Bombay High Court
Shri Netaji Subhash Chandra ... vs Anurag S/O Brijmohan Gupta And ... on 24 March, 2022
Bench: Manish Pitale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH: NAGPUR
WRIT PETITION NO. 7201 OF 2019
Shri Netaji Subhash Chandra Smruti Samiti, Nagpur
Vs.
Anuraj s/o Brijmohan Gupta and Ors.
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Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders.
or directions and Registrar's orders.
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Mr. A.M. Ghare, Advocate for petitioner.
Mr. S.S. Sharma, Advocate for respondent Nos.1 & 2.
Mr. A.M. Quazi, Advocate for respondent No.3.
CORAM : MANISH PITALE J.
DATE : 24.03.2022
By this petition, the petitioner i.e. the
original defendant No.2 has challenged judgment and
order dated 29.04.2019 passed by the Ad-hoc District
Judge-1, Nagpur (herein referred to as 'appellate Court')
whereby an appeal filed by the respondent Nos.1 and 2
(original plaintiffs) has been allowed and application for
temporary injunction has been granted.
2. The respondent Nos.1 & 2 have filed suit for
declaration and permanent injunction, claiming that the
defendants do not have right or authority to construct
compound wall over the suit property, which is an open
space between the residential house of the respondent
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No.1 and a Skill Development Center constructed by the
petitioner on behalf of the respondent No.3 - Municipal
Council. It is claimed that the respondent Nos.1 and 2
are entitled for permanent injunction, restraining the
petitioner and respondent No.3 from carrying out such
construction.
3. In the aforesaid suit, respondent Nos.1 and 2
filed an application for temporary injunction, praying for
an order restraining the petitioner and respondent No.3
from carrying out the aforesaid construction of wall. It is
inter alia claimed that windows on the wall facing the
open space would be blocked, thereby causing
irreparable loss to respondent Nos.1 and 2 and that a
case for temporary injunction was made out.
4. The Court of 2nd Joint Civil Judge Junior
Division, Kamptee, (hereinafter referred to as 'trial
Court') did not agree with the contentions raised on
behalf of respondent Nos.1 & 2 and accordingly, rejected
the application for temporary injunction.
5. Aggrieved by the same, the said respondents
filed an appeal before the appellate Court. As noted
above, the appeal was allowed and the application for
temporary injunction was granted, thereby restraining
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the petitioner from carrying out construction of any kind
on the suit property i.e. the open space.
6. The present writ petition was filed
challenging the said order. This Court issued notice and
the respondents appeared though counsel. This Court by
an order dated 03.03.2020, gave a specific direction to
respondent No.3 to place on record affidavit as regards
the actual state of affairs pertaining to the suit property.
Pursuant thereto, the respondent No.3 filed its affidavit
along with the documents and respondent Nos.1 and 2
also filed an affidavit in that regard. The contents of the
said affidavits show that there are claims and counter
claims as regards the question, as to whether there was
any sanction for construction undertaken by respondent
Nos.1 and 2 in the portion adjoining the open lane i.e.
the suit property.
7. Although a request was made on behalf of
the petitioner to grant some time to file an affidavit in
the context of the affidavits filed by the respondents,
this Court considered the matter on its own merits.
8. A perusal of the material on record prima
facie shows that if the petitioner is permitted to
construct the wall in question, it would block the
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windows on the wall of the residential house of
respondent No.1 facing the open lane. In that sense,
prima facie the respondent No.1 and 2 appear to be
justified in claiming that they would suffer blocking of
access to air and light from the aforesaid windows on
the wall facing the open lane.
9. But, equally the concern of the original
defendants i.e. petitioner and respondent No.3 herein
regarding access through the open lane to the Skill
Development Center, already constructed, cannot be
ignored.
10. It is the case of the respondent No.3 -
Municipal Council that the petitioner has undertaken the
construction of the Skill Development Center on the
basis of funds released by the Government and access to
the said Skill Development Center from the main road is
only through the aforesaid open space.
11. It is also brought to the notice of this Court
that earlier a Municipal School was existing at the place
where the Skill Development Center has been
constructed and that the open lane was indeed available
for access to the said School.
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12. The material on record also shows that the
staircase of the Skill Development Center for access to
the building of the said center can be accessed only
through the open space in question, which in turn is
accessible from the main road on the east.
13. In these circumstances, this Court is of the
opinion that the appellate Court appears to be justified
in rendering findings in favour of respondent Nos.1 and
2, as regards an urgent need to restrain the petitioner
from constructing the wall in question, but at the same
time the appellate Court has failed to address the
concern of the original defendants i.e. petitioner and
respondent No.3 herein that access to the Skill
Development Center is necessary, particularly when the
building of the said center is already constructed and
ready. The appellate Court ought to have taken into
consideration the aforesaid concern of the original
defendants.
14. In view of the above, this Court is of the
opinion that while maintaining the impugned order
passed by the appellate Court, it needs to be modified,
so as to ensure that during the pendency of the suit the
Skill Development Center is not left inaccessible and that
specific direction is given for ensuring that the open lane
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is available for access to the Skill Development Center
from the main road on the east. A case for modification
of the impugned order is certainly made out on behalf of
the petitioner.
15. In view of above, the present writ petition is
disposed of by partly allowing the same. While
maintaining the impugned order passed by the appellate
Court, which restrains the petitioner from undertaking
construction on the aforesaid open lane during
pendency of the suit, the said order is modified by
directing that the open lane shall be available for
exclusive use by the petitioner and respondent No.3 i.e.
original defendants during the pendency of the suit. This
would ensure access to the Skill Development Center
already constructed, from the main road towards the
east.
16. It is further directed that the respondent
Nos.1 and 2 shall maintain status quo pertaining to the
wall facing the open lane and that no
construction/modification pertaining to the said wall
will be undertaken on behalf of respondent Nos. 1 and
2, during pendency of the suit.
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17. It is made clear that the windows as they
exist on the wall of the structure belonging to
respondent Nos.1 and 2, facing the open lane will not be
changed in any manner during the pendency of the suit.
This should satisfy the concern of the rival parties
during the pendency of the suit.
18. The writ petition is disposed of in above
terms.
19. Needless to say, the observations made in the
order passed today by this Court, are only in the context
of the application for temporary injunction filed by the
respondent Nos.1 and 2. The trial Court shall proceed
on the merits of the matter, uninfluenced by any such
observations. All questions on merits are kept open.
JUDGE
Prity
Digitally signed
by PRITY S
PRITY S GABHANE
GABHANE Date: 2022.03.25
14:32:17 +0530
