C.R. No. 2126 of 2009 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH C.R. No. 2126 of 2009 (O&M) Date of Decision : 11.11.2009 Raj Kumar Walia .......... Petitioner Versus Municipal Committee Mukerian & another ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Parveen Kumar, Advocate for the petitioner. **** VINOD K. SHARMA, J. (ORAL) This revision petition is directed against an order dated 28.11.2008, passed by the learned Addl. District Judge, Hoshiarpur vide which application moved by the petitioner under Order 39 Rules 1 & 2 of the Code of Civil Procedure for restraining the defendant / respondents from interfering in the construction of the shops, as well as dispossessing the plaintiff / petitioner from the shops in dispute. The case set up by the plaintiff / petitioner was that his great grandfather Shri Radha Krishan was the proprietor of village Manj Kala and was having immovable property situated within the abadi area of said village. After the demise of Shri Radha Krishan, his immovable property devolved upon Shri Shankar Dass, the grandfather of the plaintiff / petitioner, and on his death the property was devolved upon Shri Ganga Bishan, who was father of the plaintiff / petitioner and on his demise the C.R. No. 2126 of 2009 2 property devolved upon the plaintiff / petitioner. He claimed himself to be the owner in possession of the property in dispute. It was the case of the plaintiff / petitioner, that the property in dispute has come within the jurisdiction of the Municipal Council, Mukerian. It was further the case of the plaintiff / petitioner, that the construction of the shops had become old and he wanted to get fresh plaster over the walls and get the lintel over the roofs of the shops. When the laying of the lintel was going on, the Municipal Committee issued notice to the plaintiff / petitioner for getting the site plan approved. The plaintiff / petitioner, therefore, moved an application along with Rs. 4375/- for getting the plan sanctioned. It is the case of the plaintiff / petitioner, that due to the political reasons and rivalry, the defendants were threatening to cause damage or demolish the shops in dispute. The suit was contested, wherein it was pleaded, that the defendants were following lawful procedure to demolish the illegal construction raised by the plaintiff / petitioner. On merits, it was pleaded, that the plaintiff or his forefathers have not got any right in the property, which was shamlat deh, Hasab Rasad Khewat, comprised in Khasra No. 141 (12-19), situated within the municipal limits of Municipal Council, Mukerian. It was also the case of the respondents, that the property in dispute vests in the Municipal Committee after issuance of notification by the State Government, as the property owned by the Gram Panchayat vests C.R. No. 2126 of 2009 3 in Municipal Council, Mukerian. It was also the case of the respondents, that the construction raised by the plaintiff was illegal and without permission of the Municipal Council, Mukerian, which was mandatory as per the rules of the Municipal Act. It was on account of this, notices under Sections 195-A & 220 of the Punjab Municipal Act, 1991 were issued directing him to stop illegal construction. It was also pleaded in the written statement, that documents submitted by the plaintiff along with the site plan showed that the property was purchased by the plaintiff on 29.11.2006, but no document of ownership was produced in support of the site plan. The learned trial Court, however, allowed the application after taking an undertaking from the petitioner, that in the event of failure of the suit he would get the construction removed at his own risk and responsibility. The learned trial Court also came to the conclusion, that permission for construction was granted and it was to be proved by leading evidence, therefore, it could not be decided at present, as the construction was almost complete. Therefore, the learned trial Court found that there was a prima facie case in favour of the plaintiff / petitioner and that he was likely to suffer irreparable loss and granted injunction. However, on appeal, the learned lower appellate Court was pleased to reverse the order passed by the learned trial Court, primarily on the ground, that the plaintiff had claimed the ownership of the property under an agreement to sell dated 29.11.2006. The Court also found, that no C.R. No. 2126 of 2009 4 plan was sanctioned by the Municipal Committee and merely filing of the application, the Municipal Committee did not give right to the plaintiff to raise construction thereon. Thus, the learned lower appellate Court found, that there was no prima facie case in favour of the plaintiff / petitioner and dismissed the application. The learned counsel appearing on behalf of the petitioner vehemently contended that the learned lower appellate Court has wrongly reversed the well reasoned order passed by the learned trial Court without meeting with the reasons given by the learned trial Court. It is also the contention of the learned counsel for the petitioner, that the notice issued by the Municipal Committee was prima facie without jurisdiction, as the plaintiff / petitioner was not raising any construction but was only carrying out the repair in old building, which was in existence right since forefathers, therefore, the learned lower appellate Court committed an error in setting aside the order, especially when an undertaking was given by the petitioner to remove the illegal construction in the event of failure of the suit. The contention of the learned counsel for the petitioner was that balance of convenience is in favour of the petitioner, and he also had a prima facie case in his favour as possession of the plaintiff / petitioner was not disputed, nor it was disputed that building was almost complete. On consideration of the matter, I find no force in the contentions of the learned counsel for the petitioner. The learned trial Court was not justified in granted injunction in favour of the petitioner merely on the basis of an undertaking given by the petitioner, in view of the law laid C.R. No. 2126 of 2009 5 down by the Hon'ble Supreme Court in the case of Maharwal Khewaji Trust ( Regd. ), Faridmot v. Baldev Dass JT 2004(9) SC 216 laying down that the Court cannot grant injunction on an undertaking of the party and the Court should decide the application on merit. The contention of the learned counsel for the petitioner that he was not raising any construction, and was merely carrying out repair is also misconceived, as it is not disputed that on an objection raised by the Municipal committee he had moved an application along with the requite fee for sanctioning of site plan, which was not sanctioned. In absence of challenge to the statutory notice issued by the Municipal Committee in exercise of powers vested in them under the Punjab Municipal Act, 1911 it could not be said that the petitioner had any prima facie case in his favour so as to claim injunction. The learned lower appellate Court rightly held that the petitioner was seeking his ownership on the basis of an agreement to sell, which did not form prima facie valid title in his favour. This further belies the stand of the petitioner that he had inherited the property from his father being proprietor of the village. The order passed by the learned lower appellate Court does not suffer from any illegality which may call for interference by this Court in exercise of revisional jurisdiction. No merit. Dismissed. 11.11.2009 ( VINOD K. SHARMA ) 'sp' JUDGE