Shikhar Chand Jain vs Additional Civil Judge and Another

Heard counsel for the parties.

The plaintiffappellant filed a suit Court below for before the reliefs:

for the following

that the defendant and the members of its establishment be restrained from interfering with and demolishing the premises of the plaintiff in any manner; and

that the demand of Rs. 9,26,012.50 paise raised by the defendant be declared illegal.

The appellant also made an injunction application before the trial Court which was disposed of by an order dated 181995 restraining the defendantrespondent from interfering with and demolishing the building in question. However, the trial Court refused to restrain the defendantrespondent from making recovery of the impugned demand, said to have been raised for using the premises in question for the commercial purpose in contravention of the terms of the leasedeed executed in favour of the plaintiffappellant.

Since the trial Court refused to grant full injunction sought by the appellant, the instant appeal has been filed by the appellant. The only question for consideration is whether the defendantrespondent has established, prima facie, that it is entitled to raise the impugned demand against the appellant. Learned counsel for the development authority (defendant respondent) drew our attention to a Government Order dated 1281986, a perusal of which clearly indicates that the defendant is entitled to charge 100% premium on the circle rate if sanction is obtained for commercial use in place of residential use. In the case at hand, no building plan has been submitted by the appellant to the respondent for obtaining sanction. Admittedly, as per the building plan, the building has already been constructed by the appellant long before. The contention of the respondent is that the lease was granted for residential use but the appellant in contravention of that has further granted a lease to a bank for commercial use. The Government Order dated 1281986 does not perse establish that on these facts, 100% premium on the circle rate can be charged from the appellant. In other words, the appellant has, prima facie, established that the defendant is not entitled to led demand under aforesaid order.

Balance of convenience also lies in favour of the appellant. If the respondent is permitted to recover the huge demand from the appellant, that might cause considerable loss or inconvenience to the appellant. If the respondent is restrained from making the recovery not permissible by the Government Order, then it will be open to the respondent to pursue the lawful remedy against the appellant.

Shri Swami Dayal, learned counsel for the respondent submits that if recovery of the impugned demand is stayed then the indiscreet owners of the houses in the residential areas will be encouraged to put their residential buildings to nonresidential use, which in turn, may disturb the tranquility of the residential areas. We quite agree with learned counsel for the respondent that if the buildings in residential areas are permitted to be used for nonresidential purposes then that would cause considerable inconvenience and disturbance to the inhabitants of residential localities. But to curb this menace, the respondent will have to resort to a legal course. However, it is made clear that it will be open to the respondent to take appropriate steps against the appellant for using the building in question in contravention of the terms of the leasedeed and to assess the house tax of the building in dispute consistent to the user of the building, as permissible under the law.

For these reasons, the EA.F.O. is allowed and the respondent is restrained from making recovery of the impugned demand from the plaintiffappellant.

Since this order has serious repercussions, in so far as the development authority is concerned, it will be more appropriate for the trial Court to decide the suit of the appellant with utmost priority.