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2003 Supreme(MP) 749
IN THE HIGH COURT OF MADHYA PRADESH (INDORE BENCH)
A.K. Gohil, J.
Municipal Corporation and Anr.
Vs.
Col. Anil Kak and Anr.
Writ Petition No. 1062/2003
Decided On: 03.07.2003
For Appellant/Petitioner/Plaintiff: Z.A. Khan, Adv.
For Respondents/Defendant:Anoop Choudhary, Sr. Adv., i/b., Joon Choudhary and R.S. Laad, Advs., S. Bhargava, Sr. Adv., i/b., R. Bhargava, Adv. for Respondent No. 1 and A.K. Sethi, Adv. for Respondent No. 2
Headnote:
ORDER - injunction - 1956 vuqlkj fuf.kZr Lohd`fr (deemed sanction) - 109 of the Transfer of Property Act, 1882 - 295(3) of the M.P. Municipal Corporation Act, 1956 - 354 of the M.P. Municipal Corporation Act, 1956 - 16000 oxZQhV dh Hkwfe ij fd;s x;s fuekZ.k dk;Z ekufp= fnukad 28&6&2001 ds vuqlkj ugh adjsa vkSj u gh izfroknh uxj ikfyd fuxe] bUnkSj ds le{k Hkou vf/kdkjh mijksDr Hkwfe dks NksM+dj vU; fdlh Hkwfe ij dksbZ fuekZ.k dk;Z djus ds laca/k esa oknh vFkok fdlh vU; O;fDr ds i{k esa ekufp= Lohr djsaA
Fact of the Case:
The plaintiff, Anil Kak, obtained a lease for 16,000 sq. ft. of land and raised construction without valid building permission. The Municipal Corporation cancelled the building permissions granted to the plaintiff and the defendant. The Trial Court granted injunction on the constructed area, but the Lower Appellate Court granted injunction on the entire construction.
Finding of the Court:
The Trial Court's order was reasonable and protected the possession raised under a specific building permission. The Lower Appellate Court's order was without jurisdiction and contrary to the plaintiff's case. The plaintiff was only entitled to an injunction on the construction raised during the limited period of valid building permission.
Issues: The main issue was the validity of the building permissions and the entitlement to injunction over the construction. The Court also considered the applicability of the Bhumi Vikas Rules, 1984.
Ratio Decidendi: The plaintiff was only entitled to an injunction on the construction raised during the limited period of valid building permission. The Lower Appellate Court's order was without jurisdiction and contrary to the plaintiff's case.
Final Decision: The petition was allowed, the impugned order was set aside, and the Trial Court's order was restored with the addition of status quo on the construction raised during the limited period of valid building permission.
A.K. Gohil, J.
1. Being aggrieved by order dated 21-3-2002 passed by XIIth ADJ, Indore in Civil Miscellaneous Appeal No. 40/2001, arising out of the order passed on an injunction application filed by the plaintiff, by which the Trial Court granted injunction on 16,000 sq. ft. and in appeal by impugned order the Lower Appellate Court granted injunction on the entire construction, the Municipal Corporation initially had preferred a Civil Revision under Section 115, CPC, which has now been converted into a writ petition under Article 227 of the Constitution by order 12-5-2003.
2. The following facts of case are not disputed, as per the synopsis jointly submitted by the learned Counsel for the parties :--
11-8-98 : Lease agreement exercised by Sushri Sushilaraje in favour of plaintiff Anil Kak in respect of 4.8 acres of land situated at Khasra No. 60, Village Tejpur Gadbadi, Indore for a period of 10 years. The lease was renewable. Monthly rent of Rs. 1 lakh was payable by July, 1999.
15-8-88 & 21-11-98 : Letters written by Sushri Sushilaraje to plaintiff Anil Kak giving option to renew lease for a further period of 10 years.
12-4-99 : Sushri Sushilaraje applied for building permission for construction on block Nos. A & B.
13-5-99 : The Municipal Corporation, Indore granted building permission vide Dakhla number 380 (Annexure P-7) for construction on block Nos. A and B. Total permission granted on 2515 sq. metre = 21982 sq. ft.
2-8-99 : The competent authority Urban Land Ceiling, Indore vide Annexure P-8 directed Joint Director, Town & Country Planning Department and the Commissioner, Municipal Corporation, Indore that since the land bearing Survey No. 60 situated at Tejpur Gadbadi, Indore belonging to Sushri Sushilaraje is under Urban Land Ceiling and the case of assessment is pending and the discussion proceedings before the SDO are also under revision/review, therefore, the plan of land can not be sanctioned.
24-9-99 : By letter (Annexure P-9), the Municipal Corporation, Indore cancelled the building permission which was granted by Dakhla No. 380, dated 13-5-99 on the basis of the objection raised by competent authority, Urban Land: Ceiling, Indore vide its letter dated 2-8-99 (Annexure P-8).
15-10-99 : Sushri Sushilaraje executed one registered lease deed in favour of Anil Kak in respect of land admeasuring 16,000 sq. ft. out of the total land of 4.80 acres bearing Khasra No. 60 situated at Village Tejpur Gadbadi, Indore.
1-2-2001 : The Joint Director, Town and Country Planning vide Annexure P-10 sanctioned site plan of Sushri Sushilaraje.
8-3-2001 : Sushri Sushilaraje vide Annexure P-11 again applied for building permission to Municipal Corporation, Indore.
29-5-2001 : Vide Dakhla No. 160 (Annexure P-12) the Municipal Corporation, Indore granted conditional building permission on plot area of 26466 sq. metres and allowed total construction on 5553.74 sq. metres.
29-5-2001 : Sushri Sushilaraje Holkar vide Annexure P-14 submitted objections to Building Officer, Municipal Corporation, Indore that she had not applied for any building permission and permission under Dakhla No. 380, dated 13-5-99 was obtained on the forged document and her signatures were also forged.
2-6-2001 : The Municipal Corporation, Indore cancelled building permission No. 160, dated 29-5-2001 (Annexure P-15).
28-6-2001 : Vide Annexure P-16 plaintiff Anil Kak applied to the Building Officer of Municipal Corporation, Indore for grant of building permission along with map (Annexure P-17).
4-7-2001 : Sushri Sushilaraje filed objections (Annexure P-18) before Building Officer that permission for construction be not granted on plaintiff's application dated 28-6-2001.
8-8-2001 ; In Civil Suit No. 98-A/2001 VIth ADJ, Indore granted injunction (Annexure R-3) in favour of Anil Kak to the effect that defendant Sushri Sushilaraje Holkar shall not interfere in the peaceful possession of the plaintiff on land bearing Survey No. 60 situated at Village Tejpur Gadbadi, Indore admeasurin
