Bombay High Court
Ratnamala W/O Manoharrao ... vs Smt. Vijaya Wd/O Shankarrao Kinge ... on 22 July, 2016
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.6973 OF 2015
Ratnamala w/o Manoharro Kapnichor
Aged about 39 years, Occ. Housewife,
R/o Waddhamna, Tahsil-Hingna,
District Nagpur Through her
Special Power of Attorney
Dadarao S/o Tukaramji Itankar
Aged about 46 years, Occ. Business,
R/o Plot No.33, Panchvati Colony, ig
Tahsil-Hingna, District-Nagpur. ... Petitioner.
-vs-
1. Vijaya wd/o Shankarro Kinge
Aged about 60 years, Occ. Housewife,
2. Amrut s/o Shankarrao Kinge,
Aged about 25 years, Occ. Police
Commando
Both 1 and 2 R/o C/o Krishnarao Meghe,
Hanuman Nagar, Bhagerathi Park,
Near Vyas Mangal Karyalaya,
Nagpur.
3. Rohini W/o Satish Patil,
Aged Major, Occ. Not known,
R/o Flat No.1, Jai Apartment,
Plot No.121, Sector-26,
Big Inida Chowk, Nigdi Pradhikaran,
Pune.
4. Jayashree w/o Dipak Kolte
Aged Major, Occ. Not known,
R/o E/o S. D. Murkute, 14/B,
Telco Housing Society, Sector-28,
Nigdi, Pune. ... Respondents.
::: Uploaded on - 27/07/2016 ::: Downloaded on - 30/07/2016 23:41:32 :::
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Shri S. V. Deshmukh, Advocate for petitioner.
Shri A. S. Mardikar, Senior Advocate with Shri A. A. Mardikar, Advocate for
respondents.
CORAM : A.S.CHANDURKAR, J.
DATE : July 22, 2016
Oral Judgment :
In view of notice for final disposal, the learned counsel for the parties
have been heard at length.
The petitioner who is the original plaintiff is aggrieved by the order
passed by the Appellate Court rejecting the miscellaneous appeal filed by her
challenging the order passed by the trial Court refusing to grant temporary
injunction pending the suit.
2. It is the case of the petitioner that she had purchased plot No.16
admeasuring 1250 sq. ft by sale deed dated 06/02/2010. On the same day
the respondent Nos.1 and 2-original defendants purchased plot No.15
admeasuring about 1875 sq. ft. According to the petitioner the respondent
Nos.1 and 2 without obtaining any prior sanction from the appropriate
Authorities started making construction on their plot of land and in the said
process committed encroachment. On that basis they filed a suit for
declaration of their title and for removal of encroachment.
3. Alongwith the aforesaid suit, an application for temporary injunction
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seeking to restrain the respondent Nos.1 and 2 from carrying out any further
construction was also moved. This application was opposed by the
respondent Nos.1 and 2. It was their case that the construction made by
them was in their own property and after obtaining sanction. The trial
Court by its order dated 07/09/2015 rejected the application for temporary
injunction.
The petitioner being aggrieved by this order challenged the same
before the Appellate Court. The Appellate Court by its order dated
16/12/2015 dismissed the appeal. Being aggrieved, the said orders are
challenged in the present writ petition.
4. Shri S. V. Deshmukh, the learned counsel for the petitioner reiterated
the same contentions that were urged before the Appellate Court. He
submitted that the respondent Nos.1 and 2 had initiated the construction
without any valid permission/sanction from the competent Authorities. He
submitted that according to the respondent Nos.1 and 2 the sanction was
stated to have been granted in their favour in the meeting of the
Grampanchayat on 27/10/2009. However, there was no such sanction
granted on said date. He submitted that the suit property was situated at
Wanadongri and for the said area, the Nagpur Improvement Trust was
notified as a special planning authority. He relied upon the notification
dated 31/08/2010 and submitted that it was necessary for the respondent
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Nos.1 and 2 to have obtained requisite permission from the special planning
authority. He also submitted that the alleged sanction on which the
respondent Nos.1 and 2 were relying had not been acted upon for a
considerable period of time and the construction had commenced only in the
year 2015. It was then submitted that the respondent Nos.1 and 2 had
committed encroachment on the property of the plaintiff. Such illegal
construction also affected the rights of the petitioner who was the owner of
the neighbouring plot. He referred to the report of the Court Commissioner
that was placed on record and as well as photographs that were taken by the
petitioner to indicate the encroachment committed by the respondent Nos.1
and 2. According to him any construction made without obtaining necessary
sanction resulted in affecting the rights of the petitioner who was the
neighbour of the respondent Nos.1 and 2. He also submitted that the
documents placed along with C.A. No.702/2016 should be permitted to be
relied upon as the same were necessary to determine the controversy. He
urged that merely because the respondent Nos.1 and 2 had furnished an
undertaking to remove the encroachment if the case of the petitioner was
proved, the same could not be a ground to refuse injunction to the petitioner.
In support of his submission, the learned counsel relied upon the judgments
of the Honourable supreme Court in (1992) 1 Supreme Court Cases 719
Dalpatkumar and anr. v. Prahlad Singh and ors., 1994 (1) SCC 1 S. P.
Chengalvaraya Naidu v. Jagannath and the judgment of the Division Bench
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in 2001(1) Mh.L.J. 836 Fatima w/o Caetano Joao v. Village Panchayat of
Merces & anr. as well as judgment of learned Single Judge in 2006(5) ALL
MR 438 Chitrakala Gal Dessai v. Balu Marathe alias Mane s/o Jyotiba
Marathe.
5. Shri A. Mardikar, the learned senior counsel for the respondents
supported the impugned orders. He submitted that in the sale deed executed
in favour of the respondent Nos.1 and 2, the dimensions of the property in
question had been clearly mentioned to be 30' x 65'.5''. According to him,
the Commissioner's report also indicated the very same area to be in
possession of the respondents. He therefore submitted that whatever
construction was undertaken by the respondents was in their own property.
He then submitted that there were no pleadings whatsoever with regard to
the irregularities in the sanction granted to the construction. The
Notification dated 31/08/2010 sought to be relied upon by the petitioner
was subsequent to the grant of permission by the Grampanchayat. He urged
that even otherwise the respondents had given an undertaking that in case
the suit was decreed, the construction in question would be demolished by
the respondents at their own costs. The discretion therefore exercised by
both the Courts in favour of the respondents did not call for any interference
in absence of any jurisdictional error.
As regards the prayer made in the C.A. No.702/2016, it was
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submitted that all these documents were not on record either of the trial
Court or the Appellate Court and that they were being sought to be placed on
record for the first time in the writ petition. He therefore opposed the prayer
made for considering the aforesaid documents.
6. The respective counsel for the parties have been heard at length.
The challenge in the present writ petition is to the adjudication by the trial
Court on the application for temporary injunction as well as the subsequent
order passed by the Appellate Court confirming the same. At the
interlocutory state a mini trial is not required to be conducted. The matter
has to be decided on the basis of the material placed on record and by taking
a prima facie view of the matter. If the averments in the plaint are perused,
it is the case of the petitioner that the respondent nos.1 and 2 had
commenced construction on plot No.15 without any proper sanction. The
same also resulted in an encroachment on the property of the petitioner who
was the owner of the adjoining plot of land. The report of the Commissioner
dated 06/07/2015 indicates the possession of the respondent Nos.1 and 2
on plot No.15 to the extent of area admeasuring 30' x 62'.5". The sale deed
in favour of the respondent Nos.1 and 2 also indicates that the said
respondents had purchased plot No.15 admeasuring 30' x 62'.5". It has thus
been prima facie found by both the Courts that the respondent Nos.1 and 2
were in possession of plot No.15 as per their sale deed. This prima-facie
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conclusion is based on material available on record.
7. In so far as sanction for the construction is concerned, the
Certificate dated 30/10/2009 has been relied upon by the respondent No.1
and 2. The same is shown to have been issued by the Sarpanch of the
Grampanchayat. The submission that the respondent Nos.1 and 2 did not
commence the construction immediately thereafter or within reasonable
period and the effect thereof is a matter to be considered at the trial of the
suit. Similarly the contention that the suit property fell within the notified
area of which the Nagpur Improvement Trust was the special planning
authority is also a matter that would require adjudication after recording of
evidence. In this background therefore the undertaking given by the
respondents to remove the excess construction if found unauthorised was
rightly taken into consideration by both the Courts.
8. There can be no dispute about the legal proposition laid down by
the Division Bench in Fatima Caetano Joao (supra) or for that matter the
judgment of the Honourable Supreme Court in Dalpatkumar and anr.
(supra). The ratio of aforesaid decisions would have to be applied to the
facts of the case in hand and while doing so, it has been found that a prima
facie case for grant of injunction so as to restrain the respondent Nos.1 and 2
from undertaking construction had not been made out. The view as taken by
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the trial Court and confirmed by the Appellate Court cannot be said to be an
impossible view in these facts. There is no jurisdictional error found to have
been committed by the Appellate Court to warrant interference in writ
jurisdiction.
9. As regards the application for permission to file documents on
record, these documents were admittedly not on the record either of the trial
Court or of the Appellate Court. By observing that it would be open for the
petitioner to place the aforesaid documents on the records of the trial Court
in accordance with law, the civil application stands disposed of.
10. In the light of aforesaid discussion, there is no case made out to
interfere in writ jurisdiction. The writ petition stands dismissed with no
order as to costs. It is clarified that observations made while deciding the
application for temporary injunction would not come in the way of either of
the parties before the trial Court when the suit is decided on merits.
JUDGE
Asmita
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