V NACHIAPPAN Vs. MADURAI MUNICIPAL CORPORATION

JUDGEMENT

(1.) The plaintiffs on rejection of their case for declaration and permanent injunction by both the Courts below are the appellants herein. The plaintiffs sought for declaratory relief that the impugned order of the defendant Corporation dated 13.9.1985 was illegal and unenforceable and consequentially sought for permanent injunction.

(2.) The following facts are noticed in the pleadings of the parties. A small piece of vacant site measuring about 4 ft.' x 40 ft. belonged to the plaintiffs with a shed thereto and the said property was bearing Door No.89, South Avanimoola Street, Madurai; that on the western side of the said house, there was a vacant site to an extent of 163 sq.ft.; that the vacant site also belonged to the plaintiff; that on both sides of the vacant site, they have raised compound wall and the property has been in their continuous possession and enjoyment; that on the northern side of wall, there was already a door way from the house to the vacant site; that to protect the cattle, there was already a shed in that vacant site adjoining the northern compound wall; that the shed was ever in use of the plaintiffs; that they have not erected any new construction in the vacant site but maintaining the same which was previously in existence; that whileso, the defendant Corporation has initiated some vexatious proceedings contending that the plaintiff has put up a shed measuring 12 ft. x 4 ft. in his proceedings K16/121318/85 dated 29.8.85; that on receipt of the notice it was also properly replied by the plaintiffs stating that they have not raised any new construction and the same has been in the past; that subsequently the defendant had proceeded further by issuing an order dated 30.9.85 to demolish the shed; that the defendant has not followed the procedure formulated as enumerated in law; that before initiating such proceedings, the defendant did not give reasonable opportunity for the plaintiffs to explain the case and thus, there arose an occasion to sought for declaration and permanent injunction against the defendant from interfering with the right of the plaintiffs with regard to the suit property.

(3.) The suit was vehemently resisted by the defendant Corporation stating that the suit property is the Corporation lane running on the west of Door No.89 South Avani Moola Street, Madurai, in T.S.No.1807 and it is vested with the defendant Corporation; that the neither plaintiffs nor anybody have right or title over the same; that the said lane was used as the access by the public; that the plaintiffs have recently encroached the land unauthorisedly putting up AC Sheet shed with rolling shutters to an extent of 12 ft. X 9 inches x 4 ft. and began to run a shop; that the averments of the plaintiffs that they have put up a building long ago and was maintaining the same are all utter falsehood.; that the plaintiffs have put up unauthorised wall in the Corporation lane at the end of August 1985 without permission and there upon the defendant issued notice dated 29.8.85 to remove the construction as per Corporation Rules; that since the plaintiff did not remove the same, the impugned notice dated 30.9.85 was issued which was valid and legal; that the action taken by the Corporation was in accordance with law; that there was no cause of action for the plaintiffs to file a suit and hence, the suit has got to be dismissed.