In a second appeal against a decree dismissing a suit for declaration and injunction, the Court held that the appellant's cabin, constructed unauthorizedly on a footpath and gutter, is not entitled to discretionary equitable relief. The Court found the construction illegal and the impugned orders confirmable.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.590 OF 1989
Smt Hasumati M. Nevale ...Appellant
Vs.
Kalyan Municipal Council ...Respondent
Smt S.A. Dhamale for the Appellant.
Shri A.S. Kumthekar holding for Shri A.S. Rao for
the Respondent.
CORAM : ABHAY S. OKA, J.
DATE : JULY 25, 2006.
JUDGMENT:
1. Heard the Advocates appearing for the parties.
The Second Appeal is by unsuccessful Plaintiff. The
suit relates to a cabin in which the Appellant is
allegedly running a Pan-Bidi Shop. The case of the
Appellant-Plaintiff is that in the year 1982, the suit
structure has been assessed to the municipal taxes.
The suit is filed on the ground that on 08th
September, 1982, the officers of the Respondent
municipal council threatened to demolish the
structure. A declaration is prayed that the suit
structure is authorised and the Respondent has no
authority to demolish the same without following the
due process of law.
2. The suit was contested by the Respondent by
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filing written statement on various grounds. It was
contended that the suit structure is on road and on a
gutter and therefore, without giving notice the
Respondent has tried to remove the same by exercising
powers under section 179 of the Maharashtra
Municipalities Act, 1965. The Trial Court framed
various issues. One of the issue was whether the suit
structure was legal and authorised. The Trial Court
dismissed the suit by holding that the structure was
not legal and authorised. The Trial Court held that
under section 179(3) of the said Act of 1965, the
Respondent Council had a right to remove the suit
structure without issuing notice. The Appellate Court
has confirmed the said finding.
2. The learned Counsel appearing for the
Appellant submitted that a circular has been issued in
the year 1972 by the State Government stating that all
structures which are assessed to municipal taxes shall
be deemed to be authorised structures. She submitted
that in any event the Respondent cannot take law in
its hand and remove the structure without following
the due process of law.
3. I have considered the submissions. In the
examination-in-chief, the Appellant has deposed that
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the suit structure i.e. the cabin is situated beside
a municipal road. In cross-examination the Appellant
admitted that the land below the cabin was not
belonging to her and she has not taken the same on
rent from anybody. She admitted that the municipal
council constructed a footpath just touching the suit
cabin. She denied that the cabin was on a gutter.
However, she admitted that the cabin was on the road
side footpath. The witness examined by the Respondent
stated that the cabin has been put up partly on gutter
and partly on footpath and is causing obstruction to
the pedestrians. The Appellant did not contend that
the suit cabin was constructed after a obtaining
building permission. Thus, it is obvious that the
construction of the occupant is illegal and
unauthorised.
4. Reliance placed on the circular of the State
Government which is on page 49 of ‘B’ File of the
Trial Court will not help the Appellant. The said
circular itself clarifies that the taxes are collected
on the property irrespective of the fact whether the
construction is authorised or unauthorised and if the
construction is unauthorised, action for removal can
be taken. After considering the oral evidence on
record, the Trial Court accepted the case made out by
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the Respondent that the suit structure is partly
constructed on an footpath and partly on a gutter.
The said finding of fact is not disturbed by the
Appellate Court.
5. The suit is filed for declaration and
injunction. It is well settled that the reliefs of
declaration and injunction under the Specific Relief
Act, 1963 is purely discretionary which are to be
granted on equitable considerations. As evidence on
record shows that construction of the suit cabin is
made unauthorizedly on a footpath and gutter, the
Appellant-Plaintiff is not entitled to equitable
relief of declaration and injunction.
6. The learned Counsel appearing for the
Appellant relied upon decision of the Apex Court in
the case reported in AIR 1986 Supreme Court Cases Page
180 (Olga Tellis & Ors. Vs. Bombay Municipal
Corporation & Ors). In paragraph No.57 of the said
decision, the Apex Court has held thus:
". To summarise, we hold that no person
has the right to encroach, by erecting a
structure or otherwise, on footpaths,
pavements or any other place reserved or
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earmarked for a public purpose like, for
example, a garden or a playground that the
provision contained in Section 314 of the
Bombay Municipal Corporation Act is not
unreasonable in the circumstances of the
case;"
The directions given by the Apex Court in the said
judgment are in the context of the peculiar problems
faced by the city of Bombay. The Appellant who has
constructed a cabin unauthorisedly on a footpath is
not entitled to discretionary relief of declaration
and injunction. There are concurrent findings of fact
recorded by the courts below against the Appellant.
There is no merit in the Second Appeal and the same is
dismissed. No orders as to costs.
JUDGE
3 issues framed by the court
Whether equitable reliefs of declaration and injunction are available when unauthorized structures obstruct footpaths and gutters.
Whether the circular of the State Government deeming tax-assessed structures as authorized prevents removal of unauthorized constructions.
Whether Section 179 of the Maharashtra Municipalities Act empowers the Council to remove structures on footpaths and gutters without notice.
Colour shows how this judgement treated each authority
Olga Tellis & Ors. Vs. Bombay Municipal Corporation & OrsExplained¶28
AIR 1986 Supreme Court Cases Page 180 · Who else cites this
3 provisions across 3 enactments
Smt Hasumati M. Nevale
Kalyan Municipal Council
Abhay S. Oka
As recorded by the court registry
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