Rajasthan High Court - Jodhpur
Ramesh Kumar vs Bastimal on 23 August, 2018
Equivalent citations: AIRONLINE 2018 RAJ 961
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ No. 11097/2018
1. Ramesh Kumar S/o Ishar Ram, Aged About 24 Years, By
Caste Prajapat, R/o Subhash Colony, P.w.d. Road,
Sanchore, District Jalore.
2. Amjad s/o Ramjan Khan, Aged About 31 Years, By Caste
Musalman, R/o Behlimon Ka Bas, Sanchore, District
Jalore.
----Petitioners
Versus
1. Bastimal S/o Chhaganlal , By Caste Bokariya Jain R/o
Near Sbbj Bank, Raniwara Road, Sanchore, Tehsil
Sanchore, District Jalore.
2. Ramesh Kumar s/o Bastimal, By Caste Bokariya Jain R/o
Near Sbbj Bank, Raniwara Road, Sanchore, Tehsil
Sanchore, District Jalore.
3. Kantilal s/o Bastimal, By Caste Bokariya Jain R/o Near
Sbbj Bank, Raniwara Road, Sanchore, Tehsil Sanchore,
District Jalore.
4. Executive Engineer, Municipal Board, Sanchore, District
Jalore.
----Respondents
For Petitioner(s) : Mr.Suresh Shrimali
For Respondent(s) : Mr.O.P.Mehta
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Judgment Reserved on 01/08/2018 Pronounced on 23/08/2018
1. This writ petition under Article 227 of the Constitution of India has been preferred claiming the following reliefs:
(2 of 14) [CW-11097/2018] "It is, therefore, most respectfully prayed on behalf of the petitioner that this writ petition may kindly be allowed with costs throughout and the impugned order dated 21.07.2018 (Annex.11) passed by the Additional District Judge, Bhinmal, District Jalore, in Civil Misc. Appeal No.01/2018 may kindly be quashed and set aside and the order dated 07.12.2017 (Annex.9) passed by Sr.Civil Judge, Sanchore in Misc. Case No.18/2017 may kindly be restored.
Any other appropriate order or direction, which this Hon'ble Court considers just and proper in the facts and circumstances of this case, may kindly be passed in favour of the petitioners."
2. Brief facts of this case, as noticed by this Court, are that the plaintiffs/petitioners filed a suit for quashing and setting aside the permission dated 04.11.2016 granted by the Municipal Board, Sanchore, District Jalore to the private respondents/defendants for making a construction. The said suit also sought permanent injunction. The plaintiffs/petitioners claimed that private defendants No.1 to 3 were having a residential and agricultural land near SBI Branch, Sanchore, and for its conversion, the defendants approached the Municipal Board, Sanchore, and the Municipal Board, Sanchore, which is non-petitioner No.4, against the law, had granted permission for raising basement, first, second and third floor commercial building vide permission dated 04.11.2016, while accepting the proposition of conversion.
3. The plaintiffs/petitioners claimed that non-petitioners No.1 to 3 alongwith their residential patta, produced a registered document, which is a bada and recorded as agricultural khudkasht, and conversion of the same by the Municipal Board (3 of 14) [CW-11097/2018] into commercial was totally against the law. The plaintiffs also claimed that there was a road adjacent to the complex, which was said to be of 40 feet, while as per the Rajasthan Building Regulations, 2013, where the width of the road is less than 24 metres, the construction of a multi-storied complex cannot be permitted. Thus, the said permission for raising construction of the multi-storied complex was prima facie wrong, as the road in question was only 13.25 metres wide. The issues pertaining to the set backs and other Bye-laws were also raised.
4. Alongwith the plaint, a separate application was also filed by the plaintiffs/petitioners under Section 91 read with Order 1 Rule 8 of the Code of Civil Procedure, which was allowed by the learned trial court vide order dated 09.11.2017.
5. The plaintiffs/petitioners also filed an application for temporary injunction for restraining the private defendants from raising the construction on the basis of the aforementioned permission dated 04.11.2016 granted by the Municipal Board, Sanchore. The plaintiffs/petitioners further filed an application under Order 39 Rule 7 CPC for appointment of mauka Commissioner to submit his report, which was also allowed on 07.12.2017 by the learned trial court, with the following directions:
"Upto decision of the original suit, non-petitioners, by temporary injunction, are bound that in the disputed commercial places as per Section 194(5) of the Rajasthan Municipalities Act, unified building bye law 2017, relevant master-plan and as per the directions issued by the Rajasthan High Court in Gulab Kothari's case and against any legal provisions, would not raise any construction and non petitioner No.4 had directed (4 of 14) [CW-11097/2018] to not allow any construction by non-petitioners No.1 to 3 in disputed complex against aforesaid law and regulations."
6. Against the aforesaid order of the learned trial court, the private respondents/defendants filed an appeal before the learned appellate court, which was allowed vide order dated 21.07.2018.
7. Learned counsel for the petitioners has submitted that on a bare reading of the Rajasthan Building Regulations, 2013 alongwith Section 91 CPC, the act of the private respondents should have been intervened by the learned appellate court.
8. Learned counsel for the petitioners submitted that there was a clear violation of Section 194(5) of the Rajasthan Municipalities Act as well as Master Plan and the directions issued by this Hon'ble Court in Gulab Kothari's case, and thus, such construction could not have been permitted.
9. Learned counsel for the petitioners drew attention of this Court towards Section 194(5) of the Rajasthan Municipalities Act, which reads as under:-
"194(5). Where the application submitted under sub- section (1), pertains to a multi-storied building i.e. a building above height of fifteen meters, or any institutional complex or a commercial complex in an area of more than five hundred square meters, the Municipality shall obtain advice of the Regional Town Planner of the State Government, before granting the permission sought for and shall ensure that proposed plan and construction is not inconsistent with the rules, bye-laws and public convenience."
(5 of 14) [CW-11097/2018]
10. Learned counsel for the petitioners claimed that the procedure so laid down in the aforequoted provision was not followed, and thus, the conversion as well as permission so granted by the Municipal Board, Sanchore were unlawful. The lack of advice of the Regional Town Planner of the State was said to be one of the deficiencies in the procedure adopted by the Municipal Board.
11. Learned counsel for the petitioners further pointed out that the advertisement issued by the Municipal Board, Sanchore in the Dainik Bhaskar inviting objections, was only pertaining to the conversion of the land, and not pertaining to the permission in question. The applicability of the Unified Building Bye-laws, 2017 was also contested to the extent of its retrospectivity.
12. Learned counsel for the petitioners has argued that Section 91 of CPC was amended vide CPC Amendment Act, 1976, whereby the words "or other wrongful act affecting or likely to affect the public" have been inserted, widening the scope of the said Section to cover all wrongful acts, which affect the public, apart from nuisance.
13. Learned counsel for the petitioners further averred that the suit filed by the plaintiffs, after obtaining due permission under Section 91 of CPC by the learned trial court vide order dated 09.11.2017, was in accordance with law.
14. Learned counsel for the petitioners further submitted that the provision of Section 194(12) of the Rajasthan Municipalities Act used the words "may file an appeal", which does not take away the jurisdiction of the civil court.
(6 of 14) [CW-11097/2018]
15. Learned counsel for the petitioners has also drawn the attention of this Court towards Section 41(h) of the Specific Relief Act, 1963, which reads as under:
"41. Injunction when refused An injunction cannot be granted -
(h) when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust."
16. Learned counsel for the petitioners refuted the applicability of the aforesaid provision on the ground that the appeal is neither an equally efficacious relief, nor its acquiescence, which validates the excess of the statutory provisions.
17. Learned counsel for the petitioners has referred to the judgment rendered by this Hon'ble Court in Gulab Kothari Vs. State of Rajasthan, reported in 2017 (1) DNJ (Raj.) 147.
18. Learned counsel for the petitioners has also referred to the judgment rendered by the Hon'ble Apex Court in K. Ramadas Shenoy Vs. The Chief Officers, Town Municipal Council, Udipi & Ors., reported in AIR 1974 SC 2177, paras 27 to 30 of which read as under:-
"27. Counsel for the respondents contended that a mere grant of licence to construct a cinema causes no injury and the appellant would have no cause of action until the building would be actually used as a cinema. The appellant can challenge at the threshold when the Scheme which is framed for the benefit of the residents in that area is violated by the Municipality. The Municipality acts for the public benefit in enforcing the Scheme. Where the Municipality acts in excess of the powers conferred by (7 of 14) [CW-11097/2018] the Act or abuses those powers then in those cases it is not exercising its jurisdiction irregularly or wrongly but it is usurping powers which it does not possess. The right to build on his own land is a right incidental to the ownership of that land. Within the Municipality the exercise of that right has been regulated in the interest of the community residing within the limits of the Municipal Committee. If under pretence of any authority which the law does give to the Municipality it goes beyond the line of its authority, and infringes or violates the rights of others, it becomes like all other individuals amenable to the jurisdiction of the Courts. If sanction is given to build by contravening a bye-law the jurisdiction of the Courts will be invoked on the ground that the approval by an authority of building plans which contravene the bye-laws made by that authority is illegal and inoperative [See Yabbicom V. King [1899] 1 Q. B. 444].
28. An illegal construction of a cinema building materially affects the right to or enjoyment of the property by persons residing in the residential area. The Municipal Authorities owe a duty and obligation under the statute to see that the residential area is not spoilt by unauthorised construction. The scheme is for the benefit of the residents of the locality. The Municipality acts in aid of the scheme. The rights of the residents in the area are invaded by an illegal construction of a cinema building. It has to be remembered that a scheme in a residential area means planned orderliness in accordance with the requirements of the residents. If the scheme is nullified by arbitrary acts in excess and derogation of the powers of the Municipality the courts will quash orders passed by Municipalities in such cases.
(8 of 14) [CW-11097/2018]
29. The Court enforces the performance of statutory duty by public bodies as obligation to rate payers who have a legal right to demand compliance by a local authority with its duty to observe statutory rights alone. The scheme here is for the benefit of the public. There is special interest in the performance of the duty. All the residents in the area have their personal interest in the performance of the duty. The special and substantial interest of the residents in the area is injured by the illegal construction.
30. The High Court was not correct in holding that though the impeached resolution sanctioning plan for conversion of building into a cinema was in violation of the Town Planning Scheme yet it could not be disturbed because the third respondent is likely to have spent money An excess of statutory power cannot be validated by acquiescence in or by the operation of an estoppel. The Court declines to interfere for the assistance of persons who seek its aid to relieve them against express statutory provision. Lord Selborne in Maddison v. Alderson [1883] 8 App. Cases 467 said that courts of equity would not permit the statute to be made an instrument of fraud. The impeached resolution of the Municipality has no legal foundation. The High Court was wrong in not quashing the resolution on the surmise that money might have been spent. Illegality is incurable."
19. Learned counsel for the petitioners thus, drew attention of this Court towards the point that although the Municipal Board was acting in public benefit, but if it exceeds its powers conferred by the Act or abuses those powers, then in those cases, where it is not exercising its jurisdiction properly, the jurisdiction of the (9 of 14) [CW-11097/2018] court will be invoked, and any approval of the building plans so unlawfully made by the Authority, which contravene the Bye-laws made by the Authority, is illegal and inoperative.
20. On the other hand, learned counsel for the respondents has defended the impugned order passed by the learned appellate court on the ground that the private respondents were the lawful owners of the property in question, and were peacefully enjoying their possession by making a construction, after obtaining due permission from the Municipal Board.
21. Learned counsel for the respondents has further submitted that the permission given by the Municipal Board on 04.11.2016 was absolutely in accordance with law, and for that purpose, the necessary fee has also been paid by the private respondents to the Municipal Board.
22. Learned counsel for the respondents also submitted that the construction is 10 feet behind the building line and sufficient set backs have been left, as per the Rules.
23. Learned counsel for the respondents further submitted the Master Plan for Sanchore was yet to be finalized. Learned counsel for the respondents further submitted that the purview of public nuisance, as drawn by the petitioners, was not made out, and thus, the suit was not maintainable.
24. Learned counsel for the respondents defended the conversion and the permission granted by the Municipal Board.
25. Learned counsel for the respondents stated that in accordance with Section 194(12) of the Rajasthan Municipalities Act, the appeal was maintainable against the permission granted by the Municipal Board on 04.11.2016.
(10 of 14) [CW-11097/2018]
26. Learned counsel for the respondents also submitted that the petitioners were neither having any claim over the property in question, nor they were the neighbours to the property in question, and thus, they were not having any stake in the conversion or the permission for construction so granted to the private respondents/defendants by the Municipal Board, Sanchore.
27. Learned counsel for the respondents has further submitted that the petitioners were only claiming themselves to be the citizens of Sanchore, but have not claimed any affinity or have not reflected any immediate impact or affect upon them, regarding the property in question.
28. Learned counsel for the respondents has further submitted that the Unified Building Bye-laws, 2017 were not applicable in the present case.
29. Learned counsel for the respondents further submitted that there was a malice in the suit, as the petitioners are merely trying to sabotage the lawful construction of the private respondents.
30. Learned counsel for the respondents has further stated that an appeal lies before the Director, Local Bodies, under Section 194(12) of the Rajasthan Municipalities Act, and thus, the petitioners had an alternative remedy of preferring such appeal, and therefore, they were not entitled for the temporary injunction.
31. Learned counsel for the respondents justified the reason given by the learned appellate court in the impugned order on the ground that the construction was in accordance with the permission so granted by the Municipal Board, Sanchore. Learned counsel for the respondents has also shown to this Court the reply filed by the Municipal Board, which has defended the said (11 of 14) [CW-11097/2018] permission by re-affirming the fact that the aforesaid permission was strictly in accordance with law.
32. Learned counsel for the respondents has relied upon the following precedent laws:
(i) Manohar Lal (D) by LRs Vs. Ugrasen (D) by LRs. & Ors., reported in AIR 2010 SC 2210.
(ii) The Municipal Corporation of Delhi Vs. Suresh Chandra Jaipuria & Anr., reported in 1976 0 AIR (SC) 2621.
(iii) Kailash Chand Vs. Bajrang Lal & Ors., reported in AIR 1997 Rajasthan 205.
(iv) Rajendra Kumar Vs. Mahendra Kumar Mittal & Ors., reported in AIR 1992 Allahabad 35.
(v) K.S. Balasubramaniam Vs. S. Munuswamy, reported in 2000(2) CTC 417.
(vi) Municipal Board, Niwai Vs. Bhura & Ors., reported in AIR 2006 Rajasthan 114.
(vii) Abdul Wahid Vs. Manish Hansraj Chandaria & Anr., reported in 2012(4) Current Civil Cases 182 (Bom.).
(viii) K. Ramadas Shenoy Vs. The Chief Officers, Town Municipal Council, Udipi & Ors., reported in AIR 1974 SC 2177.
33. Apart from the aforesaid precedent laws, learned counsel for the respondents has also relied upon the judgment rendered by the Hon'ble Allahabad High Court in Chhedilal & Anr. Vs. Rajaram (deceased) through his LRs. & Anr., reported in 2007(69) ALR 824, whereby the Hon'ble Allahabad High Court has laid down the law that in view of the legal position that the Municipalities Act provides for a complete mechanism for redressal of the dispute arising therein, especially with regard to (12 of 14) [CW-11097/2018] grant and cancellation of licences, the jurisdiction of the civil court under Section 9 of CPC stands excluded by necessary implication and the civil court is not competent to entertain any suit directing the Municipal Board to cancel the licence granted. The Hon'ble Allahabad High Court, in the said case, has further noted that Section 41(h) of the Specific Relief Act, 1963 provides that an injunction cannot be granted when equally efficacious relief can be obtained by any other usual mode of proceeding. The relevant paras 40 and 41 of the said judgment read as under:-
"40. In view of the above legal position the Municipalities Act which provides for a complete mechanism for the redressal of the dispute arising therein especially with regard to grant and cancellation of licences, the jurisdiction of the civil court under Section 9 of the C.P.C. stands excluded by necessary implication and the civil court is not competent to entertain any suit directing the Municipal Board to cancel the licence granted.
41. Apart from the above Section 41(h) of the Specific Relief Act, 1963 provides that an injunction cannot be granted when equally efficacious relief can be obtained by any other usual mode of proceeding. The relief for cancellation of the licence to operate chakki and the kollhu can certainly be availed by the plaintiff-respondent by way of appeal under the provisions of the Municipalities Act. Therefore, the suit for mandatory injunction directing the municipal board to cancel the licence so granted was not even maintainable and the courts below were not competent to grant any injunction in this regard."
(13 of 14) [CW-11097/2018]
34. After hearing learned counsel for the parties as well as perusing the record of the case, this Court is of the opinion that the learned trial court, in its order dated 07.12.2017, granting temporary injunction, has merely said that any construction raised shall be in conformity with the provisions of the Municipal Law and the Town Planning Laws as well as the judgment rendered by this Hon'ble Court in Gulab Kothari's case (supra). The learned appellate court, this Court finds, has interfered only on the ground that the plaintiffs/petitioners were not having any case of balance of convenience and irreparable loss in their favour, as the petitioners were neither affected, nor had any claim over the property in question. The petitioners were not even the neighbour of the private respondents/defendants, and were proceeding only on the basis of public nuisance, and the same, if finally established, can have its own remedy.
35. This Court also finds that the learned appellate court has dealt with the issue of availability of alternative remedy under Section 194(12) of the Rajasthan Municipalities Act, before the Director, Local Bodies, and therefore, any invocation of the powers under Order 39 Rules 1 and 2 CPC was not called for.
36. This Court has also examined the precedent laws cited at the Bar.
37. Although the interference made by the learned trial court was very limited and the orders were passed only to the extent of binding the private respondents/defendants to the Municipal and Town Planning Laws, which they as it is would be, but the learned appellate court was right in saying that it was not a fit case on merit, for which the petitioners could enjoy temporary injunction.
(14 of 14) [CW-11097/2018]
38. The precedent laws cited by learned counsel for the petitioners are not applicable in the present case.
39. In view of the above, this Court makes it clear that the private respondents/defendants shall of course be bound by the Municipal and other Laws, but there is no requirement of any temporary injunction at this stage, and the final outcome of the proceedings shall govern the issue.
40. In light of the aforesaid observations, the present writ petition is dismissed and the impugned order dated 21.07.2018 passed by the learned appellate court is upheld.
(DR.PUSHPENDRA SINGH BHATI),J Skant/-
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