ASHIMA NARULA Vs. MUNICIPAL CORPORATION

JUDGEMENT

(1.) THIS appeal is directed against the decree and judgment dated 27.10.1990 passed by the District Judge, Shimla, whereby the appeal of the original appellant-plaintiff Sunder Lal Narula was dismissed and the decree and judgment dated 28.11.1988 of Sub Judge (IV) Shimla, was confirmed. The Sub Judge had dismissed the suit of Sunder Lal Narula which he had filed for permanent, perpetual and prohibitory injunction for restraining the respondent-defendant Corporation from demolishing the stall or in any manner interfering with his possession thereof situate opposite the Rivoli Theatre, Shimla. Sunder Lal Narula has died during the pendency of the present appeal and his legal representatives have been brought on record.

(2.) THE brief facts of the case are that late Sunder Lal Narula claimed that a piece of land situate opposite Rivoli Theatre, Shimla was allotted to him by the respondent Municipal Corporation and information in this regard was sent by the Tehsildar, Municipal Corporation, Shimla, vide his letter No. 2/6475/Secy/81 dated 1.1.1982, Ex. PW 1-A, pursuant to which he had deposited an amount of Rs. 600/- as lease money for the period 1.1.1982 to 31.12.1982, Mark X. Thereafter, on the representation of Himachal Pradesh State Electricity Board that the said piece of land belonged to them, late Sunder Lal Narula got it allotted in his favour on a monthly rent of Rs. 121.65 for a period of two years, that is, from 1.10.1982 to 30.9.1984 vide Office Order dated 22.10.1982. Ex. PW-8/B and also entered into an agreement dated 27.10.1982, Ex. PW-3/A. Accordingly, he had paid rent to the H.P. State Electricity Board for the period from December, 1982 to March, 1983 against receipts Ex. PW-3/C to Ex. OW-3/E. Further case of late Sunder Lal Narula was that on 16.12.1982 he had submitted a plan for seeking sanction from the respondent Corporation for construction of a stall which was neither sanctioned nor refused. Therefore, after the expiry of the stipulated time as required under Section 262 of the Municipal Corporation Act, 1979 (hereinafter referred to as 'the Act'), considering his plan deemed to have been sanctioned, late Sunder Lal Narula raised construction of a stall which was completed on 28.2.1983 and started carrying on his business.

(3.) THE respondent Corporation resisted the suit on preliminary objections, inter alia, that it was not maintainable in view of the previous suit and also that the piece of land in question was never allotted to late Sunder Lal Narula, hence part of the unauthorized structure raised by him was demolished with the assistance of Police on 21.3.1987 and the rest of it was not demolished on the assurance given by him that he would do it himself but on 23.3.1987 he obtained stay order by initiating the present litigation. On merits, it is vehemently denied that any lease was granted in favour of late Sunder Lal Narula or that lease deed was executed between him and the Commissioner of the respondent Corporation, who is the competent authority to enter into a contract on its behalf. However, the deposit of the lease money was admitted. The further case of the respondent Corporation was that the piece of land in question was earlier in possession of the H.P. State Electricity Board, who used to keep its diesel tanks on it, therefore, it had approached the respondent Corporation not to grant it on lease. Further the transaction between late Sunder Lal Narula and the H.P. State Electricity Board was denied on the ground that the H.P. State Electricity Board had no authority to grant lease of the i.e. of land in question. It is admitted that late Sunder Lal Narula had submitted a plan but since he was not authorized to make construction on the piece of land in question, there was no occasion to give sanction to him.