Writ Petition No. 7621 of 2018

13th December 2019

Petitioner Counsel: Mr. Abhay Sambre
Respondent Counsel: Mr. S. Y. Deopujari
Act Name: Specific Relief Act, 1963

Section :
Section 20(A) Specific Relief Act, 1963

Cases Cited :
Para 8: Dalpat Kumar and another Vs. Prahlad Singh and others (1992) 1 SCC 719
Paras 8, 14: Mahadeo Savlaram Shelke and others Vs. Pune Municipal Corporation and another (1995) 3 SCC 33

JUDGEMENT

1. By this writ petition, the petitioners (original plaintiffs) have challenged concurrent orders passed by the two Courts below rejecting the application for temporary injunction filed on behalf of the petitioners.

2. The petitioners filed Regular Civil Suit No.69/2018, for declaration and permanent injunction against the respondents (original defendants), claiming that the respondent authorities were not entitled to disturb the possession of the petitioners in the suit plots and to demolish the structures standing thereon. The prayers made in the suit pertained to order dated 03/04/2018, whereby lease granted in favour of the petitioners concerning the suit plots stood cancelled. It was the case of the petitioners that said impugned order dated 03/04/2018, passed by the respondent No.2 Sub-Divisional Officer violated principles of natural justice and that even otherwise it was unsustainable. By the application for temporary injunction, it was claimed that the proposed demolition of the structures of the petitioners was required to be stayed during pendency of the suit.

3. The Court of Civil Judge (Senior Division), Yavatmal (Trial Court), passed its order on 10/09/2018, dismissing the application for temporary injunction (Exh.5), holding that the petitioners had failed to make out the ingredients for grant of temporary injunction and that the order made subject matter of challenge in the suit could not be prima facie said to be in violation of the principles of natural justic.

4. The Appellate Court dismissed the appeal filed by the petitioners, agreeing with the findings of the Trial Court and additionally holding that the petitioners themselves were not clear about their source of title in the suit plots and further that since the respondents required plots for development work of construction of road, under the amended provisions of the Specific Relief Act, the order of temporary injunction could not be granted to impede or delay the progress of construction of road.

5. Aggrieved by the said concurrent orders, the petitioners filed the present writ petition, wherein, initially this Court did not grant interim order because the land in question was to be used for development of infrastructure, but later, on a statement made on behalf of the respondents, the work on the road pertaining to suit plots was suspended and such undertaking given on behalf of the respondents continued during pendency of the writ petition.

6. During the course of hearing of the writ petition, it was submitted on behalf of the petitioners that the proposed state highway was itself denotified and an alternate road was identified by the respondent authorities, in respect of which this Court sought a response from the respondents. At one stage, this Court also sought response from the respondent authorities on the question of possibility of acquisition of the suit plots of the petitioners so that they could be compensated and the development of the road could be continued. The respondents filed affidavit in response to the said aspects and it was stated that the development work of the road was very much being undertaken and that the same was required to be completed by August, 2018, but, it was delayed due to the litigation initiated by the petitioners. On the question of compensation, it was submitted on behalf of respondent No.2 that if it was proved that the petitioners were owners of the land in question, the aspect of compensation could be considered before the Trial Court itself.

7. In this backdrop, Mr. Abhay Sambre, the learned counsel for the petitioners submitted that order dated 03/04/2018, passed by respondent No.2 was even prima facie unsustainable because sufficient opportunity was not granted to the petitioners to place their case before respondent No.2 passed the said order cancelling earlier order dated 01/06/1982, treating the same as a lease granted in favour of the petitioners. It was submitted that earlier order dated 01/06/1982, was not pertaining to grant of lease and that it was an order whereby unauthorized non-agricultural use of the land was condoned by imposing penalty and further non-agricultural use of the said land was permitted. On this basis, it was contended that the very basis of order dated 03/04/2018, was faulty and that, therefore, any proposed demolition of the structures on the plots was required to be stayed, during pendency of the suit before the Trial Court. It was further submitted that the said plots had come to the share of the predecessors of the petitioners on the basis of a partition deed executed in their family and further that there were documents including sale deed, showing that the petitioners were owners of the said plots. On this basis, it was submitted that the two Courts below failed to appreciate the ingredients for grant of temporary injunction made out by the petitioners, while erroneously rejecting the application for grant of temporary injunction. The learned counsel submitted that the writ petition deserved to be allowed and temporary injunction was required to be granted by this Court.

8. On the other hand, Mr. S.Y. Deopujari, learned Government Pleader appearing for the respondent authorities submitted that the Courts below had correctly appreciated the material on record to reject the application for temporary injunction filed on behalf of the petitioners. It was submitted that sufficient opportunity was granted by respondent No.2 while passing order dated 03/4/2018 and grievance sought to be raised by the petitioners was not supported by the material on record. It was further submitted that the petitioners had filed an earlier suit in the year 2012, raising similar grievance and although an order of status quo till the next date was granted in the suit, the same were never continued. In such a situation, the petitioners were not entitled to claim similar interim order while filing the subsequent suit in the year 2018. It was further submitted that the petitioners themselves were not clear about their source of right and title in the said plots and in the face of such facts, temporary injunction could not be granted. It was further submitted that the amendment in the Specific Relief Act, prohibiting grant of injunction in cases concerning development work demonstrated that the Appellate Court was justified in referring to the same and confirming the order of the Trial Court. The Government Pleader relied upon the judgments of the Hon’ble Supreme Court in the cases of Dalpat Kumar and another Vs. Prahlad Singh and others (1992) 1 SCC 719 and Mahadeo Savlaram Shelke and others Vs. Pune Municipal Corporation and another (1995) 3 SCC 33.

9. Heard learned counsel for rival parties and perused the material on record. Since this Court is considering concurrent rejection of temporary injunction, in writ jurisdiction, the petitioners are required to make out a case for interference within the limited jurisdiction that this Court can exercise in such cases. A perusal of the suit filed by the petitioners shows that order dated 03/04/2018, passed by respondent No.2 is challenged primarily on the ground that the principles of natural justice were not followed. The petitioners themselves have proceeded on the basis that the said order dated 03/4/2018 has cancelled lease deed dated 01/06/1982, executed in favour of predecessors of the petitioners. It is claimed that order dated 03/04/2018, was passed in a hurry without granting opportunity to the petitioners to place their contentions before respondent No.2. It was claimed before the two Courts below and before this Court by respondent No.2 that notice was issued to the petitioners, who appeared before respondent No.2 and sought time for placing on record documents. It was about one month after such opportunity was given to the petitioners that the respondent No.2 passed order dated 03/4/2018. It is claimed by the petitioners that since sufficient opportunity was not granted, as also the fact that threat of demolition of their structure was imminent due to order dated 03/4/2018, passed by the respondent No.2, ingredients for grant of temporary injunction were made out, which the Courts below failed to appreciate.

10. In this context, it is necessary to examine whether the petitioners have made out any prima facie case regarding their right in the suit plots. It is relevant that in the said earlier suit also the petitioners had claimed stay of demolition wherein order of status quo was passed only till the next date of hearing and later it was never continued. In the present suit, the petitioners have proceeded on the basis that their predecessors were lease holders of the suit plots and that order dated 03/4/2018, cancelled the lease. But, before this Court, the petitioners have claimed that order dated 1/06/1982, passed by the Additional Tahsildar, which was cancelled by the aforesaid order dated 03/04/2018, was only an order regularizing the unauthorized non-agricultural use of the suit plots by imposition of penalty. It was claimed that non-agricultural use of the suit plots was permitted by order dated 01/06/1982 and that, therefore, it could not be said to be a document of lease, sought to be cancelled by the respondent No.2 by the aforesaid order 03/04/2018. The said contention raised on behalf of the petitioners counters their own arguments in support of the prayer for grant of temporary injunction. This is because if order dated 01/06/1982, was merely an order regularizing unauthorized use of the suit plots, it could not be a document on the basis of which the petitioners could claim right or title in the suit plots. In the suit filed before the Trial Court, the petitioners themselves have treated the document dated 01/6/1982, as a document of lease and it is claimed that their predecessors became owners of the said plots on the basis of partition deed. Yet, before this Court, the petitioners have sought to rely upon certain documents, including sale deed, claiming title in the suit plots.

11. It is in this backdrop that the Appellate Court while confirming order passed by the Trial Court of rejecting prayer of temporary injunction has observed in paragraph No.28 that the petitioners themselves are not firm as to whether they are lease holders or owners of the suit plots. It is also noted by the Courts below that the petitioners have not sought declaration regarding their title in the suit property and, therefore, grant of temporary injunction in such a situation would not be warranted. This Court finds that the two Courts below have correctly appreciated the stands taken by the rival parties to come to a conclusion that the petitioners did not deserve grant of temporary injunction in their favour.

12. In response to specific queries put by this Court, the respondent No.2 placed on record copies of record of rights since the year 1921-22, wherein it is indicated that the suit property is “B” class land belonging to the Government, also indicating that it was given on lease. As noted above, the petitioners have not been able to place on record any documents of lease before this Court. They have come for the first time with the theory that a sale deed was executed in favour of their predecessors. There are no pleadings before the Trial Court in the suit pertaining to either a document of lease, stating conditions of grant of such lease or sale deed on which now the petitioners seek to rely to claim that they have right in the suit property. In this situation, when the source of right of petitioners in the suit plots itself is under a cloud of doubt, the prayer made on their behalf for grant of temporary injunction cannot be granted.

13. It is also relevant that the respondents have constructed the entire stretch of road except the portion abutting the suit plots and the petitioners have not been able to show that the necessary ingredients of prima facie case, balance of convenience, grave and irreparable loss, have been made out in their favour.

14. In this context, the aspect of public interest over private rights assumes significance. This is particularly so when the petitioners themselves have not been able to make out strong case of their rights in the suit plots. There cannot be any doubt about the fact that the respondent authorities work of construction of road is absolutely in the public interest. The learned Government Pleader appearing for respondent authorities is justified in relying upon the judgment of Mahadeo Savlaram Shelke and others Vs. Pune Municipal Corporation and another (supra), wherein it has been held as follows :
“14. It would thus be clear that in a suit for perpetual (sci) injunction, the court should enquire on affidavit evidence and other material placed before the court to find strong prima facie case and balance of convenience in favour of granting injunction otherwise irreparable damage or damage would ensue to the plaintiff. The court should also find whether the plaintiff could adequately be compensated by damages if injunction is not granted. It is common experience that injunction normally is asked for and granted to prevent the public authorities or the respondents to proceed with execution or implementing scheme of public utility or granted contracts for execution thereof. Public interest is, therefore, one of the material and relevant considerations in either exercising or refusing to grant ad interim injunction. While exercising discretionary power, the court should also adopt the procedure of calling upon the plaintiff to file a bond to the satisfaction of the court that in the event of his failing in the suit to obtain the relief asked for in the plaint, he would adequately compensate the defendants for the loss ensued due to the order of injunction granted in favour of the plaintiff. Even otherwise the court while exercising its equity jurisdiction in granting injunction has also jurisdiction and power to grant adequate compensation to mitigate the damages caused to the defendant by grant of injunction restraining the defendant to proceed with the execution of the work etc. The pecuniary award of damages is consequential to the adjudication of the dispute and the result therein is incidental to the determination of the case by the court. The pecuniary jurisdiction of the court of first instance should not impede nor be a bar to award damages beyond its pecuniary jurisdiction. In this behalf, the grant or refusal of a damages is not founded upon the original cause of action but the consequences of the adjudication by the conduct of the parties, the court gets inherent jurisdiction in doing ex debito justitiae mitigating the damage suffered by the defendant by the act of the court in granting injunction restraining the defendant from proceeding with the action complained of in the suit. It is common knowledge that injunction is invariably sought for in laying the suit in a court of lowest pecuniary jurisdiction even when the claims are much larger than the pecuniary jurisdiction of the court of first instance, may be, for diverse reasons. Therefore, the pecuniary jurisdiction is not and should not stand an impediment for the court of first instance in determining damages as part of the adjudication and pass a decree in that behalf without relegating the parties to a further suit for damages. This procedure would set as a check on abuse of the process of the court and adequately compensate the damages or injury suffered by the defendant by act of court at the behest of the plaintiff.
15. Public purpose of removing traffic congestion was sought to be served by acquiring the building for widening the road. By orders of injunction, for 24 years the public purpose was delayed. As a consequence execution of the project has been delayed and the costs now stand mounted. The courts in the cases whee injunctions are to be granted should necessarily consider the effect on public purpose thereof and also suitably mould the relief. In the event of the plaintiff’s losing the suit ultimately, they should necessarily bear the consequences, namely, escalation of the cost or the damages the Corporation suffered on account of injunction issued by the courts. Appellate court had not adverted to any of the material aspects of the dissolved the order of ad interim injunction. Under these circumstances, in the event of the suit to be dismissed while disposing of the suit the trial court is directed to assess the damages and pass a decree for recovering the same a pro rata against the appellants.”

15. This is relevant because the project of construction of the said road was supposed to have been completed in August, 2018, but for litigation instituted by the petitioners. Additionally, the respondent authorities are justified in relying upon the amendment in the Specific Relief Act, whereby Section 20(A) has been added. The said provision clearly lays down that no injunction shall be granted by the Court where a contract relating to infrastructure project specified in the schedule is involved, particularly, when grant of injunction would cause impediment or delay in the progress or completion of such infrastructure project. The schedule appended to the said provision specifically includes roads and bridges, categorized as projects in infrastructure development. In the present case the respondent authorities have indeed undertaken such infrastructure development project of construction of road. Therefore, the said provision i.e. Section 20(A) of the Specific Relief Act is applicable in this case and for this reason also, the Courts below could not have granted temporary injunction. In fact, the appellate Court in its judgment and order has referred to the said provision in paragraph No.50, while confirming the order of the Trial Court, rejecting the application for temporary injunction.

16. This shows that the two Courts below have applied their minds to the facts and circumstances of the present case and material on record in the proper perspective to come to a considered conclusion that grant of temporary injunction, as prayed by the petitioners is not justified. This Court does not find any error committed by the two Courts below while arriving at the said conclusion. In any case, on a specific query put by this Court, the respondent No.2 has stated in its affidavit dated 22/01/2019, that if the petitioners are able to prove before the Trial Court in the suit that they indeed are owners of the suit plots, the Court could certainly grant compensation and damages to the petitioners, of course, contingent to the petitioners ultimately succeeding before the Trial Court. But, till the disposal of the suit, the development work in the form of construction of road by the respondents cannot be hampered by grant of temporary injunction. As correctly held by the two Courts below concurrently, the petitioners have not been able to make out the nature of their right in the suit plots and, therefore, order of temporary injunction could not be granted in their favour.

17. In view of above, this Court finds that no case for interference in writ jurisdiction is made out.

18. Accordingly, the writ petition is dismissed.

19. Needless to say, as the writ petition is dismissed, the respondents will not be bound by the statement given by them before this Court not to undertake construction during pendency of the writ petition.