1985 Supreme(MP) 766

IN THE HIGH COURT OF MADHYA PRADESH
V.D. GYANI, J.
Nand Krishore - Appellant
Versus
Nagar Palika Nigam - Respondent
M.A. No. 74 of 1985 (I)
Decided On : 26-04-1985

Headnote:(1) Municipal Corporation Act, 1956 (M.P.) – S. 307 (5) – unauthorised construction compounded and compounding fees charged – Corporation cannot take any action under.

       (2) Municipal Corporation Act, 1956 (M.P.) – S. 307 (5) – interim relief of injunction – cannot be granted without establishing conditions generally applicable to interim injunction.

       (3) Equity – one who seeks equity must come with clean hands.

        Short Note

       1. This Misc. Appeal arises out of the order dated 23 – 2 – 85 passed by Shri B.B.L. Agrawal VII the Additional Judge to the Court of District Judge. Indore in Civil Misc. Case No. 1/85 thereby confirming the ex – parte injunction order passed by the said Court on 2 – 1 – 85 thereby restraining the appellant non – applicant No.3 from making any construction with in 80' of the road on the land required to be kept open on Ravindranath Tagor Marg, South Tukoganj, Indore.

       Held: While referring section 307 (5) of the Act, the trial Court has overlooked the fact that there has not merely been compounding of the unauthorised construction but also recovery of Rs. 3,000/ – as compounding charges from the petitioner and its legal and consequences which prima facie appear to be far reaching but without expressing any opinion. Suffice it to say that the Corporation having permitted the petitioner to have the construction remain on the land so long as the development Scheme is not implemented it would not be in consonance with equity at least for the Corporation to seek removal of the construction In question contrary to the terms of the compounding order dated 10 – 5 – 1984.

       2. The removal notice dated 1 – 1 – 1985 moved under section 307 of the Act by the Corporation has been stayed in its operation by the appeal committed. As stated earlier, Basantilal has already filed another suit against the petitioner for vindication of his rights asking for similar reliefs and a competent Civil Court has passed an agreed order, one of the applicants having sworn affidavit in support of Basantilal's claim, before the civil Court, does not even remotely refer to any just proceedings. yet seeks a relief in equity. Such a conduct by itself is sufficient to disentitle him from claiming any relief in a Court of Equity. He who comes to the Court of Equity must come with clean hands. No one should be permitted to convert injunction matters into a game of hide and seek. It was the duty of the applicants to bring it to the notice of the trial Court that another matter seeking similar relief in respect of the same subject matter by the suit, was pending before the Civil Judge Class – II. The trial Court has also failed in its duty in not considering at all the certified copies of the proceedings and the order passed by the learned Civil Judge.

       3. As conduct of the parties have a vital bearing in claiming equitable relief, propriety demands that the trial court should have given due weight to the documents filed by the petitioner. There is yet another aspect of the matter which the trial Court has not taken into account. what is the subsisting legal right enforceable at law in favour of the applicants – respodents 3 and 4. They have not placed any material on record so as to show how their rights of enjoyment right and aim is either curtailed or obstructed.

       4. In absence of any such material, it is difficult to hold that they have any such subsisting legal right to claim injunction in their favour, their claim of being residents of 'Besant Mension' is not only dubious but also collusive. So far as the prima facie case is concerned the trial Court has based its finding solely on the allegations of construction against the terms of Development plan to quote from the impugned orders. The Applicants have alleged construction against the Development Plan. Therefore, find that the prima facie case of the applicants is made out.

       5. While referring to section 19 (5) of Negar Tatha Gram Nivesh Adhiniyam 1973 the trial Court has again overlooked the provisions of section 37 thereof. So far as the Corporation is concerned, it has already burnt its finder by compounding the unauthorised construction. Section 307 (5) of the Act speaks of an injunction for removal or alteration of any building on the ground that it contravenes any provisions of the ‘Act or the Bye laws ill de thereunder which is a matter of inquiry and the section it self makes provision for alteration' not necessarily removal. The trial Court has dealt with balance of convenience and 'irreparable injury' in a very cursory preventory manner without any reference to facts and rights of the applicants. in such circumstances, there could not be justification for an interim injunction as granted by the trial Court. The impugned order to say the least is wide off the track. The Court has proceeded on the erroneous assumption of scope and operation of different laws. Such as the Corporation Act and Nivesh Adhiniyam without adversing the individual rights of the applicants, their conduct which assumes importance in matters like injunctions. Section 307 of the Act as Indicated by its heading which reads as follows "Power to require removal or alteration of work not in conformity with bye – laws or any scheme or any otter requirement as alteration is the final relief which the District Court may grant. it is not indicative of an indicative relief, which the trial Court was dealing with while passing the impugned order. Such an interim relief cannot be granted without establishing and satisfying the conditions generally applicable to interim injunctions. Basantilal in his application for being made a party does not refer to the proceedings instituted by him in another Court of civil Judge Class I. The applicants respondents No.3 and 4 in their application do not even aver that there is any window or ventilator on the side where alleged construction is being made and other necessary details such as height of construction, size of the window or ventilator and the angle at which obstruction is either caused or likely to be camed, in absence of any such details, it is difficult to appreciate their grievance. The original applicants even do not indicate the nature of their occupation of the room whether as tenant or licensee as guests. In such circumstances, there in no case for any interim relief in favour of the applicant – respondents. Appeal allowed.