You would not get any reliefs in the suit
if construction is completed as per sanctioned plans Muncipal corporation would issue OC and BCC
To restrain municipal corporation from issuing BCC and OC
I have already filed a suit of partition of ancestral property, wherein I have made my real brother and one builder (to whom the land is sold by my brother) party (as a defendants) to the said suit. I had also filed Exh. 5, restraining defendants from changing the original status of suit property and third party interest. However the said application was rejected by TC, on the ground that I have no connection with the suit property. Therefore filed an appeal by me, wherein, it was fully decided in my favour. The respondents (O.D.) moved to HC under writ petition, where HC, substituted the Order of LAC. Now there is no stay and still the suit is pending before TC. I am not in position to challenge the order of HC in Supreme Court being very expensive. The Builder, who is party to the suit, trying to complete the building as fast as possible with the help of Municipal Corporation. Once the Building is completed, he will sell to other persons and will create the third party interest. My prayer is for physical partition in suit land, which was open land at the time of filing the suit and Exh. 5. My Question : whether I can file a separate suit against Municipal, preventing Municipal from issuing Building Completion Certificate and Occupation Certificate to the builder till the disposal of partition suit ?. If your advice is “YES” then please let me know under which law, I can file the said suit. Thanks
Asked 6 years ago in Civil Law
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Sir, I know therefore I have put up question, whether I can file a separate suit against municipal, pryaing to court that the order should be passed against municipal that they should not issue BCC and OC till the final disposal of suit. please also inform whether this type of application where to be moved i.e. in district court under 151 or under 226 in HC or what else remedy I have, otherwise the outcome of suit will have no meaning, if same is passed in my favour.
Asked 6 years ago
Separate suit for same cause of action not permitted.
No, it is not open for you to seek any restraint order against the Municipal Corp. from issuing a OC and CC to this builder. This is so because currently you do not have the locus to do so, in absence of the stay order having been lifted by the High Court.
You are at liberty to file writ in HC to restrain muncipal corporation from issuing OC and BCC pending hearing and final disposal of suit
my brother and one builder are the parties in partition suit, where Municipal is not party. please understand, New suit will be against only Municipal and not any other. please advice whether I can approach to District Court for new suit against municipal corporation under section 151 or whichever may be applicable or otherwise to HC under article 226/227 under Indian constitution. OR please inform How I prevent Municipal corporation from issuing BCC or OC. This is an ancestral property, I am the heir of my forefathers though my name is not on record of rights. How I dont have locus standi. the name on record of right does not prove the ownership of property. in this view even my brother also can not be held as owner. However, please suggest any other remedy, if you can. Thanks.
Asked 6 years ago
File writ in HC as mentioned herein above
Who actually brought this property ?
If the said suit will contain the prayers of earlier suit or case in hc it will get dismissed on law point of Resjudica. Otherwise you can file the same for fresh prayers
You cannot file any suit agaisnt the Municipality seeking to restrain them from issuing BCC or OC to the builder in this regard, because it is their duty to issue the said certificate if everything is in order.
You are seeking partition of the land and not the building constructed over the land, hence your suit may not be entertained or it may not be maintainable even if taken on file by court.
Alternately you can file a petition to implead the municipality as necessary party in order to pass a direction to them to not issue the said certificate owing to the pendency of the suit in this regard and if there is litigation pending on the property no such certificates to be furnished by them, so you may have to implead them as a party and file an application against them to restrict them from proceeding with the furnishing such certificates, however in my opinion it may not be maintainable.
Without going into the subject matter of the pending suit, it can be seen from your contents that any suit you may propose to file against the municipality in this regard may not be maintainable.
If you cannot restrict the builder from going ahead with the construction then you cannot restrict the competent authorities from furnishing the certificate sought for if all other things are found to be in order by the authorities.
You may discuss with your advocate on this and have his opinion.
At what stage of construction was the partition suit filed?
How much time had elapsed between registration of development agreement by brother in favour of builder and your filing of suit?
See Renuka Mukherjee v. Innerspace, order passed in motion by GS Patel J. This order was passed as ad interim order which was challenged in appeal. The appellate court remanded matter to trial Judge to decide the motion finally. However that never happened. The builder in the meanwhile continued construction.
Sir i have not replied to your query
i will have to do research on the same
i dont think a writ petition can be filed. In such a case a writ of mandamus can be sought which is writ requiring the local body to do its duty. In your case how can it be said that the local body has not done its duty when it seeks to issue OC/CC
so i think a suit has to be filed against the local body in which the brother and builder have to be made defendants. It will be a suit for injunction to restrain the local body from issuing the OC to the builder and also restraining the brother and builder from conveying the land to the society of flat purchasers till the partition suit is decided finally