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2008(7) Supreme 648
SUPREME COURT OF INDIA
(From Bombay High Court)
S.B. Sinha and Cyriac Joseph, JJ.
Rikhabsao Nathusao Jain — Appellant
versus
Corpn. of the City of Nagpur & Ors. — Respondents
Civil Appeal Nos. 6192-6197 of 2008
[Arising out of SLP (Civil) No. 22073-22078 of 2005]
Decided on : 22-10-2008
(2007) 11 SCC 40 – Relied upon.
(b) City of Nagpur Corporation Act, 1948 – Section 275(3) – Though a deemed sanction amounts to an order granting sanction of a building plan, jurisdiction of District court can be invoked by a neighbour in case of any violation of the building bye-laws. (Para 20)
(c) City of Nagpur Corporation Act, 1948 – Section 287 r/w section 286(5) – Jurisdiction of the District Judge is limited – It has no implied power to grant mandatory injunction and that too suo motu. (Para 22)
(d) City of Nagpur Corporation Act, 1948 – Section 287 r/w section 286(5) – The District Judge could direct the corporation to point out the provisions of building bye-laws which were violated but he could not direct it to consider the sanction of the plan without rectification of the defects pointed out. (Para 25)
(e) City of Nagpur Corporation Act, 1948 – Section 286(5) – An implied power on the part of civil court is conceived of having regard to the interest of the parties – Examples are power to admit appeal includes power to stay, or power to grant maintenance includes power to grant interim maintenance – However, power to grant injunction is a special power which is absent in certain jurisdictions. (Para 25)
AIR 1969 SC 430; (1985) 4 SCC 337; (1994) 4 SCC 225 – Relied upon.
(f) Code of Civil Procedure, 1908 – Order XXIX, rule 1 – Order XXIX, rule 1 is not the sole repository of the power of court to grant injunction if the matter is not covered by rules 1 and 2. (Para 26)
(2004) 7 SCC 478; (2007) 9 SCC 286; (2008) 4 SCC 791 – Relied upon.
(g) Doctrine – Dependent order – The doctrine of dependent order would mean that if the order granting mandatory injunction is to be found illegal and without jurisdiction, any order of sanction passed by the statutory authority in pursuance thereof may also be held to be illegal – The proposition, however is not absolute and would be dependent upon the fact circumstances of each case. (Paras 27 and 28)
(1988) 2 SCC 142; (2007) 2 SCC 275 – Relied upon.
Facts of the case :
1. The dispute between the parties herein arose due to refusal to grant sanction of a building plan filed by respondent No. 2. Appellant is his neighbour. Appellant is owner of a house bearing No. 585 and respondent No. 2 is owner of a neighbouring house bearing No. 586.
2. A part of the land on which the constructions were said to have been raised by respondent No. 2 belonged to the Corporation of City of Nagpur itself. Respondent No. 2 and his predecessors, however, are said to be in possession thereof for a long time and acquired an indefeasible title thereto.
3. Respondent No. 2 allegedly had submitted a plan for construction of a building. It was not approved within a period of sixty days. On the premise that the said plan would be deemed to have been sanctioned, he raised constructions.
4. Appellant filed an application before the District Judge, Nagpur for mandatory injunction etc. He also filed an application seeking an interim order of Injunction.
5. By an order dated 21.10.1983, the learned Judge passed an order of interim injunction and direction to the Corporation to consider sanction of the site plan.
6. Plan of respondent no. 1 was subsequently sanctioned and the interim injunction was also vacated.
7. Appellant’s Misc. Civil application was finally allowed directing the Corporation to remove the unauthorized construction made by respondent No. 2. An appeal was preferred thereagainst. The said appeal, LPA No. 115 of 1996, and the LPA filed questioning the order of the learned Single Judge dated 23.03.1998 were taken up for hearing together and by reason of the impugned judgment, the appeals preferred by respondent No. 2 have been allowed. A review application filed by appellant has been dismissed.
Finding of the Court:
Impugned judgment cannot be sustained.
Result : Appeals allowed.
JUDGMENT
S.B. Sinha, J. —
1. Leave granted.
2. Width and amplitude of jurisdiction of the District Judge in terms of Section 286 (5) of the City of Nagpur Corporation Act, 1948 (for short “the Act”) is in question in these appeals which arise out of judgments and orders dated 24.09.2004 and 6.04.2005 passed by the High Court of Judicature at Bombay, Nagpur Bench.
3. The dispute between the parties herein arose due to refusal to grant sanction of a building plan filed by respondent No. 2. Appellant is his neighbour. Appellant is owner of a house bearing No. 585 and respondent No. 2 is owner of a neighbouring house bearing No. 586.
4. A part of the land on which the constructions were said to have been raised by respondent No. 2 belonged to the Corporation of City of Nagpur (for short “the Corporation”) itself. Respondent No. 2 and his predecessors, however, are said to be in possession thereof for a long time and acquired an indefeasible title thereto.
5. Respondent No. 2 allegedly had submitted a plan for construction of a building. It was not approved within a period of sixty days. On the premise that the said plan would be deemed to have been sanctioned, he raised constructions. Appellant filed an application before the District Judge, Nagpur in terms of Section 286(5) of the Act on or about 1.08.1983, inter alia for the following reliefs:
“(i) Grant of mandatory injunction against the non-applicant No. 1 and 2 directing them to remove the un-authorised & illegal work carried out by them and restraining them in future from undertaking any authorized and illegal work in contravention of the provisions of Nagpur Corporation Act and the by-laws made thereunder.
(ii) Injunction restraining the non-applicant No.1 from giving sanction to the building proposal,if any, submitted by non-applicant No.2 without first deciding the objection raised by the applicant;
(iii) Injunction restraining the non-applicant No.1 from giving sanction to extension, modification, alteration, constructions or such other things in future, without first hearing the applicant.”
Appellant also filed an application seeking an interim order of injunction restraining respondent No. 1 - Corporation from granting any sanction of building plan submitted by respondent No. 2 as also an order of injunction restraining him from proceeding with illegal construction.
6. Respondent No. 1 - Corporation in its written statement before the learned District Judge contended that the plan submitted by respondent No. 2 was not in conformity with Bye-Law No. 4 of Building Bye-Laws. It was furthermore contended that the said plan had been returned to him on 4.08.1983.
7. The said application was transferred to the Court of Second Extra Assistant Judge. It was heard on or about 3.10.1983 and posted for judgment on 12.10.1983. As on the said date, the Presiding Officer was on leave, the matter was posted for judgment on 21.10.1983. By an order dated 21.10.1983, the learned Judge passed the following order :
“...Hence by invoking the principle of natural justice and the inherent powers vested in me under Section 151 of the Civil Procedure Code, I hereby direct the Non-applicant No. 1 Corporation through its Administrator to consider site plan or building plan submitted by N.A. 2 Pannalal and pass suitable order granting sanction for the proposed construction keeping in view the rules and byelaws framed by the Corporation in regard to construction or erection of buildings on sites together with objections, if any, from Rukhabdas Jain within fifteen days from receipt of this order. After receipt of suitable order or sanction given by the Corporation in respect of construction proposed by the Non applicant No. 2 Pannalal on his concerned site, judgment will be pronounced in this case in the light of the said order or sanction given by the Corporation. Till then the judgment is deferred. Meanwhile, the interim injunction order dated 2.8.1983 to continue.”
On the premise that the sai
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