Kamdhenu Housing Co-operative Society v. Nagar Nigam
2003-11-18
S.P.KHARE
body2003
DigiLaw.ai
Judgment ( 1. ) THIS is plaintiffs appeal against the judgment and decree by which its suit for permanent injunction for restraining the defendant/municipal Corporation from demolishing the building constructed by the plaintiff has been dismissed. ( 2. ) IT is not in dispute that the plaintiff has constructed a building on Plot No. 196 in M. P. Nagar, Bhopal. It obtained the building permission dated 4-12-1986 (Ex. P-1 ). The plaintiff has, however, constructed the mezzanine floor and third floor without the permission of the Municipal Corporation. The defendant sent two notices under Section 307 (2) of the M. P. Municipal Corporation Act, 1956 (hereinafter to be referred to as the Act) to the plaintiff. The plaintiff has challenged those notices and sought the relief of injunction. ( 3. ) THE plaintiffs case is that it had submitted an application for condonation of the additional erection but that has not been considered by the defendant. The defendant denied that any such application for composition was submitted. ( 4. ) THE Trial Court held that the plaintiff has built second and third floor without permission from the Municipal Corporation. The plaintiffs case that it has applied for composition has been disbelieved as it did not produce the copy of the application and the map to show that any such application was submitted before the Municipal Corporation. ( 5. ) IN this appeal it has been argued on behalf of the appellant that the application along with the map for composition was submitted as per photocopy of the receipt dated 18-1-1989 (Ex. P-5 ). The original receipt has not been produced. This docs not bear the seal of the Municipal Corporation. The copy of the application and the map have also not been produced. Therefore, the finding of the Trial Court that no such application for composition has been submitted, is correct. ( 6. ) SECTION 308-A of the Act provides for compounding of offences of construction of buildings without permission. This section has been introduced in the Act in the year 1994. Even before this specific provision, the compounding of offences of construction of buildings without permission was being done by the Municipal Corporation, ( 7.
( 6. ) SECTION 308-A of the Act provides for compounding of offences of construction of buildings without permission. This section has been introduced in the Act in the year 1994. Even before this specific provision, the compounding of offences of construction of buildings without permission was being done by the Municipal Corporation, ( 7. ) THE Supreme Court has observed in Syed Muzaffar Ali v. Municipal Corporation of Delhi, 1995 Supp (4) SCC 426, that the mere departure from the authorised plan or putting up a construction without sanction docs not ipso facto and without more necessarily and inevitably justify demolition of the structure. There arc cases and cases of such unauthorised constructions. Some arc amenable to compounding and some may not be. There may be cases of grave and serious breaches of the licensing provisions or building regulations that may call for the extreme step of demolition. These are matters for the authorities to consider having regard to the nature of the transgressions. It is open to the petitioner in the present case to move the authorities for such relief as may be available to them at law. The petitioners may, if so advised, file a plan indicating the nature and extent of the unauthorised constructions carried out and seek regularisalion, if such regularisation is permissible. The dismissal of the petitions challenging the demolition orders in the present case, will not stand in the way of the authorities from examining and granting such relief as the petitioners may be entitled to under law. ( 8. ) THE decision of this Court in Mahadeo Prasad v. Municipal Corporation, Jabalpur, 2000 (3) M. P. H. T. 210, also lays down that the Corporation is created for the welfare of its citizens and notwithstanding, failure on its part to communicate to the petitioners their right to file application for fresh sanction or for compounding, shall invalidate its action but it is expected from the Corporation that before pulling down the structure, citizens are apprised of their right. This will build public confidence and create credibility for the institution. ( 9. ) IN the result the appeal is partly allowed.
This will build public confidence and create credibility for the institution. ( 9. ) IN the result the appeal is partly allowed. The plaintiff/society may submit a fresh application along with the requisite plan showing the construction in addition to the earlier permission and the defendant/municipal Corporation will consider this application keeping in view the sanction granted for buildings in the vicinity where the building in dispute is situated. The decree of the Trial Court is modified accordingly.