1994 Supreme(Guj) 356

Gujarat High Court
Judgename :B.N.KIRPAL, R.K.Abichandani
ANUPAM REKADI CABIN ASSOCIATION - Appellant
Versus
JAMNAGAR MUNICIPAL CORPORATION - Respondent
Civil Revision 1880 of 1993
Decided On : 12/15/1994

Headnote:(a) Bombay Provincial Municipal Corporation Act, 1949 - Sec. 231(a) - Power of Commissioner to remove encroachment on public places without notice - Constitutional validity - Held, Procedure prescribed for removal of encroachament on places over which public has a right of passage or access cannot be regarded as unreasonable unfair or unjust constituting violation of Arts. 14, 19 and 21 of Constitution.

       The provisions of Section 231 of the Act confer a discretion on the Commissioner to act with or without notice and it does not intend a command not to issue notice before the removal of an encroachment. In our view therefore, the procedure prescribed under Section 231 of the said Act for removal of encroachment on footpaths or public places over which the public has a right of passage or access cannot be regarded as unreasonable, unfair or unjust. The challenge against constitutionality of the provisions of Section 231 of the said Act made by the petitioners cannot therefore be sustained and the said provision is held to be constitutionally valid.

       [Para 8]

       (b) Natural Justice - Exercise of statutory powers of removing encroachment on public place without notice - Not violative of principles of natural justice - Held, as valid.

       The continuance of the trade by the petitioners in the rekdis / cabins / larri-gallas at the public places in dispute constituted a grave traffic hazard and obstruction to pedestrians who deserve consideration in the matter of their physical safety which cannot be sacrificed in order to accommodate the petitioners and other persons who use public properties for a private purpose unauthorisedly. Empowering the Commissioner to remove the obstructions upon the public streets and other public places cannot be said to be an unreasonable provision. Section 231 of the Act enables the Commissioner, in appropriate cases, to dispense with previous notice to the persons who are likely to be affected by the proposed action.

       [Para 8]

       (c) Civil Procedure Code, 1908 - Order 39 Rules 1 & 2 - Grant of ex-parte injunction - Available only in exceptional circumstances - Court granting ex-part injunction must record reasons for the same not merely as formality but as substance of order - Factors which must weigh the Court while passing such order indicated.

       whenever a Court considers it necessary in the facts and circumstances of a particular case to pass an order of injunction without notice to other side, it must record the reasons for doing so and should take into consideration, while passing an order of injunction, all relevant factors, including as to how the object of granting injunction itself shall be defeated if an ex parte order is not passed.

       [Para 26]

       A principle ex parte injunction could be gtanted ouly under exceptional circumstances. The factors which should weigh with the Court in the grant of ex parte injunction are -

       (a)

       whether irreparable or serious mischief will ensue to the plaintiff;

       (b)

       whether the refusal of ex parte injunction would involve greater injustice than the grant of it would involve;

       (c)

       the Court will also consider the time at which the plaintiff first had notice of the act complained so that the making of improper order against a party in his absence is prevented;

       (d)

       the Court will consider whether the plaintiff had acquiesced for sometime and in such circumstances it will not grant ex parte injunction;

       (e)

       the Court would expect a party applying for ex parte injunction to show utmost good faith in making the application;

       (f)

       even if granted, the ex parte injunction would be for a limited period of time;

       (g)

       general principles like prima faice case, balance of convenience and irreparable loss would also be considered by the Court".

       [Para 27]

       (d) Specific Relief Act, 1963 - Secs. 38, 39 & 41(1) - Injunction - A Personal right - Person seeking injunction must have personal interest in the matter - Interest of right not shown to be in existence can not be protected by injunction - It is also equally settled law that injunction would not be issued against true owner.

       Issunace of an order of injunction is absolutely a discretionary and equitable relief. In a given set of facts, injunction may be given to protect the possession of the owner or person in lawful possession. It is not mandatory that for mere asking such relief should be given. Injunction is personal right under Section 41(j) of the Specific Relief Act, 1963; the plaintiff must have personal interest in the matter. The interst of right not shown to be in existence cannot be protected by injunction.

       [Para 29]

       It is equally setteld law that injunction would not be issued against the true owner.

       [Para 29]