The appeal is directed against order dated 30.08.2010 passed by the learned Auxiliary Chamber Judge, Court No.9, City Civil & Sessions Court, Ahmedabad, below Exh.6 and 7 (Notice of Motion) whereby the Notice of Motion is rejected. The appellant herein is the original plaintiff.
The appellant-plaintiff instituted Regular Civil Suit No.1224 of 2009 making grievance that notice dated 04.03.2009 issued by the defendant-Ahmedabad Municipal Corporation (AMC) asking the appellant-plaintiff to stop use of the suit premises in any manner contrary to the permission granted under the provisions of the Bombay Provincial Municipal Act, 1949 (the BPMC Act). The notice came to be issued on the premise that though the premises were permitted to be used for Safe Deposit Vault, the appellant-plaintiff was running a workshop in the said premises. When the said illegal, unauthorized and impermissible use of the premises came to the notice of the defendant-AMC, the aforesaid notice dated 04.03.2009 came to be issued. The appellant-plaintiff felt aggrieved by the said notice and instituted the aforesaid suit proceedings.
It appears that initially an ex-parte interim relief was granted. Therefore, the defendant-AMC entered appearance and filed reply and also placed on record the relevant facts. Thereafter, Notice of Motion was heard by the learned trial Court and after considering the averments and contentions of the contesting parties and after taking into account the fact that the permission for use of the premises was granted for the purpose of Safe Deposit Vault but the suit premises was being used for running a workshop, the learned trial Court vacated the ex-parte order and rejected the Notice of Motion under which, the appellant-plaintiff had prayed for injunction against implementation of the said notice dated 04.03.2009. Aggrieved by the said order rejecting the Notice of Motion the appellant-plaintiff is before this Court.
Heard Mr.Shah, learned advocate appearing for the appellant-plaintiff, and perused the record of the case.
Mr.Shah has submitted that the case on hand is not a case of illegal construction or encroachment but is only in respect of change of user. He submitted that even in the adjoining building similar unauthorized use of premises is going on, however, the defendant-AMC has not taken any action against such unauthorized user and it is only against the appellant-plaintiff that impugned action is taken. He submitted that the defendant-AMC ought to regularize the user instead of prosecuting the notice dated 04.03.2009. He submitted that prima facie case and balance of convenience are in favour of the appellant-plaintiff because the plans are admittedly approved.
It is not in dispute that the defendant-AMC has approved the building plans, which contain the basement. However, what is relevant and material for the issue on hand is the fact that in view of the application made by the owner of the suit premises, the defendant-AMC appears to have granted permission to use the basement of the suit premises for the purpose of Safe Deposit Vault. However, contrary to the said permission the appellant-plaintiff started using the suit premises for the purpose of workshop.
Admittedly, the said use is unauthorized and contrary to the permission granted by the defendant-AMC. Therefore, the impugned notice came to be issued. An illegal or unauthorised action cannot be justified by citing or by pointing out another or similar illegality existing or continuing elsewhere and such an excuse or defence cannot be entertained or countenanced. A mistake and likewise an illegality, cannot be permitted to be multiplied or justified by previous mistake.
True it is that the learned trial Court had granted ex-parte injunction against the implementation of the impugned notice.
However, the appellant-plaintiff's contention that the ex-parte injunction would translate into balance of convenience in favour of the appellant-plaintiff cannot be accepted.
When there is no dispute about the fact that the use of the suit premises by the appellant-plaintiff is contrary to the permission granted, no case for interim injunction can be said to have been made out.
The learned trial Court has not committed any error in vacating the ex-parte ad-interim relief and in rejecting the Notice of Motion, which was preferred against the notice issued under Section 260(1) of the BPMC Act requiring the appellant-plaintiff to discontinue unauthorized use of the suit premise.
In view of the aforesaid facts and circumstances of the case, the appeal does not merit any interference against order impugned in the appeal. The appeal fails and is accordingly rejected.
In view of the order passed in the main appeal, any separate order is not required in Civil Application. Accordingly, the Civil Application, therefore, stands disposed of.
Sd/-
[K.M.THAKER, J] *** Bhavesh* Top