Judgment:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No.3532 of 2011 (O&M) Date of decision:
20. 01.2014 Punjab National Bank -----Appellant(s) Vs. Smt. Shashi Parbha & others -----Respondent(s) CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG1 Whether reporters of local newspapers may be allowed to see judgment?.
2. To be referred to reporters or not?.
3. Whether the judgment should be reported in the Digest?. Present: Mr. C.S. Pasricha, Advocate for the appellant. Mr. Suryakant Gautam, Advocate for respondents No.1 to 3. Mr. Ashish Gupta, Advocate for Mr. Vikram Singh, Advocate for respondents no.4. Mr. Chirag Kundu, Advocate for Mr. R.S. Kundu, Advocate for respondent no.5. --- RAKESH KUMAR GARG, J.
This is plaintiff’s second appeal challenging the judgments and decrees of the Courts below whereby its suit for mandatory injunction, directing the defendant-respondents to demolish the illegal construction with further relief of permanent RSA No.3532 of 2011 2 injunction restraining them from raising any further construction over the suit property has been dismissed. As per the averments made in the suit, the appellant is the tenant of respondent nos.1 to 4 on the basis of lease deed executed on 25.4.2005 between them. However, according to the appellant-Bank, it had taken a portion of the property, marked as ABCD, on rent, about 40 years ago and the portion marked by letters ABEF existing in front of the bank building has been used for parking Cycles and Scooters of the customers of the bank since the inception of the tenancy. Similarly, the portion marked by letters CGHI, is a part of the open space existing behind the bank building and the same is part and parcel of the tenancy. As per the lease deed, the landlords can only construct two toilets, one for males and one for females and a room for placing generator set of the plaintiff-bank in the north-eastern corner of portion marked by letters ABEF abutting to the G.T Road and the defendants have no right, title or authority to raise any personal construction, thereby jeopardizing the interest of the bank. As per further pleadings, no construction within the municipal area can be raised without getting the site plan approved from the municipal council. However, the defendant-respondents no.1 to 4 without getting the site plan approved have illegally and unauthorisedly started raising construction over the portion marked by letters ABEF, for which they have no right, title or authority whatsoever in utter violations of the terms of the lease deed. Moreover, they have also dug the RSA No.3532 of 2011 3 open portion marked by letters CGHI after demolishing the wall CD and left that portion abandoned. The strong room and locker room are adjoining to the said portion and any untoward incident can be happened. Thus, as per the pleadings, there arose continuous threat to the life and property of the officials of the appellant-Bank and the public money. All this was done by defendant nos.1 to 4 in collusion with defendant no.5. The defendants were requested to desist from raising illegal construction over the entire portion marked as ABCF and not to raise any construction in violation of the lease deed and also requested to fill the dug out portion marked as CGHI, but to no effect. Hence, necessity arose to file the instant suit. Upon notice, defendants No.1 to 4 contested the suit by filing joint written statement and raising various preliminary objections. It was pleaded as wrong that the property denoted by letters ABCD in the site plan was let out to the appellant-Bank and the description of the property which was let out to the appellant was as per Para 1 and Clauses XII and XIII of the registered lease deed and according to the map, appended with it. It was further pleaded that in terms of Clauses XII and XIII of the registered lease deed, space for generator room and two toilets have been provided to the appellant and the appellant has already vacated the back portion. The entire portion abutting the western and southern street was in the possession of respondents No.1 to 4 and the plaintiff was not enjoying the tenancy rights in respect of this RSA No.3532 of 2011 4 portion. Similarly, it was not enjoying the tenancy rights in respect of the portion marked by letters ABEF abutting the GT Road. It was further pleaded as wrong that front portion marked by letters ABEF was being used by the employees of the appellant-Bank as Cycle/Scooter Stand. Likewise, the portion marked by letters CGHI was not part of the tenanted premises. Rather, it was in possession of the defendant. It is the further averment on behalf of the respondents that in the portion marked as ABEF, construction work was already completed. It was denied that the defendants have no right to raise any personal construction on the proper in their possession. It was the further case of the defendants that they had already submitted site plan for sanction of new construction and as per law, such an application was not rejected within the stipulated period and therefore, it is deemed to have been sanctioned. Moreover, when two toilets and room for generator set were constructed, at that time, the appellant did not raise any objection regarding sanction for the new construction and they were using the same. According to the respondents, the construction in the portion marked as ABEF is as per the municipal rules. The remaining averments were denied and dismissal of the suit was prayed for. Defendant no.5 in its written statement submitted that no construction within the municipal area can be raised without getting the site plan approved from the Municipal Council and it has RSA No.3532 of 2011 5 right to demolish such an illegal construction. On coming to know about the unauthorized construction of respondents no.1 to 4, the Municipal Council issued notice under Section 208 of the Haryana Municipal Act and stopped the construction at the initial stage. Thereafter, respondents no.1 to 4 submitted a site plan to get the same sanctioned, but it was not sanctioned. At that time, no construction was being raised by respondents no.1 to 4 and if there was any illegal construction, the same deserves to be demolished. Collusion between them has been denied. It has been further stated that the site plan was not sanctioned due to non-completion of the required formalities. All other please were denied. Plaintiff filed replication to the written statement of defendants No.1 to 4, controverting the averments made in the same and reasserted the pleadings made in the plaint. On the basis of pleadings of the parties, following issues were framed:- 1. Whether the plaintiff is entitled to recover the relief of mandatory injunction directing the defendants to demolish incomplete construction constructed over the portion marked by letters ABEF and to fill the digged portion marked by letters CGHI, as detailed and described in the head note of the plaint?. OPP.
2. In case issue No.1 is proved in affirmative, then whether the plaintiff is entitled to the relief of permanent injunction, as alleged in the plaint?. OPP. RSA No.3532 of 2011 6 3. Whether the suit is not maintainable in the present form?. OPD.
4. Whether the plaintiff has no locus standi and cause of action to file the present suit?. OPD.
5. Whether the suit has not been filed by the duly authorized person?. OPD6 Whether the plaintiff is estopped from filing the present suit by its own act and conduct?. OPD7 Relief. Parties proceeded further with the trial and led their respective evidence. On analysis of evidence so adduced and hearing counsel for the parties, the trial Court dismissed the suit vide impugned judgment and decree dated 7.12.2010. While dismissing the suit, the trial Court observed as under:- 11. In the present case, it is the admission of the defendants No.1 to 4 that the plaintiff bank is a tenant under them. There is a dispute regarding the area of the tenanted premises. As per the contention of the plaintiff bank the portion marked by letters ABCD as shown in the site plan Ex.P1 is under the tenancy of the plaintiff, whereas as per the contention of the defendants No.1 to 4 the area as shown in para No.2 of the written statement on merits is under the tenancy of the plaintiff bank. The area as shown in the site plan Ex.P1 and denoted by letters DCIM and ABEF is not under the tenancy of the plaintiff bank. There is no dispute regarding the lease deed Ex.P2. PW1 Shri H.L. Jhamb, Senior Manager has admitted in the cross examination that the attested copy of the lease deed is Ex.DX and as per lease deed Ex.DX a portion 4007 square feet is in the possession of the plaintiff as a RSA No.3532 of 2011 7 tenant. This witness has also admitted in the cross examination that the rear vacant portion and front vacant portion as shown in the site plan Ex.Pl is not under the tenancy of the plaintiff bank. He has also admitted in the cross examination that the plaintiff bank used to pay the rent to the defendants No.1 to 4 in the area measuring 4007 square feed and no rent is being paid by the plaintiff bank of the front and rear open area. I have perused the rent deed Ex.DX, wherein the boundary of the tenanted premised has been shown and the same is as follows: North : Property of Shri Madan Lal Grover, South : Road; East : Property of lessors and then G.T.Road; West : Property of lessors. From the perusal of the description mentioned above, it reveals that in the front portion of the building there is a land of defendants No.1 to 4 in between the land of the G.T. Road and in the rear portion of the building there is a land of defendants No.1 to 4. Admittedly plaintiff is not paying any rent of the front and rear vacant portion of the disputed property. The plaintiff has no right over the property which has been shown by letters ABEF and ICDM in the site plan Ex.Pl. The plaintiff is only concern with the property which was given on rent by defendants No.1 to 4.
12. Defendants No.1 to 4 are the owners in possession of the land denoted by letters ABEF and ICDM. They have every right to use this land as per their wishes. Plaintiff has no right to ask the defendants No.1 to 4 not to use the land.
13. It is not the case of the plaintiff that by raising the construction in the portion denoted by letters ABEF the entrance gate of the plaintiff bank has been closed by RSA No.3532 of 2011 8 defendants No.1 to 4. Rather it is the admission of the plaintiff that defendants no.1 to 4 have left the vacant portion for the entrance in the bank building. In the plaint it is no where mentioned that due to the construction raised by defendants No.1 to 4 any type of interference has been created with the plaintiff bank. The plaintiff bank has not claimed any easementory right. Moreover, the plaintiff bank being a tenant cannot claim any easementory right in the land denoted by letters ABEF and ICDM.
14. As far as the construction raised by defendants No.1 to 4 is concerned it is correct that defendants No.1 to 4 has raised the construction in the disputed portion. It is the admission of DW1 Amit Rai that they have raised the construction in portion of building denoted by letters CIGH. It is also the admission of DW1 Amit Rai that the site plan submitted by them rejected by the municipal Council, Panipat. It is also the admission of the DW1 Amit Rai that in the proposed site plan submitted by them they have shown front and read portion as open land. Despite the admission of DW1 Amit Rai, I am of the considered opinion that the plaintiff has no right to ask the court to direct the defendant No.5 to demolish the construction raised by defendants No.1 to 4. There is no dispute regarding the law laid down in case titled Dalip Kaushal and another Vs. State of M.P. and others, referred by the learned counsel for the plaintiff but on this point the case law titled krushna Kishore Bal Vs. Sankarsan Samal and others AIR1974Orissa 89, referred by the learned counsel for defendants No.1 to 4 is more applicable. In this case law the Full Bench of the Hon'ble Orissa High Court has held that :- "Mere violation of municipal rules does not give a cause of action to the adjoining owner."
RSA No.3532 of 2011 9 If the defendants No.1 to 4 have violated any provisions of Municipal Act or Building Bye Laws in that case it is open for defendant No.5 to take necessary legal action against the defendants No.1 to 4. From the perusal of the case filed, it reveals that defendants No.5 has already issued a notice under section 208 of the Municipal Act in respect of the alleged unauthorized construction raised by defendants No.1 to 4. To my mind no direction can be issued by this court to defendant No.5 to demolish the alleged unauthorized construction raised by defendants No.1 to 4. The defendant No.5 has a right to take necessary legal action against the defendants No.1 to 4. In this regard no relief can be granted in favour of the plaintiff. The plaintiff just concern with the premises which was let out to the plaintiff by defendants No.1 to 4.
15. In view of my above discussion and observations, I am of the considered view that the plaintiff is not entitled for the relief of mandatory injunction and therefore, no relief can be granted in favour of the plaintiff. With these observations, both these issues are decided against the plaintiff. Against the aforesaid judgment and decree of the trial Court, the plaintiff filed appeal before the first appellate Court which was also dismissed vide impugned judgment and decree dated 18.5.2011. While dismissing the appeal, the lower Appellate Court affirmed the findings of the trial Court on all the issues. RSA No.3532 of 2011 10 Still not satisfied, the appellant has filed the instant appeal, submitting that following substantial questions of law arise in this appeal:- a) Whether the Ld. Lower appellate court had erred in not following the full bench judgment of the Hon'ble Madhya Pradesh High court relied upon by the plaintiff / appellant ?. b) Whether the action of the Ld. Courts below in not granting the injunction as prayed for to the Plaintiff/Appellant despite the fact that the plaintiff had filed the suit for permanent and mandatory injunction and it has been proved on record that the action of the defendant / respondents No.1 to 4 was illegal and without obtaining the sanctioned plan and to the detriment of the plaintiffs ?. c) Whether the judgments and decrees of the Trial court and the Ld. Lower Appellate court are sustainable in view of the fact that there is complete misinterpretation of the legal rights of the plaintiffs and the civil wrong being carried out by the defendants/respondents”. In support of his case, learned counsel for the appellant has vehemently argued that admittedly, the respondents No.1 to 4 were raising construction without any sanction from the municipal authorities which is in utter violation of the municipal laws and the construction so raised blocks the light, air and the entrance of the tenanted premises which the appellant was enjoying for the last 40 years and thus, the Courts below have erred while non-suiting the RSA No.3532 of 2011 11 appellant, because it is the bounden duty of the Courts to get the illegal action stopped by granting suitable relief. However, the Courts below have failed to follow the judgment of the Madhya Pradesh High Court in the case of Dilip Kaushal & anr. v. State of M.P. & others 2009(1) RCR (Civil) 260 and thus, the substantial questions of law, as raised, do arise in this appeal and the judgments and decrees of the Courts below are liable to be set aside. I have heard learned counsel for the parties and perused the impugned judgments of the Courts below. There is no dispute that the plaintiff-appellant is the tenant of respondents No.1 to 4, as per the registered lease deed in the portion marked as IEMF, as per the site plan Ex.P1, measuring 4007 square feet and the portion marked by letters ABEF as well as CGHI on the front portion and the rear portion of the building respectively belongs to respondents No.1 to 4 and the appellant has no tenanted right over the said property. Further, it could not be disputed before this Court that in the lease deed, there is no such condition that the respondents will not raise any construction on the aforesaid property belonging to them in the manner they like. Though the appellant has alleged that by raising construction over the said property illegally, the respondents have jeopardized their right of enjoyment to light, air and entrance to the tenanted premises and have also put the property of the bank in danger, yet there is not an iota of evidence to prove the aforesaid RSA No.3532 of 2011 12 facts. Inspite of the aforesaid pleadings and in the absence of evidence to prove the aforesaid facts, the main thrust of the arguments raised on behalf of the appellant is to the effect that the respondents No.1 to 4 were raising construction over the suit property belonging to them, without permission of the M.C. Panipat and therefore, they have a right to seek demarcation of the same in view of judgment of the Hon’ble Madhya Pradesh High Court in Dilip Kaushal & anr.(supra). Even from the perusal of the substantial questions of law, as raised and the arguments raised before this Court, it is clear that the appellant is not challenging the judgments and decrees of the Courts below on the ground that the findings are incorrect on merits, but are seeking a mandatory injunction to challenge the findings on the issue of their locus to seek mandatory injunction against the respondents for demolition of the construction raised without permission of the Municipal Council. So far as the judgment in the case of Dilip Kaushal & anr.(supra) is concerned, there is no dispute with the ratio of law as settled by the aforesaid judgment. However, in view of peculiar facts and circumstances of this case, the aforesaid judgment is not applicable in the instant case. Question was raised in the aforesaid judgment with regard to locus standi of a third person to seek removal of demolition of the construction not in conformity with the byelaws, but the said question was raised in public interest litigation filed under Article 226 of the Constitution of India, RSA No.3532 of 2011 13 questioning the lay out sanctioned by the Municipal Corporation for construction of a building of the respondent, whereas in the instant case, the suit has not been filed in public interest, but to seek the relief in favour of the plaintiff itself. In such a situation, the appellant was obliged to prove its case in accordance with law, for which, it has miserably failed. The appellant could not establish on record any illegal injury to their personal rights and in these circumstances, the Courts below have rightly relied upon a Full Bench judgment of Orissa High Court in the case of Krushna Kishore Bal v. Sankarsan Samal & others AIR1974Orissa 89 (V.61, C.27(1)), wherein it has been held that mere violation of municipal rules/plan is not actionable per se unless an injury, real or apprehended is established. The plaintiff who seeks a mandatory injunction against unauthorized construction alleging invasion on his rights, has to prove that such illegal construction has resulted into violation of law causing illegal injury. Having failed to do so, the appellant cannot raise such an argument, as raised before this Court. Thus, no substantial questions of law, as raised, arise in this appeal. No merits. Dismissed. January 20, 2014 [RAKESH KUMAR GARG]. ak JUDGE