Bombay High Court
The State Of Maharashtra Thr Collector, ... vs Girish Jugalkishor Sikchi on 9 June, 2025
2025:BHC-AUG:14422
1 SA 350.97.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.350 OF 1997
1. The State Of Maharashtra
Through Collector, Aurangabad
2. Dean, Government Medical College and
Hospital, at Aurangabad.
Appellants.
VERSUS
Girish Jugalkishor Sikchi
age 30 years, Occ. Nil,
R/o Machlikhadak, Aurangabad. Respondent.
...
AGP for Appellants : Mr. V. S. Badakh
Advocate for Respondent : Mr. A.P. Bhandari
...
CORAM : S. G. CHAPALGAONKAR, J.
Reserved on : April 02, 2025
Pronounced on : June 09, 2025
JUDGMENT :-
1. The appellant/State impugns the judgment and decree dated 14.10.1996 passed by the District Judge, Aurangabad in Regular Civil Appeal No.82 of 1996, thereby upholding the judgment and decree dated 30.9.1995 passed by the learned Civil Judge, Sr. Division, Aurangabad in Regular Civil Suit No.354 of 1995, by which the suit of the plaintiff for perpetual and mandatory injunction has been 2 SA 350.97.odt decreed. (Parties hereinafter referred to as per their original status in the suit).
2. Respondent/plaintiff instituted suit seeking relief of perpetual and mandatory injunction against defendants contending that on 30.4.1994 he requested Ministry of Medical Education, Government of Maharashtra for allotment of open space within the premises of Government Medical College and Hospital at Aurangabad for running a day Night Medical Shop. Government accepted his request. Government of Maharashtra issued a Resolution dated 6.10.1994 in pursuance to decision of the Government to allot open space admeasuring 25 square meters in favour of plaintiff for a period of two years. Accordingly, instructions were issued to the Director of Medical Education and Dean, Medical College at Aurangabad. Rent was to be fixed by Regional PWD Officer, which was to be deposited with Dean Medical College. According to plaintiff respondents failed to implement government decision. Hence, he served a legal notice under section 80 of the Civil Procedure Code dated 16.7.1995 and finally filed the suit for the reliefs, as claimed.
3 SA 350.97.odt
3. Defendants filed written statement Exhibit 17 and refuted claim of plaintiff. Although, they admitted issuance of Government Resolution dated 6.10.1994, denied rest of contentions of plaintiff. Learned Trial Court, upon considering rival pleadings framed issues. Plaintiff stepped into witness box, re-iterated his contentions and relied upon documentary evidence. Trial Court, after hearing parties, decreed suit for mandatory injunction directing them to allot 25 sq meters space to plaintiff in compound of the Government Medical College and Hospital and perpetually restrained them from canceling said resolution until expiry of two years lease period.
4. Aggrieved defendants filed Regular Civil Appeal no.82 of 1996 before the District Judge at Aurangabad, who pleased to uphold the decree as passed by the Trial Court. Hence this Second Appeal.
5. The Second Appeal admitted by this Court on 27.2.1998 without framing substantial questions of law. Therefore, when matter was placed before this Court by consent of the parties, following substantial questions of law have been framed.
4 SA 350.97.odt "i. Whether the Government Resolution dated 6.10.1994 creates right in perpetuity in favour of plaintiff to hold lease of open space within the premises of Government Medical College, Aurangabad ?"
ii. Whether decree of mandatory injunction could have been passed against defendants/authorities to implement the Government Resolution dated 6.10.1994 and further decree of perpetual injunction restraining defendants from canceling said resolution, until expiry of two years lease period, commencing from the date of execution of terms and conditions of lease deed?"
6. By consent of the parties, appeal is taken up for final hearing. Learned advocates for respective parties elaborately advanced their submissions on aforesaid Substantial Questions of law.
7. Mr. Badakh, learned AGP would submit that Government Resolution dated 6.10.1994 was never been implemented. On 5.4.1995, Additional Secretary of State of Maharashtra informed that decision has been re-considered in light of the Government policy to not to allot Government land on lease. Plaintiff cannot seek mandatory 5 SA 350.97.odt injunction to implement decision of the Government which was contrary to the Government Policy. Mr. Badakh would further point out that allotment of 25 square meters plot on lease was approved only for the period of two years vide Government Resolution dated 6.10.1994. However on expiry of two years period from date of such decision, plaintiff cannot claim further right. According to Mr. Badakh, period of two years expired on 5.10.1996. Therefore, now decision under Government Resolution cannot be implemented. He would further point out that judgment and decree as passed by the Trial Court and confirmed by the Appellate Court was stayed during pendency of the Second Appeal. Therefore, now the decree as passed is unexecutable.
8. Per contra, Mr. Bhandari, learned advocate appearing for respondents supports the impugned judgment and decree.
9. Case of the plaintiff is based on Government Resolution dated 6.10.1994. It is necessary to appreciate contents thereof so as to find out entitlement of plaintiff. Government Resolution stipulates that State of Maharashtra 6 SA 350.97.odt given sanction for allotment of 25 square meters land on lease for two years period in favour of the plaintiff to run medical shop within the premises of Government Medical College and Hospital. It nowhere stipulates that period of two years shall commence from the date of execution of lease. Admittedly, aforesaid decision was never implemented. No agreement of lease has been executed till today. Plaintiff instituted suit seeking decree of mandatory and perpetual injunction. Trial Court accepted case of plaintiff and granted mandatory injunction to allot 25 square meters space in compound of Government Medical College. Further, restrained defendants perpetually to not to cancel Government resolution until expiry of two years' lease period that shall commence from date of execution of lease.
10. Apparently, directions issued by the Trial Court are beyond scope of stipulations in the Government Resolution dated 6.10.1994. Admittedly, in pursuance to decision of the Government, lease agreement was never executed nor allotment of land was made. Government decision was valid only for two years and if such decision 7 SA 350.97.odt was not implemented, plaintiff cannot claim right in perpetuity to seek implementation of decision, which had life for limited period of two years. This Court, therefore, holds that the decree, as passed by the Trial Court and confirmed by the District Court is contrary to stipulations in Government Resolution dated 6.10.1994, by which approval for allotment of open space in favour of plaintiff for limited period of two years was accorded. Therefore, decree in nature of perpetual injunction to continue lease for two years from the date of execution of terms and conditions of lease deed cannot be countenanced. When decision itself was not implemented and lease-deed is not executed; plaintiff cannot claim any right, particularly, entitlement to seek a decree of mandatory injunction. At this stage, it can be observed that there is vast difference in a concept of prohibitory and mandatory injunction. The parameters to grant such relief can be best understand by referring to observations of Supreme Court of India in case of State of Kerala Vs. Union of India reported in (2024) 7 SCC 183 Particularly, in para no. 14, which reads thus :-
14. In that sense, prohibitory injunctions are forward-looking, such that they seek to restrict a future course of action. Conversely, mandatory injunctions are backward-looking, because they require the defendant to take an active step and undo the past action. Since
8 SA 350.97.odt mandatory injunctions require the defendant to take a positive action instead of merely being restrained from performing an act, they carry a graver risk of prejudice for the defendant if the final outcome subsequently turns out to be in its favour. For instance, in the example above, preventing the demolition of a structure for the time being cannot be perceived to be on the same pedestal as mandating the demolition of a construction. While the former may still be undone, i.e., the defendant may still be compelled to demolish the structure should the plaintiff succeeds in his final claim, undoing the latter, i.e., rebuilding the construction, would cause graver injustice. The Courts are, therefore, relatively more cautious in granting mandatory injunction as compared to prohibitory injunction and thus, require the plaintiff to establish a stronger case.
In present case, Government Resolution dated 06.10.1994 merely approves proposal to allot open plot on lease to plaintiff, but no agreement was actually entered between parties. No right was created in favour of plaintiff. In absence of statutory or contractual right in favour of plaintiff, relief of mandatory injunction could not have been granted. Further, such decree can not be executed due to expiry of limited two years approval for proposed lease under GR dated 06.10.1994. In that view of the matter, substantial questions of law needs to be answered in the negative.
11. In the result, Second Appeal is allowed. The impugned judgment and decree dated 14.10.1996 passed by the District Judge, Aurangabad in Regular Civil Appeal No.82 of 1996, thereby upholding the judgment and decree 9 SA 350.97.odt dated 30.9.1995 passed by learned Civil Judge, Sr. Division, Aurangabad in Regular Civil Suit No.354 of 1995 are quashed and set aside. Pending Civil Application, if any, also stands disposed of.
(S. G. CHAPALGAONKAR) Judge ...
aaa-(final)