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TMI Blog2006 (5) TMI 545X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 446/1991 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; a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... outhern side of the Moonim compound property and lies between Sara Shoppee on the Western side and the unauthorized structure 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed after obtaining a sanctioned plan and licence nor is any document produced to show that the said 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 Sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstructed with brick masonry walls and AC 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 : " ... is to protect the plaintiff against injury by violation of his 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 .. . 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 tem ..... X X X X Extracts X X X X X X X X Extracts X X X X
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