Bombay High Court
Municipal Corporation Of Greater ... vs Samartha Development Corporation And 5 ... on 4 September, 2024
Author: M S Sonak
Bench: M. S. Sonak
Municipal Corporation of Greater Mumbai v Samarath
2024:BHC-OS:13587-DB
Development Corporation and ors.
APP(L)-29687-2023 (F).docx
lgc/Darshan Patil
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL (L) No. 29687 OF 2023
IN
INTERIM APPLICATION NO. 1133 OF 2022
IN
SUIT NO. 42 OF 2022
1. MUNICIPAL CORPORATION OF GREATER
MUMBAI,
A statutory Corporation under the
Mumbai Municipal Corporation Act,
1888 and having its Office at ...APPELLANT
Mahapalika Marg, Mumbai 400001 (ORG. DEFT. NO.1)
~ VERSUS ~
1. SAMARATH DEVELOPMENT
CORPORATION,
Through its Managing Partner,
Vikas Kamalakar Walawalkar, a
Partnership Firm registered under
the Indian Partnership Act, 1932
and having its registered address
At: 11-A, Suyash, Gokhale Road,
(North) Dadar (West),
Mumbai 400028
2. PANKAJ UNIT NO.1 HOUSING
DEVELOPMENT CO. PRIVATE LIMITED,
a company incorporated Under the
Companies Act, 1956 having its
Its registered office at: Parijat,
Gokhale Road (North), Dadar,
Page 1 of 37
Municipal Corporation of Greater Mumbai v Samarath
Development Corporation and ors.
APP(L)-29687-2023 (F).docx
Mumbai 400028
3. PANKAJ UNIT NO.2 HOUSING
DEVELOPMENT CO. PRIVATE LIMITED,
a company incorporated Under the
Companies Act, 1956 having its
Its registered office at: Parijat,
Gokhale Road (North), Dadar,
Mumbai 400028
4. NSJ ENGINEERS INDIA PRIVATE
LIMITED,
a company incorporated under the
Companies Act, 1956 having its
registered Office at 18, Shailesh
Society, Ganesh Nagar Karve Nagar,
Pune 411 052
And its Mumbai office at:
106, Dhatri Darshan, Thakur
Complex Near Suraji Hotel,
Kandivali (East)
Mumbai 400010
5. MICHIGAN ENGINEERS PRIVATE LIMITED
AND MAHALSA CONSTRUCTIONS
PRIVATE LIMITED,
Being in Joint Venture and having
their Address at : D-7, Commerce
Centre Coop. Society, 78, Javji
Dadaji Marg, Tardeo Road, Mumbai ... RESPOINDENTS
Maharashtra 400034 NOS. 1 TO 3
6. SUB DIVISIONAL OFFICER,
Mumbai Western Suburbs, 9th floor,
Administrative Building ...ORG. PLAINTIFF
Government Colony, Bandra (E), NOS.4 TO 6, ORG.
Mumbai 400051 DEFT. 2 TO 4
Page 2 of 37
Municipal Corporation of Greater Mumbai v Samarath
Development Corporation and ors.
APP(L)-29687-2023 (F).docx
WITH
INTERIM APPLICATION (L) NO. 29692 OF 2023
IN
APPEAL (L) NO. 29687 OF 2023
1. MUNICIPAL CORPORATION OF GREATER
MUMBAI,
A statutory Corporation under the
Mumbai Municipal Corporation Act,
1888 and having its Office at
Mahapalika Marg, Mumbai 400001 ...APPLICANT
~ IN THE MATTER BETWEEN ~
1. MUNICIPAL CORPORATION OF GREATER
MUMBAI,
A statutory Corporation under the
Mumbai Municipal Corporation Act,
1888 and having its Office at ...APPELLANT
Mahapalika Marg, Mumbai 400001 (ORG. DEFT. NO.1)
~ VERSUS ~
1. SAMARATH DEVELOPMENT
CORPORATION,
Through its Managing Partner,
Vikas Kamalakar Walawalkar, a
Partnership Firm registered under
the Indian Partnership Act, 1932
and having its registered address
At: 11-A, Suyash, Gokhale Road,
(North) Dadar (West),
Mumbai 400028
2. PANKAJ UNIT NO.1 HOUSING
DEVELOPMENT CO. PRIVATE LIMITED,
a company incorporated Under the
Page 3 of 37
Municipal Corporation of Greater Mumbai v Samarath
Development Corporation and ors.
APP(L)-29687-2023 (F).docx
Companies Act, 1956 having its
Its registered office at: Parijat,
Gokhale Road (North), Dadar,
Mumbai 400028
3. PANKAJ UNIT NO.2 HOUSING
DEVELOPMENT CO. PRIVATE LIMITED,
a company incorporated Under the
Companies Act, 1956 having its
Its registered office at: Parijat,
Gokhale Road (North), Dadar,
Mumbai 400028
4. NSJ ENGINEERS INDIA PRIVATE
LIMITED,
a company incorporated under the
Companies Act, 1956 having its
registered Office at 18, Shailesh
Society, Ganesh Nagar Karve Nagar,
Pune 411 052
And its Mumbai office at:
106, Dhatri Darshan, Thakur
Complex Near Suraji Hotel,
Kandivali (East)
Mumbai 400010
5. MICHIGAN ENGINEERS PRIVATE LIMITED
AND MAHALSA CONSTRUCTIONS
PRIVATE LIMITED,
Being in Joint Venture and having
their Address at : D-7, Commerce
Centre Coop. Society, 78, Javji
Dadaji Marg, Tardeo Road, Mumbai ...RESPONDENTS
Maharashtra 400034 NOS.1 TO 3
6. SUB DIVISIONAL OFFICER,
Mumbai Western Suburbs, 9th floor,
Administrative Building ...ORG. PLAINTIFF
Government Colony, Bandra (E), NOS.4 TO 6, ORG.
Mumbai 400051 DEFT. 2 TO 4)
Page 4 of 37
Municipal Corporation of Greater Mumbai v Samarath
Development Corporation and ors.
APP(L)-29687-2023 (F).docx
A PPEARANCES
FOR THE APPLICANT-BMC Mr G. S. Godbole, Senior
Advocate, a/w Mr Rahul
Soman, Ms Vandana
Mandlik, Ms Pooja Yadav,
i/b Mr Sunil Sonawane.
FOR RESPONDENT NOS.1 TO Mr Ziyad Madon, a/w Mr Nilesh
3 Tated, Ms Sharanya
Mahimtura, i/b Mahimtura
& Company.
FOR RESPONDENT NO.5 Ms Anjali Helekar, a/w Shalaka
More.
FOR RESPONDENT-AGP Ms Jyoti Chavan.
PRESENT IN COURT Mr Sushant Matkar, Assistant
Engineer (DP)
CORAM : M. S. Sonak &
Kamal Khata, JJ.
RESERVED ON : 28 August 2024
PRONOUNCED ON : 04 September 2024
JUDGMENT (Per M S Sonak J):
-
1. Heard learned counsel for the parties finally, in this
Appeal.
2. This appeal is directed against the order dated 21
September 2023 ("impugned order") made by the learned
Single Judge of this Court injuncting the Municipal
Municipal Corporation of Greater Mumbai v Samarath
Development Corporation and ors.
APP(L)-29687-2023 (F).docx
Corporation for Greater Bombay ("MCGM") from entering any
part of the No Development Zone ("NDZ") land, admeasuring
158.05 acres described secondly in the Schedule, Exhibit `C'
to the plaint and shown in pink hatched lines on the village
map (Exhibit `A' to the plaint) either for undertaking
construction of the Storm Water Pumping Station ("SWPS") or
otherwise.
3. This appeal was initially placed before the Division
Bench of B.P. Colabawalla and Firdosh P. Pooniwalla, JJ. But,
on the recusal of one of the learned Judges, the matter was
placed before another Division Bench comprising G.S.
Kulkarni and Somasekhar Sundaresan, JJ. Again, upon
recusal of one of the learned Judges and on the directions of
the Hon'ble the Chief Justice made on 12 July 2024, this
appeal was placed before this Bench.
4. On this appeal being taken up on 30 July 2024, we
directed that it be placed for final disposal, subject to
overnight part-heard matters, on 19 August 2024 at 2.30 pm.
5. On 19 August 2024, we made the following order:-
"1. Heard learned counsel for the parties.
2. Mr. Godbole, Senior Advocate for the Appellant
/Corporation tenders an additional affidavit on behalf of
the Corporation. Mr. Godbole submits that in this affidavit,
MCGM has offered to deposit an amount of
Rs.16,29,45,000/- without prejudice to its contention that
the Respondent / original plaintiff have no right, title and
Municipal Corporation of Greater Mumbai v Samarath
Development Corporation and ors.
APP(L)-29687-2023 (F).docx
interest in the suit land, which is in the midst of the Creek.
Mr. Godbole clarifies that this amount is assessed based on
ready reckoner's rate and no amount towards solatium is
included. He submitted that by securing this amount, the
MCGM may be permitted to proceed with the
construction / installation, which is in public interest.
3. To the query as to what would be the tentative
compensation as per the ready reconer's rate by including
the solatium, Mr. Godbole states that the compensation
would be in range of Rs.33 Crores or thereabouts. He
states that if the Court directs, the MCGM would not be
averse to even deposit this amount of Rs.33 Crores in the
Court.
4. Mr. Madon, learned counsel for Respondent No.1
/original Plaintiff requests that this matter be posted on 27
August 2024 to enable him to obtain instructions on the
without prejudice offer now made by MCGM in this matter.
5. Accordingly, list this matter on 27 August 2024 for
directions / disposal."
6. This matter could not be heard on 27 August 2024 due
to an overnight part-heard matter. It was finally heard on 28
August 2024 with the consent of the learned counsel for the
parties and reserved for orders.
7. The learned Single Judge has set out a chronology of
events leading to the institution of the suit. Therefore, such
chronology is not repeated in this order, disposing of this
appeal.
8. The respondents/plaintiffs claim to be the owners of the
NDZ land measuring 158.05 acres (including the portion of
the bed of Mogra Nallah going through the same), which
Municipal Corporation of Greater Mumbai v Samarath
Development Corporation and ors.
APP(L)-29687-2023 (F).docx
forms part of CTS No. 739 corresponding to Survey No. 41
(part) of village Oshiwara ("suit property").
9. The appellant-defendant (MCGM) disputes the plaintiffs'
claim of ownership and contends that the State Government
owns the suit property. The State Government also asserts that
it owns the suit property, including Mogra Nallah or Creek.
10. The MCGM proposes to construct and install SWPS amid
the Mogra Nallah/Creek and provide a road on the bank of
this nallah/creek to facilitate the construction, installation,
and maintenance of SWPS. The MCGM claims to have
obtained clearance from the Maharashtra Coastal Zone
Management Authority ("MCZMA") to undertake these works
in the No Development Zone (NDZ).
11. The respondents/plaintiffs maintain that the MCGM
should not be allowed to undertake the proposed work on the
SWPS until the State Government/MCGM acquires the suit
property and pays the entire compensation and solatium. The
learned Single Judge, by the impugned order, has injuncted
the MCGM and the State from interfering with the suit
property and constructing SWPS until the suit's final disposal.
Hence, this appeal against the impugned order.
12. The analysis of the impugned order indicates the
following:-
Municipal Corporation of Greater Mumbai v Samarath
Development Corporation and ors.
APP(L)-29687-2023 (F).docx
(a) The objection to the maintainability of the suit for
want of notice under Section 527 of the Mumbai
Municipal Corporation Act ("MMC Act") was rejected on
the ground that the suit was not for an injunction
simpliciter, but the plaintiffs had also sought for
declaration of absolute ownership in the suit property.
(See the discussion in paragraphs 33 to 35 of the
impugned order);
(b) The suit property originally formed part of the
estate of the predecessors in title of Byramjee
Jeejeebhoy under a Cowl or Grant dated 02 October
1830 on behalf of the East India Company. Ultimately,
by Consent Decree dated 15 October 1969 and Consent
Judge's Order dated 26 March 1979, the predecessors in
title of the plaintiffs, i.e. Oshiwara Land Development
Corporation ("OLDC"), acquired ownership of the suit
property. Since the suit property was the subject matter
of the suit or proceedings in which the Consent Decree
and the Consent Judge's Order were made, the Consent
Decree/Consent Judge's Order could not be ignored at
the prima facie stage on the ground that they were not
registered under Section 17 of the Registration Act. (See
the discussion in paragraphs 36 to 41 of the impugned
order);
Municipal Corporation of Greater Mumbai v Samarath
Development Corporation and ors.
APP(L)-29687-2023 (F).docx
(c) In the past, the MCGM had issued development
and construction permissions to OLDC. Similarly, for the
acquisition proceedings initiated on the right bank of
the Mogra Nallah/Creek, the MCGM/State had
acknowledged the plaintiffs as persons with interest in
the suit property. Based upon these circumstances
coupled with the Consent Decree/Consent Judge's
Order, it was held that the plaintiffs had made out a
prima facie case of ownership of the suit property. (See
the discussion in paragraphs 46 and 47 of the impugned
order);
(d) The MCGM and State Government's contentions
based upon the provisions of the Maharashtra Land
Revenue Code and the Salsette Estates (Land Revenue
Exemption Abolition) Act, 1951 ("Salsette Act") were
rejected as prima facie not sufficient to displace the
plaintiffs' claim of ownership of the suit property;
(e) The MCGM and State Government's contention
about public interest outweighing private interest was
rejected by distinguishing the decision of the Hon'ble
Supreme Court in Dr Abraham Patani of Mumbai and
another Vs. State of Maharashtra and others 1 (See the
2022 SCC OnLine SC 1143
Municipal Corporation of Greater Mumbai v Samarath
Development Corporation and ors.
APP(L)-29687-2023 (F).docx
discussion in paragraphs 44 and 46 of the impugned
order);
(f) In paragraph 48 of the impugned order, it is held
that since respondents/plaintiffs have made out a case
establishing their prima facie ownership, they will suffer
grave and irreparable loss if the MCGM/State enters
upon their land and starts the construction of SWPS
thereby depriving the respondents/plaintiffs of the
enjoyment of their land, without any steps towards
acquisition and payment of proper compensation;
(g) In paragraph 49 of the impugned order, it is held
that the balance of convenience is in favour of the
respondents/plaintiffs because if the State/MCGM
enters upon the suit land, that would negate the
respondents/plaintiffs' claim regarding title and lead to
an irreversible interference with their rights.
13. Mr Godbole, the learned Senior Advocate for the
MCGM, assailed the impugned order on several grounds. He
submitted that the unilateral declarations based upon which
the Consent Decree and Consent Judge's Order were made
could not bind the State, and based thereon, not even prima
facie findings could have been reached about the plaintiffs'
ownership claim to the suit property.
Municipal Corporation of Greater Mumbai v Samarath
Development Corporation and ors.
APP(L)-29687-2023 (F).docx
14. Mr Godbole submitted that, in any event, the Consent
Decree or the Consent Judge's Order did not declare or accept
any pre-existing right or title. The Judge's Consent Order
dated 26 March 1979 acknowledged that the Consent Decree
dated 15 October 1969 had conveyed the suit property to the
OLDC. He submitted that in such circumstances, the
exemption under Section 17(2)(vi) of the Registration Act
would not apply, and such Consent Decree or Judge's Consent
Order had to be necessarily registered. He submitted the
decision in Mohammade Yusuf and Ors. Vs. Rajkumar and
Ors.2 was distinguishable, and this case was governed by the
Hon'ble Supreme Court decisions in Bhoop Singh vs. Ram
Singh Major and Ors.3,
15. Mr. Godbole submitted that under the provisions of the
Maharashtra Land Revenue Code and the Salsette Act, the suit
property was vested in the State Government and not the
plaintiffs or their predecessors in title. He submitted that this
aspect has not been adequately considered in the impugned
order. Based upon all these, he contended that the prima
facie finding about the plaintiff's ownership of the suit
property is vitiated by perversity and warrants interference.
16. Mr Godbole submitted that, in any event, there was
hardly any discussion on the twin aspects of balance of
(2020) 10 SCC 264
(1995) 5 SCC 709
Municipal Corporation of Greater Mumbai v Samarath
Development Corporation and ors.
APP(L)-29687-2023 (F).docx
convenience and irreparable loss or injury in the impugned
order. He submitted that the suit property was in NDZ, and it
is not as if the plaintiffs were using or capable of using the
suit property for any commercial purposes. He submitted that
the plaintiffs could not force the State Government or MCGM
to acquire the suit property when there was a serious dispute
about the plaintiffs' title. He submitted that the SWPS project
was conceived in public interest inter-alia to prevent recurrent
flooding in the locality. All these aspects were most relevant
but not considered. Therefore, the impugned order warrants
interference.
17. Without prejudice, Mr Godbole submitted that the
MCGM was willing to deposit the market price of Rupees
Thirty-three crores in the Court to secure the plaintiffs, should
they succeed in obtaining a declaration about their title to the
suit property. He submitted that if the SWPS project is
delayed, the public exchequer will lose crores of rupees
because of cost overruns, flood mitigation, pollution, etc. He
submitted that the MCGM, representing the public interest in
such matters, would suffer irreparable loss and injury that the
Petitioners could never be able to compensate. He submitted
that the injuries to public interest cannot even be measured in
monetary terms in the present case. He submitted that
because these aspects have not been considered, the
impugned order warrants interference.
Municipal Corporation of Greater Mumbai v Samarath
Development Corporation and ors.
APP(L)-29687-2023 (F).docx
18. Ms Chavan, the learned AGP for the respondent-State,
submitted that the suit property belongs to the State
Government, not the plaintiffs. She submitted that the
ownership of the Mogra Nallah or Creek is vested in the State
Government under the provisions of the Maharashtra Land
Revenue Code, and the burden is weighty on a private party
to establish that it is the owner of a nallah or creek. She
submitted that the Plaintiffs have not discharged such burden.
19. Ms Chavan submitted that the SWPS project is
conceived in the public interest, and any delay in its execution
will severely affect that interest. She submitted that if, after
trial, it is found that the plaintiffs are the owners of the suit
property, they can always be compensated by payment of
compensation, solatium, etc. However, the plaintiff's
insistence that the State acquires the suit property, even
though the State, for good reasons, believes it is the property
owner, is not quite equitable. She submitted that since the
MCGM is willing to deposit the compensation and solatium
amount in this Court, the impugned injunction may be
vacated.
20. Mr. Ziyad Madon, the learned counsel for the
Respondents-Plaintiffs, defended the impugned judgment and
order based on reasons reflected therein. He submitted that
the decision in Bhoop Singh and others (Supra) relied upon
Municipal Corporation of Greater Mumbai v Samarath
Development Corporation and ors.
APP(L)-29687-2023 (F).docx
by Mr. Godbole was considered by the Hon'ble Supreme Court
in Mohammade Yusuf (supra), and therefore, relying upon
Mohammade Yusuf (supra), it was correctly held that non-
registration of the Consent Decree or Judge's Consent Order
was not a bar to their consideration.
21. Mr Madon submitted that the MCGM had issued the
development and construction permissions to OLDC, from
whom the Plaintiffs claimed the title. He submitted that even
when the MCGM/State proposed the acquisition of the
property on the right bank of the Mogra Nallah, the Plaintiffs
were shown as the title holders. He, therefore, submitted that
the MCGM and the State were estopped from denying the
Plaintiffs' title to the suit property, and such denial was not in
good faith.
22. Mr Madon submitted that there was nothing in the
provisions of the Maharashtra Land Revenue Code or the
Salsette Act based upon which any dent could be said to have
been made to the Plaintiffs' title to the suit property. He
submitted that the Additional Collector had rejected a similar
contention on 09 January 1965. He also submitted that the
observations in the judgment dated 29 August 2022 disposing
of Writ Petition No.739 of 2021 and connected Petitions
favoured the Plaintiffs' claim to the title of the suit property.
He submitted that based on all these materials, the impugned
Municipal Corporation of Greater Mumbai v Samarath
Development Corporation and ors.
APP(L)-29687-2023 (F).docx
order correctly concluded that the Plaintiffs had made out a
prima facie case of owning the suit property.
23. Mr Madon submitted that refusal of an injunction would
mean that the MCGM/State would trespass upon the
Plaintiffs' suit property without following the due process of
acquisition after payment of compensation under the
provisions of the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013. He submitted that in such
circumstances, the balance of convenience favoured the
Plaintiffs, and irreparable injury would result if the SWPS
were allowed to be installed without acquiring and paying full
compensation and solatium to the Plaintiffs.
24. Finally, Mr Madon submitted that the Impugned Order
was not arbitrary or perverse so as to warrant interference
given the law laid down in Wander Ltd and another Vs. Antox
India P. Ltd.4
25. For all the above reasons, Mr Madon submitted that this
Appeal may be dismissed.
26. The rival contentions now fall for our determination.
27. It is trite that an applicant seeking a temporary
injunction must show a prima facie case, balance of
1990 (Supp) Supreme Court Cases 727
Municipal Corporation of Greater Mumbai v Samarath
Development Corporation and ors.
APP(L)-29687-2023 (F).docx
convenience, and that they would sustain irreparable loss or
injury if the injunctions were to be refused. All these
parameters have to necessarily coexist.
28. The relief of temporary injunction cannot be insisted
upon as a matter of right or merely because it may be lawful
to do so. Such a relief is equitable and discretionary by its
very nature. The discretion must be guided by law, and the
Court is bound to consider all aspects of the matter. No hard
and fast rules exist to guide such discretion, but it must be
exercised with great circumspection.
29. Brehme v. Watson5 held that the power to issue an
injunction should be exercised with great caution and only
where the reason and necessity are clearly established. The
power to grant a temporary injunction must be exercised
cautiously and only upon clear and satisfactory grounds;
otherwise, it may work the greatest injustice (See Phulwati v.
Munna Lal6,). The exercise is attended with no small danger,
both from its summary nature and its liability to abuse.
Otherwise, instead of becoming an instrument to promote
public and private welfare, it may become a means of
extensive and, perhaps, irreparable injustice (See Story's
Equity Jurisprudence, section 1293).
67 F 2d 359
AIR 1983 All 20
Municipal Corporation of Greater Mumbai v Samarath
Development Corporation and ors.
APP(L)-29687-2023 (F).docx
30. At the same time, the caveat in Wander Ltd. (supra) also
cannot be ignored. This provides that the Appellate Court
would not interfere with the exercise of discretion of the
Court of first instance and substitute its discretion except
where the discretion has been shown to have been exercised
arbitrarily, capriciously or perversely or where the Court had
ignored the settled principles of law regulating grant or
refusal of interlocutory injunction.
31. The prima facie finding on the maintainability of the
Suit, even though no notice was served under Section 527 of
the MMC Act, does not warrant any re-visit at this stage in this
Appeal. So also, on an overall assessment of the material on
record and given the discipline in Wander Ltd.(supra), we are
inclined to proceed on the premise that the Plaintiffs have
made out a prima facie case of ownership of the suit property.
At the same time, we cannot say that the MCGM/State's
version regarding the ownership of the suit property is
frivolous or not arguable. Our reason for proceeding on this
premise is mainly because the findings on this aspect in the
Impugned Judgment and Order cannot be styled as arbitrary,
capricious or perverse.
32. Still, we think that Mr Godbole's contention that Section
17(2)(vi) of the Registration Act applies only in situations
where any pre-existing right or title is declared or accepted by
Municipal Corporation of Greater Mumbai v Samarath
Development Corporation and ors.
APP(L)-29687-2023 (F).docx
the parties to the consent terms and that the said provision
would not apply if some right or title in immovable property is
created or conveyed by the consent terms does not appear to
have been adequately considered in the impugned order. This
contention raises an arguable issue that requires deeper
examination at the final hearing of the suit.
33. The impugned order places the most significant
emphasis on the Consent Decree dated 15 October 1969 and
the Consent Judge's Order dated 26 March 1979 to hold that
the Plaintiffs have made out a prima facie case of title to the
suit property. The Consent Decree dated 15 October 1969 was
admittedly made in Suit No.660 of 1968, seeking specific
performance of an agreement of sale dated 25 January 1965.
Therefore, there was no declaration of pre-existing rights in
the suit and, consequently, in the Consent Decree. Similarly,
the Consent Judge's Order dated 26 March 1979, in turn,
purports to declare that the Consent Decree dated 15 October
1969 shall operate as a conveyance in favour of OLDC from
whom the Plaintiffs claimed title. Therefore, the question as to
whether the decision in Mohammade Yusuf (supra) would
apply to such facts was arguable. At least the defence raised
by the MCGM and the State was not some frivolous defence to
avoid acquiring the suit property.
Municipal Corporation of Greater Mumbai v Samarath
Development Corporation and ors.
APP(L)-29687-2023 (F).docx
34. The decisions in Bhoop Singh (supra), Phool Patti and
Anr. Vs. Ram Singh (Dead) Through Lrs. and Anr. 7 or even
Ratanlal Sharma Vs. Purushottam Harit 8 suggests this would
be the correct interpretation of Section 17(2)(vi) of the
Registration Act. Still, at the same time, even Mr Madon
pointed out that these decisions were considered in
Mohammade Yusuf (supra). Therefore, at this stage, the rival
versions of this issue are evenly poised. Similarly, defences
based on the provisions of the Maharashtra Land Revenue
Code or the Salsette Act may or may not be ultimately
accepted. But such defences cannot be styled as frivolous or
raise no arguable issues.
35. For instance, the Plaintiffs are claiming ownership of the
Mogra Nallah. Section 20 of the Maharashtra Land Revenue
Code provides that all public roads, ditches, dikes, the bed of
the sea and harbours and creeks below the high water mark,
and of rivers, streams, nallahs, lakes and tanks and all canals
and watercourses, and all standing and flowing water, and all
lands wherever situated, which are not the property of
persons legally capable of holding property, and except in so
far as any rights of such persons may be established, in or
over the same, and except as may be otherwise provided in
any law for the time being in force are and are hereby
(2015) 3 SCC 164
(1974) 1 SCC 671
Municipal Corporation of Greater Mumbai v Samarath
Development Corporation and ors.
APP(L)-29687-2023 (F).docx
declared to be, with all rights in or over the same, or
appertaining thereto, the property of the State Government.
Therefore, unless the plaintiffs made out an apparent case of
ownership, some deference is due to the provisions of Section
20 of the Maharashtra Land Revenue Code.
36. The MCGM indeed granted some permissions to the
plaintiffs in the past. The acquisition proceedings on the right
bank may also have treated the plaintiffs as persons interested
in receiving the compensation. However, title issues are not
decided only on estoppel or unilateral declarations. The
explanation about municipal authorities only relying upon
revenue records is not implausible. In any event, given the
Wander Ltd. (supra) discipline, we proceed on the premise
that the plaintiffs have made out a prima facie case of owning
the suit property or having a better claim to the suit property
than the State.
37. Still, as noted above, a mere prima facie case would not
suffice to grant an injunction, particularly against a public
authority from undertaking the construction of SWPS in the
suit property. This is more so because the suit property is land
in the No Development Zone. The SWPS is sought to be
installed amid the Mogra Nallah or Creek, which is not being
used and cannot be used by the Plaintiffs for any purposes.
The plaintiffs, therefore, were required to make out a case in
Municipal Corporation of Greater Mumbai v Samarath
Development Corporation and ors.
APP(L)-29687-2023 (F).docx
which the balance of convenience favoured the grant of
injunction and would suffer irreparable injury or loss were
such injunction refused in the facts and circumstances of the
present case. In this, the plaintiffs have failed.
38. The expression 'balance of convenience' is not a term of
art. All that it means is that the Court when considering a
motion for a temporary injunction, must be alive to the aspect
of the comparative mischief or inconvenience to the parties
which may arise from granting or withholding the injunction.
The Court must take care to see that no party is ultimately
deprived of the benefit due to it if it turns out that the party in
whose favour the temporary injunction was granted was in
the wrong.
39. In doubtful cases, if it appears on a balance of
convenience or inconvenience that more significant damage
would be caused to the defendant by granting the injunction if
it turns out afterwards to have been wrongly granted than to
the Plaintiff from withholding it if the legal right proves to be
in their favour, the temporary injunction would be refused. If,
however, the position appears reversed, the temporary
injunction would be granted (See Kerr on Injunctions, pages
24 to 26, Sixth Edition by J.M. Paterson).
40. The burden lies upon the plaintiff as the person applying
for the temporary injunction to show that their inconvenience
Municipal Corporation of Greater Mumbai v Samarath
Development Corporation and ors.
APP(L)-29687-2023 (F).docx
exceeds that of the defendant. They must make out a case of
comparative inconvenience or mischief entitling them to a
temporary injunction. In balancing the comparative
convenience or inconvenience from granting or withholding a
temporary injunction, the Court would consider what means it
has of putting the party who may be ultimately successful in
the position they would have stood if their legal rights had not
been interfered with (See Kerr on Injunctions, pages 24 to 26,
Sixth Edition by J.M. Paterson).
41. The expression 'irreparable loss or injury' is defined by
Courts in varying languages. It is believed that the
characteristics which the Courts should seek as certainly
making an injury irreparable, and which the majority of the
decisions show to be its essential feature, are: (i) That the
injury is an act which is a serious change of or is destructive
to, the property it affects either physically or in character in
which it has been held or enjoyed; (ii) That the property must
have some peculiar quality or use such that its pecuniary
value, as estimated by the jury, will not fairly recompense the
owner for the loss of it (See Nelson's Law of Injunctions, page
145, 10th Edition).
42. In the law of injunctions, the expression 'irreparable
injury' has acquired a meaning different from its literal
signification. It means an injury for which a fair and
Municipal Corporation of Greater Mumbai v Samarath
Development Corporation and ors.
APP(L)-29687-2023 (F).docx
reasonable redress may not be had in a Court of law so that to
refuse a temporary injunction would amount to a denial of
justice. In other words, where from the nature of an act, the
circumstances surrounding the person injured, or the financial
condition of the person committing it, it cannot be readily,
adequately and wholly compensated with money ( See
Nelson's Law of Injunctions, page 145, 10th Edition).
43. To be irreparable, the injury need not be beyond the
possibility of repair or compensation in damages. Where there
is a full, complete and adequate remedy in a court of Law for
an injury, it is not irreparable. If full compensation can be
obtained by damages in an action in that form, equity will not
apply the extraordinary remedy of an injunction. In some
instances, it is held that the term 'irreparable injury or
damage' does not refer to the amount of damage caused but
rather to the difficulty of measuring the amount of damage
inflicted. An injury is irreparable if there is no certain
monetary standard for measuring damages ( See Nelson's Law
of Injunctions, pages 145-146, 10th Edition).
44. Applying the above well-settled principles to the
material on record in the present case, the plaintiffs have not
pleaded and established that the balance of convenience
favours the grant of injunction. Similarly, the plaintiffs have
not, in the facts of the present case, made out a case that they
Municipal Corporation of Greater Mumbai v Samarath
Development Corporation and ors.
APP(L)-29687-2023 (F).docx
would suffer 'irreparable injury and damage' should the
injunction be refused. No injunction could have been granted
without establishing these twin requirements and merely
based on a prima facie case.
45. In this case, we cannot ignore the nature of the suit
property and the character and extent of the threatened
infringement. The circumstance that undertaking the
construction of the SWPS by a public authority was a project
imminently in the public interest was not an irrelevant
circumstance. The tremendous urgency of setting up such a
project was also not an irrelevant circumstance. Setting up the
SWPS amid the nallah or creek was essential to filter the solid
wastes that otherwise flow into the sea, clogging the nallah or
creek and leading to floods in the locality and pollution of the
sea waters. The floods in the locality are a recurrent feature,
mainly when the heavy monsoons and the high tides align.
The public element involved in the project and the necessity
of its early implementation are equally relevant considerations
for the grant or refusal of a temporary injunction that could
not be excluded.
46. In paragraph 4 of the plaint, the respondent plaintiffs
have pleaded that they are seeking a declaration that they are
entitled to "the NDZ land admeasuring 158.05 acres 9
including the portion of the bed of the Mogra Nala flowing
Municipal Corporation of Greater Mumbai v Samarath
Development Corporation and ors.
APP(L)-29687-2023 (F).docx
through the same), which forms a part of CTS No. 739
corresponding to survey No. 41(part) of Village Oshiwara, and
a permanent injunction restraining Defendant Nos. 1 to 3
from entering any part of the NDZ land for any purpose."
47. The plaintiffs have described the suit property, i.e. the
NDZ land measuring 158.05 acres, secondly in schedule at
Exhibit "C" to the plaint. This description reads as follows:-
"Secondly :
The chunk of land, out of the lands described Firstly
hereinabove bearing City Survey No.739 corresponding to
Survey No.41 (part) of village Oshiwara, taluka Andheri,
district Mumbai Suburban admeasuring 6,39,949.9 square
metres equivalent to 7,65,385.54 square yards equivalent
to 158.05 acres which is identified in pink hatched lines
village map (Exhibit 'A'), which land has been reserved for
No Development Zone under 1991 Development Plan and
now as Natural Area under the 2034 Development Plan
bounded as follows :-
On or towards the North by the creek;
On or towards the South by the 36.60 metre wide
Development Plan Road beyond which are buildings of
Shree Swami Samartha Co-operative Society; Yamuna
Nagar and Millat Nagar;
On or towards the East by creek/nala, beyond which lies
village Pahadi Goregaon;
On or towards the West by land which is reserved for
Sewerage Purification Work and is described Firstly in the
Third Schedule hereinabove."
48. In the list of documents furnished by the plaintiffs, the
document at Serial No. 30 acknowledges that the suit
Municipal Corporation of Greater Mumbai v Samarath
Development Corporation and ors.
APP(L)-29687-2023 (F).docx
property is reserved for a Storm Water Pumping Station on
the D.P. Sheet, which is annexed to the D.P. remarks wherein
the land reserved for Pumping Station is referred to as
"RMS6.1 (Storm Water Pumping Station)
(739(PT):12941sqm".
49. Thus, the plaintiffs' property is in the No-Development
Zone (NDZ). The plaintiffs have themselves pleaded that the
suit property was shown as reserved for a No-Development
Zone in the 1991 plan and that it is now shown as a 'natural
area' in the 2034 development plan. Some photographs were
produced on record which show that the SWPS was to be
constructed in the middle of the Mogra Nallah (as the
plaintiffs choose to describe it) or the Mogra Creek (as the
MCGM and the State Choose to describe it). Whether it is a
nallah or creek makes no significant difference. The proposal
is to construct the SWPS amid this water body, ultimately
linked to the sea. A small road is proposed to be built on the
banks of this nallah or creek only to provide access to the
construction site and to facilitate the eventual operation of the
SWPS.
50. Under the CRZ notification, several restrictions exist for
undertaking activities in an area classified as NDZ. Similarly,
there are several restrictions on the user of an area classified
as a 'natural area' in a development plan. MCGM claims to
Municipal Corporation of Greater Mumbai v Samarath
Development Corporation and ors.
APP(L)-29687-2023 (F).docx
have obtained a clearance from the MCZMA for constructing
and operating SWPS, which, according to them, is one of the
few permissible activities in this No Development Zone.
51. Mr Godbole explained that this SWPS will filter solid
waste such as plastics and prevent such waste from choking
the nallah or the creek. He submitted that such filtration
would also prevent such waste from entering the sea,
polluting the sea and the marine life therein. He submitted
that SWPS was a dire necessity on account of the recurrent
flooding in the area, particularly when the monsoons and high
tides align. He submitted that SWPS would pump the water
into the sea in such a situation and thereby control flooding of
densely populated areas.
52. Mr Godbole submitted that earlier, this project was
proposed on the right bank of the creek, and some
compensation amount was deposited under the mistaken
belief that the plaintiffs might be the persons interested in
receiving such compensation. However, he submitted that this
site was abandoned for technical considerations after experts
opined that setting up SWPS amid the creek was most
advisable. He submitted that experts had opined that
constructing SWPS amid the creek was the best way to pump
excess water into the sea and control flooding in the densely
populated locality.
Municipal Corporation of Greater Mumbai v Samarath
Development Corporation and ors.
APP(L)-29687-2023 (F).docx
53. Given the nature of the suit property described by the
plaintiffs themselves and the eminent public interest involved
in constructing and operationalising SWPS at the earliest, we
do not think that the plaintiffs have established that the
balance of convenience favours the grant of any injunction
against the MCGM or the State in this matter. Suppose such
an injunction is granted or continued. In that case, MCGM,
which is a public body, will either have to abandon all its
objections to the plaintiffs' title claim to the suit property and
proceed to acquire the suit property or indefinitely delay the
public project of the construction of SWPS.
54. The plaintiffs are builders/developers. The suit property,
as it presently stands, is quite useless to the plaintiffs in the
sense that the plaintiffs are in no position to use this property
for any construction or development purposes. The suit
property is in the No Development Zone. It forms a part of the
natural area cover, so the suit property cannot be exploited for
any commercial purposes of construction/development. The
prospect of the plaintiffs being able to construct anything
amid the nallah or on its banks is most bleak, if not
impossible.
55. Therefore, the plaintiffs cannot be said to be presently
"using" or "enjoying " the suit property even if we proceed on
the premise that a nallah or a creek could be the subject of
Municipal Corporation of Greater Mumbai v Samarath
Development Corporation and ors.
APP(L)-29687-2023 (F).docx
private ownership, notwithstanding the provisions of the
Maharashtra Land Revenue Code and other laws dealing with
this subject. The plaintiffs have also not made out any case of
nuisance or that such construction could affect any other
portion of their nearby properties.
56. Considering all these aspects, we cannot say that the
balance of convenience in this case favours the grant or
continuance of the injunction. The inconvenience to
MCGM/State and the members of the public who would be
the beneficiaries of the SWPS is far more significant than the
inconvenience, if any that the plaintiffs might have to suffer if
the injunction is refused.
57. Much more significant damage would be caused to the
MCGM/State by granting or continuing such an injunction if it
ultimately turns out that the plaintiffs cannot be granted the
declaration of title, which is the main relief they seek in the
suit. Besides, this is a case where the defendants are the
MCGM/State. Therefore, it cannot be the plaintiffs' case that
the MCGM/State would not be in a position to suitably
compensate the plaintiffs with the total market value and
solatium should the plaintiffs succeed in obtaining a
declaration of title to the suit property. The MCGM has offered
to deposit upfront an amount of Rupees Thirty-three crores
assessed on the ready reckoner rates should the injunction be
Municipal Corporation of Greater Mumbai v Samarath
Development Corporation and ors.
APP(L)-29687-2023 (F).docx
vacated and the plaintiffs succeed in establishing their title
claim to the suit property.
58. From the pleadings and submissions, the plaintiffs insist
that the MCGM must first acquire the suit property by paying
the total price and solatium and then proceed with the project
of public importance and interest. This is much before the
plaintiffs finally established their title claim to the suit
property. Based on a prima facie determination, the MCGM or
the State cannot be forced to acknowledge the plaintiffs'
alleged title and proceed to acquire the suit property or delay
a project of utmost public importance until the suit concludes.
Such an approach is hardly equitable. The equitable and
discretionary jurisdiction cannot be exercised for such
purposes. Instead, an equitable arrangement would be to
secure the compensation amount for the plaintiffs without
holding the public project to ransom.
59. This is also not a case in which the plaintiffs have
pleaded or established any case of irreparable injury or
damage. The plaintiffs only want total compensation and
solatium, and they want it now, i.e., even before the suit goes
to trial and they secure a declaration of ownership. By
insisting upon a temporary injunction, the Plaintiffs are
virtually demanding that the MCGM and the State abandon
their serious objections to the plaintiffs' title to the suit
property if this project of public importance is not to be
Municipal Corporation of Greater Mumbai v Samarath
Development Corporation and ors.
APP(L)-29687-2023 (F).docx
delayed. Such an approach would even amount to practically
decreeing the suit at this stage because no provision was
shown to us providing for any "without prejudice acquisition"
by the State or the MCGM under the Land Acquisition laws.
60. The injury or loss to the plaintiffs of waiting to receive
compensation and solatium until they establish their title can
hardly be called irreparable. The compensation or damages
are and would be readily ascertainable. Even today, the
plaintiffs demand total compensation and solatium for the suit
property before their title claim is decided. Therefore, it is not
as if the plaintiffs cannot be adequately compensated should
the injunction they seek be refused.
61. But if the injunction is now granted or continued, and
later on, the plaintiffs fail to establish their title, the loss or
injury that the MCGM or the public would suffer would be
irreparable. The project costs would spiral substantially. Given
the nature of the public project and the necessity of its early
completion, the injury to the public interest would not even be
capable of being measured in terms of money. Thus, in this
case, the irreparable loss would be caused to the public
interest if a project of this nature and magnitude is delayed
based upon title claims yet to be finally established.
62. As noted above, In paragraph 48 of the impugned order,
it is held that since respondents/plaintiffs have made out a
case establishing their prima facie ownership, they will suffer
Municipal Corporation of Greater Mumbai v Samarath
Development Corporation and ors.
APP(L)-29687-2023 (F).docx
grave and irreparable loss if the MCGM/State enters upon
their land and starts the construction of Storm Water Pumping
Station thereby depriving the respondents/plaintiffs of the
enjoyment of their land, without any steps towards acquisition
and payment of proper compensation.
63. Similarly, in paragraph 49 of the impugned order, it is
held that the balance of convenience is in favour of the
respondents/plaintiffs because if the State/MCGM enters
upon the suit land, that would negate the
respondents/plaintiffs' claim regarding title and lead to an
irreversible interference with their rights.
64. Apart from the above paragraphs, there is no discussion
of the crucial aspects of the balance of convenience or
irreparable injury in the context of this case's peculiar facts.
Although we proceed on the premise that a prima facie case
or prima facie title was established, the plaintiffs have not
established the other essential requirements for securing a
temporary injunction, viz., the balance of convenience and
irreparable injury. Without establishing these, no injunction
can be granted or continued.
65. The plaintiffs did accept that public interest would
trump private interest in the context of Dr Abraham Patani's
Decision (supra). But they contended that nothing prevented
the MCGM or the State from acquiring the suit property for
constructing the stormwater pumping station, which was
Municipal Corporation of Greater Mumbai v Samarath
Development Corporation and ors.
APP(L)-29687-2023 (F).docx
obviously in the public interest. Now, to insist that the MCGM
and the State must, despite their serious objections to the
plaintiffs' title claim, must give up all their objections,
acknowledge the plaintiffs' ownership claims, and pay
compensation of crores of rupees to the plaintiffs does not
sound an equitable approach, particularly given the nature of
the suit property and the statutory restrictions on its
development. Although the facts in Dr Patani's case may have
differed from those in the present case, the principle that
public interest prevails over private interest was crucial.
66. In Court interventions with public projects, the Hon'ble
Supreme Court has held that project delays escalate project
costs and burden the public exchequer immensely. Therefore,
the Court has to be satisfied that the public interest in holding
up a public project far outweighs the cost of carrying it out
within time. The Court has held that where a private party is
to be secured with an interim order stopping a public
authority from proceeding with a public project, the court
must provide for the reimbursement of costs to the public
should the litigation ultimately fail. The public must be
compensated both for the delay in the implementation of the
project and the cost escalation resulting from such delay.
Unless an adequate provision is made, the interim order may
Municipal Corporation of Greater Mumbai v Samarath
Development Corporation and ors.
APP(L)-29687-2023 (F).docx
be counterproductive (See Raunak International Ltd. v. I.V.R.
Constructions9).
67. In Mahadeo Shelke v. Pune Municipal Corporation 10, the
Hon'ble Supreme Court approved the Appeal court dissolving
the interim injunction granted by the trial court. It held that
the courts should necessarily consider the effect of such
injunctions on the public purpose involved in setting up the
public project. The Court held that in granting injunctions
against public authorities and preventing them from
proceeding with public projects, public interest is one of the
material and relevant considerations in either exercising or
refusing to grant injunctions. Since the Appeal Court, which
granted the temporary injunction, had not adverted to any of
such material aspects, the High Court correctly dissolved the
injunction, and the Hon'ble Supreme Court upheld such a
dissolution.
68. MCGM's offer to deposit the entire compensation
amount and solatium was not a circumstance before the
learned Single Judge when the impugned order was made. If
the plaintiffs succeed in the suit, they will get the deposited
amount with accrued interest, subject to MCGM and the
State's right to appeal. The plaintiffs have neither pleaded nor
established any case of serious injury if the SWPS is installed
1999 (1) SCC 492
1995 (3) SCC 33
Municipal Corporation of Greater Mumbai v Samarath
Development Corporation and ors.
APP(L)-29687-2023 (F).docx
in the middle of the Mogra Nallah or creek except for saying
that this would amount to an infringement of their ownership
rights. It is not as if the plaintiffs had planned or could have
planned any project amid the nallah or on the banks of the
nallah and are now deprived of this business opportunity.
There is also no case of any nuisance pleaded or made out
should the public project proceed. Even the plaintiffs and the
residents of the projects they have developed would benefit
along with the other public members once the project is
established.
69. Wander Ltd (Supra) leaves a window where the settled
principles of law regulating the grant or refusal of
interlocutory injunctions are not considered. An appeal
against the exercise of discretion is an appeal on principle.
The principle in this case is that no injunction could have been
granted without the plaintiffs pleading and establishing the
other essential requirements, viz., the balance of convenience
and irreparable injury.
70. Accordingly, as the MCGM offers, it must deposit Rs 33
crores in this Court to Suit No. 42 of 2022 account within six
weeks from today. Subject to such deposit, the impugned
order and the injunction granted therein shall stand set aside
and vacated.
71. The MCGM shall, however, claim no equities, and the
construction of the SWPS amid the Mogra Nallah or creek or
Municipal Corporation of Greater Mumbai v Samarath
Development Corporation and ors.
APP(L)-29687-2023 (F).docx
the access roads on the bank for facilitating access to the
SWPS in suit property shall be subject to final decree in the
suit. Needless to say, the MCGM must obtain permission from
the prescribed authorities, including the MCZMA, before it
undertakes the construction of the stormwater pumping
station amid the Mogra Nallah or creek or the access roads on
the bank to facilitate access to the station. The vacation of the
impugned injunction is not a licence to undertake any activity
in the suit property without permission from the prescribed
authorities. The deposited amount must be invested and
MCGM shall abide by the orders in the suit.
72. All observations in this order are only in the context of
the interim arrangements and are not intended to influence
the suit's final hearing.
73. This Appeal and the interim applications are disposed of
in the above terms without any cost order.
74. All concerned can act on an authenticated copy of this
order.
(Kamal Khata, J) (M. S. Sonak, J)
Signed by: Darshan Patil
Date: 04/09/2024 15:41:26
