Mr. Yusuf Pathan vs Indore Municipal Corporation
2021 Latest Caselaw 7877 MP

1


            The High Court Of Madhya Pradesh

                           WA No. 1134 of 2021
      (MR. YUSUF PATHAN Vs INDORE MUNICIPAL CORPORATION AND OTHERS)

                      26-11-2021
Indore, Dated :
      Ms Bhakti Vyas, learned counsel for the appellant.

      Mr Aniket Naik, learned counsel for the respondents No. 1

and 2, on advance copy.

With the consent, finally heard.

02. At the outset, Mr Naik, learned counsel for the

respondents No. 1 and 2 raised an objection regarding

maintainability of this writ appeal which is filed against an

interlocutory order dated 09-11-2021 whereby the prayer for interim

relief was rejected by learned Single Judge.

03. Mr Naik by placing reliance on a Full Bench's decision

reported in (2007) 3 MPLJ 565, Arvind Kumar Jain and others

Vs. State of M.P. followed in (2014) 3 MPLJ 168, Hindustan

Copper Ltd., Vs. State of M.P submits that learned Single Judge

has not passed any order whereby rights of parties were finally

determined. Thus, the Writ Appeal is not maintainable. Apart from

this, the respondents No.1 and 2 have already raised an objection of

maintainability of Writ Petition itself before the learned Single

Judge. The said aspect has not been gone into by the Writ Court.

04. Ms Vyas, learned counsel for the appellant submits that

appellant is an occupier. If property tax has not been paid, the

remedy is elsewhere and respondent 1 and 2 have no authority,

jurisdiction and competence to put a seal on the premises of the

appellant. The right to enter the premises is a valuable Fundamental

Right of the appellant. The said right is founded upon Article 19 and

21 of the Constitution. The said right can be taken away only by

way of a method which is known to law. The appellant placed

reliance on various judgments before the learned Single Judge in this

regard but none could find place in the impugned order. Ms Vyas

also placed reliance on the judgment of Arvind Kumar Jain(supra)

and urged that in a case of this nature where serious miscarriage of

justice has taken place, this court can entertain the Writ Appeal. No

other point is pressed by learned counsel for the parties.

05. Ms Vyas during the course of arguments did not

dispute that an objection regarding maintainability of Writ Petition

was indeed raised by respondent 1 and 2. Thus, the Writ Court

should have decided the question of maintainability also before

putting the respondent 3 and 4 to notice. The singular reason

assigned for declining interim relief is that since appellant has not

consumed a single electricity unit in last one year, there appears to

be no urgency and, therefore, interim relief to unlock the property

was rejected. The Full Bench in Arvind Kumar Jain (supra)

opined as under :-

"31. In view of the aforesaid premised reasons we proceed to record our conclusions in seriatim:

(a) The decision rendered in the case of Arvind Kumar Jain (supra), does not lay down the law correctly and is hereby overruled.

(b) Any decision treading on the same path has to be deemed to have been overruled.

(c) The decisions rendered in Nav Nirman (Milan) Deria (supra) and Tejpal Singh (supra), enunciate the law correctly.

(d) The proviso to Section 2(1) of Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 does not create an absolute bar to prefer an appeal to the Division Bench.

(e) An appeal can be preferred against an order regard being had to the nature, tenor, effect and impact of the order passed by the learned Single Judge.

(f) The guidelines given in the cases of Shah Babulal Khimji (supra), Central Mine Planning and Design Institute Ltd. (supra), Deoraj (supra), Liverpool & London S.P. & I. Association Ltd. (supra), Subal Paul (supra) and Midnapore Peoples' Cooperative Bank Ltd. (supra) are to be kept in view while deciding the maintainability of an appeal.

(g) It should be borne in mind that instances given in the aforesaid decisions are not exhaustive but illustrative in nature, because various kinds/categories of orders may be passed in exercise of jurisdiction under Article 226 of the Constitution of India.

(h) The facts in each case, the nature and the character of the order are to be scrutinised to appreciate the trappings of the same."

06. A plain reading of clause (f) shows that it is founded

upon the judgment of Supreme Court in the case of Shah Babulal

Khimji vs Jayaben D. Kania And Anr. reported in AIR (1981) SC

1786. In the judgment of Arvind Kumar Jain(supra) itself the

judgment of Shyam Babulal (supra) was considered in Paragraph-

20. Paragraph-20 of Arvind Kumar Jain's case reads as under :-

20. "In Shah Babulal Khimji v. Jayaben D. Kania and Anr. , the Apex Court while dealing with Clause 15 of the Letters Patent of the Bombay High Court dealt with the scope, meaning and the purport of the judgment and the test to determine as to when the order passed by the learned Trial Judge can be said to be a judgment. Their Lordships expressed the opinion that every interlocutory order cannot be regarded as a judgment but only those orders which decide the matter of moment or affect the vital and valuable rights of the parties and which cause serious injustice to the party concerned. Their Lordships further held that when an interlocutory order causes injustice who is deprived of valuable right till such interlocutory order continues has the attributes or character of finality and must be treated as a judgment within the meaning of Letters Patent. It is worth noting here that the Apex Court gave certain instances and held that the instances would constitute sufficient guidelines to determine whether or not the orders passed by the learned Trial Judge is judgment within the meaning of Letters Patent. Their Lordships further opined that the instances given are illustrative and not exhaustive."

(Emphasis supplied)

07. A microscopic reading of this paragraph makes it clear

that when an interlocutory order causes injustices to a party and

party is deprived of his valuable rights, Letters Patent Appeal

(L.P.A) is maintainable. In our considered opinion, putting the lock

on the premises of appellant is a serious matter and it deprives him

from his valuable right to enter the premises unless such deprivation

is lawful in nature. Thus, in a case of this nature where interim

relief is declined by passing a sketchy order, we deem it proper to

hold that Writ Appeal is very much maintainable. The order dated

09-11-2021 is set-aside to the extent prayer for interim relief was

rejected. It is expected that learned Single Judge will consider the

question of maintainability and if petition survives will decide the

question of interim relief afresh.

08. Writ Appeal is allowed without expressing any opinion

on the merits.

Certified copy as per rules.

               (SUJOY PAUL)                       (PRANAY VERMA)
                  JUDGE                               JUDGE




Rashmi




RASHMI PRASHANT
2021.12.01 15:37:49
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