PUNE CANTONMENT BOARD Vs. RAKESH MOTILAL SHARMA

JUDGEMENT

(1.) This petition is directed against an order dated 18 June, 2010 passed by the learned District Judge-5, Pune allowing the Miscellaneous Civil Appeal filed by respondent and thereby granting an interim injunction restraining the petitioner from demolishing the suit premises till the decision of the suit.

(2.) On 27 November, 1996, the petitioner Pune Cantonment Board granted to the owners permission for construction of a building on the property bearing House No. 2147, Modikhana, situated within its limits. In accordance with the said building permission, the owner/promoter commenced construction of a building and intimated to the petitioner (hereinafter referred to as "Cantonment Board") that he had commenced the construction on or about 5 November, 1997. According to the Cantonment Board, the building construction ought to have completed within a period of one year of the commencement. However, the construction was not so completed and was continued beyond the period of one year without seeking any extension after 5 November, 1998. The Cantonment Board, therefore, issued a notice purporting to be a notice under section 185(1) of the Cantonments Act, 1924 addressed to Mr. Rashiklal Nahar, the promoter, to stop erection/re-erection of the building. The noticee did not pay any heed to the notice and continued the construction. Consequently, the Cantonment Board issued another notice on 1 September, 1999 purporting to be a notice under section 256 of the Cantonment's Act, 1924 intimating to him that the unauthorized construction would be removed on or after 10 days. It appears that Mr. Nahar then filed a suit against the Cantonment Board for an injunction restraining it from demolishing the construction. An interim relief was initially granted but the suit was dismissed on 15 December, 2004 for non-appearance of the plaintiff. It appears that thereafter the respondent No. 1 who claims to have purchased 2 shops in the building filed another suit, bearing RCS No. 548 of 2010, for an injunction restraining the Cantonment Board from demolishing his shops. By an order dated 4 May, 2010, the trial Court dismissed the application for interim injunction. However, an appeal filed by the respondent was allowed by the District Court by an order dated 18 June, 2010. The appellate Court granted an injunction restraining the Cantonment Board from demolishing the suit shops till the disposal of the suit. That order is impugned in this petition.

(3.) The case of the respondent is that his father had purchased the suit shops from the promoter/developer by an agreement dated 29 May, 1997 executed under the provisions of Maharashtra Ownership Flats Act, 1963. On death of his father Motilal on 29 July, 2008, the respondent had inherited the suit shops and was the owner thereof. He was carrying on business in the suit shops for more than 10 years since the death of his father. No notice whatsoever was served either on him or his father and the Cantonment Board has no authority to demolish the suit shops without notice to him.