Back
2004 Supreme(Bom) 1336
Bombay High Court
Decided on (September 24, 2004)
Pannalal Tilokchand Khedkar
Versus
Rukhabsao Nathusao Jain
Headnote:City of Nagpur Corporation Act, 1948 - Section 286(5) - Civil Procedure Code, Order XXXIX, Rules 1 and 2 and Section 151 - Powers of District Court. - District Court while dealing with a dispute under Section 286(5) of Act, 1948, can pass all such orders and directions in nature of injunction which are covered by Order XXXIX, Rules 1 and 2 and Section 151 of CPC. - Section 286(5) of the City of Nagpur Corporation Act enables the Corporation or any other person to apply to the District Court for an injunction and further provides that the person could apply for removal or alteration of any building on certain grounds. The District Court while dealing with a dispute under sub-section (5) of Section 286 can pass all such orders and directions in the nature of injunction or which partake the colour of an order of injunction which are covered by Order 39, Rules 1 and 2 and Section 151 of the Code of Civil Procedure. There is nothing in sub-section (5) of Section 286 which curtails or restricts the jurisdiction of the District Court. 1995(2) Mh LJ 567 and 1996(1) Mh LJ 673 - Overruled.
Letters Patent - Clause 15 - L.P. Appeal. - Though the matter was decided by trial Court afresh after remand by single Judge, Letters Patent Appeal is tenable. - Proceedings initiated under Section 286(5) of the City of Nagpur Corporation Act, 1948 were dismissed by the Extra Assistant Judge. The said order was challenged in first appeal, which was allowed by the single Judge and the matter was remanded to the trial Court for fresh consideration. The order of remand passed by the single Judge was challenged in Letters Patent Appeal, but no stay was granted to the order of remand during the pendency of the Letters Patent Appeal. The proceedings that were remanded were decided by the trial Court. During hearing of the Letters Patent Appeal, it was con tended that as the matter had been decided afresh after remand, the Letters Patent Appeal had become infructuous.
Held, that the legality of the order passed after remand depended on the order passed by the single Judge remanding the matter. If the order passed by the single Judge was held to be untenable, the proceedings after remand to the trial Court would become null and void. On the doctrine of dependent orders, the Letters Patent Appeal was tenable and the correctness or otherwise of the order passed by the single Judge remanding the matter could be examined. AIR 1998 SC 897 - Relied.
ROHEE K. J. , J.
( 1 ) HEARD the learned Counsel for the appellant, respondent No. 1 in person and the learned Counsel for respondent No. 2 in both the letters Patent Appeal.
( 2 ) THE appellant/original non applicant No. 2 preferred Letters Patent appeal No. 115 of 1996 against the judgment dated 5-9-1996 passed by the learned Single Judge in First Appeal No. 177 of 1984, by which M. C. A. No. 249 of 1983 was remanded to the District Court for fresh consideration and decision. Letters Patent Appeal No. 56 of 1998 has been preferred by the appellant against the order dated 23-3-1998 passed by the Single Judge in first Appeal No. 476 of 1997 directing that the First Appeal be heard with letters Patent Appeal No. 115 of 1996.
( 3 ) THE facts which are relevant for the purposes of the present appeal are that respondent No. I/original applicant preferred an application under section 286 (5) of the City of Nagpur Corporation Act, 1948 (hereinafter referred to as C. N. C. Act for brevity) for mandatory injunction against the appellant and respondent No. 2. The Corporation of City of Nagpur (hereinafter referred to as the corporation) for removal of unauthorised construction and for restraining the Municipal Commissioner from giving sanction to the building proposal of the appellant. According to respondent No. 1, he owns House No. 585 in Ward No. 36, Ladpura It wari, Nagpur. The said property was purchased by the father of respondent No. 1 by sale deed dated 14-10-1920. While constructing the house, the father of respondent No. 1 left 2 feet of lands on the Eastern as well as Southern side of property. The appellant purchased House No. 586, which is to the East of respondent No. 1s house, by sale-deed dated 1-9-1980. The appellant demolished the old building and started new construction thereon without sanction plan. When respondent no. 1 objected to the construction, the appellant did not show any document to respondent No. 1. By applications dated 2-7-1983 and 21-7-1983, respondent no. 1 moved the Corporation authorities. However, they did not take any action and allowed the construction work of the appellant to continue. Hence, on 1-8-1983 respondent No. 1 preferred an application under section 286 (5) of C. N. C. Act against the appellant and respondent No. 1 before the District judge, as stated earlier.
( 4 ) RESPONDENT No. 1 also moved an application for interim injunction under order 39, Rules 1 and 2 read with section 151 of the Code of Civil Procedure. The learned Joint Judge, Nagpur by his order dated 2-8-1993 granted ex parte ad interim injunction restraining respondent No. 1 from proceeding with the construction and restraining respondent No. 2 from granting sanction to the proposed construction, until further order.
( 5 ) THE appellant opposed the application by his reply (Exh. 14 ). According to him, he had submitted a plan to the Corporation on 10-11-1981, however no intimation was given by the Corporation to him. Hence, on 28-4-1983, he sent application by way of reminder. As there was no refusal of the plan, the sanction is deemed to have been granted under section 275 (3) of the C. N. C. Act. Only after statutory period, the appellant started construction in July, 1983 and hence the construction cannot be said to be unauthorised under any circumstances. The application moved by respondent No. 1 is not tenable. According to the appellant, he had explained this position to respondent no. 1. However, respondent No. 1 was not satisfied and proceeded to initiate proceeding. Respondent No. 1 is not entitled to relief of injunction against the appellant and respondent No. 2 and the application is liable to be dismissed.
( 6 ) THE Corporation also opposed the application for grant of injunction as sought by respondent No. 1. However, according to the Corporation, the site plan submitted by the appellant was not in conformity with the Building Bye- law No. 4 and hence the site plan was not approved and the same was
