Remanded

Mrs. Anupama Jaywant Kulkarni and Ors. v. Evershine Builders, through Partners, Yunus Usmangani Mulla and Ors.

Bombay HC18 Oct 2012WP/6257/2012

Case brief

AI extract

What is this about?

The High Court in Writ Petition No. 6257 of 2012 exercised its supervision power under Article 227 to quash the order of the Lower Appellate Court. The Court remanded the matter for a de novo consideration of whether the Extension of Village Sites Rules, 1967 apply to the constructed building.

What did the court decide?

The impugned order of the Lower Appellate Court is quashed and set aside, and the matter is remanded for de novo consideration of the appeal within six weeks.

Mrs. Anupama Jaywant Kulkarni and Ors. Vs… — Pension and Retirement Benefits | Bombay HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO.6257 OF 2012

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Mrs. Anupama Jaywant Kulkarni and ors. : Petitioners. Versus Evershine Builders, Through Partners Yunus Usmangani Mulla & ors. : Respondents.

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Mr.Prathamesh Bhargude i/by Sugandh B Deshmukh for the Petitioners. Mr. A N Mulla for the Respondent No.1 to 3 and 5 Mr. Vijay D Patil for the Respondent No.4.

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CORAM : R. M. SAVANT, J. DATE : 18^th October 2012

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ORAL ORDER

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1 Rule, with the consent of the parties made returnable forthwith

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and heard.

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2 The Writ Jurisdiction of this Court under Article 227 of the Constitution of India is invoked against the order dated 3^rd May 2012 passed by the learned District Judge2, Karad by which order, the Appeal filed by the Petitioners herein, who are the original Plaintiffs, came to be dismissed and thereby the order passed by the Trial Court refusing them injunction came to be confirmed.

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3 Both the Courts below have therefore concurrently held that the Plaintiffs are not entitled to the discretionary relief of injunction in respect of the construction carried out by the Defendant Nos. 1 to 3 The Plaintiffs are the owners of Plot No.6, whereas the Defendant Nos. 1 to 3 have development rights in respect of the Plot Nos. 4 and 5 which are the adjoining plots. The Plaintiffs filed the suit in question i.e. Regular Civil Suit No.204 of 2012 initially premised on the fact that the Defendant Nos.1 to 3 are carrying out unauthorised construction and the cause of action shown for filing the suit in question was the Plaintiffs’ plot being affected by the debri falling in their plot. The Plaintiffs have therefore by way of the substantive prayer, sought an injunction that the Defendant Nos.1 to 3 should be restrained from putting up the construction on the plot Nos.4 and 5. The Plaintiffs filed an Application in the said suit for temporary injunction for restraining the Defendants from carrying out the construction. The Defendants filed their Written Statement and reply to the said Application for temporary injunction and pointed out the development permission which was granted by the Grampanchayat, Saudapur dated 28/2/2011. It was the case of the Defendant Nos.1 to 3 that they are constructing the boundary wall in the plots and that the construction is in terms of the permission granted by the Grampanchayat.

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4 In the course of hearing of the said Application for temporary injunction, the Plaintiffs relied upon the Maharashtra Village Panchayats

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(Principles for Extension of Village Sites and Regulation of Buildings) Rules, 1967 in support of their contention that the construction which was being put up was not in accord with the said Rules. It seems that the Plaintiffs also relied upon a Circular issued by the Divisional Commissioner, Pune. In terms of the said Circular, according to the Plaintiffs, the Defendant No.5 Grampanchayat has no authority to grant permission for construction.

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5 The Trial Court considered the said Application for temporary injunction. On the basis of the material on record, the Trial Court held that the Plaintiffs were not entitled to the discretionary relief as the construction put up was pursuant to the permission granted by the Grampanchayat. In so far as the Extension of Village Sites Rules, 1967 were concerned, the Trial Court held that the said Rules are applicable to the properties earmarked for extension of village site and since the plots in question, which are sought to be constructed upon by the Defendant Nos. 1 to 3, are situated within the limits of Village Panchayat Saidapur, the said Rules have no application. In so far as the Circular issued by the Divisional Commissioner, Pune is concerned, the Trial Court held that the Defendant No.5 Grampanchayat in the instant suit was not divested of its power to sanction the plant as the said Circular covers the lands in Pune. It is on the said basis that the Application for temporary injunction filed by the Plaintiffs came to be rejected.

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6 The aggrieved Plaintiffs carried the matter by way of an Appeal being Misc. Civil Appeal No.22 of 2012. Before the Lower Appellate Court the Plaintiffs raised an issue that the required distance between the properties of the Plaintiffs and the Defendant Nos.1 to 3 was not kept by the Defendant Nos.1 to 3 whilst putting up the construction and problems relating to hygiene, parking and supply of water would be caused on account of the said construction being put up. The Plaintiffs also relied upon the said Extension of Village Sites Rules, 1967. The Lower Appellate Court held that the objection in respect of the alleged future nuisance in the form of problems relating to the water supply, drainage etc could not be raised at the said stage. The Lower Appellate Court as can be seen from its impugned order has not dealt with the Application of the Extension of Village Sites Rules, 1967. However, in so far as the Circular is concerned, the Lower Appellate Court held that the said Circular cannot be treated as prevailing law. The Lower Appellate Court has further held that it has not been proved by the Plaintiffs that Grampanchayat Saidapur has no authority to issue building permission in respect of the construction carried out by the Defendant Nos.1 to 3 allegedly in violation of the building permission. The Lower Appellate Court held that since the Defendant Nos.1 to 3 are proceeding on the basis of the permission granted and since earlier the Plaintiffs had approached the Court on the basis that the Defendant Nos.1 to 3 did not have permission and now that the permission has been placed on

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record by the Defendant Nos.1 to 3, the said objection has no merit. The Lower Appellate Court has therefore by the impugned order dated 3/5/2012 dismissed the said Appeal and confirmed the order passed by the Trial Court.

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7 Heard the learned counsel for the parties.

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8 The learned counsel for the Petitionersoriginal Plaintiffs Shri Bhargude would seek to reiterate the case of the Plaintiffs before the Courts below viz. that the construction being carried out by the Defendant Nos.1 to 3 is in breach and violation of the permission granted. The learned counsel relying upon the said permission would contend that since the construction is to be carried out in terms of the NA permission which is granted and since the NA permission envisages the applicability of the Rules and Regulations of the Village Panchayat, the construction carried out by the Defendant Nos.1 to 3 cannot be said to be inconformity with the Extension of Village Sites Rules, 1967. The learned counsel would contend that in so far as the Trial Court is concerned, the Trial Court has held that the said Extension of Village Sites Rules, 1967 are applicable only to sites which are situated withing the village extension and not to the sites within the village. In support of his contention that the Extension of Village Sites Rules, 1967 are applicable, the learned counsel would seek to rely upon the unreported judgment of a Division Bench of this Court in Writ Petition No.5680 of 2007 in the matter of Niraj Vikas

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Pabale and ors v/s. The Tahsildar, Wardha and ors . According to the learned counsel for the Petitioners, the applicability of the Extension of Village Sites Rules, 1967 was the subject of the above Writ Petition which was in the nature of a PIL. The Division Bench of this Court in Para 14B of the said judgment has observed as follows :

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In any case, if such other places are held amenable to its jurisdiction, it follows that construction has to be in conformity with the Municipal Rules by adhering to letter dated 14/10/1994 on the subject. Respondent no.1 Tahsildar and Collector have in their affidavit pointed out that permission given by respondent no.4 to respondent no.5 is not legal. Bare perusal of Extension Rules reveal hollowness in contention of respondent nos. 4 to 6 that same are applicable to new village sites and not in existing Gaothan. As the name of Rules indicates the purpose is also to regulate buildings. It is not only for extension of village on sites recognized as such under Extension Rules. Section 176 (2) of the 1958 Act provides for making of rules under entry 44 of schedule 1 for prescribing the principles for the extension of village sites and also for regulation of buildings. Chapter III of 1958 Act is about administrative powers and duties. It's Section 45 also deals with those powers of Panchayats. ScheduleI enlists subjects of activities including development activities. Entry 44 reads “Extensions of village sites and regulation of buildings in accordance with such principles as may be prescribed.” The Extension Rules are framed under this power. It contains no express provision which will show an intention to restrict its applicability only to plots in layout for site selected for village extension as per Rule 3. Here layout is sanctioned by revenue authorities and is not in village or gaothan area of respondent no.4. Thus it is a new site not forming part of existing village and Gram Panchayat can not overlook requirements of Extension Rules, if it claims right to regulate building activities therein.

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The learned counsel would also seek to rely upon the Circular dated 22/8/2005 issued by the Government of Maharashtra by which Circular the Grampanchayats have been directed to apply the Extension of Village Sites Rules, 1967. The learned counsel would contend that the Lower Appellate Court has not considered the aspect of application of the Extension of Village Sites Rules, 1967, and has merely dealt with the Circular which was issued by the Divisional Commissioner, Pune.

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9 Per contra, it is submitted by the learned counsel for the Respondent Nos.1 to 3 and 5 Shri Mulla that since both the Courts below have concurrently held that the Plaintiffs are the disentitled to the discretionary relief of injunction, this Court under Article 227 of the Constitution of India would not interdict. The learned counsel relied upon the judgments of the Apex Court in support of his said submission, which would be referred to in the latter part of this order. The learned counsel would contend that the applicability of the Extension of Village Sites Rules, 1967 and the said Circular was sought to be invoked after the Lower Appellate Court had decided the matter.

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10 The learned counsel appearing for the Grampanchayat Shri Patil would contend that the permission has been granted to the Defendant Nos.1 to 3 in terms of the powers vested in the Grampanchayat. The learned counsel

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would reiterate the submissions made by the learned counsel Shri Mulla that invocation of the Extension of Village Sites Rules, 1967 and the Circular in question has been made after the matter was decided by the Lower Appellate Court and therefore it would be in the trial that the said aspect would have to be gone into.

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11 Having heard the learned counsel for the parties, I have bestowed by anxious consideration to the rival contentions. Though undoubtedly it is true that in the suit as originally filed the cause of action shown for filing the suit was the debri falling on the plot of the Plaintiff on account of the alleged unauthorized construction carried out by the Defendant Nos.1 to 3. However, it is the case of the Plaintiffs in the plaint that the said construction is being carried out without keeping marginal open space around the property. It is required to be noted that though there is a permission in favour of the Defendant Nos.1 to 3 which is dated 28/2/2011, the said permission granted is subject to the terms and conditions mentioned therein. Hence it is the obligation of the Defendant Nos.1 to 3 to carry out the construction subject to the said terms and conditions. The NA order which is in favour of the Defendant Nos.1 to 3 also postulates that the Defendant Nos.1 to 3 get the building plans sanctioned from the concerned authority. It is the specific case of the Plaintiffs that the construction being put up is not as per the permission granted, which is further sought to be cemented as it were, by carrying out

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amendment in the plaint so as to make a reference to the Extension of Village Sites Rules, 1967 and the Circular dated 22/8/2005. Apart from the other findings the Trial Court has recorded a finding that the said Extension of Village Sites Rules, 1967 are not applicable, as according to the Trial Court, the same apply only to the development carried out in the village extension sites. In so far as the Lower Appellate Court is concerned, the Lower Appellate Court as can be seen has not dealt with the issue at all and has merely by rejecting the contention of the Plaintiffs as regards application of the circular issued by the Divisional Commissioner, Pune has rejected the said Appeal. In so far as application of the Extension of Village Sites Rules, 1967 is concerned, the unreported judgment of the Division of this Court in Pabale’s case (supra) has been relied upon. Based on the said judgment it is the contention of the Plaintiffs that the said Extension of Village Sites Rules, 1967 are applicable, as according to the Plaintiffs, the contention of the Defendants in the said Pabale’s case which was akin to the finding recorded by the Trial Court in the instant case viz that the said Rules would be applicable to only the Village Extension sites has been rejected, and therefore, according to the Plaintiffs the Extension of Village Sites Rules, 1967 would be applicable, and since the permission granted to the Defendant Nos.1 to 3 by the Grampanchayat is subject to they complying with the said terms and conditions. The Defendant Nos.1 to 3 are required to proceed with the construction in accordance with the Extension of Village Sites Rules, 1967. The Lower Appellate Court as indicated above has

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not even considered the said aspect. The Lower Appellate Court would also have to take into consideration the Circular dated 22/8/2005 issued by the Government of Maharashtra. It is required to be noted that both the Courts below whilst considering the Application for temporary injunction have observed that it is for the Plaintiffs to approach the competent authority. In my view, that could not have been approach of the Courts below when the Plaintiffs have come with a specific case that the construction being put up by the Defendant Nos. 1 to 3 is in breach and violation of the Rules and Regulations.

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12 The learned counsel appearing for the Respondent Nos.1 to 3 and 5 Shri Mulla relied upon the Judgments of the Apex Court reported in AIR 2011 SC 2151 in the matter of Purshottam vishandas Raheja and Anr. v/s Shrichand Vishandas Raheja (deceased by L.Rs.) and ors; AIR 2009 SC (Supp) 2093 in the matter of E CE Industries Ltd. V/s. S P Real Estate Developers Pvt. Ltd .; AIR 2001 SC 2367 in the matter of Anand Prasad Agarwalla v/s Tarkeshwar Prasad ; and AIR 2001 SC 2182 in the matter of K. Seetharam V/s B. U. Papamma. The said judgments concern the exercise of discretion by the Trial Courts in the matter of grant of temporary injunction, as also the powers of the Writ Court under Article 227 of the Constitution of India. In the light of the fact that the Lower Appellate Court has not considered the matter on the basis of the findings recorded by the Trial Court especially as

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regards the application of the Extension of Village Sites Rules, 1967, and since this Court is remanding the matter for such consideration, the said judgments would have no application at this stage.

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13 In my view, therefore, the impugned order passed by the Lower Appellate Court is required to be quashed and set aside, and is accordingly quashed and set aside and the matter is required to be relegated back to the Lower Appellate Court for a denovo consideration of the Appeal filed by the Plaintiffs. The Lower Appellate Court on remand to consider the said Appeal in terms of the observations made herein above and would record a finding and deal with the aspect of the applicability of the Extension of Village Sites Rules, 1967 and whether the construction being put up is in accord with the said Rules. On remand the Lower Appellate Court to hear and decide the said Appeal within a period of six weeks of the parties appearing before it. The parties to appear before the Lower Appellate Court on 30/10/2012. Rule is accordingly made absolute to the aforesaid extent with parties to bear their respective costs.

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[R.M.SAVANT, J]

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Mrs. Anupama Jaywant Kulkarni and Ors. v. Evershine Builders, through Partners, Yunus Usmangani Mulla and Ors.

Case brief

What is this about?

What did the court decide?

Mrs. Anupama Jaywant Kulkarni and Ors. v. Evershine Builders, through Partners, Yunus Usmangani Mulla and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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