DASHMESH ENTERPRISES Vs. STATE OF M P

JUDGEMENT

(1.) THIS is an appeal under Section 96 of the Code of Civil Procedure, against the judgment and decree passed by 4th Additional District Judge, Bhopal in Civil Suit No. 26-A/99, decided on 20-1-2000. The suit of the plalntiff filed for declaration, permanent injunction and quashment of notices issued by defendants, has been dismissed.

(2.) BRIEF facts material for deciding the said appeal, are mentioned hereinbelow: Appellant plalntiff is a duly registered partnership firm having Jagjit Singh, Dhanraj, Jayant and Smt. Pushpa as its partners. Firm is basically engaged in construction activities and is building flats for being sold to prospective purchasers. In the process it had purchased an open piece of land of Survey No. 5/1 of Village Banjari, Tehsil Huzoor, District Bhopal on 21-11-1995, by deed of registered sale executed by Smt. Sandhya Singh in its favour. It appears that on 10-10-1995, the previous owner Smt. Sandhya Singh had already applied for grant of sanction to her for construction of a building on the said piece of land with Gram Panchayat Akbarpur, Vikas Khand Fanda, District Bhopal. The said permission was granted to her by Gram Panchayat Akbarpur on 30-12-1995, after she had already executed the sale-deed in favour of the plalntiff. PLalntiff thereafter did not obtain any further permission and proceeded to make construction as per the sanction said to have been accorded to Smt. Sandhya Singh by Gram Panchayat Akbarpur. According to plalntiff the construction was completed in the year 1996. In all six shops and fourteen residential flats were constructed on the said piece of land. The plalntiff also submitted a declaration before the Sub-Registrar, Bhopal with regard to compliance of the provisions as contained in M. P. Prakoshta Swamitva Adhiniyam. Obviously after completion of the construction of shops and the flats on the said land, the same have been purchased by different purchasers, who are now in occupation thereof. They are not aware that the construction made by plalntiff was illegal and unauthorized. Thus, they can be termed as bonafide purchasers of the shops and flats. On coming to know of the aforesaid construction made by plalntiff, defendant No. 2 had served a notice on it on 21-5-1997. In the said notice it was categorically mentioned that no permission having been obtained, as required under Section 30 of the M. P. Nagar Tatha Gram Nivesh Adhiniyam, 1973 (hereinafter referred to as 'adhiniyam of 1973'), the construction as made by plalntiff is unauthorized, illegal and as such liable to be demolished. PLalntiff had sent reply to the same on 29-5-1997. Thereafter, the fresh notices were sent to plalntiff by defendants and plalntiff also continued to send replies identical to the earlier one. According to plalntiff Survey No. 5/1 was part of the land belonging to Sarva Dharma Co-operative Housing Society, Bhopal. Earlier owner of the said plot had obtained permission for construction of the shops and residential flats thereon from Gram Panchayat Akbarpur during the relevant period, as provisions of M. P. Panchayat Raj Adhiniyam, 1993 were applicable. According to the plalntiff, Gram Panchayat Akbarpur was fully competent to grant and sanction the construction. It was, therefore, contended that notices issued by defendants deserve to be quashed and construction as made by plalntiff be held to be valid and legal, as it was made strictly in aocordance with the sanction accorded to it by Gram Panchayat Akbarpur. On these averments being made in the plalnt, summons were issued to the defendants. Defendants submitted written statement denying the Claim of the plalntiff. The main thrust of the defendants was that Gram Panchayat was neither competent nor authorized to grant sanction or permission for construction, as the land was already covered in the master plan under the Adhiniyam of 1973. They have also filed copy of the Notifications issued by the State Government on 20-7-1994 and 31-8-1994, under the provisions of Adhiniyam of 1973. By the first Notification Village Banjari of Tehsil Huzoor, Bhopal was included in the master plan. Thereafter, by the subsequent Notification this Village Banjari was included in the planning area, whereby no construction on any land situated in the said Banjari Village could have been made unless necessary permission was obtained from defendant No. 2 : Director, Town and Country Planning. It was also submitted by them that admittedly plalntiff has not obtained sanction or permission from defendant No. 2, despite the fact that vide aforesaid Notifications land in question was already included in the master plan as also in the planning area. They have, therefore, contended that in absence of necessary permission and sanction accorded to plalntiff, notices have been issued to plalntiff calling upon it to stop the construction activities. It was also submitted that there was no merit or substance in the suit. On the strength of the aforesaid pleadings, the learned Trial Judge framed issues. Parties went to trial. PLalntiff examined Jagdish Singh as P. W. 1. Defendant examined Smt. Rachna Tiwari as D. W. 1, Assistant Director in the Office of defendant No. 2. On appreciation of evidence available on record, learned Trial Judge recorded findings against the plalntiff and dismissed the suit. Hence, this appeal.

(3.) WE have accordingly heard learned Counsel for the appellant Shri Ashok Lalwani, ably assisted by Shri Anil Lala and Shri Sudesh Verma, Government Advocate, on behalf of the respondents.