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2019 Supreme(Bom) 794
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR
A.S. CHANDURKAR, J.
DYANESHWAR TRIMBAK SAKHARE - Appellant
Versus
SHRI GAJANAN MAHARAJ SANSTHAN SHEGAON, BULDHANA - Respondent
Writ Petition No. 1806, 1807, 1808, 1809, 1810, 1811, 1812, 1813, 1814, 1815, 1816, 1817 of 2019
Decided on : 04-05-2019
Advocate Appeared:
J.B. Gandhi, Adv., A.R. Patil, Adv.
Headnote:
Maharashtra Rent Control Act, 1999 – Section 16, 29 – Code of Civil Procedure, 1908 – Order XXVI Rule 9 – Suits for eviction – Facts in brief giving rise to the present writ petitions are that each petitioner is a defendant in the suits filed by the respondents herein under provisions of Section 16(1)(c) and (g) of the Maharashtra Rent Control Act, 1999 – It is the case of the respondents - original plaintiffs that the plaintiff No.1 through its Trustees is a registered Public Trust. – The plaintiffs are involved in maintaining the temple of Shri Gajanan Maharaj and are providing facilities to the devotees visiting the said temple. – In front of the temple premises about 58 shop blocks were let out to various shopkeepers on leave and license basis. – These licenses were granted for a period of eleven months. – On the expiry of eleven months, on the request of each defendant, time was granted to hand over vacant possession. Out of 58 shop blocks, 46 allottees and shopkeepers had vacated their respective shops as per the undertaking given by them. – The remaining shop keepers refused to vacate the said shop blocks and hence the plaintiffs filed separate suits for their eviction. – Written statement was filed by each defendant denying the claim as made. – During pendency of the suits the defendants moved an application for appointment of a Commissioner under provisions of Order XXVI Rule 9 of the Code of Civil Procedure, 1908 read with Section 29 of the said Act. – In that application, it was stated that the defendants had sought removal of various obstructions caused by the plaintiffs which prevented the devotees from proceeding towards the temple from the front of their shops. – In order to examine the existing position and especially the obstruction as caused, the appointment of the Commissioner was sought. – The defendants also moved the separate application under Section 29 of the said Act praying therein that the plaintiffs be directed to remove all the obstructions caused by them in the form of barricades which would enable the devotees to pass from the shops of the defendant so as to facilitate purchase of various articles from their shops. – These applications were opposed by the plaintiffs and by the impugned orders the trial Court rejected both the applications holding that the appointment of the Court Commissioner was not found necessary in the facts of the case and that no essential supplies or services had been withheld by the plaintiffs. Being aggrieved by these orders, the present writ petitions have been filed. – Held, It cannot be said that regulating entry of devotees in the temple in an orderly manner amounts to withholding of any essential supply or service qua the defendants. – It has not been shown that every approach way to the shops of the defendants has been blocked. – What has been done is the regulation of the manner in which the devotees can enter the temple premises. – Though such regulation of entry may cause some inconvenience to the defendants, considering the larger object as stated by the plaintiffs which is the safety of devotees, it cannot be said that by regulating such entry of devotees any essential supply or service has either been cut off or withheld. – It is in that context that it has been observed that the plaintiffs had a right to enjoy the suit premises which was being affected by the act of the defendants. Similarly in Balkisan Govindlal and another (supra) the suit in question was filed by the tenants against the landlord for perpetual mandatory injunction. – In that context it was observed that interim mandatory injunction for removing such obstruction as caused in the enjoyment of the suit premises could be granted. – It is found that the facts of the aforesaid case are clearly distinguishable and ratio of the aforesaid decisions cannot apply to the case in hand. – As regards the prayer for appointment of the court Commissioner, the defendants are always free to lead such evidence to bring on record the aspect of obstruction as alleged to be caused by the plaintiffs. – For that purpose, it is not necessary to appoint a court Commissioner as rightly held by the trial Court. – Thus, in presence of any jurisdictional error, there is no reason to interfere with the impugned orders. – By clarifying that the observations made in this judgment are only for deciding the applications as moved by the defendants the writ petitions are dismissed – Petition Dismissed
A.S. CHANDURKAR, J.
1. Since all these writ petitions raise challenge to identical orders passed by the trial Court they are heard together.
2. The facts in brief giving rise to the present writ petitions are that each petitioner is a defendant in the suits filed by the respondents herein under provisions of Section 16(1)(c) and (g) of the Maharashtra Rent Control Act, 1999 (for short, the said Act). It is the case of the respondents - original plaintiffs that the plaintiff No.1 through its Trustees is a registered Public Trust. The plaintiffs are involved in maintaining the temple of Shri Gajanan Maharaj and are providing facilities to the devotees visiting the said temple. In front of the temple premises about 58 shop blocks were let out to various shopkeepers on leave and license basis. These licenses were granted for a period of eleven months. On the expiry of eleven months, on the request of each defendant, time was granted to hand over vacant possession. Out of 58 shop blocks, 46 allottees and shopkeepers had vacated their respective shops as per the undertaking given by them. The remaining shop keepers refused to vacate the said shop blocks and hence the plaintiffs filed separate suits for their eviction. Written statement was filed by each defendant denying the claim as made. During pendency of the suits the defendants moved an application for appointment of a Commissioner under provisions of Order XXVI Rule 9 of the Code of Civil Procedure, 1908 (for short, the Code) read with Section 29 of the said Act. In that application, it was stated that the defendants had sought removal of various obstructions caused by the plaintiffs which prevented the devotees from proceeding towards the temple from the front of their shops. In order to examine the existing position and especially the obstruction as caused, the appointment of the Commissioner was sought. The defendants also moved the separate application under Section 29 of the said Act praying therein that the plaintiffs be directed to remove all the obstructions caused by them in the form of barricades which would enable the devotees to pass from the shops of the defendant so as to facilitate purchase of various articles from their shops. These applications were opposed by the plaintiffs and by the impugned orders the trial Court rejected both the applications holding that the appointment of the Court Commissioner was not found necessary in the facts of the case and that no essential supplies or services had been withheld by the plaintiffs. Being aggrieved by these orders, the present writ petitions have been filed.
3. Shri J. B. Gandhi, learned Counsel for the petitioners submitted that the learned Judge of the trial Court committed an error in rejecting both the applications. According to him, with a view to deprive the defendants of their business and livelihood, the plaintiffs had erected various barricades as well as scanning machines thereby creating obstructions on account of which the devotees were unable to approach the shops of the defendants. The object behind the same was to somehow harass and evict the defendants without following the due process of law. He referred to various sketch maps to indicate the obstruction as caused. Though it was urged by the plaintiffs that erection of the barricades were intended to facilitate the movement of devotees the object on the part of the plaintiffs was otherwise. Referring to the provisions of Section 29 of the said Act, it was submitted that the right of the devotees to have a smooth passage so as to approach the shops of the defendants was the right included in enjoying the suit premises. By causing obstruction to the devotees from approaching the said shops, the said act amounted to withholding essential services in a manner contrary to Section 29 of the said Act. It was urged that considering the object of Section 29 of the said Act, an obstruction caused of such nature would be covered by said provisions and
