9911796707
TMI Blog2017 (8) TMI 970X X X X Extracts X X X X X X X X Extracts X X X X ..... nies Act, 1956 and is, inter alia, engaged in the business of manufacturing of paper and its manufacturing unit is situated at Survey Nos.69/1/P3, 69/1/p/3/P1, 72/p3, 72/P4, 73/p1, 74/p2, 74/p3, 76/2p1, 75/1p4, 83/p1, 84/p1, 86/6/p1, 88/9/p1, 92/p2, 94/p1, 94/p2 of Sarigam Kale Road, Village Angam, Sarigam, Taluka Umargaon, District Valsad. It is an admitted position that, the applicant-plaintiff being paper manufacturing unit has to obtain necessary permission under the provisions of the Water Prevention & Control of Pollution) Act, 1974, the Environment protection Act, 1986 and the Waste (Management and Handling) Rules framed thereunder and also has to obtain the consent from the concerned authorities. 3.2 The averments made in the plaint indicate that, the applicant is required to discharge its treated effluents generated at their manufacturing unit into the Common Effluent Treatment Plant (CETP) of GIDC. It is the case of the applicant that, such Common Effluent Treatment Plant of GIDC situated at a distance of 4.5 kms., away from the applicant's manufacturing unit and the applicant has to lay down the pipeline to carry out its treated effluents from its manufacturing unit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x and has contended as under:- (a) It was contended that respondent No.3 is not the owner of part of Survey No.373/3 as claimed. Even before this Court, except the assertion that he has purchased the said land, sale-deed thereof is not produced. (b) It was further contended that, respondent Nos.1 and 2 have entered into Memorandum of Understanding, on basis of which the pipeline has been laid down and it has been become operative and at present, the same is in working condition and therefore, if stay, as prayed for, is not granted, manufacturing process of the applicant would be affected. He therefore submitted that the applicant has got very good prima facie case and balance of convenience is also in favour of the applicant. (c) It was further submitted that if the stay is not granted, the applicant is likely to suffer irreparable loss, which cannot be compensated in terms of money. (d) That the applicant has paid a sum of Rs. 10,00,000/- and Rs. 3,00,000/- to respondent No.3 and the bank entries reflect the same. It was further submitted that, in acceptance and even as stated in the Affidavit-in-Reply filed in the Civil Application by respondent No.3, it was permissible u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... till 30.06.2017, respondent No.3 has not come out with a case that, there are any arrears. It was contended that, the same has to be compensated and the applicant is duty bound to make it good and that the applicant is ready and willing to give compensation for the permissive use. (f) It was also submitted that, as averred in the Affidavit-in-Reply by respondent No.3, purported purchase has been made on 10.01.2017 and as can be seen from the documents, it is established that the pipeline was in existence on the date on which the alleged transaction is made by respondent No.3. 6. Therefore, in view of the aforesaid submissions and contentions, Mr.Kavina, learned Senior counsel for the applicant submitted that the appeal requires consideration and the order of status quo deserves to be continued till application Exh:5 is heard and decided by learned Trial Court on merits and the parties are required to be relegated to the Civil Court. 7. Mr.Jal Soli Unwala, learned counsel for respondent Nos.1 and 2 submitted that there is Memorandum of Agreement with the applicant and respondent Nos.1 and 2 have no dispute about the same. He further submitted that it is a matter of fact that re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t permission only for repairs of the said pipeline. It was also contended that there is no irregularities committed by respondent No.3 and in fact, respondent No.3 is not the party to the license and therefore, there is no necessity to undertake any process for revocation. It was further asserted that respondent No.3 has become the owner by registered sale deed and there is no evidence on record to show that the pipeline was laid down before 10.01.2017. He further contended that if the same would have been true, there was no reason for making payment of Rs. 13,00,000/- to respondent No.3. It was also asserted that the suit is filed before the learned Trial Court with incomplete details and the same is abuse of process of the Court. Even if it is small portion of land, nobody can force respondent No.3 to permit the applicant to lay down the pipeline and then say that, respondent No.3 can be charged. It was also contended that there is nothing on record to show that Survey No.373 is only one composite number and there is no document to show that there is one part of the land and therefore, the appeal and the application filed by the applicant deserve to be dismissed. No other and f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epted huge amount of Rs. 13,00,000/- and huge expenses have incurred by the applicant for laying down the pipeline and therefore, the contention that there is alternative pipeline does not take the case of respondent No.3 any further. 11. It deserves to be noted that in the Affidavit-in- Reply filed before this Court, respondent No.3 has made assertion that he has purchased the land bearing Survey No.373/3 (without even mentioning the extract of area) on 10.01.2017, however, no sale deed is produced nor any revenue entry in the name of respondent No.3 has been produced before this Court. The DILR measurement sheet does not inspire any confidence to show that respondent No.3 has become the owner of the said land. 12. In juxtaposition of such documentary evidence, the bank account produced by the applicant to show that the amount of Rs. 13,00,000/- have been paid to respondent No.3, which is already admitted by respondent No.3. Moreover, one of the entry of Rs. 10,00,000/-, which is paid by way of cheque dated 30.01.2017, is dated 01.02.2017. The invoices, which are annexed with the plaint, show that the material for laying down the pipeline is of 12.05.2016, 04.12.2016, 10.12.2016 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing unit, so as to reach into CETP in regular manner without any obstruction and therefore, the balance of convenience is in favour of the applicant. Similarly, if interim relief is not granted, the applicant will suffer irreparable loss. The facts of the case clearly establishes that it falls within the ambit of Rule 3, Order 39 of Code of Civil Procedure. The aspect whether the applicant has any easement right or not is to be examined by the learned Trial Court when the application Exh:5 is taken up for hearing threadbare. The present Appeal from Order arising out of non-grant of interim relief, present appeal is maintainable, and therefore the appeal is admitted in view of the observations made by Division Bench of this Court in the case of Sandesh Ltd. & Anr. (supra). 16. In the facts and circumstances of this case, in opinion of this Court, present case falls in the category of rarest of the rare case where ex parte ad-interim injunction is required to be granted to protect the subject matter of the suit at least application Exh:5 is decided by the learned Trial Court. 17. For the foregoing, present application is allowed to the aforesaid extent and the order of status quo g ..... X X X X Extracts X X X X X X X X Extracts X X X X
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