R.L.ANAND, J. - (1.) MUNICIPAL Council, Ambala Cantt (hereinafter called "the petitioner") has filed the present Civil Revision and it has been directed against the order dated 16.10.2000, passed by the Court of Additional District Judge, Ambala, who, affirmed the order dated 24.7.2000, passed by the Court of Addl. Civil Judge (Senior Division) Ambala Cantt, who allowed the application of the respondent Shri Ashok Kumar under Section 39 Rules 1 and 2 C.P.C. and directed the petitioner that during the pendency of the suit the construction raised by the respondent-plaintiff on the property in question should not be demolished.
(2.) THE reasons given by the first appellate Court in dismissing the appeal of the petitioner are contained in para Nos. 7 to 11 of the impugned order, which are reproduced as under ;- "7. It is undisputed that the plaintiff had purchased the suit property vide registered sale deed dated 4.12.1980 from Shri V.K. Jaiswal who had purchased it in a public auction vide sale certificate dated 14.9.1977. The said sale certificate is available at page 145 to 148 and the sale deed is available on page 149 to 158 of the trial Court record. Prima facie speaking, the plaintiff being the owner has, therefore, a right to raise construction of the suit property more so when the municipal committee vide resolution dated 4.12.1997 had sanctioned his building plan. 8. Learned counsel for the appellants has argued that the plaintiff's suit itself was not maintainable and was rather barred under Order 2 Rule 2 C.P.C. because the relief claimed by him in the present suit was not incorporated by him in his earlier suit whereby he had challenged the notice dated 23.12.1999 issued by the State Government for resumption of the suit property. The Court does not agree with the contention for the simple reason that the cause of action in the present suit is different from the one relating to the earlier suit. Undeniably, the earlier suit was based on the allegation that the notice issued by the State Government for resumption of suit property is illegal and bad. Municipal Committee was not the party in that suit and question regarding sanction of plan by the municipal committee was not in issue in that suit. The present suit is based on altogether different terms and the grievance involved herein is with regard to sanctioning of the plan by the Municipal Committee and its suspension by the Deputy Commissioner under the provision of the Act. The present suit is, therefore, not prima face barred by Order 2 Rule 2 C.P.C. 9. Next argument advanced by the appellant's counsel is regarding maintainability of the suit. Their contention is that the plaintiff had an opportunity of assailing the impugned order under Section 253 of the Act by filing appeal to the State Government and, therefore, the suit filed by him was barred by Section 41(h) of Specific Relief Act, 1963. The argument is again benefit (bereft ?) of merit. Bare perusal of Section 253 of the Act reveals that the same does not provide a remedy to an aggrieved party and it rather contains enabling provision for the State Government to refuse or modify any order of any officer of the State Government passed or purported to have been passed under the Act, if it considers it to be not in accordance with the said Act or the rules or to be, for any reason, inexpedient. Thus, provision of Section 253 of the Act cannot be construed to be such equally efficacious remedy as would bar the plaintiff's suit under section 4(h) of the Specific Relief Act. 10. It was then argued by the learned counsel for the appellants that the Deputy Commissioner had the power under Section 246 of the Act to suspend the resolution of the Municipal Committee and the impugned order thus passed by him cannot be termed illegal and the plaintiff consequently will have no right to raise construction on the basis of plans sanctioned by the Municipal Committee vide resolution dated 4.12.1997. The Court regrets its inability to accept this contention. The learned trial Court on scrutinising section 246 has rightly concluded that the suspension of resolution passed by the Committee on the part of Deputy Commissioner under the said Section is permissible only if it is: i) in excess of the powers conferred under the Act on the Municipal Committee; ii) Contrary to the interests of public; iii) Likely to cause waste or damage of Municipal funds or property; iv) Execution of the resolution or order, or the doing of the act, is likely to lead to a breach of the peace, to encourage lawlessness or it cause injury or annoyance to the public or any class or body of persons. The learned counsel for the appellants could not convince this Court as to under which of the aforesaid four categories suspension of resolution passed by Municipal Committee regarding sanctioning of plaintiff's site plan, was permissible on the part of Deputy Commissioner. No material exists on record to reveal that the impugned order was passed after affording opportunity to the plaintiff or to the Municipal Committee. In the circumstances, the discretion exercised by learned trial Court in granting ad-interim injunction to the plaintiff after observing that the impugned order is illegal and not in accordance with the law, does not call for any interference particularly when the plaintiff had given undertaking for not claiming any compensation from either of the appellants for the construction to be raised by him. 11. Faced with this, learned counsel for the appellants has argued that even if the impugned order is ignored, the plaintiff would still not be entitled to raise construction for the simple reason that the sanction accorded by the municipal committee vide its resolution dated 4.5.1997 was to remain in force for one year only as contemplated by Section 207 of the Act. Their contention is that the said period of one year having lapsed, the plaintiff now is not entitled to raise construction. The argument is prima facie not acceptable for two reasons. Firstly, there is no provision under which the sanction granted to the plaintiff for construction of building can be withdrawn by the Municipal Committee. This view of the matter finds force from Rajinder Garg v. M.C., 1989(1) PLR 415 : 1989(1) RRR 227 (P&H). Secondly, section 208 of the Act empowers the committee by issuing notice to the owner within six months from the completion of the building of which construction has been raised after the lapse of sanction to direct that the building be altered in such manner as it may deem necessary or in the alternative it may direct the owner to pay compensation fee of a sum not less than 5% and not more than 15% of the value of such building or in the alternative may even direct the owner to demolish or alter the building so far as is necessary to avoid contravention of building rules as drawn up under Section 203 of the Act. All this implies that the lapse of one year period by itself does not invalidate the sanction granted by the committee under Section 205 of the Act." I have heard Shri S.K. Kaushal, learned counsel appearing on behalf of the petitioner and with his assistance have gone through the record of the case.
(3.) THE learned counsel for the petitioner has vehemently submitted that the resolution, which was passed by the Municipal Council, has already been suspended by the Deputy Commissioner and in these circumstances, the said resolution has no force. He further submitted that the resolution has been got managed by the plaintiff-respondent and such a resolution has no binding force. The learned counsel further submitted that the property vests in the State Government. The notice of resumption has already been issued to the plaintiff-respondent and in this view of the matter both the Courts have committed patent illegality in allowing the application.;