Municipal Corporation Shimla vs Smt. Kanta Devi and Another

V.K. Sharma, J.—Order dated 27.11.2010, passed by the learned Civil Judge (Jr. Divn.)(VI), Shimla, in an application u/s 151 of the CPC (in short ''Code of Civil Procedure''), filed by the Respondent and proformaRespondent herein, Shri Rattan Lal Chauhan, who was initially joined as proformaDefendant in the main suit for grant of a decree of perpetual prohibitory injunction and later on transposed as co-plaintiff, as applicants/plaintiffs against the Petitioner herein being the Respondent/defendant, is under challenge in the present revision petition u/s 115 Code of Civil Procedure.

For the sake of convenience the parties shall here in after be referred to by their status in the learned court below, i.e.,Plaintiffs and Defendant.

Shorn of details, the dispute between the parties concerns a building belonging to the Plaintiffs situate at Mohal Pateog, Tehsil and District Shimla. Admittedly, Mohal Pateog was earlier part of Special Area Development Authority (SADA), New Shimla (Kasumpati), and has since been included within the jurisdiction of Municipal Corporation, Shimla. Consequent upon issuance of a notice u/s 39A of the H.P. Town and Country Planning Act, 1977 (in short ''the TCP Act''), by the then SADA to thePlaintiffs, requiring them to demolish "unauthorized construction carried out by them in steel truss on 6th storey level", the Plaintiffs filed a suit for grant a decree of perpetual prohibitory injunction against the Defendant. The suit is pending trial before the learned court below and is being contested by the Defendant. It was during pendency of the suit that the aforesaid application u/s 151 CPC was disposed of by the learned trial court vide the impugned order dated 27.11.2010, relevant part whereof is as under:

I have heard ld. counsels for both the parties,and perused the record. From the perusal of the documents, I am satisfied that demolition order were passed by SADA Shimla to demolish the illegal construction byPlaintiff.Defendant No. 1 Municipal Corporation also stated in their reply that, the Plaintiffhas raised the height of the upper storey of building more than the prescribed height i.e 2.50 meters. The Plaintiffs have casted the roof above 2.75 meters, whichis more than the prescribed height. If the illegality in construction is only to the extent of raising height of the building more than the permissible height, the purposecan be solved by cutting down the height of the building without demolishing the same. Applicant/plaintiff is ready to cut down the height of the building to 2.50meters. Therefore, the Defendants should have no objections in that, as no prejudice is going to cause tothem if illegality can be cured without the demolition of the building. Accordingly, the application is allowed. Applicants/plaintiffs are directed to cut down the height of building from 2.75 meters to 2.50 meters within fifteen days. Thereafter, report of Defendant No. 1 Municipal Corporation Shimla, as to whether, the plaintiff has complied with the order or not, be called on28.12.2010 till then, the Defendant No. 1 Municipal Corporation is restrained from demolishing or interfering, in any manner, with the building known as Kanta Niwas, Pateog Shimla. It be registered if already not registered.

During pendency of the revision petition before this Court, the following order was passed on 16.06.2011:

At the joint request of the parties, the premises be visited and inspected by a duly constituted technical committee comprising of Assistant Engineer and Junior Engineer of the Petitioner corporation. In view of the averments contained in the petition and order passed bythe learned trial Court, the duly constituted technical committee shall submit the status report to the Court onor before 10.8.2011.

In compliance of the above order, the Defendant has filed the requisite status report.

I have heard the learned Counsel for the parties and gone through the record.

It is the case of the Plaintiffs that the building in question had already been constructed before Mohal Pateog was included in SADA and at that time neither there was any requirement of obtaining permission or sanction for construction of any building in that area nor there was any provision to restrict the number of floors or height thereof. Conversely, the case of the Defendant is that the disputed portion of the building having been constructed against provisions of the TCP Act, the then SADA has rightly issued the notice for demolition of the said portion.

A complete and harmonious reading of the operative part of the impugned order dated 27.11.2010 would go to show that the same is in the nature of final adjudication of the dispute between the parties and there being no recital that the observations made therein were limited for the purpose of disposal of the application without having any bearing on the merits of the case, to my mind is not strictly in accordance with the provisions of law. Here it shall also be pertinent to observe that the proceedings initiated by the Plaintiffs and pending trial before the learned trial court are in the nature of civil proceedings, to be explicit, a civil suit, in which an application for interim stay ought not to have been filed u/s 151 Code of Civil Procedure, which is a general provision vesting the court with inherent powers, and instead the application was required to be filed under Order 39 Rules 1 & 2 Code of Civil Procedure. The parameters necessary for disposal of an application under Order 39 Rules 1 & 2 CPC are well known and need not to be emphasized.

As per the sketch plan of the building annexed with the status report filed by the Defendant, the building in question has one basement, which though has been closed partially, a portion thereof is being used as a toilet. Apart from this basement, there are five regular floors and one attic. According to the Plaintiffs, five floors and one attic is permissible in the area. However, according to the Defendant, in case the closed basement is also counted as a floor, the number of floors would go to six plus attic. The assertion made on behalf of the Plaintiffs that the building was constructed prior to inclusion of the area in SADA is yet to be adjudicated upon during trial of the case. Similarly, whether the closed basement would also be countable as a floor is also within the domain of trial on merits. The question whether the building had been constructed before coming into existence of SADA and whether there was any necessity for obtaining any permission/sanction or not and whether there was any restriction with regard to number of floors would also be decided only during the course of trial.

In view of the above, the impugned order dated 27.11.2010 cannot be sustained and is accordingly set-aside. However, in the facts and circumstances of the case, the parties are directed to maintain status quo qua the disputed building in question till disposal of the main suit pending trial between them before the learned court below.

The observations made hereinabove in this judgment shall be limited for disposal of the present revision petition and the same shall have no bearing, whatsoever, on merits of the case.

The parties, through their learned Counsel, are directed to appear before the learned trial court on 21st September, 2011. The requisitioned records be sent back so as to reach well before the date fixed.

The petition so also pending CMP(s), if any, stand disposed of in the above terMs.