Case Note & Summary
The case involves a second appeal filed by the Nagpur Improvement Trust (NIT) against the judgment and order dated 16.1.2006 passed by the 3rd Additional District Judge, Nagpur in Regular Civil Appeal No. 111 of 1999, which dismissed the appeal as infructuous. The original suit was filed by the respondent/plaintiff, Kishorchand Fulchand Sakaria, seeking a declaration that notices dated 18.6.1996 and 4.7.1996 issued by the NIT were illegal, null and void, and for a permanent injunction. The plaintiff claimed ownership and possession of the ground floor of house no. 569, Nazul plot no. 106/5, City Survey no. 405/1 in ward no. 3, Joshiwadi, Sitabuldi, Nagpur, and also possession of the first floor and one room on the second floor. The plaintiff had carried out repairs after obtaining sanction from the Nagpur Municipal Corporation (NMC). The NIT inspected the premises and issued notices alleging unauthorised construction liable to be removed. The trial court decreed the suit in favor of the plaintiff, declaring the notices illegal. The NIT appealed to the District Court, which dismissed the appeal as infructuous. The High Court, in second appeal, noted that the appeal had become infructuous as the notices had been declared illegal and no further action was taken. The court dismissed the appeal, upholding the trial court's declaration.
Headnote
A) Town Planning - Unauthorised Construction - Notice of Demolition - Sections 52, 53, 54 Maharashtra Regional and Town Planning Act, 1966 - The plaintiff challenged notices issued by the Nagpur Improvement Trust alleging unauthorised construction. The trial court declared the notices illegal, and the first appellate court dismissed the appeal as infructuous. The High Court held that the plaintiff had obtained sanction from the Nagpur Municipal Corporation for minor repairs, and the notices were not sustainable. The second appeal was dismissed as it had become infructuous. (Paras 1-3)
Issue of Consideration
Whether the notices issued by the Nagpur Improvement Trust calling for removal of construction were illegal and void when the plaintiff had obtained sanction from the Nagpur Municipal Corporation for minor repairs.
Final Decision
The High Court dismissed the second appeal, holding that it had become infructuous as the notices had been declared illegal and no further action was taken.
Law Points
- Declaration of notices as illegal
- Repairs with sanction not unauthorised construction
- Appeal dismissed as infructuous
Case Details
2014 LawText (BOM) (04) 133
Second Appeal No.558 of 2007
Mr.R.O.Chhabra for the Appellant, Mr.D.G.Paunikar for the Respondent
Nagpur Improvement Trust, through the Chairman, Civil Lines, Nagpur
Kishorchand s/o. Fulchand Sakaria
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Nature of Litigation
Second appeal against dismissal of first appeal as infructuous in a suit for declaration and permanent injunction challenging demolition notices.
Remedy Sought
The appellant (NIT) sought to set aside the judgment and order of the first appellate court which dismissed its appeal as infructuous.
Filing Reason
The NIT challenged the trial court's decree declaring its notices as illegal and the first appellate court's dismissal of its appeal as infructuous.
Previous Decisions
The trial court decreed the suit declaring the notices illegal. The first appellate court dismissed the NIT's appeal as infructuous.
Issues
Whether the notices issued by the NIT were illegal and void.
Whether the first appellate court was correct in dismissing the appeal as infructuous.
Submissions/Arguments
The appellant argued that the construction was unauthorised and liable to be removed.
The respondent argued that the repairs were carried out with sanction from the NMC and the notices were illegal.
Ratio Decidendi
When a plaintiff obtains sanction from the municipal corporation for minor repairs, notices of demolition issued by the improvement trust alleging unauthorised construction are not sustainable, and an appeal against the declaration of such notices as illegal becomes infructuous if no further action is taken.
Judgment Excerpts
The suit was decreed for declaration that the notice No. DO (West)251, dated 18.6.1996 and notice No.DO (west)252, dated 4.7.1996 issued by the defendants to the plaintiff are illegal, null and void.
The respondent/plaintiff had carried out the repairs which were required in respect of the premise occupied by him after obtaining the sanction from the Nagpur Municipal Corporation ... to carry out the minor repairs.
Procedural History
The respondent/plaintiff filed Regular Civil Suit No.1699 of 1996 in the court of Joint Civil Judge (J.D.), Nagpur, which was decreed on 19.12.1998 declaring the notices illegal. The appellant/NIT filed Regular Civil Appeal No. 111 of 1999 before the 3rd Additional District Judge, Nagpur, which was dismissed as infructuous on 16.1.2006. The NIT then filed the present Second Appeal No.558 of 2007 before the Bombay High Court, Nagpur Bench, which was dismissed on 29.4.2014.
Acts & Sections
- Maharashtra Regional and Town Planning Act, 1966: 52, 53, 54
