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2021 Supreme(SC) 140
SUPREME COURT OF INDIA
INDU MALHOTRA, AJAY RASTOGI, JJ.
PUNE METROPOLITAN REGIONAL DEVELOPMENT AUTHORITY (PMRDA) – Appellants
VERSUS
PRAKASH HARKACHAND PARAKH & ORS. – RESPONDENTS
CIVIL APPEAL NO(S).845, 846 OF 2021 (Arising out of SLP(Civil) No(s)., 404 of 2020, 4322 of 2021) (Diary No. 1282/2020)
Decided on : 10-03-2021
For the Appellant(s) :M/s. Dr. R.R. Deshpande And Associates, B. K. Pal, Advocates
For the Respondent(s):Vinay Navare, Chaitanya Nikate, Anand Dilip Landge, Advocates
IMPORTANT POINT
By an interim order, even final relief ordinarily should not be granted.
Headnote:
Constitution of India – Article 226 – Conditional restriction on public use of street – Nature of modification which has been made by High Court vide order impugned, in the form of an ad-hoc interim arrangement, is exceeding its jurisdiction and not within the realm of power of judicial review to be exercised under Article 226 of Constitution – By an interim order, even final relief ordinarily should not be granted – Order impugned passed by High Court quashed and set aside with directions. (Paras 11 and 12)
Facts of the case:
Appellant is primarily aggrieved by an interim order passed by the High Court dated 4th October, 2019 in a writ petition filed at instance of the 1st respondent pursuant to which the street opened for public use has been restricted on certain terms and conditions.
Findings of Court:
Division Bench of High Court, pending writ petition, taking note of submissions by an interim order practically modified and made the ad-hoc arrangement by order dated 4th October, 2019 on its own terms, imposing certain time limits when the subject road would be made available for public use, and when it would be used strictly as an internal road for the occupants of the building. We were informed that the public was using the road throughout till the impugned order was passed by the High Court.
Result : Appeal allowed.
ORDER :
Rastogi, J.
Civil Appeal @ SLP(Civil) Diary No. 1282/2020
1. Delay condoned.
2. Leave granted.
3. The appellant is primarily aggrieved by an interim order passed by the High Court dated 4th October, 2019 in a writ petition filed at the instance of the 1st respondent pursuant to which the street opened for public use has been restricted on certain terms and conditions which has been referred to in the operative para 17 of the order impugned which is as under:-
“17. However, a balance can always be struck. We, therefore, grant an interim order not in absolute terms as claimed by the petitioner, but as under:
(a) There will be an interim order in terms of prayer clause (d) but the communication/order dated 18th January, 2019 will be in abeyance on the condition that the petitioner do not make any construction and keep the portion which is used as private road open to sky. They would also not make any construction immediately adjacent to or abutting the same;
(b) This private road will be used by the petitioner together with the societies or the buildings' occupiers along with members of public but only before 8.30 pm in the night and after 5.30 am in the morning. Between those hours, the road will be closed to the public;
(c) This private road can be enclosed on both sides by putting up iron gates or boom barriers and placing security personnel;
(d) The petitioner will display a notice board on both sides to this effect and allow the members of public to use this road though styled as internal road from 5.30 am in the morning until 8.30 pm in the night;
(e) This arrangement will be without prejudice to the rights and contentions of both sides;
(f) This will not confer any rights in either parties presently;
(g) The usage will not also make the 1st respondent together with the 2nd respondent the absolute owner of the property;
(h) In the event any wall has been demolished, so as to protect this road from indiscriminate and uncontrolled so also unrestricted use by the public, then the 1st respondent shall allow the petitioner to reconstruct the wall to the extent it was earlier, but this wall will have the gates or barriers as directed by us.
(i) As an added safety precaution, this road will not be used by Heavy vehicles or buses and will be used only by LMVs, two-wheelers and auto-rickshaws. To ensure this, a height barrier may be installed by the petitioner. The costs of the gates/barriers will be borne by the petitioner/societies.
(j) There will be no public parking on this road and all parking will be for residents only.
(k) This order will operate as an interim arrangement during the pendency of this writ petition.”
4. The facts in brief relevant for the purpose manifest that the appellant is the competent authority constituted under Section 18 of the Maharashtra Regional and Town and Country Planning Act, 1966 by the Urban Development Department of Government of Maharashtra. The 1st respondent who owns and possess the subject land in question bearing Survey No. 65A, Hissas admeasuring 37600 sq. meters situated at Village Majri bk, tal Haveli, District Pune decided to develop the residential project. The lay out plan was submitted by the 1st respondent of the subject land comprised of 12 meters wide pathway road, on the right side of the lay out, from first end to the other end of the project, along with an application under Section 44 of the Maharashtra Land Revenue Code, 1966 to the 2nd respondent and permission was granted for non-agricultural use on terms and conditions of the subject land by order dated 25th September, 2012. The condition No.4 relevant for the purpose is referred hereunder as:-
“(4). The maintenance of the open Space and Roads in the Layout should be done by the applicant, otherwise, it should be handed over to the appropriate authority for maintenance. These places and roads should be kept open to all public consumption. Also, the roads should be kept open for use by the neighboring landowners.”
5. In furtherance
