Gauhati High Court
Madhab Ch. Das vs Sabitri Rani Das on 21 February, 2017
Author: Prasanta Kumar Deka
Bench: Prasanta Kumar Deka
Page No.1
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
RSA 65 OF 2006
MADHAB CH. DAS
S/O LT. MONMOHAN DAS
R/O GABARDHAN BAGAN
WARD NO. 2 DHUBRI TOWN
P.O & P.S DIST DHUBRI ASSAM
- Appellant/Claimant
Versus-
1. SABITRI RANI DAS
W/O HAREKRISHNA DAS
On the death of Respondent No.2, his legal heirs.
2(i) Sri Ajit Das (Son)
2(ii) Smti Meera Rani Sarkar (daughter)
2(iii) Smti Reena Rani (daughter)
Vide Hon'ble Court's order dated 07.05.2007 in MC 962/2007
- Respondent/Opposite party
BEFORE
HON'BLE MR. JUSTICE PRASANTA KUMAR DEKA
Advocate for the appellant Mr. A L Mandal
Advocate for the respondent Mr. S Sarma
Date of hearing & Judgment: 21st February, 2017
JUDGMENT AND ORDER
(ORAL)
Heard Mr. A L Mandal, the learned counsel appearing on behalf of the appellant. Also heard Mr. S Sarma, learned counsel appearing on behalf of the respondent. RSA 65 of 2006 Page No.2
2. The appellant is the defendant in Title Suit No.201/1994 filed by the respondent/plaintiff for declaration and injunction. The fact of the case of the plaintiff/respondent are that they purchased the land measuring 2Ks 12 Dhurs equivalent to 13L's from one Smt. Biraja Basini Debi and others by registered sale deed No.2135/1939 and the land is described in the Schedule-A to the plaint. Smt. Shyamala Das, the mother of the respondent plaintiff No.2 purchased land measuring 3½ L's fully described in Schedule-B of the plaint from Smt. Jayati Kana Choudhurani and others by Registered Deed No. 2259 dated 21.02.1963 where after the possession was delivered accordingly. The Schedule-B land is possessed by Smt. Shyamala Das through her sons namely, plaintiff/respondent No.2 and Sri Tarapada Das. The plaintiff/respondents are possessing the Schedule-A and B land by constructing residential house with boundary walls. The defendant/appellant purchased the land described in schedule-C to the plaint which is situated on the eastern side of the Schedule-A land and on the northern side of the Schedule-B land. The defendant/appellant started construction of RCC building on his land encroaching upon the land and boundary walls of the plaintiff/respondents violating the standing provisions of Municipal Act and Rules. Though the plaintiff/respondent No.2 lodged a complaint before the Town and Country Planning Officer, Dhubri but no action was initiated. The plaintiff/respondents pleaded that the defendant/appellant has no right to erect any structure encroaching the land of the plaintiff/respondents in clear violation of the provisions of the Municipal Act and Rules. It is also further pleaded that the defendant/appellant started the construction of the RCC building without any proper building permission from the Municipal authority. As such the plaintiff/respondents had prayed for reliefs as follows:
"i. The suit be decreed declaring that the defendant cannot/do not construct building encroaching 'A' and 'B' Schedule land of the plaintiffs;
RSA 65 of 2006 Page No.3 ii. The suit be decreed declaring that the defendant has no right to construct building violating the provision of the Acts and Rules;
iii. A permanent injunction shall be granted restraining the defendant from constructing RCC building encroaching parts of 'A' and 'B' Schedule land of the plaintiff.
iv. A mandatory injunction order may be granted directing the Deft to demolish/remove the structures already constructed/construct after filing case, if any violating the provisions of the laws.
v. Costs etc of the suit and any other reliefs for which the plaintiffs are entitled to get in law and equity."
3. Initially, the suit was filed against the present appellant/defendant only. Later the Municipal Board, Dhubri represented by its Executive Officer was impleaded as defendant No.2.
4. The defendant/appellant, Madhab Ch. Das filed his written statement thereby denying the allegations made in the plaint. In the written statement, the appellant/defendant took the plea that the plot of land under possession of the plaintiff/respondents are not bounded by boundary walls and the plaintiff/respondents had encroached upon the land of the defendant/appellant. It is further pleaded that the defendant/appellant had already completed the construction of the RCC building on his own land and denied that there was any encroachment of the land of the plaintiff/respondents and further denied that there was any violation of the Municipal Bye Laws. It was denied that the defendant/appellant had no knowledge with regard to lodging of any complaint before the Municipal Authority. Thus, the defendant/appellant prayed for dismissal of the suit.
5. The Municipal Board as the defendant No.2 also filed a separate written statement and denied specifically that the said Municipal Board was not aware with regard to RSA 65 of 2006 Page No.4 encroachment of land by the defendant No.1 as alleged by the plaintiff/respondent. It was also pleaded that encroachment of land by one person of any others land does not come under the purview of the Municipal Act and Rules. However, it was pleaded that due permission was given to the defendant/appellant for construction of building within his own land in accordance with the provisions of Municipal Act and Bye Laws. Thus, defendant No.2 also prayed for dismissal of the suit.
6. Upon the pleadings of the parties to the suit, the learned Court of Civil Judge (Junior Division) No.1, Dhubri framed the following issues:
"1. Whether the defendant No.1 started construction by encroaching the plaintiff's land?
2. Whether the plaintiff's are entitled to get decree as prayed for?
3. To what relief/reliefs, the plaintiffs are entitled to get?
As per direction of the learned Appellate Court, i.e. Civil Judge (Sr. Divn) in Title Appeal No.14/2002, the following additional issue was framed"
4. Whether the defendant No.1 had constructed his building by violating the Municipal Act and Bye Laws?
7. During the trial one Prabhat Ch. Mazumdar was appointed as the Commissioner by the trial Court by issuing a writ (exhibit-7) to survey the land of the parties to the suit, boundary walls and RCC building on the Schedule-C land. The said Commissioner vide his report dated 25.01.1998 (exhibit-1) reported that the appellant/defendant while carrying out the construction of the RCC building left the side margin from the suit land of the plaintiff/respondent as follows on the North 1 feet 11 inches South 1 feet and starting from the southern side towards the northern side it was 1 feet 9 inches. The said report, exhibit-1 was supported with the trace map which is exhibit-2 and the notices issued to the parties to the suit including the Municipal Board. However, on the visit of the Commissioner, the Municipal Board represented by its concerned officer remained absent.
8. The plaintiff/respondents side adduced in all three witnesses including the Commissioner and the PW-3 was examined after the suit was remanded by the First RSA 65 of 2006 Page No.5 Appellate Court to decide the suit afresh by framing one additional issue. After the said remand the defendant side including the appellant/defendant never adduced any witnesses except cross-examining the witnesses of the plaintiff side. In fact, the defendant/appellant also failed to come to the witness box in order to support his pleadings. The Municipal Board also failed to adduce any evidence during the trial. The learned trial Court while deciding issue Nos. 1 and 4 and more specifically the issue No.4 came to the finding that the defendant/appellant had constructed his building by violating the Municipal Act and its Bye Laws. The trial Court came to the finding that exhibit-1 being the report of the Survey Commissioner prepared and proved by the PW-2 clearly revealed that the gap between the boundary wall of A and B Schedule land and the house of the defendant/appellant in Schedule-C land is less than 3 feet. Further it was also held that the defendant/appellant side in the cross-examination of PW-2 had not assailed that survey was not done properly as per the writ i.e. exhibit-7 and as such exhibit-1(Report) is not acceptable. So the learned trial Court held that there was violation of the Municipal Bye Laws in construction of the RCC building in as much as the minimum prescribed side margin in the Municipal Act from the boundary land of Schedule A and B land ought to have been 3 feet but from the report it is less than 3 feet. Finally, the learned trial Court decreed the suit thereby directing the defendant/appellant to remove the RCC building thereby keeping the side margin of 3 feet away from the boundary wall of Schedule A and B land.
9. Being aggrieved, the appellant/defendant preferred Title Appeal No. 19/2005 in the learned court of Civil Judge (Senior Division), Dhubri. The said First Appellate Court vide judgment and decree dated 23.12.2005 dismissed the appeal upholding the findings of the learned trial Court.
10. The First Appellate Court while dismissing the appeal came to the finding that the PW-2 (Commissioner) in his evidence (cross-examination) had distinctly said that the RSA 65 of 2006 Page No.6 defendant/appellant has constructed his house over his own land and had not constructed over the land of the plaintiff's. The First Appellate Court accordingly came to the finding that the defendant/appellant had not encroached any land or boundary wall of the plaintiff/respondent while constructing his house on his own land. The First Appellate Court considered the evidence of PW-3, who was examined subsequent to the remand of the suit by the learned First Appellate Court wherein the said PW-3 deposed in his chief that the defendant/appellant had constructed the RCC building keeping a gap of 1½ feet away from the boundary wall of their house. The First Appellate Court also took into consideration of the deposition of the said PW-3 that the water from the RCC building of the defendant/appellant falls on their own land but as the same was not in the pleadings the learned First Appellate Court did not consider the same. However, the First Appellate Court took into consideration with regard to the pleadings of the plaintiff/respondent that the defendant/appellant had constructed his building by violating the Municipal Rules and Bye Laws. The said First Appellate Court considering the report of the Survey Commissioner finally held that the defendant/appellant while carrying out the construction had failed to maintain the minimum gap (side margin) of 3 feet from the boundary wall of Schedule-A and B of the plaintiff/respondent and as such the defendant/appellant had violated the aforesaid Bye Laws of the Dhubri Municipal Board in carrying out the construction of the RCC building. Upholding the finding of the trial Court, the First Appellate Court dismissed the Title Appeal No.19/2005 vide judgment and decree dated 06.01.2006. Thereafter the present defendant/appellant has preferred this Second Appeal which was admitted on 10.05.2006 on the following substantial question of law:
"Whether the absence of any pleading in regard to an invasion or threatened invasion to the respondents/plaintiffs right or enjoyment to the property, a decree for Mandatory injunction is sustainable in law?"
11. Subsequently on 28.07.2016, this Court framed another substantial question of law:
RSA 65 of 2006 Page No.7 "Whether a suit for a decree of permanent injunction both in prohibitory and mandatory form is permissible in violation of Section 41(h) of the Specific Relief Act, 1963 in view of the fact that equally efficacious remedies are available under the Assam Town and Country Planning Act, 1959 as well as the Assam Municipal Act, 1956?"
Let us examine the Substantial Question of Law one by one:- Substantial Question No.1 "Whether the absence of any pleading in regard to an invasion or threatened invasion to the respondents/plaintiffs right or enjoyment to the property, a decree for Mandatory injunction is sustainable in law?"
12. Mr. A L Mondal, learned counsel appearing on behalf of the appellant submits that the plaint does not disclose any invasion over the plaintiff's right or enjoyment to their property and as such both the court below without considering the same was wrong in passing the decree for mandatory injunction directing the appellant/defendant to demolish the RCC building. Mr. Mondal submits that under Section 39 of the Specific Relief Act it is prescribed as to when the Court can pass a decree for mandatory injunction. The said Section 39 of the Specific Relief Act, 1963, Mr. Mondal submits that at first the acts complained of must be capable by a court in enforcing the same and there after the court can compel the performance of the requisite acts. In the present case in hand, both the courts below before passing the impugned judgment and decrees never even gave a finding to that aspect and as such there was failure on the part of both the courts below in invoking the jurisdiction under Section 39 of the Specific Relief Act, 1963.
13. Mr. S Sarma, learned counsel appearing on behalf of the plaintiff/respondent submits that there was specific averments in the plaint that the plaintiff/respondents purchased the plot of land both described in Schedule A and B and they are having their dwelling houses thereon and they are possessing the same. The defendant/appellant purchased the plot of land described in Schedule C of the plaint which is situated on the eastern side of A Schedule land and on the northern side of the B Schedule land. The defendant/appellant without RSA 65 of 2006 Page No.8 obtaining requisite building permission from the Municipal Board constructed the RCC building in clear violation to the Municipal Act and Rules. There is a duty cast upon the defendant/appellant to take proper permission from the Municipal Authority and to construct the same as per the plan approved by the concerned authority. As there was no such approved building plan the same had been constructed illegally and there is a duty cast upon the court to restrain the defendant/appellant to carry out such construction more so when the same has been constructed without due permission from the competent authority and that too in clear violation of the building rules. The court has a duty cast upon to prevent such illegal construction and compel the defendant/appellant to perform as per the rules and regulations prescribed by the statues. Mr. Sharma, therefore, submits that the substantial question of law No.1 is to be decided in the negative.
14. Perused the case record and the pleadings of the parties to the suit. The plaintiff/respondents pleaded that the defendant/appellant had carried out the construction without lawful permission from the Municipal Board, Dhubri and as such there was clear violation of the Municipal Rules prescribed by the building Bye Laws. Also perused the survey commission's report referred hereinabove wherefrom it transpires that the side margin in between the building constructed by the defendant/appellant and the boundary of the Schedule A and B land side margin ranges in between 1 feet to 1½ feet. In fact on one of the side as per the report there was no side margin at all. The defendant/appellant cross- examined the Commissioner, PW-2 but during the cross-examination it transpires that the report so submitted had not been questioned that it was in violation to the writ issued by the Court, exhibit-7. The defendant/appellant or the Municipal Board failed to adduce any evidence. The building permission which the defendant/appellant and the Municipal Board, Dhubri in their written statement pleaded to be issued as per law for carrying out the construction of the RCC building by the defendant/appellant has not been exhibited nor the RSA 65 of 2006 Page No.9 building permission is on the record. Under such circumstances, as there was a duty cast upon the defendant/appellant to disprove the allegation that the building was constructed without any building permission who even failed to come to the witness box and under Section 114(g) of the Indian Evidence Act, it can clearly be presumed that the defense taken by the defendant/appellant and the Municipal Board are false that there was no violation of building Bye Laws. Now considering the said presumption and the Commissioner's report with regard to the side margin it can very well be concluded that there is a violation of the side setback as prescribed by the notification dated 12.06.2010 of the Town and Country Planning Department, Government of Assam which prescribes a minimum 1.5 meters i.e. more than 3 feet. Now going back to Section 39 of the Specific Relief Act, 1963 there is an obligation on the part of the defendant/appellant to adhere to the building Bye Laws issued by the Town and Country Planning Department, Government of Assam and the courts below having found the said breach of an obligation to follow the building Bye Laws, the Court has the authority to compel the performance of said obligation in order not to cause inconvenience to the plaintiff/respondent. Moreover, as apparent from the reliefs in the Title Suit a specific prayer for mandatory injunction was prayed for directing the defendant/appellant to demolish/remove the structures if there is any violation of the provisions of the law. The purpose of the building Bye Laws is to cause convenience to the persons in the society and under such circumstances none observation of the building Bye Laws amounts to an "Act" which can be presumed as illegal and the Court has ample power within the ambit and scope of Section 39 of the Specific Relief Act, 1963 to correct anything which is illegal within the terms of the statue. Violation of the building Bye Laws by the defendant/appellant straightway leads to a presumption that the said act had caused inconvenience to the plaintiff/respondents in enjoying their property with convenience and that itself is sufficient for inference by a court of law that the said act of violation had RSA 65 of 2006 Page No.10 invaded the right of the plaintiff/respondents in enjoying their own property conveniently and as such it need not be pleaded specifically by the plaintiff/respondents. Accordingly, this substantial question of law is decided in the negative.
Substantial Question No.2:
"Whether a suit for a decree of permanent injunction both in prohibitory and mandatory form is permissible in violation of Section 41(h) of the Specific Relief Act, 1963 in view of the fact that equally efficacious remedies are available under the Assam Town and Country Planning Act, 1959 as well as the Assam Municipal Act, 1956?"
15. Mr. Mondal, learned counsel appearing on behalf of the appellant submits that the Assam Town and Country Planning Act prescribes an appellate authority under Chapter 8 of the said Act stipulating the duties and powers of the appellate authority to hear and decide appeal against the orders of the authority. Similarly Section 321 of the Assam Municipal Act, 1956 prescribes appeals from orders of Board to the appellate authority. Mr. Mondal as such submits that as the plaintiff/respondent has failed to appeal before the said forum so prescribed by the statue, under such circumstances, the plaintiff/respondent's suit for mandatory injunction is not maintainable under Section 41(h) of Specific Relief Act, 1963 in as much as the statutory appellate authority could have passed efficacious reliefs to the plaintiff/respondents as such the second substantial question of law is to be decided in favour of the appellant by holding that the suit of the plaintiff/respondent is not maintainable.
16. Per contra Mr. Sharma submits that though the plaintiff/respondent had lodged complaint against the illegal construction of the RCC building by the defendant/appellant, however, the said authority namely, the Municipal Board, Dhubri failed to take any action nor passed any order and under such circumstances the plaintiff/respondent finding themselves to be helpless had preferred the suit. Mr. Sharma submits that in order to explore the forum under Section 44 and 321 respectively of the Assam Town and Country Planning Act, 1959 RSA 65 of 2006 Page No.11 and the Assam Municipal Act, 1956 there were no orders passed by the Municipal Board to prefer the appeal in either of the said forum. So, this substantial question of law has no basis more so when the same was not pleaded in the written statement filed by the defendants.
17. Perused the case record. As held above no evidence was adduced by the defendant/appellant or the officials of the Municipal Board. Except the statements made in the written statement by the Municipal Board (defendant No.2)none of the officials came to the witness box in order to support the pleadings in its written statement. The case of the plaintiff/respondent is specific that they lodged complaint before the Municipal Board, Dhubri and there was no action initiated by them and as such even if there are equally effacious reliefs there is no bar for the plaintiff to come to the court seeking for a relief under Section 39 of the Specific Relief Act, 1963. In a full Bench decision Municipal Committee, Mentgomery Vs Master Sant singh reported in AIR 1940 Lahore 377 in a case with regard to objection to tax imposed by the Pubjab Municipal Act on the ground that it was ultra vires, the question similar to the one in hand was discussed with regard to Section 56 of the Specific Relief Act, 1877. It was held that the "equally efficacious" question whether the relief can certainly be obtained by any other usual mode of proceeding is a question of fact to be determined in each case on its own circumstances and no hard and fast rule can be laid down in the matter. It is a fact that complaint was lodged before the Municipal Board, Dhubri, no action was initiated and as such the plaintiff/respondent has filed the suit. Under such circumstances, Section 41(h) of the Specific Relief Act, 1963 cannot be a bar in filing the same before the Civil Court. As per the concluded facts, the plaintiff/respondent had moved the Municipal Board lodging the complaint of the illegal construction by the defendant/appellants and as there was no response by the Municipal Board, Dhubri so the RSA 65 of 2006 Page No.12 plaintiff/respondents had no other alternative but to come to the civil court. Accordingly, this substantial question of law is decided in the negative.
18. This Second appeal is accordingly dismissed.
19. Send back the case record.
20. No Costs.
JUDGE Rakhi RSA 65 of 2006