IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 153 of 2010 Reserved on.: 17.08.2010 Date of decision: 23.08.2010 Municipal Council, Solan & another Petitioners. Versus Om Prakash Sahni and another Respondents. Coram The Hon’ble Mr.Justice Deepak Gupta, J. Whether approved for reporting?1 No. For the petitioners: Sh. Anil Kumar God and Sh. Rajiv Rai, Advocates. For the respondents: Sh. Bhupender Gupta, Sr. Advocate with Mr. Neeraj Gupta, Advocate. Per Deepak Gupta, J. 1. This petition under Article 227 of the Constitution of India has been filed by the Municipal Council, Solan (here-in-after referred to as the defendant) and is directed against the order of the Additional District Judge, Solan dated 25.3.2010 whereby he set-aside the order of the Civil Judge (Senior Division) Solan dated 27.2.2010 by which order the learned Civil Judge had rejected the application under Order 39 Rule 1 and 2 filed by the plaintiffs. 2. Briefly stated the facts of the case are that the plaintiffs Om Prakash Sahni and his son Amit Sahni filed 1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes. 2 a suit in the Court of the Civil Judge (Sr. Division), Solan praying that a decree for permanent prohibitory injunction be passed restraining the defendant Municipal Council, Solan from interfering in the suit land, demolishing the construction raised by the plaintiffs and also restraining the defendants from preventing the plaintiffs from raising any further construction. 3. The facts, as they emerge from the pleadings of the parties, are that the plaintiffs submitted two plans for construction of two buildings with the Municipal Council, Solan, on 29.6.2004. In the year 2005 notification under Section 4 of the Land Acquisition Act was issued and the land on which the aforesaid construction was to be raised was the subject matter of this acquisition and as such obviously no construction could be raised. The acquisition proceedings were withdrawn and the land denotified from acquisition on 18.11.2008. After the plaintiffs got back their land they allegedly made repeated efforts to get their maps sanctioned from the defendants. In the month of December, 2008 the plaintiffs gave notice of their intention to raise construction as per the maps submitted on 29.6.2004 and allegedly this notice was sent under postal receipt. Since no reply was received 3 from the defendants the plaintiffs started raising construction in the month of March, 2009. 4. The plaintiffs alleged that till October, 2009 considerable construction had been raised as per the maps and plan submitted on 29.6.2004 when notice was issued to the plaintiffs under Section 211 of the Municipal Act requiring them to remove the alleged unauthorized construction within three days. The plaintiffs alleged that this notice was wrong, illegal and vague and does not comply with the mandatory requirement of Section 211. According to the plaintiffs they gave detailed reply to the notice. The plaintiffs submit that though the defendants admittedly received the maps on 29.6.2004 but the same were never returned to the plaintiffs with any objection. Therefore there is deemed sanction of the plans. Thereafter, the Municipal Corporation issued notice under Section 239 of the H.P.Municipal Act on 21.11.2009 ordering the demolition of the construction of the plaintiffs from the suit land. The plaintiffs claim that both the notices issued under Sections 211 and 239 are illegal and have no value whatsoever. Alongwith the suit an application under Order 39 Rule 1 and 2 praying for stay of the impugned notices was filed. It was prayed that the respondents be restrained from interfering in the suit 4 land, causing any type of damage or demolition and further the defendants be restrained from preventing the plaintiffs from raising the construction over the suit land as per maps submitted by them on 29.6.2004. 5. The stand of the Municipal Council is that the Civil Court has no jurisdiction and the suit is barred since the remedy of appeal is provided under Section 212 of the Municipal Act. It has also been alleged that the plans were returned to the plaintiffs and eight objections were raised. It is submitted that the construction being raised is without any sanctioned plan and is violative of the Municipal Act, building rules and bye laws. The learned trial Court as mentioned above dismissed this application. The appeal filed by the plaintiffs was allowed. Hence this petition by the Municipal Council. 6. I have heard Shri Rajiv Rai, learned counsel for the Municipal Council and Shri Bhupender Gupta, learned Senior counsel for the plaintiffs-respondents. 7. It has been strenuously argued by Shri Rai that the remedy of the plaintiffs is only by way of appeal under Section 212 of the Municipal Act and the suit itself is not maintainable. He also urges that these notices cannot be challenged in the civil suit. On the other hand Shri Bhupender Gupta, learned senior counsel has submitted that there is nothing on record to 5 show that the original plan submitted by the plaintiffs were ever returned to them. He submits that the notice under Section 211 is totally illegal and invalid notice and does not comply with the provisions of Section 211 and therefore, the learned lower appellate Court was justified in staying the operation of these notices. 8. With the assistance of the parties, I have gone through the entire material on record. The stand of the Municipal Council is that the maps in question were returned to the plaintiffs and in this behalf reference may be made to the letters dated 14.7.2008 and 24.9.2009 (may be 24.7.2009) whereby the Executive Officer of the Municipal Council has returned two files containing 42 and 23 pages, respectively to the plaintiffs containing the plans. The case of the plaintiffs is that these letters have not been received by them and have not in fact been dispatched by the Municipal Council. 9. In my considered opinion, the question whether the notices are valid or not, whether the plans were returned by the Municipal Council to the plaintiffs or not, whether there is deemed sanction of the plans are questions which cannot be decided at this stage and have to be decided at the stage of hearing of the suit. The plaintiffs cannot be permitted to raise construction 6 at this stage. If later this construction is found to be against law it will have to be demolished. Admittedly, there is no sanctioned plan in favour of the plaintiffs. This plea is that there is deemed sanction as his plan is not rejected. The question as to whether the plans were not returned with objection is a question of fact which has to be decided by the trial Court after evidence is led before it. At this stage, the plaintiffs cannot be permitted to raise any further construction. 10. On the other hand till these issues are decided the Municipal Council also cannot be permitted to demolish the construction already raised by the plaintiffs because that would cause irreparable harm and injury to the plaintiffs if finally the suit is decreed in their favour. 11. In view of the above discussion, I am of the considered opinion that the only relief which could have been granted to the plaintiffs is that the Municipal Council should be restrained from demolishing the construction already raised by the plaintiffs. It is, however, made clear that the plaintiffs have no right to raise any further construction till this issue is finally decided by the proper forum. The question as to whether the Civil Court has jurisdiction to decide the suit or not has also to be decided by the Civil Court. 7 12. In view of the above discussion, the order of the learned Additional District Judge is partly set-aside. As observed above, both the parties shall maintain status quo on the land in question. The Municipal Council is restrained from demolishing the construction already raised and the plaintiff shall also not raise any further construction till the matter is decided by the Court. 13. The petition is disposed of in the aforesaid terms. No order as to costs. 23rd August, 2010 (Deepak Gupta), J. ™