Full Judgment Text
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CASE NO.:
Special Leave Petition (civil) 9479 of 2005
PETITIONER:
Seema Arshad Zaheer & Ors.
RESPONDENT:
Municipal Corporation of Greater Mumbai & Ors.
DATE OF JUDGMENT: 05/05/2006
BENCH:
S B Sinha & R V Raveendran
JUDGMENT:
J U D G M E N T
With
[SLP (C) Nos. 9490/2005, 9688/2005, 10016/2005, 10095/2005,10280/2005 and 10294/2005]
RAVEENDRAN, J.
These matters relate to certain alleged unauthorized structures put up
in plot no. X, XI, XIIA later renumbered as Plot Nos. 7 to 10 of Palton
Road Estate, Saboo Siddique Road, Mumbai - 40 bearing Cedestral Survey
No.14/1504 of Fort Division, Mumbai, belonging to the Central Works
Public Department, Government of India. The said land, it is alleged, was
leased to one Mohamedbhai Abdullabhai Moonim under lease-deed dated
6.7.1939. The said property was thereafter known as Moonim compound.
2. According to the petitioners, the said tenant - Mohamedbhai
Abdullabhai Moonim, who was carrying on business therein under the
name of M/s Abdullabhai Faizullabhai, assigned his business to M/s
Abdullabhai Faizullabhai Private Ltd, a company promoted by him, in or
about the year 1947; and the said company let out several portions thereof
to different sub-tenants. It is alleged that Abdullabhai Faizullabhai Private
Ltd assigned all its right, title, interest and claim in the said property to M/s
Global Marketing, a partnership firm, under deed of assignment dated
21.9.2000, for a consideration of Rs.18 Lakhs, on ’as is, where is basis’
subject to the condition that it shall be the sole responsibility of the
assignee to obtain tenancy/occupancy/possessory rights of the assignor in
respect of the said property and to continue to use and enjoy the said
property on such terms and conditions that the CPWD may stipulate in that
behalf.
3. It is alleged by the petitioners that Global Marketing obtained
possession of various portions of Moonim Compound from the respective
sub-tenants, made improvements/partitions in the existing old structures
and then let out the same to different sub-tenants (who are the petitioners
herein) in the year 2001-02. It is further alleged that the Municipal
Corporation of Greater Mumbai (Brihan Mumbai Municipal Corporation,
for short ’the Corporation’) issued seven show cause notices dated
13.5.2003 followed by final orders dated 2.9.2003 under section 351 of the
Mumbai Municipal Corporation Act, 1888 (’Act’ for short) to remove/pull
down seven unauthorized and illegal structures in the said premises
(Moonim Compound). The occupants of these seven structures filed seven
suits (O.S. Nos.4344 to 4350/2003) in the City Civil Court, Mumbai and
obtained a temporary injunction (by common order dated 25.11.2003)
restraining the Corporation from taking action in pursuance of such notices.
The seven appeals (A.O. Nos.1024 to 1030/2003) filed by the Corporation
against the said order of temporary injunction were allowed by the Bombay
High Court by common order dated 21/22.2.2005 and the temporary
injunction was vacated. These petitions seeking special leave are filed
against the said common order of the High Court. We will briefly refer to
each case separately.
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SLP(c) No.9479/2005 (from L.C. Suit No. 4345/2003/ A.O.
No.1025/2003)
4. It is alleged that one Abdul Samad was carrying on business under
the name and style of ’A to Z Auto Garage’ in a portion of Moonim
Compound; that he surrendered possession of the said portion to Global
Marketing who converted the shed situated in the said portion, that is
South-Eastern corner, into 33 shops and let out the said shops to different
tenants [Seema Arshad Zaheer & Ors.] under various unregistered tenancy
agreements.
5. The Municipal Corporation of Greater Mumbai [Brihan Mumbai
Municipal Corporation, for short the ’Corporation’] issued a notice dated
13.5.2003 under section 351 of the Mumbai Municipal Corporation Act
1888 [’Act’ for short] to the occupants thereof namely Mohamedbhai
Abdullabhai Moonim and A. R. Shaikh (one of the partners of Global
Marketing) alleging that an unauthorized structure with brick masonary
walls and A.C. Sheet roofing measuring 17.5m X 7m (with a sloping roof
of 3.50m on one side and 3.10m on the other) had been unauthorizedly
constructed, and calling upon them to show cause why the said
unauthorized construction should not be removed or pulled down. A reply
dated 26.5.2003 was sent through counsel by 33 occupants of the said
Building, to the said notice, alleging that the entire property (Moonim
Compound) measured 2766 sq.yds., that it had several structures, that the
structure in regard to which the notice had been issued was in existence
even prior to 1961-62 and was earlier in the occupation of Abdul Samad
who was carrying on business therein under the name and style of M/s A to
Z Auto Garage, that the said structure had been assessed to municipal tax
by the Corporation and provided with electricity and water connection, that
Abdul Samad who was running A to Z Auto Garage surrendered the said
structure in his occupation to Global Marketing, and that Global Marketing
partitioned the said existing structure into 33 shops and let out those shops
to 33 tenants. It was contended that as per the policy of the Corporation
contained in its Circular dated 11.11.1980, all non-residential structures,
authorized or unauthorized, which were in existence prior to datum line
(1.4.1962) were to be "tolerated" and regularized, and therefore, the said
structure should not be demolished.
6. The Commissioner of the Corporation after considering the
objections received in reply to the notice dated 13.5.2003 and the
documents produced by the objectors, passed a considered order dated
2.9.2003 holding that the objectors have failed to prove that the structure
which was the subject matter of the notice, existed prior to the datum line
(1.4.1962) or that it was subsequently constructed authorisedly. He,
therefore, directed the said unauthorized construction to be removed within
15 days failing which it would be demolished.
7. Feeling aggrieved, the 32 occupants of that structure (Seema Arshad
Zaheer and Others) filed L.C. Suit No. 4345/2003 in the City Civil Court,
Mumbai for a declaration that the notices dated 13.5.2003 and 2.9.2003
were illegal and for a permanent injunction restraining the Corporation
from taking any action pursuant to the said notices. They also moved a
notice of motion seeking a temporary injunction restraining the
Corporation from taking any action in respect of the said structure. The
City Civil Court passed a common order dated 25.11.2003 (in the said suit
and connected suits relating to similar suits filed by occupants of other
structure in the said property), granting a temporary injunction restraining
the Corporation and its officials from taking any action in pursuance of the
notices dated 13.5.2003 and 2.9.2003 respectively.
8. The Corporation challenged the said temporary injunction by filing
an appeal before the Bombay High Court in A.O. No.1025/03. A learned
Single Judge of the High Court, by judgment dated 21/22.2.2005 (passed in
the said appeal and connected appeals) set aside the order of the temporary
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injunction granted by the City Civil Court and dismissed the notices of
motion for temporary injunction. Leave is sought in this special leave
petition [SLP(c) No. 9479/05] to challenge the said order.
9. The trial court was of the view that the plaintiffs had established
prima facie that the structure in which the 33 small shops were situated,
was in existence for several years and was assessed to property tax, and
therefore, the plaintiffs were entitled to the temporary injunction sought till
disposal of the suit. On the other hand, the High Court held that the
occupants-plaintiffs had failed to make out a prima facie case that the
structure was authorized, or put up prior to 1.4.1962, and that the trial court
had, without noticing and drawing correct inferences from the documents,
had proceeded in a very vague manner. The High Court, after referring to
the documents in detail, has concluded that the structure was of recent
origin and unauthorized and there was no justification for staying the action
in pursuance of the notices dated 13.5.2003 and 2.9.2003. The question for
consideration is whether the order of the High Court calls for interference.
10. The documents produced show that the Corporation had earlier
issued a notice dated 21.10.1991, under section 351 to Abdul Samad
carrying on business under the name of A to Z Auto Garage alleging that a
L-shaped structure had been constructed in the Moonim compound (as
shown in the sketch annexed to the notice). It showed that by using the
compound wall as the support wall, and by fixing MS Poles parallel to the
compound wall and using MS angle purlins and AC sheets and G.I. sheets,
a structure (longer wing of the L-shaped structure measuring 18.15m X
4.25 m and shorter wing measuring 2.5m X 2.7 m with an average height
of 3m) had been unauthorisedly constructed. The notice called upon Abdul
Samad to show cause why it should not be pulled down. Abdul Samad filed
a Long Cause Suit no. 8446/1991 in the City Civil Court, Bombay to
restrain the Corporation from enforcing the said notice. On 5.11.1991, on a
notice of motion moved by the said Abdul Samad, the City Civil Court
granted an ex parte interim temporary injunction in the said suit restraining
the Corporation from giving effect to the notice dated 21.10.1991. During
pendency of the said suit, a final order dated 27.12.1996 was made by the
Corporation in regard to the said unauthorized structure. Abdul Samad, by
another notice of motion sought a temporary injunction, and the court by
order dated 22.1.1997 granted another temporary injunction restraining the
Corporation from taking any action in pursuance of the said notice dated
27.12.1996, subject to Abdul Samad filing an undertaking not to carry out
any additional construction, alteration, or extension to the suit property. In
view of the said temporary injunctions, the unauthorized structure could
not be demolished by the Corporation. Subsequently, the said suit (LC Suit
No. 8446/1991) was dismissed for non-prosecution on 10.12.1998. No
attempt was made to revive the said suit and the dismissal became final. It
would appear that Abdul Samad thereafter delivered possession to Global
Marketing. It is also evident that between 2001-2002, Global Marketing
either dismantled the said unauthorized construction (subject matter of
notice dated 21.10.1991) and put up a new unauthorized structure in its
place, or made extensive extensions/additions/alterations to the said
unauthorized structure and converted it into 33 shops. It is in these
circumstances, a fresh notice under section 351 of the Act was issued by
the Corporation on 13.5.2003 followed by final order dated 2.9.2003.
11. In the meanwhile, it would appear that the partners of Global
Marketing were found to be engaged in organized crime and the Special
Court functioning under the Maharashtra Control of Organised Crimes Act,
1999 (MOCA Act) passed an order dated 19.5.2003 in MCOC Special
Case No.3 of 2003, appointing a Receiver to take possession of the entire
property with the structures thereon. In the said suit, the special court has
made an order directing the Corporation to take action only by following
due process of law.
12. The petitioners assert that the 33 small shops in their possession have
been carved out of the existing structure wherein A to Z Auto Garage was
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run. In para 15 of the plaint, the petitioners alleged that ’the structure
mentioned in the notice issued in the year 1991 and the suit structure which
is the subject matter of the impugned notice and present suit are one and
the same.’ There was already an order for demolition of the said structure
by the Corporation in pursuance of the notices dated 21.10.1991 issued
under section 351 of the Act. The challenge thereto in LC Suit No.
8446/1991 having ended in dismissal, the said order for demolition became
final. The structure could not be demolished in pursuance of the earlier
notice, on account of the pendency of L.S. Suit No.8446/1991 and the
orders of temporary injunction granted therein. 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.
13. 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.
SLP (C) No. 9490/2005 (from L.C. Suit No. 4344/2003/
A.O.No.1024/2003)
14. This relates to another structure in Moonim Compound measuring
11.30 m x 6.60 m (with a height of 3.10 m on one side and 3.50 m. on the
other side) with brick masonary walls and A.C. sheet roofing. The structure
is situated on the Southern side of the Moonim compound property and lies
between Sara Shoppee on the Western side and the unauthorized structure
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which is the subject matter of SLP (c) No.9479/2005 on the Eastern side.
15. Mohd. Hajif A Hamid and 16 others filed L.C. Suit No.4344/2003 in
the City Civil Court, Mumbai for quashing the notices dated 13.5.2003 and
2.9.2003 issued by the Corporation and for an injunction. These occupants
also claimed that the structure (which has been divided to small shops and
let out to them by Global Marketing) was earlier in the occupation of
Abdul Samad (A to Z Auto Garage). The documents relied on and
contentions urged are the same as those in SLP (c) No.9479/2005. This
petition is liable to be rejected for the reasons stated above, for dismissing
SLP (c) No. 9479/2005.
SLP (c) No.9688/2005 (from L.C. Suit No. 4346/2003/ A.O. No.
1026/2003
16. This relates to another structure consisting of ground plus two floors
with brick masonary walls measuring 38.35 m x 3.85 m with a ground floor
(height 3.2 m), first floor (height 3.2 m) and second floor with AC sheet
roofing (2.85 M on one side and 2.55 M on the other). The structure is
situated north of the Sahara Shoppee in Moonim Compound, in the set
back area between the northern boundary wall and Sahara Shoppee.
17. One Fatimabi Abdul Rehman Shaikh filed L.C. Suit No.4346/2003
in the City Civil Court, Mumbai, in regard to the said property for
declaring the notices dated 13.5.2003 and 2.9.2003 issued by the
Corporation as illegal and for an injunction. She claims to be the tenant of
the premises under Global Marketing. She also claimed that the structure
was earlier in the occupation of Abdul Samad (A to Z Auto Garage).
18. The facts of the case and the documents relied on are the same as
earlier cases, dealt with in SLP [C] No.9479/2005. In fact the structure in
question by the side of the northern boundary has nothing to do with the
area or structure on the south-eastern side of the property which was in
occupation of A to Z Auto Garage. No document is produced to show the
existence of any old structure in the area where the present structure is
situated. For the reasons stated in regard to SLP (C) No.9479/2005, this
SLP is liable to be dismissed.
SLP(c) No. 10294/2005 (from L.C. Suit No. 4349/2003/A.O.
No.1029/2003)
19. This relates to an unauthorized structure measuring North to South:
35.80m and East to West 4.20m constructed in the set back area on the
Western side of Moonim compound with brick masonary walls. The
structure consists of a ground floor (150.36 sq.m.) and part first floor (92.4
sq.m.). It abuts the structures of Sara Shoppee and Sahara Shoppee as also
the unauthorized structure which is the subject matter of SLP (C)
No.10095/2005.
20. M. Yunus M. Ali and 41 others filed L.C. Suit No. 4349 of 2003 in
the City Civil Court, Mumbai for declaring the notices dated 13.5.2003 and
2.9.2003 issued by the Corporation as invalid and for a permanent
injunction. They claimed that the present structure was earlier in the
occupation of one Zulfikar son of Masook Khan, who was carrying on
business under the name and style of ’Masook & Sons’, and that the
structure formed part of the property assigned the No.A3357-58(1) and
assessed to municipal tax. They rely on the property register extract for the
year 1997 to contend that the property bearing ward no. A3357-58(1) was
assessed to property tax prior to 1961-62. As in the earlier cases what is
significant is that no document has been produced to show that the
structure is an authorized structure constructed after obtaining a sanctioned
plan and licence nor is any document produced to show that the said
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structure existed prior to datum line 1.4.1962 so as to attract the benefit of
the Corporation circular dated 11.11.1980. On the other hand, the
Corporation contends that earlier there was a smaller unauthorized
structure in that portion of Moonim Compound and it had issued a show
cause notice dated 21.10.1991 for its demolition; and the present
unauthorized structure of a larger area had been put up in 2001-02. While
the documents produced show the existence of some smaller unauthorized
structure in Moonim compound around 1990, they do not show or refer to
the structure of the measurements now existing. The High Court after
referring to the documents (in paras 29 to 31) has rightly recorded a clear
finding after that none of the documents show the existence of the structure
in that area prior to 1.4.1962.
SLP(c) No. 10280/2005 (out of L.C. Suit No. 4347/2005/ A.O. No.1027
of 2003)
21. This relates to an unauthorized structure measuring East to West :
13.4 M and North to South : 12.8 M (in all 171.52 sq.m.) situated on the
Eastern side of Moonim compound, to the south of Sahara Shoppee and
north of the unauthorized structure which is the subject matter of SLP (c)
No. 10016/2005.
22. Dawood Vadia Hussain and 7 others filed L.C. Suit No. 4347/2003
in the City Civil Court, Mumbai alleging that they were the occupants of
different portions of the said structure. They alleged that the said structure
was earlier in the occupation of Crescent Gas Supply Agency who had
been granted trade licence by the Corporation and the structure was in
existence prior to 1.4.1962. It is stated that Crescent Gas Supply Agency
surrendered the premises to Global Marketing who converted the structure
into several shops. None of the documents produced disclose or establish
that the said structure was in existence on or before 1.4.1962 or that it was
constructed thereafter after obtaining licence and sanction plan. A copy of
licence dated 29.3.1983 issued by the Corporation to Crescent Gas Supply
Agency is produced. This merely shows that licence was granted to keep
26 gas cylinders in the premises of Moonim compound and does not show
the size of the structure or the age of the structure. In fact, it is stated that
the Corporation had issued a notice dated 15.12.1987 under section 351 of
the Act to Crescent Gas Supply Agency alleging that an unauthorized
structure measuring 8.35 m X 4.65m (in all 38.83 sq.m.) with brick
masonary walls and Shahabad flooring had been put up and calling upon
them to remove the same. Even assuming such structure was situated in the
area which was earlier occupied by Crescent Gas Supply Agency in the
year 1987, it is evident that unauthorized additions have been subsequently
made to such structure which was in existence in 1987 or it has been
demolished or replaced by a new unauthorized structure. Further, there is
nothing to show that even the structure mentioned in the notice dated
15.12.1987 was in existence on or before 1.4.1962. The High Court after
referring to the documents in detail (in paras 20 to 25) has rightly recorded
a finding that there is no evidence to show that the present structure is the
shed of Crescent Gas Supply Agency or that it was in existence on or
before 1.4.1962.
SLP(c) No. 10095/2005 (out of L.C. Suit No. 4348/2003/A.O. No.1028 of
2003)
23. This relates to an unauthorized structure measuring East to West:
15.40m and north to south: 12.70m (in all 195.58 sq.m.) on the western
side of Moonim compound constructed with brick masonry walls and AC
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sheet roofing. The structure is squeezed between the Sara Shoppee on the
south and Sahara Shoppee on the north.
24. Md. Rizwan Taibani and 31 others filed L.C. Suit no. 4348/2003 for
declaring the notices dated 13.5.2003 and 2.9.2003 as illegal and for
permanent injunction restraining the Corporation from interfering with the
said structure. In the plaint, they alleged that the said structure was earlier
in the occupation of one Zulfikar son of Masook Khan, who was carrying
on business in the name and style of Masook & Sons and Global Marketing
obtains possession from the said tenant and divided them into 32 shops. It
is alleged that the structure has been in existence prior to 1.4.1962. On the
other hand the Corporation contended that a show cause notice was issued
on 21.10.1991 in regard to an unauthorized structure measuring 10M x
6.9M (in all 69 sq.m.) in the occupation of Masook & Sons. The facts of
the case and the documents relied on are similar to those in SLP (C) No.
10294/2005. The High Court has considered the documents in detail (in
paras 26 to 28) and rightly recorded a finding that there is nothing to show
that the existing structure was earlier in the occupation of Zulfikar (Masook
& Sons) or that the structure existed prior to 1.4.1962.
SLP(C) No.10016/2005 (from L.C. Suit No.4350/2005/A.O.
No.1030/2003) :
25. This relates to an unauthorized structure measuring about east to
west : 18.4M and north to south : 9.10 M (on the eastern side and lesser
measurement on the western side) with ground floor and first floor of a
total constructed area of 323.76 sq.m. The structure is situated on the
eastern side of Moonim Compound with the unauthorized structure which
is the subject matter of SLP [C] No.10280/2005 on the northern side and
vacant space and thereafter the unauthorized structure in SLP {C}
No.9479/2005 on the southern side.
26. Asma Mohamed Rafique and 11 others filed LC Suit No.4350/2003
on the file of the City Civil Court, Mumbai, for declaring the notices datd
13.5.2003 and 2.9.2003 as illegal and for a permanent injunction
restraining the Corporation from interfering with the said structure. In the
plaint they vaguely allege that the structure was part of a structure earlier in
the occupation of M/s. New Sangam Transport Company. The High Court
has considered the material in detail (in paras 32-34) and found that
nothing is produced to show the existence of any structure earlier, in
particular on or before 1.4.1962. It was obviously put up during 2001-02.
Common submissions :
27. Learned counsel for the appellants submitted that a temporary
injunction granted by the trial court in exercise of its discretion, should not
ordinarily be interfered by the appellate court, by re-appreciating the entire
material merely because another view is possible. It is also submitted that
refusal of temporary injunction would lead to immediate demolition,
causing of irreparable injury to the petitioners and rendering their suits
infructuous. Strong reliance is placed on the following observations of this
Court in Wander Ltd. v. Antox India P. Ltd. [1990 Supp SCC 727] in regard
to grant of temporary injunction and interference by appellate courts in
regard to such discretionary order :
"Usually, the prayer for grant of an interlocutory injunction is at a
stage when the existence of the legal right asserted by the plaintiff
and its alleged violation are both contested and uncertain and
remain uncertain till they are established at the trial on evidence.
The court, at this stage, acts on certain well settled principles of
administration of this form of interlocutory remedy which is both
temporary and discretionary. The object of the interlocutory
injunction, it is stated :
"\005... is to protect the plaintiff against injury by violation of his
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rights for which he could not adequately be compensated in
damages recoverable in the action if the uncertainty were resolved
in his favour at the trial. The need for such protection must be
weighed against the corresponding need of the defendant to be
protected against injury resulting from his having been prevented
from exercising his own legal rights for which he could not be
adequately compensated. The court must weigh one need against
another and determine where the ’balance of convenience’ lies."
The interlocutory remedy is intended to preserve in status quo, the
rights of parties which may appear on a prima facie case\005\005..
\005.\005 the appellate court will not interfere with the exercise of
discretion of the court of first instance and substitute its own
discretion except where the discretion has been shown to have
been exercised arbitrarily, or capriciously or perversely or where
the court had ignored the settled principles of law regulating grant
or refusal of interlocutory injunctions. An appeal against exercise
of discretion is said to be an appeal on principle. Appellate court
will not reassess the material and seek to reach a conclusion
different from the one reached by the court below if the one
reached by that court was reasonably possible on the material. The
appellate court would normally not be justified in interfering with
the exercise of discretion under appeal solely on the ground that if
it had considered the matter at the trial stage it would have come to
a contrary conclusion. If the discretion has been exercised by the
trial court reasonably and in a judicial manner the fact that the
appellate court would have taken a different view may not justify
interference with the trial court’s exercise of discretion."
28. Reference was also made to Laxmikant V. Patel v. Chetanbhai Shah
[2002 (3) SCC 65], where this Court, after referring to the above
observations in Wander (supra), proceeded to observe as follows :
"Neither the trial court nor the High Court have kept in view and
applied their mind to the relevant settled principles of law
governing the grant or refusal of interlocutory injunction in trade
mark and trade name disputes. A refusal to grant an injunction in
spite of the availability of facts, which are prima facie established
by overwhelming evidence and material available on record
justifying the grant thereof, occasion a failure of justice and such
injury to the plaintiff as would not be capable of being undone at a
later stage. The discretion exercised by the trial court and the High
Court against the plaintiff, is neither reasonable nor judicious. The
grant of interlocutory injunction to the plaintiff could not have
been refused, therefore, it becomes obligatory on the part of this
Court to interfere."
This Court also observed that 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.
29. 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 plaintiff’s rights by issue of a temporary injunction; (ii) when
the need for protection of plaintiff’s rights is compared with or weighed
against the need for protection of defendant’s rights or likely infringement
of defendant’s rights, the balance of convenience tilting in favour of
plaintiff; and (iii) clear possibility of irreparable injury being caused to
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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 plaintiff’s conduct is free from blame and he
approaches the court with clean hands.
30. 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. We may refer to the following observations of this
Court in M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu [1999 (6) SCC 464]
made in a different context :
"This Court in numerous decisions has held that no consideration
should be shown to the builder or any other person where
construction is unauthorized. This dicta is now almost bordering
the rule of law. Stress was laid by the appellant and the prospective
allottees of the shops to exercise judicial discretion in moulding the
relief. Such a discretion cannot be exercised which encourages
illegality or perpetuates an illegality. Unauthorised construction, if
it is illegal and cannot be compounded, has to be demolished.
There is no way out. Judicial discretion cannot be guided by
expediency. Courts are not free from statutory fetters. Justice is to
be rendered in accordance with law. Judges are not entitled to
exercise discretion wearing the robes of judicial discretion and
pass orders based solely on their personal predilections and
peculiar dispositions. Judicial discretion wherever it is requires to
be exercised has to be in accordance with law and set legal
principles."
31. 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.
32. We find no reason to interfere with the order of the High Court in the
seven appeals. We accordingly dismiss these SLPs. as having no merit. The
petitioners are granted 15 days time to make alternative arrangements.
Parties to bear their respective costs.