2006 Supreme(SC) 451

2006(6) Supreme 33
SUPREME COURT OF INDIA
(From Bombay High Court)
S.B. Sinha and R.V. Raveendran, JJ.
Seema Arshad Zaheer & Ors. — Appellants
versus
Municipal Corporation of Greater Mumbai & Ors. — Respondents
Special Leave Petition (C) No. 9479 of 2005
With
SLP (C) Nos. 9490/2005, 9688/2005, 10016/2005, 10095/2005, 10280/2005 and 10294/2005
All decided on 5-5-2006
Counsel for the Parties :
For the Appellants : Shekhar Naphade, Sr. Advocate, S.K. Srivastava, Santosh Paul, Rajeev Sharma, Ms. Shweta Gupta, Ms. Mitali Mandal, A.K. Rao M.J. Paul, Advocates.
For the Respondents : K.K. Singhvi, Sr. Advocate (With M/s. Pallav Shishodia), S.H. Ujjanwalla, Shabbir H and D.N. Mishra, Balraj Dewan, Advocates.

IMPORTANT POINT
Where the lower court acts arbitrarily, capriciously or perversely in the exercise of its discretion by granting a temporary injunction when there is ‘no material’, the appellate court will be justified in interfering with the order and vacating the temporary injunction granted by the trial Court.

Headnote:Mumbai Municipal Corporation Act, 1988 — Section 351 — Notices to remove/pull down unauthorized and illegal structures — Alleged unauthorized structures were put up in plots belonging to Central Works Public Department, Government of India — That land was leased to one ‘MAM’ under a lease deed — Petitioners case that `MAM’, who was carrying on business therein assigned his business to a company promoted by him and that company let out several portions thereof to different sub-tenants — Allegations that the company assigned all its rights, title, interest and claim in the said property to M/s Global Marketing, a partnership firm — It was alleged that Global Marketing obtained possession of various portions of that property from the respective sub-tenants, made improvements/partitions in the existing old structures and then let out the same to different sub-tenants, petitioners — Municipal Corporation issued notices u/s 351 of the Act to remove/pull down seven unauthorized and illegal structures in the said premises — Occupants of these seven structures filed suits and obtained temporary injunctions — In appeal, injunction orders were vacated — No document was produced to show that any licence/sanctioned plan was obtained for putting up the existing structure at any point of time — Whether High Court was justified in vacating injunction order — (Yes).

       Held : When the suit was dismissed and when it was found that the said structure has been either extended or replaced by a new structure, action was rightly taken by the Corporation, by issuing the notice dated 13.5.2003 followed by trial order dated 2.9.2003. Admittedly, no plan was sanctioned in regard to the structure. No document is produced to show that the structure in question existed prior to or on the datum line 1.4.1962. The documents produced only show that a temporary shed was unauthorisedly put up in the year 1991 and the order for its demolition has become final. The High Court was, therefore, justified in vacating the temporary injunction. (Para 12)

       Some documents were produced to show that Abdul Samad was running an Auto Garage in an area measuring about 81.158 sq. meters and he took permission to use an additional space of 70 sq. feet for the Auto Garage; that the small temporary structures were erected in the 1970s; and that those had been replaced by an unauthorized structure in the year 1991, leading to the first notice by the Corporation and again by another unauthorized structure in the year 2002-03 leading to the second notice by the Corporation dated 13.5.2003. Some other documents produced by the petitioners refer to existence of structures bearing Ward Nos. A3357, A3358 and A3369, but a careful examination of the documents shows that they do not relate to the area in question which were earlier in occupation of Abdul Samad, (A to Z Auto Garage) or to existence of the present structure prior to 1.4.1962. Petitioners also produced certain documents to show that there were, in fact, two structures in the premises prior to 1.4.1962 which had been assessed to municipal tax by producing documents relating to the same. Moonim compound is a huge property, more than half an acre in extent. The two old structures were demolished and in their places two new structures (in the occupation of Sara Shoppee and Sahara Shoppee) have come up, constructed in the year 1997 and 2001 respectively, after obtaining licence. Therefore, merely showing that some structures had existed prior to 1.4.1962 and assessed to tax, is not sufficient unless it is shown the demolition order has been passed in regard to that structure. We are concerned with the structure on the South-Eastern portion corner which was earlier in occupation of Abdul Samad, proprietor of A to Z Auto Garage. No document is produced to show that any structure of the size or shape now existing, existed prior to 1.4.1962 in the said area. Nor any document is produced to show that any licence/sanctioned plan was obtained for putting up the existing structure at any point of time. The Commissioner of the Corporation in his final order dated 2.9.2003 has considered the documents and found that they did not establish that the existence of the structure in regard to which the notice was issued. The High Court has also considered these documents and found them to be not relevant. Therefore, this S.L.P. is liable to be rejected.(Para 13)

       (ii) Civil Procedure Code, 1908 — Order 39, Rules 1 and 2 — Constitution of India — Article 136 — Grant of temporary injunction — Scope of powers of the Supreme Court to interfere in exercise of jurisdiction under Article 136 of the Constitution.

       Held : This Court in exercise of jurisdiction under Article 136, would not ordinarily interfere with the exercise of discretion in the matter of grant of temporary injunction by the High Court and the trial court and substitute its own discretion therefor, except where the discretion has been shown to have been exercised arbitrarily, capriciously or perversely or where the order of the court under scrutiny ignores settled principles of law.(Para 28)

       The discretion of the court is exercised to grant a temporary injunction only when the following requirements are made out by the plaintiff : (i) existence of a prima facie case as pleaded, necessitating protection of plaintiffs rights by issue of a temporary injunction; (ii) when the need for protection of plaintiffs rights is compared with or weighed against the need for protection of defendants rights or likely infringement of defendants rights, the balance of convenience tilting in favour of plaintiff; and (iii) clear possibility of irreparable injury being caused to plaintiff if the temporary injunction is not granted. In addition, temporary injunction being an equitable relief, the discretion to grant such relief will be exercised only when the plaintiffs conduct is free from blame and he approaches the court with clean hands. (Para 29)

       It is true that in cases relating to orders for demolition of buildings, irreparable loss may occur if the structure is demolished even before trial, and an opportunity to establish by evidence that the structure was authorized and not illegal. In such cases, where prima facie case is made out, the balance of convenience automatically tilts in favour of plaintiff and a temporary injunction will be issued to preserve status quo. But where the plaintiffs do not make out a prima facie case for grant of an injunction and the documents produced clearly show that the structures are unauthorized, the court may not grant a temporary injunction merely on the ground of sympathy or hardship. To grant a temporary injunction, where the structure is clearly unauthorized and the final order passed by the Commissioner (of the Corporation) after considering the entire material directing demolition, is not shown to suffer from any infirmity, would be to encourage and perpetuate an illegality.(Para 30)

       Where the lower court acts arbitrarily, capriciously or perversely in the exercise of its discretion, the appellate court will interfere. Exercise of discretion by granting a temporary injunction when there is no material, or refusing to grant a temporary injunction by ignoring the relevant documents produced, are instances of action which are termed as arbitrary, capricious or perverse. When we refer to acting on no material (similar to no evidence), we refer not only to cases where there are total dearth of material, but also to cases where there is no relevant material or where the material, taken as a whole, is not reasonably capable of supporting the exercise of discretion. In this case, there was no material to make out a prima facie case and therefore, the High Court in its appellate jurisdiction, was justified in interfering in the matter and vacating the temporary injunction granted by the trial court.(Para 31)