Bombay High Court
Mansharam Mirchumal Sangtani And ... vs Dhule Nagar Palika (Municipal Council) on 14 January, 1994
Equivalent citations: AIR1994BOM189, (1994)96BOMLR720, 1994(1)MHLJ806, AIR 1994 BOMBAY 189, 1994 BOM CJ 866, (1994) 3 CURCC 334, (1994) 2 CIVILCOURTC 193, (1994) MAH LJ 806, (1994) 1 MAHLR 761, (1994) 2 LJR 483, (1994) 2 CIVLJ 466
ORDER
1. All these 73 writ petitions are directed against the common judgment and order of the IIIrd Additional District Judge, Dhule, dated 27th August, 1990, setting aside the order, dated 7, March, 1987, passed by the trial Court Judge, granting temporary injunction in favour of the petitioners.
2. The facts of the case, briefly stated are as under:
All the 73 Writ Petitioners are possessing tenements belonging to the Municipal Council, Dhule. These tenements are used for carrying on petty business. According to the petitioners, they are in possession of these tenements and are carrying on the business there for the last 20 years. The petitioners also contend that they have got licence from the Municipal Council, Dhule under the shops and Establishments Act for carrying on their business in the tenements in question. It is also submitted that they are paying taxes to the Muncipal Council from time to time. The Petitioners had also obtained loans from banks for their business. On 1st March, 1987, some officers of the Municipal Council, Dhule along with a number of workers having come to the premises of the petitioners for demolition of the same on the ground that they were encroachers on the public road, the Petitioners instituted suits in the Court of Joint Civil Judge, Junior Division, Dhule for permanent injunction. Prayer was also made for temporary injunction. On hearing the parties, the trial Court was satisfied that it was a fit case for grant of temporary injunction.
Accordingly, by order dated 7th March, 1987 temporary injunction was issued to the petitioners as prayed for by them. Dhule Municipal Council apealed against the above order of the Joint Civil Judge, Junior Division, Dhule to the District Court, Dhule. These appeals were heard by the 3rd Additional District Judge, Dhule and by a common judgment and order, dated 27th August 1990, the order of the trial Court of 7 March, 1987, granting injunction in favour of the petitioners was set aside. The petitioners have challenged the above judgment and order of the 3rd Additional District Judge.
3. I have carefully considered the order of the 3rd Additional District Judge passed on appeal. It appears that the learned Appellate Court did not find any infirmity in the contention of the petitioners regarding their long standing possession of the tenements with facility of electric connection obtained on the strength of No Objection Certificate of the corporation itself and the prima facie case in their favour which is evident from the following observations in the order:
"The long standing possession of the Respondent-Plaintiff over the suit property, having facility of electric connection which was obtained by the Respondent-Plaintiff on the basis of 'No Objection Certificate' given by the appellant for running his business, licence issued to the Respondent-Plaintiff under the Shops and Establishments Act, the facts and documents have brought me to the nearest exist of understanding (sic) that prima facie case stands in favour of the Respondent Plaintiff."
It was, however, observed that:
"The mere fact of prima facie case exists for a grant of temporary injunction or even the additional intelligence that a party seeking for it would suffer irreparable harm and inconvenience but this may not be sufficient criteria for granting an interim injunction."
According to the Appellate Court:
"While considering the point of balance of convenience, it is not necessary to be seen (sic) the dry strict right of the Respondent-Plaintiff but it is necessary to be seen (sic) the surrounding prevailing circumstances and welfare of the general public at large. I can understand the innermost feelings of the learned trial Judge. It appears from his observations relating to the point of balance of convenience that he has got soft corner about the poor people, furlone people and needy people of our country. His feelings are worthy to be appreciated. However, it is necessary to be placed on record that in the present matter there is no struggle, conflict or battle between the poor and rich. The Municipal Council, Dhule, is a public body which has been established on the broad principle 'Greatest good for greatest number'. Therefore, it is not proper to say that the Municipal Council, Dhule is doing whatever for the rich people only while ignoring the welfare of the poor people of Dhule city. It is needless to say that a new epoch has set in. All things are now possible to any subject of the Nation because of justice. As there is justice open the land of our country (sic) there is no pan that can keep for ever the accumulated sufferings of the poor people. I do not wish to discuss the financial standard of the Respondent-Plaintiff whether he is poor or rich. However, we can understand that there are pangs of hunger in the bellies of poor and rich and laughter in their eyes (sic). Both mugs and eyes are not. Therefore, it is futile to decide the fate of the present appeal on the basis of financial standard. This cannot be a proper and legal criteria to allow or dismiss the present appeal. The activity in question which has been taken in now by the Municipal Council, Dhule, is of immense responsibility. The proposed action of the Municipal Council, Dhule is for the good of many, for in the good of many lies the happiness for many."
It was further observed:
"It must be borne in mind that our approach must be guided not by limited welfare of a single individual but by the paramount object of the Nation as a whole. Human person is a unit of value and an end in himself. Therefore, by keeping this view in mind what I feel that it is indispensable to be protected the rigths of community rather than the individual rights. The welfare of the community as a whole is the end and is the ultimate standard. In the light of the above discussion of facts and in the light of legal position of law, I arrived to this conclusion that the wheel of law need to be turned in favour of the appellant."
4. In view of his above observations, the learned 3rd Additional District Judge came to a conclusion that interference was called for in the order of the trial court granting temporary injunction and, accordingly, set aside the same.
5. Mr. Gursahani, learned counsel for the petitioners submits that the approach of the 3rd Additional District Judge, Dhule in considering the controversy regarding grant of temporary injunction in cases where certain tenements are sought to be demolished, is absolutely incorrect and unknown to the law. The philosophy propounded by the Additional District Judge, according to the learned counsel, does not hold good in matters like the one before this Court where shops run by the petitioners for long 20 years are sought to be demolished by the Corporation without due process fo law. He, therefore, submits that it is a fit case where the order of the appellate court should be set aside and that of the trial court restored.
6. The learned counsel for the Muncipal Council supports the appellate order of the 3rd Additional District Judge, Dhule and submits that no interference is called for in the said order. According to him, in such matters the broader interest of the community which is taken care of by the Municipal Council should receive paramount importance.
7. I have carefully considered the rival submissions. 1 fully agree with the counsel for the respondent that the object of demolition cannot be totally disregarded in considering the prayer for temporary injunction. But, I am also concious of the fact that where valuable rights of the citizens are involved and shops in their occupation for long 20 years are sought to be demolished, the courts are entitled and in fact required to look into the balance of convenience of the shop-owners. Prima facie merit of the case and balance of convenience of the parties cannot be given a good-bye on the ground that "what is sought to be done is for the happiness of many". The principles governing grant of temporary injunction are too well settled to need reiteration. Ordinarily an injunction should be issued if the court is satisfied that (a) a prima facie case exists (b) the balance of convenience is in favour of granting injunction and (c) if injunction is not granted irreparable injury would be caused to the party praying for injunction which cannot be compensated in terms of money. An interlocutory injunction should normally be granted to restrain an apprehended or threatened injury where the injury is certain and imminent or where the mischief likely to be done is of an overwhelming nature viz. demolition and destruction of property.
8. In the instant case I am, therefore, of the clear opinion that the approach of the 3rd Additional District Judge, Dhule in the matter was not correct. Having accepted the prima facie contentions of the petitioners regarding long standing possession of the petitioners, issue of licence to them under the Shops and Establishments Act for all these years, granting electric connection etc. and also having recorded a categorical finding that there was a prima facie case in favour of the petitioners for grant of interim injunction, the Additional District Judge was not justified in setting aside the order of the trial Court granting temporary injunction on the basis of the philosophy propounded by him in his order.
9. I have also taken note of the fact that the action was sought to be taken against the petitioners by the Dhule Municipal Council in the year 1987. Ad interim temporary injunction was granted by the trial Court at the time of filing of the suit which was later confirmed after hearing the parties and set aside on appeal by the appellate Court. Despite the impugned order, the temporary injunction granted by the trial Court is continuing till today by virtue of order of this Court, dated JO Sept. 1990. As a result, right from 1987 till today, for long seven years the temporary injunction is operative. The suits are pending before the learned Joint Civil Judge, Junior Division, Dhule since 1987. This is also one of the factors which justifies continuance of the injunction during the pendency of the suit.
10. I am, therefore, of the opinion that it is a fit case where the impugned order of 3rd Additional District Judge, dated 27th August 1990 should be set aside and that of trial Court order dated 7 March, 1987 restored. I order accordingly.
11. The learned counsel for the respondent-Municipal Council submits that as the dispute in this case is regarding the development activities of the council, it should be decided by the trial court expeditiously and suitable directions should be given to that effect. This submission is reasonable and is also supported by the learned counsel for the petitioners. I, therefore, direct the trial court, Civil Judge, Junior Division, Dhule to dispose of the suits of the petitioners on merits in accordance with law as expeditiously as possible, at any rate before 30 Sept, 1994.
12. Registrar to take necessary steps to send the copy of this order and the records to the lower court expeditiously.
13. Under the facts and circumstances of the case, I make no order as to costs.
14. Certified copy expedited.
15. Order accordingly.