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Municipal Board Jhansi v. Jan Mohd. - SECOND APPEAL No. 2770 of 1977 [2007] RD-AH 13496 (3 August 2007)


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Court No. 27

Second Appeal No. 2770-77

Municipal Board, Jhansi ....................................................Appellant


Jan Mohammad.............................................................Respondent

Hon. Pankaj Mithal,J.

Heard Sri K.N. Saxena, learned counsel for the appellant and Sri Vishal Kakkar holding brief of Sri S.D. Singh, learned counsel for the appellant.

The plaintiff's suit for permanent injunction in respect of demolition of the constructions situate on plot No. 207/8 was decreed by the Trial Court and the judgment and order was affirmed in appeal. Aggrieved, the defendant appellant Municipal Board, Jhansi has filed this second appeal.

Learned counsel for the appellant has submitted that the constructions were raised without getting the map sanctioned and the same are against byelaw 4A of the Municipal byelaws.

It is not disputed  that the plaintiff respondent is the owner in possession of the land in dispute which is 155 ft x 28 ft. This aspect of the matter has been settled between the parties in the earlier suit 433/1963 which had gone upto the High Court wherein the plaintiff respondent was held to be the owner of the aforesaid land with a finding that it is not part of the street.

The only contention which remains to be seen is whether the plaintiff respondent got the map sanctioned before raising the said constructions. The plaintiff-respondent has submitted an application along with map for sanction to the Municipal Board on 27.8.1973. No objection  or any refusal to the aforesaid map was made by the Municipal Board within a period of one month from the date of submission of the application. Therefore, the plaintiff respondent issued and served a notice dated 29.9.1973 upon the Municipal Board. Even on such notice no action was taken by the Municipal Board within 15 days as provided. Accordingly, the map stood sanctioned with the lapse of time as provided under Section 180 (3) of the Act. The plaintiff respondent has raised construction in accordance with map so deemed to be sanctioned under the law. Therefore, it can not be said that the plaintiff- respondent has raised constructions without  a proper sanction of the map.

The next submission of the learned counsel for the appellant that the constructions are in violation of byelaw 4A of the Municipal byelaws is also not sustainable. First the construction have been raised in accordance with the sanctioned map and therefore there can be no violation of any byelaw.  Byelaw 4A provides for leaving 4ft to 5 ft open space in the front.  The courts below have recorded a finding that from the map it is clear that more than 6ft open land has been left out and therefore the aforesaid byelaw has not been violated. The said finding is a finding of fact which is not available to be interfered in second appeal.

The appeal has no merit and is therefore dismissed with no order as to costs.  




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