Bombay High Court
Jit Kaur Anand Alias Harjit Kaur Anand vs Balbir Kaur Sethi on 9 March, 2022
Author: N. J. Jamadar
Bench: N. J. Jamadar
IAL14523-2021INNMS6-21INS221-2020.DOC
Santosh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION (L) NO. 14523 OF 2021
IN
NOTICE OF MOTION NO. 6 OF 2021
IN
SUIT NO. 221 OF 2020
Jit Kaur Anand alias Harjit Kaur Anand Applicant
In the matter between
Jit Kaur Anand alias Harjit Kaur Anand ...Plaintiff
Versus
Balbir Kaur Sethi ...Defendant
SANTOSH
SUBHASH Ms. Chandni Bhatt, i/b C. K. Legal, for the Applicant/
KULKARNI
Digitally signed by
Plaintiff.
Mr. A. M. Saraogi, for the Defendant.
SANTOSH SUBHASH
KULKARNI
Date: 2022.03.10
10:44:54 +0530
CORAM: N. J. JAMADAR, J.
RESERVED ON: 24th NOVEMBER, 2021
PRONOUNCED ON: 9th MARCH, 2022
ORDER:-
1. This interim application is preferred by the plaintiff - applicant to initiate action under Order XXXIX Rule 2A alleging willful disobedience of the orders passed by this Court on 15 th January, 2019 and 17th January, 2019 in Notice of Motion No.6 of 2021 and also to appoint a Court Receiver under Order XL Rule 1 of the Code of Civil Procedure, 1908 ("the Code").
2. The applicant has instituted a suit for partition and consequential reliefs in respect of the property bearing CTS 1/13 IAL14523-2021INNMS6-21INS221-2020.DOC No.396/2020, admeasuring 650 Sq. Mtrs. with a standing structure thereon, "Bir Sagar, North Avenue, 17th Road, D. P. Nagar, Santacruz (West), Mumbai" ("the suit premises"), against the defendant, who is her sister. Late Mr. Dhera Sing G. Kohli, the father of the plaintiff and defendant, was the original holder of the suit premises. Dhera Singh passed away on 16 th February, 1983, bequeathing all his assets to his wife Mrs. Balwant Kaur Kohli, under Will dated 9th April, 1978. However, before the Will of Dhera Singh could be executed Mrs. Balwant Kaur died intestate on 20th September, 1983. In Petition No.153 of 1985, instituted by the defendant, this Court granted Letters of Administration to the defendant on 23rd March, 1987. Thereafter, the parties entered into arrangement/agreement dated 31st August, 1987. However, disputes arose between the parties. Further family arrangements were executed on 9 th May, 1993 and 21st March, 1995. In breach of the family arrangements, in the year 2010, the defendant constructed an illegal structure adjoining the building 'Bir Sagar' and encroached areas of the suit premises, which were for common use and enjoyment of the parties. The defendant carried out unauthorised construction on the staircase and terrace. Hence, the plaintiff was constrained to institute the suit for partition and consequential reliefs.
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3. In the said suit, the plaintiff took out Notice of Motion No.6 of 2021 praying, inter alia, temporary injunction restraining the defendant from transferring, alienating or otherwise creating third party interest in the suit premises, from disturbing the possession of the plaintiff over the suit premises, from carrying out illegal construction and/or creating any encroachment and a mandatory injunction to restore the suit premises staus quo ante in conformity with the sanctioned plan dated 8 th September, 1961.
4. In the said Notice of Motion on 15 th January, 2019, after noting the submission on behalf of the defendant that only repairs were being carried out by the defendant, this Court directed the contractor of the defendant to issue certificate setting out the work carried out by him at the instance of the defendant and the work, which remained to be carried out, on or before 17th January, 2019. In the light of the allegation that the defendant had constructed an additional room, this Court directed Executing Engineer H/West Ward, Mumbai, to produce the original plan of the suit building and also to inform the Court whether any permission had been sought by the Defendant to carry out the repair work in the suit building. In 3/13 IAL14523-2021INNMS6-21INS221-2020.DOC addition this Court directed the parties to maintain status quo, as under:
"Both the parties shall maintain status quo as of today in respect of the Suit building."
On 17th January, 2019, the said direction to maintain staus quo was continued.
5. Eventually, on 14th February, 2019, this Court was persuaded to appoint an Architect to ascertain the situation at site. The relevant part of the order dated 14 th February, 2019 reads as under:
"2. To ascertain the total area of the Suit property; to measure the total built-up area of the structure standing upon the Suit property; to ascertain and give break-up of the total area occupied and in possession of the Plaintiff and the Defendant; to suggest and recommend the division of the Suit property including the structure and benefits arising thereupon in two equal shares by metes and bounds, by consent of the parties, Mr. Amol Shetgiri of M/s. Shetgiri Associates is appointed as Architect to inspect the Suit property and submit his report on 22nd February, 2019."
6. In pursuance of the aforesaid orders, M/s. Shetgiri and Associates submitted a technical report on 27 th February, 2019. The Executive Engineer (Building Proposal) W.S. H/Ward, also submitted a report on 29th January, 2019, reference to which would be made a little later.
7. As the position thus stands and the Notice of Motion awaits adjudication, the plaintiff took out this interim 4/13 IAL14523-2021INNMS6-21INS221-2020.DOC application with the assertion that the defendant has carried out illegal and unauthorised construction in willful disobedience of the aforesaid order dated 15th January, 2019 and 17th January, 2019.
8. Three instances of infraction of the order passed by this Court are alleged;
(a) The defendant has carried out illegal and unauthorised construction in the common area and additional tenements/units on every floor of the suit premises for the defendant's personal and monetary use;
(b) The defendant has encroached over and carried out illegal and unauthorised construction upon the common terrace area, open to the sky, and fixed two additional doors on the terrace keeping them locked and thereby deprived the plaintiff from enjoyment of the common terrace area;
(c) The defendant has intentionally locked gates of the suit premises and restricted the ingress and egress and thereby prevented the plaintiff from the rightful use of the suit premises and the common areas. 5/13
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9. Photographs of the suit premises were pressed into service to substantiate the aforesaid allegations. By way of amendment, the applicant placed on record a representation dated 30 th July, 2021, addressed to the officers of the Municipal Corporation, Grater Mumbai ("MCGM"), raising grievances about the unauthorised and illegal construction.
10. An affidavit-in-reply was filed on behalf of the defendant. The allegations of illegal and unauthorised construction were flatly denied. It was asserted that the defendant has not committed any willful breach of the orders passed by this Court. The very premise that the suit premises has yet not been partitioned was contested by the defendant as, according to the defendant, there has been division of the suit premises in the year 1995 itself.
11. As the defendant's contractor had not furnished a certificate in terms of the order dated 15 th January, 2019, by an order dated 22nd October, 2021, the contractor of the defendant was directed to furnish a certificate setting out the work carried out by him till 17th January, 2019 and the work which remained to be carried out by then. On 28 th October, 2021, the defendant filed an additional affidavit to the effect that the contractor was required to visit the suit premises to ascertain the position and 6/13 IAL14523-2021INNMS6-21INS221-2020.DOC furnish certificate in respect of the work carried out by him, and thus further time was sought.
12. In the context of the limited nature of the controversy at hand as to whether the defendant has committed willful disobedience of the orders passed by this Court, I have heard Ms. Chandni Bhatt, for the applicant - plaintiff and Mr. Saraogi, for the respondent - defendant.
13. Inviting the attention of the Court to the orders passed by this Court on 15th January, 2019 and 17th January, 2019, Ms. Bhatt, the learned Counsel for the applicant, submitted that the material on record especially the photographs, make it crystal clear that the defendant has brazenly carried out unauthorised construction in willful disobedience of the order of this Court with impunity. Ms. Bhatt placed reliance on the report of M/s. Shetgiri and Associates dated 27th February, 2019, wherein it was inter alia recorded that though the actual situation of the terrace could not be inspected as the terrace was locked, yet it could be noticed that some construction had been carried out at the terrace floor level. Since no approval had been granted to the proposal for the addition of the part third floor for residential use, it could be inferred that the construction on the terrace floor seemed to be without any approval from MCGM. 7/13
IAL14523-2021INNMS6-21INS221-2020.DOC Ms. Bhatt also invited the attention of the Court to the report of the Executive Engineer, MCGM, wherein it has been categorically recorded that only two proposals were available on the record of the MCGM. First, the proposal for addition of the part third floor submitted on 2nd February, 2002 was not granted and eventually abandoned. Second, the proposal for change of user at ground floor submitted on 10 th October, 2008 had also been rejected for want of compliance on 20th October, 2008. Ms. Bhatt, thus urged that there is incontrovertible material on record to show that the defendant had carried out unauthorised construction sans requisite permission from the local authority.
14. Mr. Saraogi, the learned Counsel for the respondent would submit that the issue in the instant application is restricted to the disobedience of the staus quo order dated 15th January, 2019 and 17th January, 2019. The applicant had not placed on record any material to show that post the status quo order, the defendant had carried out any unauthorised construction in breach of the said order. Therefore, the instant application is wholly misconceived.
15. To begin with, it is imperative to note that the application does not shed light on the period of time during which the acts 8/13 IAL14523-2021INNMS6-21INS221-2020.DOC or omissions, in infraction of the order passed by this Court, were committed by the defendant. Although, in paragraph 3 of the application, there is an assertion that subsequent to the orders passed by this Court on 15th January, 2019 and 17th January, 2019, the defendant has carried out illegal and unauthorised construction, the said assertion is qualified by the claim that illegal and unauthorised construction has been carried out beyond the sanctioned plan as approved by the MCGM on 8th September, 1961 and, thereafter, the instances, extracted above, have been narrated.
16. It would be contextually relevant to note that in paragraph 3 (t) of the plaint, the plaintiff has made averments to the effect that the defendant has encroached upon the areas in common use and enjoyment of both the parties, illegally constructed a room on the stairs leading to the terrace and illegally extended the area of the garage on the North side of the suit premises. In fact, the alleged encroachment over common area, unauthorised construction and change of user constitute the foundation of the plaintiff's claim in the suit. Suffice to note that these are the matters for adjudication.
17. In the instant application, what has to be seen is whether after the passing of the staus quo order the defendant had committed a willful breach thereof. The reliance sought to be 9/13 IAL14523-2021INNMS6-21INS221-2020.DOC placed by the applicant on the report of M/s. Shetgiri and Associates, which was based on the inspection of the suit premises on 21st February, 2019, may not be of much assistance to the applicant to establish the factum of disobedience. The existence of some structure on the terrace, the cumulative built up and the garage areas, in excess of the area depicted in the sanctioned plan, adverted to in the report, may support the case that there has been construction/development in excess of the sanctioned plan. However, the said report may not advance the cause of the applicant in drawing home the point that the said construction/development has been carried out post the status quo orders.
18. Even in the representation dated 30 th July, 2021 (Exhibi- G1) to the application, the applicant had adverted to the alleged acts of illegal encroachment and unauthorised construction in the year 2015, issue of notice by the MCGM followed by demolition order dated 10th August, 2017. A grievance was made that despite various notices and demolition orders the co- owners and/or tenants and/or occupants of the suit premises continued to carry out illegal and unauthorised construction. A further grievance was made about the unauthorised change of user and encroachment over common areas. In the said 10/13 IAL14523-2021INNMS6-21INS221-2020.DOC representation the applicant has, however, not asserted that after the passing of the status quo order, there has been unauthorised construction. In fact, the copies of the notices dated 1st August, 2017, speaking order dated 10 th August, 2017 and notice for demolition of unauthorised construction work on the terrace of Bir Sagar building (Page 33M to 33Q) refer to the alleged unauthorised construction, including over the terrace, before the passing of the status quo order.
19. The position which thus emerges is that the material pressed into service on behalf of the applicant prima facie indicates that action was initiated by the MCGM in respect of alleged unauthorised construction over the suit premises. However, those actions pre-date the institution of the suit. Conversely, there is no material to show that after the order of the status quo, the defendant had carried out unauthorised construction in defiance of the order of the Court. Neither the report of M/s Shetgiri and Associates nor the report of the Executive Engineer, MCGM, is of assistance in establishing the said fact.
20. It is trite law that the provision contained in Order XXXIX Rule 2A, being penal in nature, is required to be strictly construed. A clear case of disobedience or breach of injunction 11/13 IAL14523-2021INNMS6-21INS221-2020.DOC or order or direction made by the Court is required to be established. Action under Rule 2A cannot be sustained on the basis of mere conjectures and surmises. The Court should be satisfied that the defendant has committed a willful disobedience of the order passed by the Court.
21. In the case at hand, at this juncture, the material on record does not equip the Court to arrive at a definitive finding that the defendant carried out unauthorised construction or acted in breach of the status quo order dated 15th January, 2019.
22. The aforesaid finding, however, does not imply that the acts or omissions of the defendant do not entail any consequences. Indeed, the report dated 27 th February, 2019 of the M/s. Shetgiri and Associates as well as the Executive Engineer, MCGM, reveal a state of affairs which warrants an explanation, from the defendant. The failure of the defendant to comply with the direction of the Court to furnish the certificate of the contractor, in terms of the order dated 15 th January, 2019, is also a factor which requires consideration. All these issues, including the prayer for appointment of a Court Receiver, can be considered while deciding the Notice of Motion No.6 of 2021, which awaits adjudication. By way of abundant caution, it is 12/13 IAL14523-2021INNMS6-21INS221-2020.DOC clarified that the observations hereinabove are confined to justifiablity of invocation of Rule 2A of Order XXXIX and thus would not have any bearing on the decision of the Notice of Motion. All points are expressly kept open for consideration.
23. With the aforesaid clarification, the instant application deserves to be dismissed.
24. Hence, the following order:
:Order:
(i) The application stands dismissed.
(ii) Notice of Motion No.6 of 2021 be listed after four weeks.
[N. J. JAMADAR, J.] 13/13