1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 237 OF 1989 1. Naginchand Bansilal Pagaria, died L.R.'s 1a. Smt. Kamalabai Naginchand Pagariya, 1b. Vinod Naginchand Pagariya, 1c. Prashant Naginchand Pagariya, 1d. Rajesh Naginchand Pagariya, All R/o. Dharangaon, Tq. Erandol, Dist. Jalgaon. ....Appellants. Versus The President, Municipal Council, Dharangaon, Taluka Erandol, District Jalgaon. ....Respondent. Shri. S.C. Bora, Advocate for the appellant. CORAM : R.K. DESHPANDE, J. DATE : 9th September, 2009 ORAL JUDGMENT : 1. This appeal arises out of the judgment and order dated 15th of July 1989, passed by the learned IIIrd Additional District Judge, Jalgaon, dismissing the Civil Appeal No. 327/1984, filed by the appellant/the original plaintiff, challenging the dismissal of Regular Civil Suit No. 18/1979 filed by the plaintiff. The plaintiff filed a suit for declaration and 2 injunction. The plaintiff claimed that notice dated 25.12.1978 issued by the Municipal Council Dharangaon, District Jalgaon under section 179 of the Maharashtra Municipalities Act to remove the temporary structure standing on city survey No. 1260-C of Dharangaon is illegal. The plaintiff further claimed easementary right over the open portion of city survey No. 1260-C as an approach road to his house, which is located on city survey No. 1289-A. The plaintiff further claimed the relief of permanent injunction, restraining the respondent Municipal Council from removing he structure standing on city survey No. 1260-C of Dharangaon. 2. The Trial Court dismissed the suit filed by the plaintiff holding that there is no easementary right of light and air which would be injuriously affecting, which would enable the plaintiff to bring the action for injunction. On appeal being preferred by the plaintiff, the Appellate Court recorded findings in favour of plaintiff holding that plot No. 1260- C belongs to the Government and notice under section 179 (1) issued by the respondent Municipal Council was not legal. However, the Appellate Court held that the action of the defendant Municipal Council is protected under section 303 of the Maharashtra Municipalities Act and therefore, the injunction claimed by the plaintiff cannot be granted. 3. The learned counsel Shri. Bora has pointed out that this Court while admitting the instant second appeal framed the following two substantial questions of law which are at serial Nos. 4 and 5 in the 3 grounds of appeal. "(4) That the substantial question of law is as to whether the lower Appellate Court is correct in giving protection to the Respondent - Council of Section 303 of the Maharashtra Municipalities Act when the findings on Issues Nos. 1 and 2 were in favour of the Appellant-Plaintiff. (5) That the Appellant has proved that the Plot No. 1260-C belongs to Government and the Appellant is in possession of the said plot since least more than 20 years. The Appellant has further proved that the notice issued by the Respondent- Council under section 179 of the Maharashtra Municipalities Act was illegal. It is submitted that once it is clear that the Appellant is in possession of the land not belonging to the Municipal Council and further when it is clear that the Municipal Council had no authority to evict the Appellant from the said plot, then once fails to understand as to whey the lower Appellate Court has refused to pass decree in favour of the Appellant." The learned counsel urged that the Appellate Court, having recorded findings in favour of the plaintiffs in two aspects, (i) that the Plot No. 1260-C belongs to the Government and (ii) that the notice under section 179 (1) issued by the Municipal Council was illegal, could not have held that the action is protected under section 303 of the Maharashtra Municipalities Act. The learned Counsel has taken me through the findings recorded by the Appellate Court and has relied upon the decision of the Apex Court reported in 1974 (2) SCC 596, Municipality of Bhiwandi and Nizampur V. Kailash Sizing Works. 4 5. None appears for the respondent Municipal Council though served. In addition to this the learned counsel for the appellant has brought to my notice the communication dated 24th of June 2009 addressed to the President of Municipal Council, Dharangaon informing that the matter is kept on 23rd July 2009. However, none appears for the respondent Municipal Council. Hence, the matter is heard. 4. The learned Judge of the Appellate Court has clearly recorded a findings that city survey No. 1260-C belongs to the Government. He has rejected the contention of the defendant/Municipal Council that the said survey number be deemed to have been vested in the Municipal Council in view of section 88 of the Maharashtra Municipalities Act. The learned Judge has further held that there is nothing on record to show that the land was transferred to Municipal Council under the said Act. It is obvious that when the land did not belong to the Municipal Council, the provisions under section 179 (1) of the said Act could not have been invoked by the defendant /Municipal Council. The notice was issued on the ground that there was a temporary unauthorized structure erected by the appellant/plaintiff and that on the same site, the Municipal Council wanted to erect Subash Darwaja. In fact, the Municipal Council had applied to the State Government for allotment of said land which is city survey No. 1260-C and as on this date, there is no allotment order in favour of Municipal Council. As a result, the Municipal Council also could not raise Subash Darawaja without first getting the site allotted in 5 its favour. In fact, the learned Judge of the Appellate Court has held notice to be illegal on two counts, (i) that the land in respect of which notice is issued, does not belong to the Municipal Council and (ii) that the President did not have any right to issue notice to the plaintiff to remove encroachment. 5. While considering the question of extension of protection under section 303 of the Maharashtra Municipalities Act, the learned Judge has observed that the President has acted in good faith while issuing the said notice and there was no intention to cause any harm to the plaintiff. In my view, when the finding is recorded that the President acted without any authority in issuing such notice and that the site did not belonged to the Municipal Council, is itself is enough to hold that the action of the President is without any authority and illegal. There might not be any question of factual malice involved in it, but certainly on the ground of legal malice the notice was vitiated. The decision relied upon by the learned counsel for the appellant, more particularly para 12 of the judgment, is reproduced below :- "12. In Jones Vs. Gordon, (1877) 2 App Cas 616 Lord Blackburn pointed out the distinction between the case of a person who was honestly blundering and careless, and the case of a person who has acted not honestly. An authority is not acting honestly where an authority has a suspicion that there is something wrong and does not make further enquiries. Being aware of possible harm to others, and acting in spite thereof, is acting with reckless disregard of consequences. It is worse than negligence, for negligent action is that the 6 consequences of which the law presumes to be present in the mind of the negligent person, whether actually it was there or not. This legal presumption is drawn through the well known hypothetical reasonable man. Reckless disregard of consequences and male fides stand equal, where the actual state of mind of the actor is relevant. This is so in the eye of law, even if there might be variations in the degree of moral reproach deserved by recklessness and male fides. It is, thus, apparent from the aforesaid decision of the Apex Court that all the authorities were aware of the possible harm to the others and is acting in respect of thereon recklessness in disregard of consequences. Those acts cannot be said to be bona fide. In the instant case, the President was well aware that the land was being used by the appellant for and over a period of 20 years and the temporary structure was standing thereon. The land did not belong to the Municipal Council and removal of structure would definitely cause harm to the plaintiff. Thus, the act on the part of President of Municipal Council was not bona fide. 6. In view of the aforesaid findings, I am of the view that the protection under section 303 of the Maharashtra Municipalities Act was not available to the respondent Municipal Council against the notice dated 25th of December 1978. 7. The learned counsel Shri. Bora has fairly stated that the suit could not have been filed claiming the easementary right. However, the suit as was framed for declaration that the notice dated 25.12.1978 was illegal 7 and that the relief of permanent injunction, restraining the respondent Municipal Council not to evict the plaintiff from the suit site except in accordance with the provisions of law, was certainly maintainable. In view of this, the suit is, thus, partly decreed. Notice dated 25.12.1978 is declared to be illegal. The respondent Municipal Council is restrained from taking any adverse action against the appellant/plaintiff in respect of the structure standing on the city survey No. 1260-C, except in accordance with provisions of law. The appeal is, thus, allowed without there being any order as to costs. [ R.K. DESHPANDE, J. ] ssc/sa237.89