Ajudhya Parkash vs Administrator, Municipal Committee, Ludhiana and Another

Grover, J.—This appeal arises out of a suit filed by Ajudhya Parkash and Ved Parkash, residents of Ludhiana, against the Municipal Committee of that place for an injunction restraining the defendant from demolishing or getting demolished the shed erected by them in their Kothi shown as red in the plan attached to the suit.

The plaintiffs had purchased a plot of land on 14th April, 1956 near Dayanand Hospital. They at first submitted two plans (Exhibits P. 5 and P. 6) as they wanted to build a boundary wall around their plot. This was on 17th April 1956. In those plans to the South of the plot a street 10 in width was shown. The Committee wrote a letter in May 1956 saying-

You are hereby asked to amend the plan by leaving 10'' land towards the southern side to make the street 20'' wide.

You should leave 10 wide space for the street.

The second part of this reply is not quite clear but it is not disputed that the Committee was insisting on the plaintiffs leaving a space of 20'' for the street on the South. The plaintiffs then filed amended plans (Exhibits D. 17 and D. 18) in which 20'' space for the street was left on the South. These plans were sanctioned in September 1957. In spite of having agreed to leave 20'' wide space for the street and in spite of having obtained the sanction of the Committee on that express undertaking the plaintiffs put up a temporary structure in the shape of a shed on the South and it is apparent from the plan (Exhibit D. 9) that the width of the street on the side of the shed was left at a little over 7''. The aforesaid plan further shows that the street towards the South as also the West is uniformly 20'' except that the aforesaid shed abuts on it being the only structure there which has reduced the length of that street. In April 1958 the Committee served a notice u/s 195 of the Punjab Municipal Act, 1911, for demolition of the aforesaid structure. This litigation, however, went in favour of the plaintiffs and against the Committee on the ground that the notices had been issued beyond the period mentioned in the section, namely, six months after the date of completion. In October 1957 the Committee, after taking proper proceedings u/s 171(4), declared the street in question to be a public street. No objections were tiled by the plaintiffs as contemplated by the aforesaid provision before the declaration was made or thereafter. On 10th March 1960 the Committee issued a notice u/s 172 for demolishing the structure in dispute on the allegation that it formed an encroachment on a public street. The present suit was instituted immediately thereafter on 15th March 1960.

In the plaint no averment was made in respect of the amended plans which had been submitted by the plaintiffs themselves showing the street to be 20'' wide nor was any challenge made to the validity of the declaration made by the Committee declaring the street in question to be a public street u/s 171(4). The case of the plaintiffs as laid was that they had not constructed the shed on any part of a public street, kucha or a street and that the construction had been made on their own land and that the Committee was not entitled to ask for demolition of the aforesaid structure. The suit was contested by the Committee and various pleas were raised. On the pleadings the following issues were framed:-

Whether the shed in dispute is erected by the plaintiff on a part of a public street?

Whether the notice dated 10th March 1930 is illegal, ultra vires, invalid, capricious, oppressive or not binding on the grounds alleged in paragraph 5 of the plaint?

Whether defendant is estopped from alleging that the site in dispute is a public street?

Relief.

The trial Court came to the conclusion that the shed in dispute had not been erected on a part of a public street. The notice was held to be illegal and ultra vires. It was decided that the defendant was not estopped from alleging that the site in dispute was a public street but that no part of any public street had been encroached upon. The suit was consequently decreed. On appeal the learned Senior Subordinate Judge reversed the judgment of the trial Court holding that the structure had been made on a public street and constituted an encroachment on it. The suit was dismissed and it is against that decree that the present appeal has been brought to this Court.

Mr. J.N. Kaushal, the learned counsel for the plaintiff-appellants, contends that on proved and admitted facts the disputed area could not be regarded to be a part of a public street. He has relied on the definition of "public street" given in section S. 3(13)(b) of the Municipal Act which is as follows:-

''public street'' shall mean any street-

(i) heretofore levelled, paved, metalled, channelled, sewered or repaired out of municipal or other public funds, unless before such work was carried out there was an agreement with the proprietor that the street should not thereby become a public street, or unless such work was done without the implied or express consent of the proprietor; or

(ii) which, under the provisions of section 171, is declared by the committee to be, or under any other provision of this Act becomes, a public street.

Reference in this connection has to be made to the definition of "street" as given in section 3(13)(a):-

''street'' shall mean any road, footway, square, court, alley or passage, accessible, whether permanently or temporarily to the public, and whether a thoroughfare or not; and shall include every vacant space, notwithstanding that it may be private property and partly or wholly obstructed by any gate, post, chain or other barrier, if houses, shops or other buildings abut thereon, and if it is used by any persons as a means of access to or from any public place or thoroughfare, whether such persons be occupiers of such buildings or not, but shall not include any part of such space which the occupier of any such building has a right at all hours to prevent all other persons from using as aforesaid and shall include also the drains or gutters therein, or on either side, and the land, whether covered or not by any pavement, verandah or other erection, up to the boundary of any abutting property not accessible to the public;

The argument raided is that a street has to be in existence which is accessible to the public before it can become a public street. According to Mr. Kaushal, there is no evidence whatsoever to show that there was any srreet in existence, the width of which was 20''. On the contrary the evidence which included the letter of the Municipal Committee to which reference has been made before showed that the Committee was desirous of increasing the width of the existing street which was 10'' to 20'' and that is why the plans of the plaintiffs were not sanctioned until they agreed to leave a width of 20''. The learned Senior Subordinate Judge relied on the admissions made by the plaintiffs themselves at the stage when the amended plans were filed as also the fact that no objection was raised by them when a declaration was made u/s 171(4). After such a declaration, the street was entered as a public street in the records of the Committee and this, according to the learned Judge, was enough to make it a public street. He also relied on the fact that the plaintiffs had made no allegation that the Committee had wrongly declared the street to be a public street. Although in the previous litigation the plaintiffs had alleged that it was under coercion of the Committee that the amended plans were submitted but in the present case no such allegation had been made. In the previous litigation, the suit had been decided mainly on one point as to whether the notice had been served within the period prescribed by the statute. Mr. Kaushal has not been able to show how the reasoning or the conclusion of the learned Senior Subordinate Judge is erroneous, particularly when it is based on the previous admissions of the plaintiffs themselves as also the other facts and circumstances. It is significant that even when one of the plaintiffs appeared as a witness, he gave no cogent explanation for not filing any objections when proceedings were taken u/s 171(4) of the Municipal Act nor any satisfactory explanation was given as to why the plaintiffs themselves agreed when they filed the amended plans to leave a width of 20'' for the street. On the whole, therefore, I cannot find any justification for interfering with the conclusion of the lower appellate Court that the plaintiffs had made an encroachment on a part of a public street.

Even if it be assumed that strictly speaking the street did not have a width of 20'' as alleged by the Committee, I would uphold the decision of the lower appellate Court dismissing the suit for injunction on considerations which arise u/s 50(j) of the Specific Relief Act, 1877. According to that provision, an injunction cannot be granted when the conduct of the applicant or his agents has been such as to disentitle him to the assistance of the Court. The conduct of the plaintiffs in the present case has already been described and the least that can be said about it is that they induced the Committee to sanction their amended plans by accepting that the width of the street was 20''. After getting their plans sanctioned on that basis, they proceeded to make a construction in contravention of those plans which meant that all the time they had mala fide considerations in their mind inasmuch as they wanted to play a subterfuge on the Committee by obtaining the sanction and then putting up a construction in violation of the sanctioned plans. Such a conduct cannot possibly entitle them to any relief at the hands of a Court of equity. A judgment of Din Mohammad J. in Basheshar Nath and others v. Municipal Committee AIR 1940 Lah. 69 is very much in point and may be referred to with advantage. The Municipal Committee of Moga had refused to grant permission to a person to build certain structure. That person subsequently induced the Committee to grant permission on condition that he paid certain sum to the Committee. The Committee passed a resolution accepting the offer but when the person failed to pay the sum as agreed served a notice u/s 172 of the Act for demolition. The person who had built the structure pleaded that the resolution imposing condition for grant of permission was illegal as no bye-law u/s 188(u) had been made and brought a suit for injunction against demolition. In other words, he wanted to utilise that portion of permission which benefited him and to repudiate that part of it which went against him. The learned Judge relying on the observations of Story quoted in Rangammal v. Venkatachari ILR 18 Mad. 378 as also the observations made in Seem Chettiar v. Santhanathan Chettiar ILR 20 Mad. 68 expressed the following view:-

In other words, they want to put up the construction without any payment on the ground that the Committee had no authority to demand that payment. This is rank dishonesty. Having induced the Committee to attach that condition which as has been stated above was done under a misapprehension that the permission amounted to a transfer of the rights of the Municipal Committee on the land under the street, the plaintiffs cannot be allowed to base all their legal rights on that part of the resolution of the Committee which resulted from that inducement. If clever persons like the plaintiffs are allowed to defraud unsophisticated members of public bodi''s the whole administration in small places like Moga will be upset. Without deciding therefore whether the resolution of the Committee was ultra vires or not or whether in case it was ultra vires the plaintiffs could take advantage of the permission ignoring the unauthorised condition, I decline to interfere with the decisions of the Courts below merely on the ground that the conduct of the plaintiffs was most reprehensible in this matter and that they should not be allowed to reap the benefit of their own fraud.

With respect, I would apply the same rule to the present case and uphold the decree of the lower appellate Court on the ground that the plaintiffs are not entitled to ask for an injunction.

In the result, this appeal is dismissed with costs.