Vasant Krushant Vanjare v. Municipal Corporation of the City of Pune

1. Heard Ms. Agarwal, learned Counsel appearing for the Appellants and Mr. Pethe, learned Counsel appearing for the Respondent.

2. The challenge in this Second Appeal is to the Judgment and Decree dated 6th August, 2001 passed by the learned Additional District Judge, Pune in Civil Appeal No.127 of 1998. By the said Judgment and Decree the said Appeal filed by the Respondent-Corporation has been allowed and Judgment and Decree passed by the learned Trial Court has been set aside. The learned Civil Judge, Junior Division, PMC, Court Pune, by Judgment and Decree dated 5th July, 1997 passed in Regular Civil Suit No.984 of 1996 decreed the said suit and declared that the notices of the Defendant-Corporation dated 29th November, 1995, 12th December, 1995 and 5th June, 1996 are illegal and restrained Defendant from taking any action pursuant to those notices.

3. A learned Single Judge by order dated 17th January, 2002 has Vaibhav Page No. 1 admitted the Second Appeal on the following substantial questions of law: “(1) Whether the Learned Judge has rightly considered the provisions of Section 487 of the Bombay Provincial Municipal Corporations Act, 1949 and whether the suit was not maintainable for want of notice under the said Section? (2) Whether the notices given by the Defendant Corporation under Section 260(i) and Section 260(ii) of the Bombay Provincial Municipal Corporations Act, 1949 treating the shed as new construction were legal and proper?”

4. It is the main contention of Ms. Agarwal, learned Counsel appearing for the Appellants that the suit property has been purchased by registered sale deed dated 12th January, 1981. The Appellants have only carried out repairs which are tenantable repairs and therefore, the suit notices issued under Sections 260(i) and 260(ii) treating the shade as new construction were illegal. She submitted that, even the notice under Section 487 of the Bombay Provincial Municipal Corporation Act, 1949 (“BPMC Act”) was also not required as by the suit notices the corporation has informed the Appellants that within a period of seven days the construction would be demolished. Learned Counsel therefore submitted that, non-issuance of notice under Section 487 of the BPMC Act, in the facts and circumstances cannot be considered as fatal.

5. On the other hand, Mr. Pethe, learned Counsel appearing for the Respondent-Corporation submitted that notice under Section 487 of Vaibhav Page No. 2 BPMC Act is mandatory and as the said notice has not been given the suit is not maintainable. He further submitted that, notices under Sections 260(i) and 260(ii) of the BPMC Act are also legal and valid as new construction has been carried out.

6. Before considering the substantial questions of law raised in this Second Appeal, it is necessary to set out certain factual aspects:i. The Appellants have purchased the suit property by registered sale deed dated 2nd January, 1981. The description of the suit property as set out in the said sale deed is as follows:- “feGdrhps o.kZu%& rqdMh iq.ks iksV rqdMh rkyqdk gosyh lc&jftLVªkj;kaps g|hrhy rkyqdk iq.ks flVh o iq.ks E;qfufliy dkWiksZjs’ku g|hrhy ‘kgj iq.ks isB ‘kfuokj;sFkhy xkoBku lkjkekQhps tkxsojhy flVh lOgsZ uacj 311 ph feGdr R;kr vlysyk cSBk ifMd fveyk;kps izkWiVhZ jft"Vjps dkMZizek.ks {ks+=QG pkSjl feVj 178-1 ¼212 pkSjlokj½ vkgs;kalh pr%lhek%& iqosZl%& fl-l- ua- 310 nf{k.ksl%& eksdGh tkxk o dcqrj[kkU;kdMs tk.kkjk jLrk] if’pesl%& fl- l- ua- 312-2 o 316-10 mRrjsl%& fl- l- ua- 309” (Emphasis added) ii. The Corporation has issued three notices dated 29th November, 1995, 12th December, 1995 and 5th June, 1996. By the last notice dated 5th June, 1996, it has been informed to the Appellant that within a period of four days, if, the construction is not demolished then the Corporation would demolish the same. iii. The Appellant-Plaintiff had filed Regular Civil Suit No.984 of 1996 on 2nd July, 1996 seeking injunction that the suit notices are illegal. In the plaint, the suit premises is described as follows:- Vaibhav Page No. 3 “1½ feGdrhps o.kZu & rqdMh iq.ks] iksV rqdMh rk- iq.ks ‘kgj es- lc jftLVªkj lkgsc iq.ks ‘kgj o iq.ks egkuxjikfydsP;k gíhrhy isB ‘kfuokj;sFkhy ?k- ua- 311];k feGdrhiSdh oknhP;k rkC;krhy 11 vkf.k fg’;kph tkxk vankts 1200 pkS- QwV;k tkxsiSdh 600 QqVkoj dsysys ‘ksMotk cka/kdke 15x40;k ekikps];kalh prq%lhek%& iqosZl & ?k- ua- 310 if’pesl & ?k- ua- 312 nf{k.ksl & eksdGh tkxk o iq<s E;qfufliy jksMmRrjsl & eksrhckx dk;kZy;;s.ksizek.ks prq%flekiqoZd oknhP;k ekydhph ‘ksM-” (Emphasis added) iv. The learned Trial Court while decreeing the suit has observed that, admittedly Pune Municipal Corporation is not having any record about the sanctioned map of suit property and therefore, the Pune Municipal Corporation is not in a position to point out what was the structure earlier existing and what is alleged new construction done by the Plaintiff. The learned Trial Court has also observed that the construction which has been done is in accordance with Section 43 of the Maharashtra Regional and Town Planning Act, 1966 (“MRTP Act”). v. While setting aside the decree passed by the learned Trial Court and dismissing the suit, the learned Appellate Court has observed that there is considerable variance between the description mentioned in Paragraph No.1 of the plaint and the description of the suit property in the sale deed produced at Exhibit-26.

7. Perusal of the description of the property in the sale deed and description of the suit property shows that, in fact, the area described in the plaint is of lesser area than the property mentioned in the registered Vaibhav Page No. 4 sale deed. The construction which is subject matter of the suit is only of the nature of shed.

8. In view of above position it is necessary to consider the substantial questions of law framed by the learned Single Judge by order dated 17th January, 2002.

9. The first substantial question of law is regarding maintainability of the suit for want of notice under Section 487 of the BPMC Act. In this case, by the notice dated 5th June, 1996 issued by Pune Municipal Corporation inter alia the Appellants were directed to remove the construction within a period of four days, failing which the Pune Municipal Corporation would demolish the subject construction. In view of the said notice dated 5th June, 1996 and in view of urgency when the Plaintiff is required to approach the Court seeking protection against threatened action of demolition within a short period of 4 days, the issuance of statutory notice, in the facts and circumstances, is not necessary. Thus, in such a situation notice under Section 487 of the BPMC Act is deemed to have been waived. Accordingly, the first substantial question of law is required to be answered in favour of the Appellants.

10. The second substantial question of law framed by this Court is whether the notices issued by the Corporation under Sections 260(i) and 260(ii) of the BPMC Act treating the shade as new construction Vaibhav Page No. 5 were illegal and proper.

11. Perusal of the record shows that, the Appellants have purchased the suit property on 2nd January, 1981 by registered sale deed. It is the contention of the Appellants that, the Appellants have only carried out tenantable repairs for the purpose of maintenance of the property.

12. It is the submission of Ms. Agarwal, learned Counsel appearing for the Appellants that under Section 43 of the MRTP Act no permission is required. It is the submission of Mr. Pethe, learned Counsel appearing for the Pune Municipal Corporation that even for carrying out the repairs also permission is required under Section 43 of the MRTP Act. In any case, perusal of the record shows that the Pune Municipal Corporation has no record of the suit property so as to conclusively record the finding regarding the alleged new construction. The only reason given by the learned Appellate Court concerning this is that there is variance in the description given in the registered sale deed and description given in the plaint. However, as noted herein above, in fact the description of the suit property as described in the plaint is of lesser area than the area which is mentioned in the registered sale deed. The material on record shows that, the structure is in existence at least since 1995-1996. The construction is of only shed. This Court has stayed the demolition action in the year 2001 and thus, the structure is standing for last about 30 years. Accordingly, at this stage, if the Corporation is Vaibhav Page No. 6 allowed to take action on the basis of notices which are issued in 1995- 1996 then the same will be unjust and arbitrary. Therefore, for the above reasons the second substantial question of law framed by this Court is also required to be answered in favour of the Appellants.

13. Accordingly, the impugned Judgment and Decree passed by the learned Appellate Court dated 6th August, 2001 is quashed and set aside and the Judgment and Decree dated 5th July, 1997 of learned Civil Judge, Junior Division, PMC Court, Pune in Regular Civil Suit No.984 of 1996 is restored.

14. However, it is clarified that, if there is subsequent construction and further violation and/or construction then the Corporation is at liberty to take action in accordance with law.

15. Accordingly, the Second Appeal is allowed, subject to above. [MADHAV J. JAMDAR, J.] Vaibhav Page No. 7