1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.128 OF 2009 . WITH CIVIL APPLICATION NO. 147 OF 2009. Durga Mohan Co-operative Housing Society Ltd. : Appellants. Versus The Bombay Municipal Corporation & Anr. : Respondents. Shri.Sharan Jagtiani along with Mr.Vijay Dhingreja i/by Mr.Yogendra M Kanchan for the Appellants. Smt. K K Soraan for the Respondent No.1-BMC Shri Dinyar Madon, Senior Counsel, i/by Khatri Legal Venture for the Respondent No.2. CORAM : R.M.SAVANT, J. DATED : JANUARY 27, 2009 P.C. 1. The above Appeal from Order takes exception to the Order dated 15th January 2009 passed by the learned 5th Ad-hoc District Judge and Additional Sessions Judge, City Civil Court, Dindoshi, Mumbai by which order the Motion filed by the Appellants/Plaintiffs came to be dismissed. 2 2. The Plaintiffs have filed Long Cause Suit No.1517/2008 seeking a declaration that the hoarding structure put up on the Plaintiffs' society's lower terrace premises by the Defendant No.2 is unauthorized, illegal and to be removed immediately. The Plaintiffs also sought a mandatory order and injunction directing the Defendant No.2 from further covering the illegal hoarding structure with vinyl sheets or any other material. In the said suit, the Plaintiffs filed Notice of Motion which was numbered as Exh.2 inter alia seeking a relief that the Defendant No.1 be directed to remove the hoarding structure put up on the lower terrace premises and further restrain the Defendant No.2 from covering the hoarding structure with vinyl sheets. 3. It is the case of the Plaintiffs that they are the Co-operative Housing Society registered under the Maharashtra Co-operative Societies Act, 1960. It is further the case of the Plaintiffs that about 10-12 years back the Defendant No.2 started occupying the shop premises and started their business of selling shoes. It is the case of the Plaintiffs that the Defendant No.2 is not its member and right from 3 the inception the Defendant No.2 has caused lot of harassment and inconvenience to its members. It is further the case of the Plaintiffs that the Defendant No.2 has illegally and unauthorizedly erected the hoarding structure on the private lower terrace premises without its permission and that he Defendant No.2 on 1st February, 2008 covered the entire hoarding structure extending in height till the second floor of its building with vinly sheets, thereby cutting off the ventilation and sunlight for the members occupying the first and second floor of its building. It is further the case of the Plaintiffs that the Defendant No.1, who is a statutory authority has granted a temporary license to the Defendant No.2 without following rules and regulations and therefore, the Plaintiff was constrained to file the instant suit along with the Notice of Motion. 4. The Defendant No.2 filed its reply to the said Motion. It is the case of the Defendant No.2 that it has been granted a license by the Defendant No.1 bearing No.761217547 and vinyl board is put up on the premises adjoining to shop No.7 much prior to the filing of the suit. It is the case of the Defendant No.2 that the ventilation is not 4 affected of the flats occupied by the various members and that the distance between the flats occupied on the first and second floor and the hoarding is about 20 feet which is sufficient for light and air. It is further the case of the Defendant No.2 that the said hoarding is erected on the premises owned by it and not on the premises of the Plaintiffs. According to the Defendant No.2, the structure on which the hoarding is erected is an independent structure and it has nothing to do with the Plaintiffs-Society. The case of the Defendant No.2 is that the hoarding is erected as per the permission granted by the Defendant No.1 and therefore, the Plaintiffs are disentitled to claim any relief against the Defendant No.2. 5. The Trial Court on the consideration of the material that was before it namely license issued by the Defendant No.1 in favour of the Plaintiffs as also assertion of the Defendant No.2 that the hoarding has been erected on its own structure which assertion has not been categorically dealt with by the Plaintiffs and also taking into consideration the fact that the distance between the hoarding and the flats on the first and second floor was 20 feet come to a conclusion 5 that the Plaintiffs have failed to prove a prima facie case and balance convenience and therefore, dismissed the Notice of Motion. 6. I have heard the learned counsel for the Appellants/Plaintiffs, the learned counsel for the Respondent No.1- Corporation and the learned senior counsel for the Respondent No.2- Defendant No.2. 7. It is contended on behalf of the Plaintiffs that the hoarding put up by the Defendant No.2 is illegal and unauthorized as it is not erected with the permission of the Plaintiffs as required by the guidelines of the Defendant No.1-Corporation. It is further contended that the hoarding is erected on the lower terrace of the Plaintiffs and, therefore, the permission of the Plaintiffs was necessary. It is further contended that in fact the licence to the Defendant No.2 should not have been issued by the Defendant No.1. The learned counsel for the Plaintiffs made an alternative submission that assuming that the Defendant No.2 is entitled to put up the hoarding, the same can only be to the extent permissible as per the licence granted by the 6 Defendant No.1-Corporation. 8. The learned senior counsel on behalf of the Defendant No.2 submitted that in so far as alternative prayer is concerned, there are no pleadings to that effect. The learned senior counsel drew my attention to the prayer clauses in the plaint and submitted that the said prayers disclose that the Plaintiffs have sought a mandatory order of removal of the hoarding and the alternative prayer which is sought to be made now does not find place in the prayer clauses. As regards the case of the Plaintiffs that the hoarding is unauthorized, the learned senior counsel for the Defendant No.2 submitted that the hoarding has been put up with the permission of the Defendant No.1 Corporation and in fact prior to the said hoarding which has been put up 10-12 years back, there was a neon sign at said spot. It is further submitted by the learned senior counsel for the Defendant No.2 that the hoarding is erected on the terrace of the structure owned by the Defendant No.2. The learned senior counsel submitted that except relying upon the licence granted by the Defendant No.1 Corporation wherein the site of the hoarding is mentioned at the address of the 7 Plaintiffs Society, there is no other material produced by the Plaintiffs in support of their case that the structure on which the hoarding is put up is of the ownership of the Plaintiffs. If the said structure was of the ownership of the Plaintiffs Society, the learned senior counsel for the Defendant No.2 submitted that it would have surely been reflected in the share certificate of the Plaintiffs Society. In so far as the grievance of the Plaintiffs Society as regards obstruction of light and air are concerned, the learned senior counsel for the Defendant No.2 submitted that the hoarding is 20 ft. away from the flats of the members of the Plaintiffs society which fact was also accepted by the learned counsel for the Plaintiffs when the matter was in the trial Court. Therefore, according to the learned senior counsel for the Defendant No.2, there is absolutely no obstruction as far as the light and air are concerned. The learned senior counsel for the Defendant No.2 relied upon the side photographs of the hoarding and the flats situated in the Plaintiffs Society, in support of his case that the distance is 20 ft from the said flats. 9. I have considered the rival contentions of the parties. In so 8 far as putting up the hoarding is concerned, it is an admitted fact that the Defendant No.2 has been issued Licence No.761217547 by the Defendant No.1 Corporation. The Defendant No.2 in terms of the said licence is entitled to put up a hoarding of the dimension mentioned in the said licence. In so far as the structure on which the hoarding is put up, the categorical case of the Defendant No.2 that the hoarding is on its own structure and not on the premises of the Plaintiffs society has not been dealt with. However, a submission is sought to be made that the structure on which the hoarding is put up is of the Plaintiffs based on the address mentioned in the licence. There is no material produced by the Plaintiffs in support of their case that the said structure is of the ownership of the Plaintiffs. 10. In the said circumstances, therefore, the finding of the trial Court that the case of the Plaintiffs that the hoarding is unauthorised and illegal falls to the ground cannot be faulted with. 11. In so far as obstruction of the light and air to the Plaintiffs members on the 1st and 2nd floors is concerned, in my view, considering the fact that the distance between the hoarding and the 9 flats on the 1st and 2nd floors is 20 ft and taking into consideration the photographs of the side view produced by the learned senior counsel for the Defendant No.2, the grievance of the Plaintiffs does not appear to have any substance. 12. In so far as grievance that the Defendant No.2 has created a nuisance, the trial Court has rightly held that the nuisance will have to be proved by evidence and merely because it is the Plaintiffs' case that the Defendant No.2 has created a nuisance, the right of the Defendant No.2 to put up a hoarding in accordance with the permission granted by the Defendant No.1 Corporation cannot be taken away. 13. A useful reference could be made to the judgment of the Apex Court in the matter of Dorab Cawasji Warden v/s Coomi Sorab Warden reported in AIR 1990 SC 867, para 14 of the said Judgment is relevant and is reproduced herein under :- “The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested 10 status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidelines. Generally stated these guidelines are :- (1) The Plaintiff has a strong case for trail. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction; (2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money. (3) The balance of convenience is in favour of the one seeking such relief.” 11 Therefore as per the guideline (1), the Plaintiffs should have a case of a higher standard than a prima facie case. It was the submission of the learned senior counsel for the Respondent No.2 that in the instant case the Plaintiffs have not satisfied the said test, inasmuch as in the instant case Plaintiffs have not been able to demonstrate that the hoarding is unauthorised or it is put up on the structure of the Plaintiffs-Society and, therefore, the refusal of the trial Court to grant the reliefs of the nature sought for, in my view, cannot be faulted with. 14. Having considered the impugned order and the reasons mentioned in para 6 thereof, the reasons cited by the trial Court for dismissing the said Notice of Motion call for no interference. Hence the above Appeal from Order is accordingly dismissed. 15. In view of the dismissal of the above Appeal, the Civil Application No.147 of 2009 does not survive and the same is accordingly disposed of. [R.M.SAVANT, J]