Gujarat High Court
Manjulaben Kalidas Chauhan And Ors. vs Baroda Municipal Corporation on 6 March, 1999
Equivalent citations: (2000)1GLR467, 1999 A I H C 3337, (2000) 1 GUJ LR 467, (1999) 1 GUJ LH 812, (2000) 2 CIVLJ 657
Author: S.K. Keshote
Bench: S.K. Keshote
JUDGMENT S.K. Keshote, J.
1. The plaintiffs-petitioners have filed this revision application under Section 115 of the Code of Civil Procedure, 1908 against the judgment of 4th Extra Assistant Judge, Vadodara dated 17-9-1998 in the Misc. Civil Appeal No. 103 of 1996 filed by the defendant-respondent against the order of the Civil Judge (J.D.) Vadodara below Ex. 5 in the Regular Civil Suit No. 2029 of 1994 dated 29-1-1996 under which the temporary injunction as prayed for by them has been granted, which order is reversed.
2. The facts of the case in brief are that the disputed shop has been purchased by the plaintiffs-petitioners on 15-11-1991 from Prabodhchandra Kanaiyalal Parikh. It is a case of the petitioners that the shop was constructed in the year 1988 by Shree Organisers and Association, which has been initially allotted to the predecessor-in-title of the plaintiffs-petitioners.
3. It is a case of the defendant-respondent, the Baroda Municipal Corporation, Baroda that the disputed shop has been constructed upon the land meant for passage. It was an illegal and unauthorised construction made by the plaintiffs-petitioners. A notice under Section 260 of the Bombay Provincial Municipal Corporation Act, 1949 has been served upon the plaintiffs-petitioners to show cause as to why this illegal and unauthorised construction of the shop made in the passage should not be removed and demolished. A reply of this notice has been submitted by the plaintiffs-petitioners. Along with the reply to this show-cause notice, the plaintiffs-petitioners also filed an application in which the prayer has been made for regularisation and authorisation of this illegal construction of the shop. The regularisation of this illegal and unauthorised construction of the shop was sought to be prayed for on the ground, namely:
(a) They are the bona fide purchasers of the shop in question.
(b) They are doing their business in the disputed shop for more than 3-4 years.
(c) In case the construction has been removed or demolished they will be deprived of their livelihood.
It is not in dispute that the application filed by the plaintiffs-petitioners for regularisation of this illegal and unauthorised construction has been rejected by the respondent-Corporation. At this juncture, the plaintiff-petitioners filed Regular Civil Suit No. 2029 of 1994 in the Court of Civil Judge (J.D.), Baroda and along with the suit an application under Ex. 5 under Order 39 Rules 1 & 2 of Code of Civil Procedure has also been filed and prayer therein for grant of temporary injunction has been made. This suit has been filed for declaration and permanent injunction. The learned trial Court after hearing the learned Counsels for the parties under its order dated 28-1-1996 allowed the application Ex. 5 and the temporary injunction as prayed for therein that is to maintain status quo of the suit shop has been granted.
4. The defendant-respondent Corporation felt aggrieved of the order of the Civil Judge (J.D.), Vadodara filed Misc. Civil Appeal No. 103 of 1996 in the Court of District Judge, Baroda, which has been transferred to the Court of 4th Extra Assistant Judge, Vadodara for decision. This appeal came to be rejected under the order dated 17-9-1998 hence this Civil Revision Application before this Court by the plaintiffs-petitioners.
5. The learned Counsel for the plaintiffs-petitioners contended that the plaintiffs-petitioners are the bona fide purchasers of the suit shop and in case this shop is removed and demolished it will effect right to carrying on their business and as a consequence thereof deprival of livelihood. It has next been contended that this disputed shop has been constructed by the builder in the year 1988. It was allotted to the predecessor-in-title of the plaintiffs-petitioners. He started his own business, but he could not get success therein and he sold this disputed shop to the plaintiffs -petitioners by registered sale deed on 15-1-1991. They started their business in the year 1991 on the disputed shop. The learned Counsel for the petitioners by referring to these facts submitted that the Corporation has not taken any step for removal or demolition of the shop for more than six years from the date of the construction thereof and more than 3 years from the date of the purchase of it by the plaintiff-petitioners. This inaction or omission on their part amounts to acquiescence and they are further estopped from now taking any action for removal or demolition of this disputed shop.
6. The learned Counsel for the Corporation on the other hand contended that this shop has been removed and demolished. But the plaintiffs-petitioners again made the construction thereof. It has next been contended that it is an illegal and unauthorised construction and the plaintiffs-petitioners have been given the full opportunity of showing cause before the Corporation has taken decision for removal and demolition of the disputed shop. So, it cannot be said that the proper and full opportunity has not been given to the plaintiffs petitioners before removal and demolition of the disputed shop. It is not the case where any action in high-handedness is being taken. The request made by the plaintiffs-petitioners for regularisation of this illegal and unauthorised construction has also been considered. But it was not found favour with the Corporation. So, it is a case where the plaintiffs-petitioners have raised an illegal construction of the shop and this Court and the learned trial Court may not protect this illegal and unauthorised construction in exercising its discretionary powers and more so in its equitable jurisdiction. The learned first appellate Court has rightly interfered with the order of the learned trial Court and this Court may not interfere with that order in its revisional jurisdiction under Section 115 of the Code of Civil Procedure.
7. In rejoinder to the submissions made by the learned Counsel for the respondent, the learned Counsel for the petitioner submitted that it is a first time the Corporation has raised an issue that this shop in dispute has been removed and demolished by the Corporation and again the petitioners have made construction thereof. In none of the Courts below, this point has been raised and as such this Court may not permit the respondent to raise the new plea which is based purely on facts in the Civil Revision Application. So far as the matter on the merits is concerned, the learned Counsel for the plaintiffs-petitioners submitted that in this case a question of livelihood of the plaintiffs-petitioners who are the members of one family arises and till the suit is decided they may be protected by this Court.
8. I have given my thoughtful consideration to the rival contentions made by the learned Counsel for the parties in support of their cases.
9. On the facts there is no dispute between the parties except the fact of the removal and demolition of the shop in dispute and again construction thereof by the plaintiffs-petitioners. The learned Counsel for the Corporation during the course of the arguments has produced for the perusal of this Court, the necessary and relevant documents to touch the conscience of the Court that the shop in dispute has been removed and demolished by the Corporation and when again it has been constructed the action has been taken against the plaintiff-petitioners under Section 260 of the Act, 1947. I find sufficient merits in the contentions of the learned Counsel for the petitioners that this new plea has been taken first time by the respondent-Corporation in this revision petition. I also endorsed with the contentions of the learned Counsel for the plaintiffs-petitioners that this is not the plea purely of law but is of fact. It is understandable that the pure question of law may be permitted to be raised at any stage of the proceedings in an appropriate case, but in case, the plea based on the facts, then unless it is raised, in the trial Court ordinarily it should not be permitted to be raised in the appellate Court or revisional Court more so, when the matter is only at the stage of the grant of temporary injunction under Order 39 Rules 1 & 2 of Code of Civil Procedure. Though this broad proposition normally is acceptable, but there are few exceptions to this rule. However, I do not consider in this case to go deep on this question for the reason that otherwise also I do not find any merit in this Civil Revision Application. But, I cannot resist myself from observing one important fact that if it is correct that the Corporation has removed and demolished the shop in dispute and petitioners again constructed it, then this fact is within the knowledge of the plaintiffs-petitioners and non-disclosure thereof in the suit and the application Ex. 5 is very serious and in case the demolition and removal and then again construction of the shop is accepted to be correct, only on this ground the plaintiffs-petitioners would have disentitled themselves from getting any relief of the discretionary nature in equitable jurisdiction of this Court. This is the matter where on proof thereof would have fallen in the category of, "the plaintiff has not come up with the clean hands and their conduct is of dubious nature". Similarly, with holding of such an important fact, which is also equally very relevant and material in the case, by the officers of the Corporation also creates serious doubt in mind of this Court about their bona fide. There may be possibility that for oblique motives and reasons this important fact could not have been disclosed by them in the Courts below. On being asked by the Court the learned Counsel for the Corporation is unable to furnish any reasonable and satisfactory explanation for this serious lapse and omission on the part of the officers of the Corporation. It is not in dispute that the construction of the shop has been made in the passage. It is also not in dispute that on the passage legally no construction could have been put either by the builder or allottee or the subsequent purchaser thereof. The learned Counsel for the petitioner is also in agreement that the construction made by the builder of this disputed shop cannot be said to be legal and authorised. Leaving apart these undisputed facts otherwise also it is concluded from the application of the plaintiff-petitioners to the Corporation praying therein for the regularisation of this construction of the disputed shop, that it is an illegal and unauthorised construction. Admittedly, the application aforestated has been considered by the Corporation and it has been rejected. After the rejection of the application for regularisation of this illegal and unauthorised construction by the Corporation, the first and foremost step should have been, for a law-abiding citizen, to demolish this illegal and unauthorised construction but instead of doing so the plaintiffs-petitioners have acted otherwise. They have filed a suit in the civil Court for protection of this illegal and unauthorised construction.
10. I am constrained to observe here that in case an illegal and unauthorised coqstaiction is protected by the Courts and more so in exercise of their discretionary powers in equitable jurisdiction will amount to perpetuate illegality. Those persons who takes the law in their own hands, consider themselves above law and have gone to the extent of raising of illegal and unauthorised construction if are being protected by the Courts then certainly the peoples will get encouraged to indulge themselves in raising of the illegal and unauthorised construction. Equities do not favour the persons who made an illegal and unauthorised construction. If the constructions are being made in violation of the building rules, regulations and bye-laws and the Courts protect to such persons when the Corporation has taken action for removal thereof, there will be chaos and enforcement of these rules, regulations, bye-laws etc., will become very very difficult. The rule of law will not be there and much may be said against the judicial Courts also by the citizens that who violates the law, works contrary to the rules, regulations, bye-laws and takes the law in their own hands are being protected in the Courts. I do not find any substance in the contention that the plaintiffs-petitioners are being bona fide purchasers and even if the shop is illegally constructed they may be protected. Even if it is accepted that they are the bona fide purchasers, how far it has any relevance in this matter? If such a theory of bona fide purchasers are being made applicable to the illegal and unauthorised constructions, then it will be very very difficult for the Corporation to stop such construction what to say to remove these illegal and unauthorised constructions and acts, rules, regulations and bye-laws it has framed will become nugatory and unworkable. This is not a relevant consideration and on this ground no protection could have been given to the plaintiffs-petitioners.
11. The other contention raised that for more than 6 years from the date of construction of this shop, no action has been taken by the Corporation, it is suffice to say that it will also not legalise the construction of shop made illegally and unauthorised. It is not gainsay how so of long period an illegal and unauthorised construction is allowed to stand or continue by the Corporation it will not get automatically legalised or regularised. It continues to be illegal and unauthorised construction and the Corporation is within its competence and authority to take the appropriate action for removal or demolition thereof in accordance with law. In the case in hand the learned first appellate Court has rightly gone into the matter and appreciated correctly the legal position. It is a case where no protection could have been granted by the learned trial Court to the plaintiffs-petitioners and the learned first appellate Court has rightly quashed and set aside that order. In case, such a protection is granted then, I am in full agreement with the contention of the learned Counsel for the respondent that the Court will perpetuate the illegality which at least normally this Court will not do.
12. I am, at the cost of repetition, state here that it is an admitted case v. of plaintiffs-petitioners that the shop has been illegally and unauthorisedly constructed and application for regularisation thereof has also been rejected by the Corporation and in the presence of this admission of the plaintiffs-petitioners the only order would have been by the Courts below, below Ex. 5 of its rejection. In this case, the learned first appellate Court has not committed any illegality or material irregularity in exercise of its jurisdiction in passing of the impugned order, which calls for the interference of this Court under Section 115 of the Code of Civil Procedure.
In the result, this revision application fails and the same is dismissed with costs, which is quantified to Rs. 2,000/-.