1 FARAD CONTINUATION SHEET. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. SECOND APPEAL NO.173 OF 2007. Narinder Singh Uppal. ..vs.. Pradeep Joshi. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Office Notes, office Memoranda of Coram Court's or Judge's appearances, Court's orders or directions order and Registrar's order. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= CORAM: C.L.PANGARKAR,J. DATE : 21st April, 2008. 1. Heard Mr.Rohit Deo, Advocate for the appellant and Mr.S.V.Sirpurkar, Advocate for the respondent. 2. This appeal is by the original defendant. The plaintiff and defendant are the joint owners of plot described in the plaint. Ground floor part of the building belongs to the plaintiff while the first floor and the floor thereon belong to the defendant. There is a terrace on the said second floor. It is alleged by the plaintiff/respondent that defendant/appellant is carrying out some constructions on said building and he has no right to do so. It was also alleged by the plaintiff that 2 the said constructions sought to be carried out by the plaintiff is without any permission and in the contravention of the Municipal bye-laws. It is further contended by the plaintiff that none of the purchasers of the building on the plot is allowed to erect any structure of temporary or permanent nature on the space available over the terrace. It is contended that defendant is unauthorisely carrying out the permanent structure and therefore plaintiff seeks injunction restraining the appellant/ defendant from making further construction over the terrace and also for mandatory injunction in respect of the construction that is already carried out by the defendant. 3. It is one of the contentions of the plaintiff that the construction sought to be made by the defendant would be in excess of the FSI available for the said plot. 4. The defendant had resisted the suit. The defendant admits that the plaintiff and defendant are the joint owners of the plot and that plaintiff is in possession of the ground floor and the upper portion is in the possession of the defendant. The defendant denies that he has carried out any illegal construction as alleged by the plaintiff. The 3 defendant also denies that he has no right to make such construction and that construction in any way consumes any FSI at all. According to the defendant, such construction does not amount to construction which could be treated as construction for the purpose of FSI. 5. The learned judge of the Trial Court found that the terrace in question was not the common terrace. The construction sought to be made by the defendant was illegal and the plaintiff was, therefore, entitled to relief of injunction including mandatory injunction. 6. The defendant had preferred an appeal before the District Judge. The learned Additional District Judge heard the appeal and concurred with the findings of the Trial Court that the terrace was not common. The construction sought to be made by the defendant was illegal and unauthorised and it is found that the plaintiff was entitled to decree for injunction. Holding so, he dismissed the appeal. 7. The main contention of the learned counsel for the appellant was that the construction that is sought to be made by the defendant does 4 not at all consume any kind of FSI because it is not a construction which covers any area as such. According to him, none of the constructions consumes any FSI and defendant has right to make construction and none of the rights of the plaintiff would be affected. 8. The learned counsel for the respondent, on the other hand, contended that the courts below have concurrently held that whatever construction that is sought to be made by the defendant would certainly be in excess of the FSI and would consume the FSI. He further submits that such finding is a finding of fact and there are two concurrent findings. I find much substance in the submission of the learned counsel for the respondent. The courts below have considered the evidence on record and it is found by them as a fact that the construction sought to be made would certainly be falling within the definition of construction which would cover the FSI. In view of this, I do not find that the argument of the learned counsel for the appellant/defendant on this point can be accepted. 9. Further, it is found as a fact that the open terrace does not belong to the defendant 5 exclusively. For this reason also defendant was rightly held to be not entitled to make any constructions over it. 10. The next point that was urged by the learned counsel for the appellant was with regard to deemed sanction. The fact remains that there is, therefore, no approval of the construction sought to be made by the defendant. It is also, therefore, clear that the construction was started by the defendant even before any approval or disapproval was conveyed by the Municipal Council to him. It was contended before me that the rejection of the application was not informed by the Municipal Council to the defendant and therefore, there is a deemed sanction. Section 189 of the Maharashtra Municipal Councils Act, 1965 deals with deemed sanction. In this regard, it may be mentioned that the courts below have as a fact found that in this case the defendant has failed to make out the case even of a deemed sanctioned. Learned counsel for the appellant contends that this was done by the courts below on mis- appreciation of the evidence. He contended that if there is mis-appreciation of the evidence by the courts below, High Court has every right to interfere with such findings and that becomes the 6 substantial question of law. The proposition in that regard cannot be disputed and therefore, I need not refer to the decisions cited by the learned counsel in that regards. It may, however, be mentioned that what is necessary in a deemed sanction is that the Municipal Council must fail to inform anything to the owner of the house who intends to carry out the construction, within sixty days. In this case, by notice Exh.115, the Municipal Council did inform the defendant that there were certain deficiencies in the plan and unless those are cleared, the same cannot be sanctioned at all. Once this was informed, there was no question of any deemed sanction at all unless and until all those deficiencies were removed. Even in case of deemed sanction the constructions sought to be made must be perfectly within building bye-laws of the Municipal Council and the Rules framed by the Municipal Council in that regard. There could not be any deemed sanction in respect of the construction which may be in contravention of the building bye-laws and the Rules. Since certain deficiencies were informed and it was informed that the sanction has not been granted, there could be no deemed sanction under Section 189 of the Municipal Council Act. The findings of the courts below do 7 not appear to me in any way perverse at all. The question as to whether the defendant had, therefore, received notice under Section 117 or not would be very much immaterial. I see no substantial question of law involved in the matter. All questions raised are the questions of fact only. There is no perversity in the judgment. The appeal is, therefore, dismissed in limine. Stay granted by this court to continue for a period of eight weeks. JUDGE chute