THODUPUZHA MUNICIPALITY Vs. ABRAHAM PHILIP

JUDGEMENT

(1.) Defendant in O.S. 248 of 1989 on the file of Munsiff Court, Thodupuzha is the appellant. Plaintiff is the respondent. Respondent is the owner in possession of ten cents of land in Survey No. 192/12 of Thodupuzha Village of Ward No. 21 of Thodupuzha Municipality. He instituted the suit seeking a decree for permanent prohibitory injunction restraining appellant Municipality from demolishing the plaint schedule building pursuant to Ext. A9 and Ext. A10 proceedings initiated under S.247(1) of Municipalities Act which was finalised under Ext. A12 order. It was contended that on 27.10.1989, Ext. A12 order was received by the appellant and the order is arbitrary and against natural justice. Invoking power provided under S.364 of Municipalities Act, respondent filed an appeal. Contending that appellant threatened demolition of the building before the disposal of the appeal, and therefore appellant is to be restrained by a permanent prohibitory injunction from demolishing the building, suit was filed. Appellant filed a written statement contending that the suit is not maintainable before exhausting the remedies provided under the Muncipalities Act and for that reason alone, the suit is to be dismissed. It was also contended that muncipal authorities have not given approval for the unauthorised construction made and the unauthorised construction was not agreed to be validated and the Municipality is entitled to proceed under S.247(1)of the Muncipalities Act and respondent is not entitled to the decree sought for.

(2.) Learned Munsiff on the evidence of Exts. A1 to A16, Ext. B1 to B6, Ext. C1 and Ext. C1(a) and PWs 1 to 3 and DW 1 held that the respondent is not entitled to get a decree against appellant Municipality from proceeding under S.247 of Muncipalities Act and dismissed the suit. Respondent challenged the decree and judgment before District Court, Thodupuzha in A.S. 63 of 1991. Learned Additional District Judge on reappreciation of evidence, held that Ext. A9 proceedings under S.247 of the Muncipalities Act was initiated for extraneous considerations and held that civil court is competent to grant a decree for permanent prohibitory injunction and granted the decree as sought for but making it clear that the decree will not stand in the way of the Municipality from proceeding against appellant in respect of the construction of the first floor after giving valid notice with full particulars regarding the infraction of the statutory provisions or approved plan and license etc. The second appeal is filed challenging the said decree and judgment.

(3.) The second appeal was admitted formulating the following substantial questions of law.