2010 Supreme(Bom) 406

IN THE HIGH COURT OF BOMBAY
B. P. Dharmadhikari, J.
GENERAL MANAGER, CENTRAL RAILWAY, MUMBAI and others - Petitioners.
vs.
MEHMOODA SHIKSHAN AND MAHILA GRAMIN BAHUUDDESHIYA SANSTHA, NAGPUR - Respondent.
W. P. No. 800 of 2010
Decided on: 12-3-2010.

Headnote:Maharashtra Land Revenue Code, 1966 - Section 143 - Civil Procedure Code, 1908, Order XXXIX, Rules 1 and 2 - Right of access to road - Temporary injunction granted in favour of respondent - plaintiff - Petition against - Held - Impugned judgment of appellate Court, reversing judgment of trial Court based on Tahsildar’s order passed under Section 143 of Code, 1966 - Tahsildar not passed order granting right to plaintiff over land of defendants nor it holds that lands belongs to State Government - There findings of trial Court not evaluated by appellate Court at all - It is a case of non-application of mind by appellate Court - Impugned order of appellate Court granting temporary injunction in favour of respondent not sustainable - Set aside - Order of trial Court refusing injunctions restored - Petition allowed with costs of Rs. 3000/-. - It cannot be disputed that basic burden to prove location of suit road is on plaintiff and interference by the Court in its extraordinary jurisdiction is possible only if there is a jurisdictional error or perversity by the Appellate Court. The judgment of Appellate Court here is a reversing judgment. Trial Court though mentions in paragraph 7 of its order that prima facie case is in favour of plaintiff, said finding is based upon only the fact of an order under Section 143, M.L.R. Code being in its favour. In paragraph 8 it also records that Tahsildar has not passed any order granting road to plaintiff over land of defendants. It has rejected the case of plaintiff that on southern side of its property there is shivdhura of property bearing Khasra No. 348 which belongs to State of Maharashtra. Then it has considered letter dated 18.12.2007 by then Minister Shri Anis Ahmed on behalf of plaintiff to the defendants for sanctioning 4 meter wide approach road or passage for access. On 19.1.2008 Divisional Railway Manager of the defendants sought confirmation of road width required to follow the procedure for grant of license. The next communication on record is dated 14.5.2008 and in it plaintiff has also mentioned its earlier letters dated 18.12.2007 and 20.3.2008. In this letter road of 3 meters width is asked for access. This letter mentions that construction of institute and hostel is coming up adjacent to Railway land. It expressly states that "As to the one side there is railway land and to the other side there is the forest land as such there is no approach road for the institute". It also mentions that "Previously we requested you to give us approach road to the west side but now it is changed due to some other reason and it is now to give the approach road to our institute to the east side. Necessary charges will be born by us as per norms". On 24.3.2009, plaintiff’ has written to the defendants that on 25.2.2009 Tahsil office, Nagpur has permitted construction of approach road to institute from Survey Nos. 347 and 348 Godhani Railway. On 1.4.2009, defendants have treated the request of plaintiff for passage road as cancelled as alternative location beyond Railway’s premises are allowed to be used by the Tahsil office. This correspondence directly on the point is used by trial Court to answer the points of irreparable loss and balance of convenience against the plaintiff is not even mentioned by the Appellate Court. The other two findings of trial Court about no order of Tahsildar granting right over Railway land or then about absence of Shivdhura of Government on southern side of plaintiff property are not evaluated by the Appellate Court at all. Appellate Court has proceeded as if suit road is situated on Shivdhura of Khasara Nos. 347 and 348 and has held "admittedly" Khasara Nos. 347 and 348 do not belong to Railways. Its sentence "Admittedly Khasara Nos. 347 and 348 do not belong to Railways land is allegedly situated between Shivdhura and the appellant plaintiff property, that does not give right to Railways-defendants to obstruct the way of appellant-plaintiff from Shivdhura" shows total non-applicatio n of mind to facts on record. Its next sentence also sounds confusing as it observes "The contention on behalf of respondent that shivdhura does not touchs the property of appellant is not acceptable at this stage what to be seen is whether the comparative hardship or convenience, which likely to because to the defendant by granting it". Its later observation again shows that it held that construction of road on shivdhura situated on Khasara Nos. 347 and 348 was not in dispute and admittedly these Khasara Nos. do not belong to Railways. It therefore reiterated that defendants have no right to obstruct. Thus the material on record is not discussed to arrive at these conclusions and though the view contrary to findings reached by the trial Court is reached, no reasons are recorded to show how trial Court is in error. Whether Shivdhura touches the property of plaintiff’ or the land of the defendants Railways separates both is not even examined in the light of material on record. Thus failure on part of Appellate Court to discharge obligations cast upon it while writing a judgment of reversal is apparent. Not only this it has avoided to look into plaintiff’s own documents and the findings to the contrary of the trial Court. The availability of other road from Koradi Post to plaintiff noted by trial Court and its impact while considering the cardinal aspects like possibility of irreparable loss or balance of convenience is not even commented upon by it. The said judgment and approach is therefore totally unsustainable.

        In present facts the Appellate Court has not considered entire material on record though it is relevant and has not appreciated the findings of the trial Court. It has overlooked facts apparent on record and has recorded findings contrary to those of trial Court without recording any legally sustainable reasons therefore. It has therefore to be held that there is refusal to apply mind and to decide as required by law on its part. Wrongful approach on part of Appellate Court has resulted in denial to the defendants (present petitioners) the consideration of their case as per settled law. The so called findings recorded by it are perverse. Petitioners here have vide grounds (A), (B), (C), (H) and (M) taken necessary grounds and prayer is not only to quash and set aside the impugned appellate judgment but also to dismiss appeal preferred by the respondent and to issue appropriate directions and orders for that purpose. This mistake and omission can be corrected not only under Article 227 of the Constitution but also under Article 226 thereof. Before Court the perversity of findings and failure to use jurisdiction is not only apparent but has the effect of reversing the valid and legal order of the trial Court. It helps the plaintiff who at least for now cannot be said to have approached the Court of Law with clean hands. There is no prima facie case or possibility of irreparable loss or even balance of convenience in plaintiff’s favour. The reversing judgment dated 21.1.2010 delivered by the 4th Additional District Judge, Nagpur in MCA 230/2009 is therefore liable to be quashed and set aside.

       Accordingly said judgment dated 21.1.2010 delivered by the 4th Additional District Judge, Nagpur in MCA 230/2009 is quashed and set aside. Order dated 19.9.2009 passed below Exh. 5 by Joint Civil Judge, Sr. Div., Nagpur in RCS No. 456/2009 rejecting temporary injunction to respondent plaintiff is hereby restored. Writ petition thus stands allowed by making Rule absolute in these terms. Costs of writ petition quantified at Rs. 3000/- be paid by respondent to petitioners.