1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.180 OF 2004 Sohanraj Himmatmal Parmar and Anr. .. Appellants V/s Municipal Corporation of City of Pune .. Respondent Ms.Kiran Bagalia i/by Mrs.Lalita Panchakshri for the Appellants. Mr.S.M.Gorwadkar for the Respondent. CORAM : R.G.KETKAR, J. DATE : 22nd July, 2009. P.C.: 1. By order dated September 8, 2005 this Court passed the following order:- “Heard both sides. In view of the facts and circumstances the matter is fixed for final hearing at the stage of admission. Stand over after two weeks. Record and Proceeding is already received. The appellant to prepare compilation and circulate it well in advance. Print is dispsensed with.” 2. Pursuant to the above order, the appellants have prepared additional compilation and the matter is heard finally at the stage of admission. By this appeal the appellants challenge the judgment and decree dated July 6, 2002 passed by the learned Civil Judge, Junior Divison, Pune, in RCS No.800 of 1999, as also the judgment and decree dated December 29, 2003 passed by the 2 learned 10th Additional District Judge, Pune in Civil Appeal No. 589 of 2002. By the impugned judgment and decrees, the Courts below dismissed the suit instituted by the appellants for a declaration that the Notice bearing No.BCO/14/665 dated April 28, 1999 issued by the Respondents-Defendants u/s.260 (2) of the Bombay Provincial Municipal Corporations Act, 1949 (in short “the Act”), is illegal and void and that the repairs/renovation carried out by the appellants is strictly as per the plan sanctioned by the Respondent. The appellants also claimed perpetual injunction restraining the respondent and its officers from acting upon the impugned Notice dated April 28, 1999. The appellants contended that they had purchased property bearing CTS No. 1182 at Ravivar Peth Pune, admeasuring 161.4 meters, (for short “the suit property”) under the Registered Sale Deed dated July 22, 1996. The structure was old construction comprising of ground plus two floors and required renovation and major repairs. The appellants submitted Plans to the respondent which were sanctioned under Commencement Certificate No.1451 dated August 27, 1997 (Exh.36). The Plans were revised under Commencement Certificate No.1466 dated April 18, 1998 (Exh. 39). The suit property is in gaothan area. It is the case of the appellants that after obtaining permission from the Respondent, repairs work was carried out strictly in accordance with the permission obtained. However, the adjoining owner having 3 property on the western side of the property bearing CTS No. 1181, Ravivar Peth Pune, viz.Shri.Narayandas Ramkisan Karva complained to the appellants about damage caused to his property. The appellants promised him to carry out the repairs of minor damages. Mr.Karva however moved the Respondent and the correspondence ensued between the parties 3. It is the case of the appellants that eventually Mr.Karva, prevailed upon the officers of the respondent who issued Notices No.BCO/14/6247 and BCO/14/6249 on January 19, 1999 u/s. 260(1) and 267 of the Act. The appellants replied the said notices on March 1, 1999. In response to the letter of the Respondent dated March 3, 1999 they gave reply on March 22, 1999. It is at this stage the respondent issued impugned Notice bearing No.BCO/14/665 u/s.260(2) of the Act calling upon the appellants to remove the unauthorised work carried out in the set back line, which according to the Respondent was carried out without permisson, contrary to the sanctioned plans. The appellants were called upon to demolish the same within 15 days of the receipt of the notice, failing which the Respondent would demolish the same after may 25, 1999. The appellants reiterated that they have not carried out any new work in the set back area. The existing structure partially fell down while removing the upper floor. It was repaired extensively. 4 4. The respondent resisted the suit by filing the Written Statement at Exh.44. It is the case of the respondent that the Plan was sanctioned under the Commencement Certificate No.1451 on August 27, 1997. The permission was granted subject to certain conditions and the following conditions are relevant for the purpose of determining the controversy between the parties. (i) the portion covered by the road widening will be handed over to the Corporation before commencing the work, (ii) No construction of any manner will be carried out in the set back of old existing structure, (iii) If any construction is carried out in set back portion or repairs are carried out which are not sanctioned in the Plan, the same will be demolished without prior notice. 5. The appellants demolished the upper floors falling within the road widening line and upper floors of the building which were falling between the set back line. The portion of old building on the ground floor situated within the road widening line was also removed by the appellants. However, the portion on the ground floor of the old building falling within the front set back line to the extent of 7ft.6 inches was retained by the appellants. 6. Before the trial Court, parties led oral as well as documentary evidence. As set out earlier, the learned trial Judge dismissed the 5 suit by holding that the notice issued by the Respondent on April 28, 1999 is valid and that the appellants have violated the conditions of the building permission. The appellants have failed to prove that the entire repair work of the suit property is strictly as per the sanctioned Plans. On these among other grounds, the learned trial Judge dismissed the suit. 7. The appellants preferred the civil appeal before the learned District Judge who confirmed the findings recorded by the trial Court and held that the appellants failed to prove that the entire repair works carried out to the suit property is as per the sanctioned Plans. Learned District Judge also held that the impugned notice was valid and that the appellants violated the conditions of the building permission. Resultantly, the learned District Judge dismissed the appeal. 8. In support of this appeal Ms.Bagalia, learned counsel for the appellants submitted that the present appeal involves substantial question of law as contemplated u/s.100 of the Code of Civil Procedure 1908 (for short “CPC”). She submitted that there is total misreading of the evidence by the Courts below which has resulted in miscarriage of justice. She submitted that the respondent can issue notice u/s.260 of the Act in respect of altogether new construction carried out without the permission of 6 the Corporation. However if the repairs not falling u/s.253 or 254 of the Act are carried out, notice u/s.260 of the Act cannot be issued. 9. On the other hand, Mr.Gorwadkar, learned counsel for the respondent submitted that the Courts below have concurrently found that the appellants did not carry out the repairs work strictly as per the sanctioned plans. The courts below on appreciation of evidence on record, have recorded findings of facts. The appeal does not involve any question of law, much less any substantial question of law requiring interference of this Court u/s.100 of the CPC. 10.With the assistance of the learned counsel appearing for the parties, I have gone through the material on record. It is undisputed that the building permission was granted for repairs firstly on August 27, 1997 subject to certain conditions. The relevant conditions are already extracted hereinabove. In fact, before granting building permission, the appellants gave undertaking on July 25, 1997 at Exh.73 to the effect that they will not carry out any repairs in the set back portion. The courts below considered the admissions given in the cross-examination by PW-1 Suresh Himmatmal Parmar at Exh.35, to the effect that he had demolished old structure coming in the set back line, however, in 7 the next breath he denied that there was no structure in the set back line. He also admitted that the permission was not granted to the appellants to carry out the repairs in the set back line. The Courts below on appreciation of evidence came to the conclusion that the appellants have carried out the construction within the front set back line. In view of this, the Courts below dismissed the suit of the appellants. 11.Quite apart, perusal of the prayers made in the plaint indicate that the appellants challenged Notice u/s.260(2) of the Act, however, the appellants did not challenge the basic Notice issued u/s.260(1) of the Act. Ms.Bagalia, learned counsel for the appellants strongly relied upon the judgment of the Apex Court in the case of Rohini Prasad and Others V/s.Kasturchand and Another, (2000) 3 SCC 668, in support of her contention that the High Court would be justified in interfering in Second Appeal where misreading of evidence by Appellate Court would lead to miscarriage of justice or its finding is based on no evidence and thus perverse. The facts in that case were that the respondent had filed a suit against the appellant for recovery of possession and mesne profit in respect of the agricultural land. The respondents had purchased the said land under a sale deed dated September 12, 1977 from Maqsood Ali and Abid Ali who were “bhumiswamis” of the land. The appellants contended that Ali’s 8 had granted lease for one year viz.1975-76 to the appellants and was extended for a further year 1976-77. The Apex Court considered the provisions of the Madhya Pradesh Land Revenue Code 1959 and in particular Sections 168, 169, 190 thereof. In the case before the Apex Court, the trial Court decreed the suit but denied mesne profit. The appeal preferred by the defendants was allowed and the suit was dismissed. The High Court of Madhya Pradesh allowed the Second Appeal of the Respondents- Plaintiffs and decreed the suit. 12.As set out earlier, the contention of the appellants-defendants before the Apex Court was that the lease was granted for the year 1975-76 and was extended for a further year 1976-77. In paragraph No.8 of the judgment, the Apex Court recorded that there was no evidence to come to the conclusion that the appellant Rohini Prasad was in possession of the land in continuation or renewal of the lease after expiry of the year 1975-76. Despite that position, the first appellate Court recorded a finding that the appellants-defendants became “bhumiswamis” in view of Section 168 of the Madhya Pradesh Land Revenue Code 1959. In that context, the Apex Court held that the High Court was justified in interfering with the decision rendered by the first Appellate Court. Reading of evidence by the first Appellate Court was perverse and in fact there was no evidence in 9 reaching the conclusion that Rohini was in possession of the land in continuation or renewal of the lease after expiry of the year 1975-76. The facts obtaining in the present case and the facts in the case of Rohini are materially different. 13.The Courts below on appreciation of evidence on record, have recorded findings of facts that the appellants did not carry out repairs strictly as per the building permission granted by the respondents. Appellants have failed to prove that the impugned Notice dated April 28, 1999 u/s.260(2) of the Act was invalid. On the contrary, considering the admissions given by the appellants witness in the cross-examination the courts below recorded a finding that the construction covered by the front set back portion was demolished by the appellants and the new construction was carried out. 14.For all the aforesaid reasons, the appeal is devoid of substance and hence deserves to be dismissed. Appeal does not involve any question of law, much less the substantial question of law. The findings recorded by the courts below are based upon the evidence and cannot be called as perverse requiring interference at the hands of this Court. Appeal fails and accordingly stands dismissed. (R.G.KETKAR, J.)