Jain Vs. Corpn. of The City of Nagpur & Ors.  INSC 1816 (22 October
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOs. 6192-6197 OF 2008
[Arising out of SLP (Civil) No. 22073-22078 of 2005] Rikhabsao Nathusao Jain
...Appellant Versus Corpn. of the City of Nagpur & Ors. ...Respondents
S.B. SINHA, J :
and amplitude of jurisdiction of the District Judge in terms of Section 286 (5)
of the City of Nagpur Corporation Act, 1948 (for short "the Act") is
in question in these appeals which arise out of judgments and orders dated
24.09.2004 and 6.04.2005 passed by the High Court of Judicature at Bombay,
dispute between the parties herein arose due to refusal to grant sanction of a
building plan filed by respondent No. 2. Appellant is his neighbour. Appellant
is owner of a house bearing No. 585 and respondent No. 2 is owner of a
neighbouring house bearing No. 586.
part of the land on which the constructions were said to have been raised by
respondent No. 2 belonged to the Corporation of City of Nagpur (for short
"the Corporation") itself. Respondent No. 2 and his predecessors,
however, are said to be in possession thereof for a long time and acquired an
indefeasible title thereto.
No. 2 allegedly had submitted a plan for construction of a building. It was not
approved within a period of sixty days. On the premise that the said plan would
be deemed to have been sanctioned, he raised constructions. Appellant filed an
application before the District Judge, Nagpur in terms of Section 286(5) of the
Act on or about 1.08.1983, inter alia for the following reliefs:
"(i) Grant of
mandatory injunction against the non-applicant No. 1 and 2 directing them to
remove the un-authorised & illegal work carried out by them and restraining
them in future from 3 undertaking any authorized and illegal work in
contravention of the provisions of Nagpur Corporation Act and the by-laws made
restraining the non-applicant NO.1 from giving sanction to the building
proposal,if any, submitted by non-applicant No.2 without first deciding the
objection raised by the applicant;
restraining the non-applicant No.1 from giving sanction to extension,
modification, alteration, constructions or such other things in future, without
first hearing the applicant."
Appellant also filed
an application seeking an interim order of injunction restraining respondent
No. 1 - Corporation from granting any sanction of building plan submitted by
respondent No. 2 as also an order of injunction restraining him from proceeding
with illegal construction.
No. 1 - Corporation in its written statement before the learned District Judge
contended that the plan submitted by respondent No. 2 was not in conformity
with Bye-Law No. 4 of Building Bye-Laws. It was furthermore contended that the
said plan had been returned to him on 4.08.1983.
said application was transferred to the Court of Second Extra Assistant Judge.
It was heard on or about 3.10.1983 and posted for judgment on 12.10.1983. As on
the said date, the Presiding Officer was on leave, the matter was posted for
judgment on 21.10.1983. By an order dated 21.10.1983, the learned Judge passed
the following order:
invoking the principle of natural justice and the inherent powers vested in me
under Section 151 of the Civil Procedure Code, I hereby direct the Non-applicant
No. 1 Corporation through its Administrator to consider site plan or building
plan submitted by N.A. 2 Pannalal and pass suitable order granting sanction for
the proposed construction keeping in view the rules and byelaws framed by the
Corporation in regard to construction or erection of buildings on sites
together with objections, if any, from Rukhabdas Jain within fifteen days from
receipt of this order.
After receipt of
suitable order or sanction given by the Corporation in respect of construction proposed
by the Non applicant No. 2 Pannalal on his concerned site, judgment will be
pronounced in this case in the light of the said order or sanction given by the
Corporation. Till then the judgment is deferred. Meanwhile, the interim
injunction order dated 2.8.1983 to continue."
On the premise that
the said order was not complied with, a show cause notice was issued on
17.11.1983 for initiation of a proceeding under 5 the Contempt of Courts Act
against the Executive Officer of the Corporation in the following terms:
"This court had
served upon you order dated 21.10.1983 in Misc. Civil Application No. 249 of
1983, on 21.10.1983 vide outward No. 348 of 1983, to consider the site plan/
building plan submitted by Non-applicant No. 2 - Pannalal S/o Trilokchand
Khedkar of house No. 586, Circle No. 9/14, Ward No. 36, Ladpura, Itwari, Nagpur
and to pass suitable order granting sanction for the proposed construction etc.
In the very order you were directed to comply with the said order within 15
days from receipt thereof. However, from the statement of the learned Advocate
for N.A. No. 2 Pannalal it appears that you have not complied with the said
order, nor any compliance report submitted by you in this Court so far. The
noncompliance on your part of the said order may amount to contempt of court.
You are, therefore,
directed to show case, why suitable action for contempt of court be not taken
against you within 3 days from receipt of this notice."
No. 2 submitted a plan on 19.11.1983, which happened to be a Saturday. On
21.11.1983, i.e., Monday next, the plan was sanctioned in favour of respondent
application for vacation of stay was filed on 1.12.1983 and by an order dated
4.02.1984, the order of interim injunction was vacated. A civil revision
application was preferred thereagainst before the High Court. The High Court by
an order dated 20.06.1984 directed disposal of the injunction application
within fifteen days from the said date, stating:
states that he will pull down the offending structure should the order finally
go against him. On this statement, the ad-int. injunction is vacated. The
Assistant Judge should decide the application within fifteen days.
Miscellaneous Civil Application filed by appellant was dismissed by an order
dated 23.07.1984 inter alia on the premise that having regard to Section 275
(3) of the Act, respondent No. 2 was entitled to start and carry on
constructions relying on or on the basis of the deemed sanction. As regards the
question that respondent No. 2 had no title over the property, it was held:
according to the appellant, the N.A. No. 2 has no title to the property on
which he is raising construction and which he showed to be of his own in the
site plan submitted to the Corporation the N.A. No. 2 has not left open
required space 7 adjoining his building thereby contravening by law No. 32 he
has shown excess area in his site plan and obtained sanction by deceit and
fraud, the sanction given to the N.A. No. 2 by N.A. No. 1 in respect of
proposed construction is illegal and invalid since it is in contravention or
various provisions of the Act and byelaws thereunder, it is open to the
applicant to file a separate suit, claiming declaration that the said sanction
is invalid because of above reason and further claiming injunction of the
nature as sought in the present application, wherein all those points can be
conclusively decided. Considering the limited scope of Sec. 286 (5) of the Act,
in my opinion, this is not competent forum to entertain and decide all these
aggrieved by and dissatisfied with the said decision of the learned District
Judge, preferred an appeal before the High Court. By a judgment and order dated
5.09.1996, the said appeal was allowed and the matter was remitted, directing:
because of the vacation of the stay, the incomplete construction stated to have
been completed by the respondent No.2.
Undisputedly, no party
has led any evidence in the matter. Under the circumstances, in fairness and
interest of the parties, the matter be remanded to the Trial court for fresh
consideration and decision and in view of the provisions under Section 286(5)
of the City of Nagpur Corporation Act, giving opportunity to the parties to
lead evidence and of hearing. As held that the order dated 02.01.1983 8 is
illegal, arbitrary and perverse, the sanction accorded by Nagpur Corporation in
view of the directions of the trial Court, be treated that there is no sanction
to the already returned application proposed plan. The trial Court is also
directed to consider the two applications filed by the appellant in this Court
for amendment to the original application under Section 286 (5) of the City of
Nagpur Corporation Act. The proceeding under the provisions of Section 286 (5)
of the City of Nagpur Corporation Act was instituted in the year 1981.
Considering the pendency of more than 15 years, I direct the trial Court to
decide the matter within six months from the receipt of the writ of this
Letters Patent Appeal marked as LPA No. 115 of 1996 preferred thereagainst by
respondent No. 2 was allowed and the learned Trial Judge was permitted to
proceed with the trial.
to or in furtherance of the said direction, the learned Trial Judge upon
hearing the parties allowed the Misc. Civil Application No. 249 of 1983
directing the Corporation to remove the unauthorized construction made by
respondent No. 2. An appeal was preferred thereagainst. The said appeal marked
as First Appeal No. 476 of 1997 was directed to be heard with LPA No. 115 of
1996 by an order dated 23.03.1998. A Letters Patent Appeal was also filed
questioning the order of the learned Single Judge 9 dated 23.03.1998. All the
three appeals were taken up for hearing together and by reason of the impugned
judgment, the appeals preferred by respondent No. 2 have been allowed. A review
application filed by appellant has been dismissed.
Rajeev B. Masodkar, learned counsel appearing on behalf of the appellant, in
support of these appeals,contended:
(i) Having regard to
the limited jurisdiction exercised by the learned District Judge, an order of
mandatory injunction could not have been passed and that too without any
application having been filed therefor.
(ii) As respondent
No. 1 passed an order of sanction on the threat of contempt; the same should
not have been given effect to.
Shivaji M. Jadhav, learned counsel appearing on behalf of respondent No. 1
supported the contention of Dr. Masodkar.
M.N. Rao, learned senior counsel appearing on behalf of respondent No. 2, on
the other hand, submitted:
(i) Appellant, having
not challenged the order of the Corporation dated 21.11.1983 granting sanction
in favour of the respondent No. 2, is estopped and precluded from raising the
contention as regards propriety of order dated 17.11.1993 before this Court for
the first time.
(ii) As the District
Judge exercises a statutory appellate power, he must be held to have an implied
power to grant mandatory injunction.
(iii) In any event,
as an order granting sanction has been passed by respondent No. 1, the
questions raised before this Court have become academic.
may at the outset notice the relevant provisions of the Act.
The Act was enacted
to consolidate and amend the law relating to the municipal affairs of the City
of Nagpur. Sections 273, 274 and 277 whereof read as under:
"273. (1) No
person shall-erect or re-erect any building; orcommence to erect or re-erect any
11 building; ormake any material external alteration to any building; or
construct or reconstruct any projecting portion of a building which the
Commissioner is empowered by Section 284 to require to be set back or is
empowered to give permission to construct or re-construct-unless the
Commissioner has either by an order in writing granted permission or has failed
to intimate within the prescribed period his refusal of permission for the
erection or re-erection of the building or for the construction or
re-construction of the projecting part of the building; after the expiry of one
year from the date of the said permission or such longer period as the
Commissioner may allow or from the end of the prescribed period as the case may
Provided that nothing
in this Section shall apply to any work, addition or alteration which the
Corporation may by bye-law declare to be exempt.
(2) If a question
arises whether a particular alteration in or addition to an existing building
is or is not a material alteration, the decision of the District Court, Nagpur,
shall be final anc conclusive.
(3) No appeal shall
be admitted under this Section unless the matter has first been determined by
274.(1) Every person
who intends to erect or re-erect a building shall submit to the Commissioner an
application in writing for approval of the site together with a site plan of
the land, and in the case of land which is the property of the Government, or
of the Corporation, a certified copy of the documents authorizing him to occupy
the land, and if so required by the Commissioner the original document or
documents; and an application in writing for permission to building together
with a ground 12 plan, elevation and section of the building and a
specification of the work to be done.
(2) Every plan of any
building to be constructed wholly or partly of masonary, submitted under
sub-section (1) in token of its having been prepared by him or under his
supervision, bear the signature of a licensed surveyor.
(3) Every document
submitted under sub-section (1) shall be prepared in such manner and shall
contain such particulars as may be prescribed.
(4) Nothing herein
contained shall require a person to comply with the provisions of clause(b) of
sub-section (1) until such time as the site has been approved by the
Commissioner or such person as he may appoint.
"277. (1) The
Commissioner shall not grant permission to erect or re-erect any building
unless and until he has approved of the site thereof on an application under
(2) The Commissioner
may refuse permission to erect or re-erect any building - (a) if the plans and
specifications submitted with the application show that such building is not in
accordance with a town-planning scheme sanctioned under Section 271 or with any
provisions of this Act, or any rule or by-law made thereunder, or any provision
of any law for the time being in force: or (b) if in his opinion the erection
or re- erection of such building would be in nuisance or injurious to the
inhabitants of the neighbourhood or to the public: or (c) unless and until any
plans, specifications or particulars called for by him are supplied."
Sections 286(5), 287 and 377 of the Act are as under:
13 "286. (5)
Nothing in this section shall affect the right of the Corporation or any other
person to apply to the District Court, Nagpur, for an injunction for the
removal or alteration of any building on the ground that it contravenes any
provision of this Act or of the bye-laws made thereunder, but if the building
is one in respect of which plans have been deposited and the plans have been
passed by the Commissioner or notice that they have been rejected has not been
given within the prescribed period after the deposit thereof and if the work
has been executed in accordance with the plans, the Court on granting an
injunction shall have power to order the Corporation to pay to the owner of the
work such compensation as the Court thinks just, but before making any such
order the Court shall cause the Commissioner if not a party, to be joined, as a
party to the proceeding."
"287. Save as
otherwise expressly provided in this Act or rules made thereunder, no Civil
Court shall have jurisdiction to settle, decide or deal with any question which
is by or under this Chapter required to be settled, decided, or dealt with by
the Corporation, or the Commissioner."
in inquiries before Civil Courts- (1) For the purposes any appeal, inquiry or
proceeding under this Act, the High Court and the District Court, Nagpur, may
exercise all the powers conferred on them by the Code of Civil Procedure, 1908,
and the Central Provinces and Berar Courts Act, 1917, as the case may be, and
shall observe the procedure prescribed in the said enactments, so far as it is
not inconsistent with the provisions of this Act.
14 (2) The costs of
every appeal, inquiry, or proceeding under this Act shall be payable by such
parties and in such proportions as the Court may direct and the amount thereof
shall, if necessary, be recoverable as if it were due under a decree of the
law relating to town planning having regard to the necessity to have a planned
township keeping in view the ecology thereof has assumed great significance.
The statutory authorities under the Act, therefore, must be allowed to exercise
their statutory powers reasonably and in good faith.
It, however, would
not mean that the right of an owner of the land to raise constructions over the
land would not be attended to for a long time.
re-erection of a building must precede grant of an express sanction of
building. The statute provides as to how and in what manner an application for
grant of sanction of building plan should be dealt with.
Section 275(3) of the
Act, however, raises a legal fiction specifying the period of sixty days within
which an application for grant of sanction of building plan should be
considered by the appropriate authorities of the Corporation. The legislature,
therefore, considered the said period of sixty days to be reasonable one during
which the application for grant of sanction for a building plan should be
attended to and appropriate order thereupon 15 should be passed. However,
there cannot be any doubt whatsoever that when queries are raised or defects
are pointed out in the building plan, the owner of the land must reply thereto
and/or remove the defects pointed out.
building plan deemed to have been sanctioned must also satisfy the conditions
laid down in the building bye-laws.
This Court in
Commissioner of Municipal Corporation, Shimla v. Prem Lata Sood and Others,
[(2007) 11 SCC 40] stated:
cannot be any doubt whatsoever that an owner of a property is entitled to enjoy
his property and all the rights pertaining thereto. The provisions contained in
a statute like the 1994 Act and the building bye-laws framed thereunder,
however, provide for regulation in relation to the exercise and use of such
right of an owner of a property. Such a regulatory statute must be held to be
reasonable as the same is enacted in public interest. Although a deeming
provision has been provided in sub-section (1) of Section 247 of the 1994 Act,
the same will have restricted operation.
In terms of the said
provision, the period of sixty days cannot be counted from the date of the
original application, when the building plans had been returned to the
applicant for necessary clarification and/or compliance with the objections
raised therein. If no sanction can be granted, when the building plan is not in
conformity with the building bye-laws or has been made in contravention of the
provisions of the Act or the 16 laws, in our opinion, the restriction would
not apply despite the deeming provision."
will proceed on the basis that a deemed sanction would amount to an order
granting sanction of a building plan. However, the jurisdiction of the District
Judge can be invoked if a building is erected or re-erected in contravention of
any town planning scheme or building bye-laws.
of a neigh bourer is also a valuable right. He, in the event a building plan
has wrongly been sanctioned, is entitled to file an appropriate application
before the District Court for an injunction for removal or alteration of any
building plan on the premise that the same was in contravention of any provisions
of the Act or bye-laws made there under.
core question which, thus, arises for our consideration is as to whether the
jurisdiction of the District Court in this behalf is limited.
Court indisputably has all incidental powers so as to enable it to proceed in
accordance with law. It is, however, difficult to conceive that its
jurisdiction is plenary in nature. The jurisdiction of the civil court in terms
of Section 287 of the Act is barred. If the contention that the District Judge
has all the powers, whether incidental or supplemental, as has been 17
advanced by Mr. Rao is correct, it is difficult to comprehend as to why the
legislature has barred the jurisdiction of the civil court. Keeping in view the
nature of jurisdiction conferred upon the District Judge as also in view of the
fact that the Civil Court's jurisdiction has been excluded in determining the
said question, we have no other option but to hold that the jurisdiction of the
District Judge is limited. If a jurisdiction is confined to grant of mandatory
injunction, the court may in a given case also exercise its power to pass
prohibitory injunction. We would also assume that if an order of injunction can
be passed in favour of the applicant, in a given case, it may be passed in favour
of the non-applicant also. But, such a power must be exercised whether in
favour of the applicant or non-applicant, having regard to the scope of the
limited jurisdiction to be exercised by the District Judge in terms of Section
286(5) of the Act. It is, therefore, difficult to comprehend that it has an
implied power to grant mandatory injunction and that too suo motu.
have noticed heretobefore that the matter was heard and judgment was reserved
by the learned District Judge. Respondent No. 2 did not file any application
for a direction upon respondent No. 1 to consider his application for grant of
sanction of the building plan. The learned Judge 18 passed the order suo motu.
It is one thing to say that it was done with a view to enable him to pass an
appropriate order for the purpose of finding out as to whether the building
plan conformed to the building bye-laws or not, but the court cannot shut its
eyes to the fact that respondent No. 1 found the said plan to be defective and
returned the same to the respondent No. 2 for curing the defects.
are, however, not oblivious of the fact that whereas respondent No. 2 filed an
application for grant of building plan on or about 10.11.1981 the same was
returned in August, 1983. It appears from the records that respondent No. 2
started constructions upon demolition of the old structure in July, 1983.
is one thing to say that the learned District Judge could direct respondent No.
1 to point out as to the provisions of the building bye-laws which are said to
have been violated so as to consider the merit of the application filed by
appellant but it would be another thing to say that it had the jurisdiction to
direct it to reconsider the matter of granting sanction of building plan
without the defect pointed out by it rectified.
We may, furthermore
assume that even that was within the purview of the jurisdiction of the learned
District Judge. For the said purpose, we may notice the nature of implied
power, which the civil court is entitled to exercise. An implied power on the
part of civil court is conceived of having regard to the interest of the
parties, as for example, power to admit appeal includes power to stay [See
Income Tax Officer, Cannanore v. M.K. Mohammed Kunhi AIR 1969 SC 430] or power
to grant maintenance includes power to grant interim maintenance [See Savitri
w/o Govind Singh Rawat v. Govind Singh Rawat [(1985) 4 SCC 337], but we should
not also be unmindful of the fact that the power to grant injunction is a
special power which may be found to be absent in certain jurisdictions, as for
example, the provisions of the Consumer Protection Act [See Morgan Stanley
Mutual Fund v. Kartick Das (1994) 4 SCC 225]
however assuming that the court has the implied power to grant injunction and
that too mandatory in nature de'hors the provisions of Section 286(5) of the
Act, certain principles therefor must be borne in mind.
We may, in this
regard, only notice the legal principles as enunciated by this Court, from time
to time in this behalf.
20 In Metro Marins
v. Bonus Watch Co. (P) Ltd. [(2004) 7 SCC 478], this Court held:
considered the arguments of the learned counsel for the parties and having
perused the documents produced, we are satisfied that the impugned order of the
appellate court cannot be sustained either on facts or in law. As noticed by
this Court, in Dorab Cawasji Warden v. Coomi Sorab Warden it has held that an
interim mandatory injunction can be granted only in exceptional cases coming
within the exceptions noticed in the said judgment. In our opinion, the case of
the respondent herein does not come under any one of those exceptions and even
on facts it is not such a case which calls for the issuance of an interim
mandatory injunction directing the possession being handed over to the
As observed by the
learned Single Judge the issue whether the plaintiff is entitled to possession
is yet to be decided in the trial court and granting of any interim order
directing handing over of possession would only mean decreeing the suit even
before trial. Once the possession of the appellant either directly or through
his agent (caretaker) is admitted then the fact that the appellant is not using
the said property for commercial purpose or not using the same for any beneficial
purpose or the appellant has to pay huge amount by way of damages in the event
of he losing the case or the fact that the litigation between the parties is a
luxury litigation are all facts which are irrelevant for changing the status
quo in regard to possession during the pendency of the suit."
21 [See also
Divisional Forest Officer v. M. Ramalinga Reddy, (2007) 9 SCC 286] In Tanusree
Basu v. Ishani Prasad Basu [(2008) 4 SCC 791], this Court held:
"16. It is now a
well-settled principle of law that Order 39 Rule 1 of the Code of Civil
Procedure (Code) is not the sole repository of the power of the court to grant
injunction. Section 151 of the Code confers power upon the court to grant
injunction if the matter is not covered by Rules 1 and 2 of Order 39 of the
this aspect of the matter has not been considered by the High Court. So far as
the submission of Mr. Rao that the questions raised by appellant have become
academic in view of the fact that the order granting sanction was not
challenged, is concerned, suffice it to point out that in a case of this
nature, appellant was entitled to take recourse to the doctrine of `dependant
order'. If the order granting mandatory injunction is to be found illegal and
without jurisdiction, any order of sanction passed by the statutory authority
may also be held to be illegal.
22 In G. Ramegowda,
Major and Others v. Special Land Acquisition Officer, Bangalore [(1988) 2 SCC
142], this Court held:
"10. We might,
perhaps, deal with the latter submission of Shri Veerappa first. The fact that
the main appeals are themselves, in the meanwhile, disposed of finally on the
merits by the High Court would not by itself detract from and bar the
consideration of the correctness of the order condoning the delays. This is an
instance of what are called "dependent orders" and if the order
excusing the delays is itself set aside in these appeals, the further exercise,
made in the meanwhile, by the High Court finally disposing of the appeals,
would be rendered nugatory. The submission of Shri Veerappa is, therefore,
are, however, not oblivious that the said proposition of law is not absolute,
as has been noticed by a Division Bench of this Court in Ajay Bansal v. Anup
Mehta [(2007) 2 SCC 275], wherein it was held:
"14. A decree
passed subsequent to the refusal of leave to defend could either be under Order
37 Rule 3(6) of the Code or it could be based on the affidavit evidence on the
side of the plaintiff and the documents produced or even based on oral evidence
formally proving, say, the execution of a promissory note by the defendant. It
may not be proper or necessary to apply the theory of "dependent
order" in such circumstances. For one, 23 the theory may not apply. Even
if this Court were to set aside the order of the court below and give the
defendant leave to defend the suit, the decree that is passed may not go
automatically. It may have to be set aside. Secondly, the defendant can always go
to the court which passed the decree and move under Rule 4 of Order 37 of the
Code to reopen the decree."
therefore, must be applied having regard to the fact situation obtaining in
the Division Bench of the High Court in the intra-court appeal did not consider
any of the contentions of the parties and proceeded to dispose of the same on a
wrong premise that the court of the District Judge had the jurisdiction to pass
such an order, we are of the opinion that the impugned judgment cannot be
sustained and is set aside accordingly. The matter is remitted to the learned
District Judge for consideration of the matter afresh on the merit of the
original application filed by appellant in accordance with law, albeit keeping
in view the subsequent events and also necessity, if any, to adjust the
equities between the parties.
appeals are allowed with costs to be payable by the respondent No. 2. Counsel's
fee assessed at Rs. 25,000/-.
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