Judge, Gwalior (M.P.) in Civil Appeal No.3/2010 (Municipal Corporation Vs. Jagdish Prasad Saxena). By filing this application, it is submitted that initially Jagdish Prasad Saxena (Respondent) instituted a suit for declaration of right of construction over the land and also for declaring the ownership of the land (plot) situated at Anupam Nagar, Gwalior (M.P.) bearing Plot No.75. The permission for construction was initially dismissed by the Joint Director Town & Country Planning, Gwalior and, thereafter, the respondent filed a suit bearing Civil Suit No.7A/2009 before Tenth Civil Judge Class-II. Simultaneously, the present applicants filed a Public Interest Litigation bearing W.P. No.4623/2007 (PIL) in which the present appellant and respondent were party. The appellant was impleaded as Respondent No.5 and Respondent J.P. Saxena was impleaded as Respondent No.9 in that PIL. The said PIL was disposed

of vide order dated 09.09.2009 with following observations;

''In such circumstances we dispose of this petition with a direction to the respondents not to permit anyone to construct any house or building at a place which is reserved for park in the layout plan. The respondents no.8 and 9 are also directed not to construct their houses or buildings without obtaining permission from the Municipal Corporation and if it is found that any part of the building or house is construct by making any encroachment or contrary to the permission of the Municipal Corporation, the same shall be removed by the Competent Authorities. The respondents are also directed to maintain the park as proposed in the sanctioned layout plan and see that there is no encroachment in any portion of the land of park in future.'' The suit filed by respondent was decided finally on 5.11.2009 but the fact about passing the order dated 09.09.2009 in W.P. No.4623/2007 (PIL) was not disclosed by the respondent before the learned trial Court.

When the respondent J.P. Saxena started construction, the present applicants had submitted a Contempt Petition bearing Contempt Petition No.515/2010 against Commissioner Municipal Corporation, Gwalior and respondent J.P. Saxena respectively. The aforesaid contempt petition was disposed of on 23.02.2011 (Annexure A/2). Since the present applicants were party in the PIL and even in the contempt petition in the capacity of petitioners and the appellant and respondent were parties in both the petitions, hence, the present applicants are necessary parties in this second appeal and even of original civil suit. Therefore, instant application be allowed and the present applicants may be permitted to be impleaded as appellants no.2 to 4.

On the other hand, learned counsel for the respondent has vehemently opposed the application and argued that the applicants are

not the necessary party in this case. Further submission is that there is no averments in the application that the present applicants are authorized to represent the society. The applicants are challenging the revival of layout plan which is not the subject-matter of this civil suit. The said issues cannot be raised in this case. The only question in this appeal and suit for consideration is that whether the respondent got deemed permission for construction or not? The present appeal as well as civil suit cannot be converted into PIL. The plaintiff/respondent has not claimed any relief against the applicants and revival of layout plan cannot be challenged in this appeal, therefore, present application deserves to be dismissed.

Heard learned counsel for the rival parties and perused the material available on record.

It is well settled that the Plaintiff is the dominus litis, that is, master of the case. He is the person who has carriage and control of an action. The plaintiff is vested with the prerogative to choose the remedy, and the forum, as also put appropriate valuation to the relief.

In the case at hand, the argument of learned counsel for the applicants is that in PIL, the applicants were party, therefore, they are necessary party in this case. Further argument is that Anupam Grih Nirman Sahkari Sanstha is a registered Society. The layout plan for allotment and construction of houses was sanctioned on 29.01.1970. Thereafter, the plots were allotted and open land was demarcated as the park. The amended layout plan was sent to the Joint Direction Town & Country Planning which was opposed by the residents of Anupam Nagar Colony. The layout plan was dismissed on 03.04.1976. Thereafter, the Plot No.72 was allotted to J.P. Saxena, however, on

account of construction of temple on that plot another Plot No.74 was given to him by execution of Sultani Bainama. Since amended layout plan was dismissed on 03.04.1976, therefore, its revival on 04.07.2002 is contrary to law. Before revival of layout plan, no notice was given to Anupam Grih Nirman Sahkari Sanstha. The order of Joint Director Town & Country Planning dated 18.9.2001 in case no.43/1999-2000 is against the law. All these facts are required to be placed before the Court.

However, in this application, there is nowhere mention that Anupam Grih Nirman Sahkari Sanstha has authorized the applicants to represent the Society. The application is not filed by the Society itself. There is nothing on record to show that applicants are office bearers of the Society. The alleged illegality in revival of layout plan cannot be challenged in this Second Appeal which is admitted on following substantial question of law;

"Whether the trial Court without giving a finding with regard to the exceptions as mentioned under Section 295(3) of Municipal Corporation Act, 1956 was right in holding that there was a deemed permission in favour of the respondent".

Thus, in the light of above as well as when plaintiff has not claimed any relief against the applicants, their impleadment is not necessary for the determination of the real matter in dispute for effective and complete adjudication of the issues.

Consequently, I.A.No.3884 of 2011 is hereby dismissed. List the case in due course for final hearing.

(SUNITA YADAV ) JUDGE Vpn/-

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         Date: 2023.10.12 14:26:30 +05'30'