1. The present second appeal u/s.100 of the Code of Civil Procedure has been preferred by the appellant herein - original defendant - Junagadh Municipal Corporation to quash and set aside the judgement and decree dated 20/01/2007 passed by learned 6th Additional Senior Civil Judge, Junagadh in Regular Civil Suit No.118 of 2005, by which, learned Trial Court has decreed the suit preferred by the respondent herein - original plaintiff and has granted declaration that the plaintiff has got deemed sanction to put up the construction as per plan submitted at Exh.64 (as per Gujarat Municipalities Act) and further granted permanent injunction restraining the defendant from demolishing the suit property, which is constructed as per the plan produced at Exh.64. Learned Trial Court also passed certain directions as mentioned in operative portion of the judgement and decree to the effect declaring that provision of Regularization of Unauthorized Development Act is not applicable to the construction made by the plaintiff and, therefore, restrained the defendant from taking any action under the aforesaid Act. Learned Trial Court also clarified that in future if it is found that the plaintiff has put up the construction as per plan submitted at Exh.64 is found to be illegal, the same shall be regularized after giving an opportunity to the plaintiff and on imposing penalty and if penalty is not paid within 30 days, further steps to demolish illegal construction shall be taken.
Original defendant has challenged the impugned judgement and order passed by learned Appellate Court - learned Principal District Judge, Junagadh passed in Regular Civil Appeal No.34 of 2007, by which, learned Appellate Court has dismissed the said appeal and confirmed the judgement and decree passed by learned Trial Court.
2. Mr.Ashish Dagli, learned advocate appearing on behalf of the appellant is not in a position to point out how judgment and decree passed by learned Trial Court granting declaration that the plaintiff has obtained deemed sanction u/s.155 of the Gujarat Municipalities Act, is erroneous.
3. Today when the present second appeal is taken up for final hearing, learned advocates appearing on behalf of the respective parties have submitted that there is broad consensus between the learned advocates appearing on behalf of the respective parties to the effect that judgement and decree passed by learned Trial Court and confirmed by the Appellate Court granting declaration that the plaintiff has got deemed sanction u/s.155 of the Gujarat Municipalities Act with respect to construction as per plan submitted at Exh.64 to be confirmed and rest of the order passed by learned Trial Court be quashed and set aside. It is agreed by learned advocates appearing for respective parties to make suitable observations that even by such a deemed sanction, it may not be construed that deemed sanction has been granted with respect to construction, which otherwise is not permissible and is not in accordance with law and such a deemed sanction to be considered only with respect to construction, which is otherwise permissible.
4. Heard learned advocates appearing on behalf of the respective parties and considered the impugned judgement and decree passed by learned Trial Court and confirmed by learned Appellate Court. It is an admitted position that the appellant has not taken any decision on the plan submitted by the plaintiff at Exh-64 within stipulated time as per Section 155 of the Gujarat Municipalities Act. Under the circumstances, learned Trial Court has not committed any error in granting declaration that as per Section 155 of the Gujarat Municipalities Act, the plaintiff has got deemed sanction to put up the construction as per the plan submitted at Exh.64. However, it is to be noted that the said deemed sanction as per the plan submitted at Exh.64 would be with respect to construction, which otherwise is permissible under the law, GDCR and bye-laws of the Corporation and ultimately if it is found that the construction made as per the plan submitted at Exh.64 is found to be illegal and contrary to the provisions of the law, GDCR and bye-laws of the Corporation, it will be open for the Corporation to take appropriate steps /actions and the plaintiff shall not be entitled to get benefit of the deemed sanction/permission with respect to such an illegal construction.
5. Learned advocate appearing on behalf of the respondent herein - original plaintiff has stated that he has no objection if rest of the directions/observations made by the learned Trial Court except granting declaration with respect to deemed sanction, is quashed and set aside and, therefore, this Court is not passing any further reasoned order while quashing and setting aside the judgement and decree with respect to rest of the directions/observations made by learned Trial Court. Even otherwise this Court is of the opinion that while decreeing the suit, learned Trial Court was not justified in passing further order and/or issuing such directions except granting declaration with respect to deemed sanction.
6. In view of the above and for the reasons stated hereinabove, the present second appeal succeeds in part and the impugned judgement and decree dated 20/01/2007 passed by learned 6th Additional Senior Civil Judge, Junagadh in Regular Civil Suit No.118 of 2005 and confirmed by the Appellate Court is hereby modified to the extent granting declaration that the plaintiff has got deemed sanction with respect to construction as per plan submitted at Exh.64, under section 155 of the Gujarat Municipalities Act. However, it is observed and clarified that the said deemed sanction/ permission shall be with respect to construction, which is otherwise permission under the law, GDCR and bye-laws of the Corporation and if it is found that the construction made as per the plan submitted at Exh.64 is found to be illegal and contrary to the law, GDCR and bye-laws of the Corporation, it will be open for the Corporation to take appropriate action in accordance with law. Rest of the judgement and decree/ directions issued by the learned Trial Court in impugned judgement and decree confirmed by the learned Appellate Court is hereby set aside. The present second appeal is allowed to the aforesaid extent. No costs.
[M.R.SHAH,J] *dipti Top