((-1-)) IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.5179 OF 2005 The Pune Municipal Corporation Petitioner through Municipal Commissioner versus Bhavarlal Badrinarayan Phpphaliya Respondent Shri R.G.Ketkar for petitioner. Shri A.V.Anturkar with Vilas B. Topkir for respondent. CORAM : S.C.DHARMADHIKARI, J. DATE OF RESERVING THE JUDGEMENT : 03.02.2006 DATE OF PRONOUNCING THE JUDGEMENT : 28.04.2006 JUDGEMENT : 1. Rule. Respondent waives service. Heard forth with by consent. 2. By this petition under Article 227 of Constitution of India the petitioner Municipal Corporation of City of Pune (for short "PMC") challenges the judgement and order dated 11th April 2005 delivered by 9th Ad-hoc Additional ((-2-)) District Judge, Pune in Miscellaneous Civil Appeal No.997 of 2005. This appeal was filed by the petitioner herein to challenge a judgement and order dated 25th February 2005 delivered by learned Joint Civil Judge, Junior Division, in Regular Civil Suit No.1973 of 2004 (for short "RCS No.1973 of 2004"). 3. RCS No.1973 of 2004 was filed by the respondent-original plaintiff against the petitioner for a declaration that notice bearing No.1183, dated 18th December 2004 issued by the Assistant Engineer, Building Department of the petitioner is illegal, null, void and not in accordance with the Bombay Provincial Municipal Corporation Act,1949 (for short "BPMC Act"). In pursuance of this declaration, respondent sought to restrain permanently the petitioner, it’s agents, servants, employees or any other person acting through them from demolishing the suit premises. 4. The case of the respondent is that suit property described in paragraph 1 of the plaint is subject matter of the notice. According to the respondent, his father Badrinarayan Phophalia was a Lessee in respect of a shop situate on ((-3-)) Final Plot No.56 (Plot No.28) commonly known as Bhaiyyawadi, Mumbai-Pune Road, Pune. It is the respondent’s case that Pune Municipal Corporation (for short "PMC") decided to widen the Mumbai-Pune Road. The shop of his father was affected by proposed road widening. Accordingly, concerned authorities requested his father to co-operate with them by surrendering his shop. The father of respondent surrendered the shop owned by him without accepting any sort of compensation whatsoever. 5. After the said surrender, the Additional Commissioner, PMC was pleased to issue letter dated 28th December 1990 allotting an area admeasuring 20x10 feet near Hotel Manali to the respondent’s father for the purpose of setting up a Grocery Shop. However, some conditions are imposed in the letter of allotment issued in favour of the father of respondent. 6. An agreement was entered into by respondent’s father and the Additional Commissioner of PMC.. The Agreement was of lease is dated 16th May 1996. It was subsequently registered with the Sub Registrar, Haveli. The lease agreement was for a period of 99 years commencing from the date ((-4-)) of allotment of alternate permanent land i.e. from 7th January 1994. 7. Upon an affidavit executed by the father of respondent on 13th January 1999, PMC transferred said shop in favour of the present respondent and now his name is entered in all records. On 4th July 2000 an agreement was entered into between respondent and PMC regarding the suit property. 8. After setting out the terms and conditions of the agreement as also permissions granted to the structure constructed on the suit property, in the plaint, it is contended by the respondent that the structure is duly sanctioned by PMC. 9. It is the case of the respondent that he is carrying on business in the said shop of selling Grocery Articles in the name "Majisa Market". 10. Paragraphs 9 to 11 of the plaint are relevant for the purposes of present petition and are reproduced hereinbelow :- "9) The plaintiff submits that the plaintiff had erected a temporary shed by way of protection from the sun light and rain, admeasuring 20’ by 4’ and a ((-5-)) temporary wall admeasuring 10 ft. long and 3’ in height so as to protect the visitors from falling into the nallah, in front of the aforesaid shop. The Assistant Engineer issued a notice bearing No.0001160 on 10/12/2004 and directed the plaintiff to remove the aforesaid temporary shed and wall in front of the said shop. The plaintiff on the receipt of the aforesaid notice immediately removed the aforesaid temporary structures in front of the said shop on 11/12/2004. 10) the plaintiff further submits that on 18/12/2004 at about 12 p.m. in the afternoon two officers by name Shri Bashone from Vikas Yojna Department and Shri Thopate from building department visited the suit property. They carried out some measurements. After carrying out some measurements they informed the plaintiff that the suit property or the entire shop of the plaintiff was coming under the road widening line and therefore, it will have to be demolished. The plaintiff was shocked and surprised by such information. Therefore, he immediately visited the Bhumi Jindagi and Building Department of the Defendant Corporation and tried to bring the facts to the notice of the concerned officers. However, the concerned officers gave evasive replies to the plaintiff. 11) The plaintiff was under tension and he came back to his shop on the suit property at about 4.45 p.m. Thereafter the plaintiff was shocked to receive a notice bearing No.0001183 dated 18/12/2004 at 5.30 p.m. on 18/12/2004. By virtue of the aforesaid notice the defendant corporation stated that the entire shop of the plaintiff admeasuring 20’ by 10’ that is totally 200’ along with the shed of 20’ by 4’ and wall of 10’ long and 3’ height was illegal and the same was coming under the road widening line of the Pune Mumbai Road. The defendant Corporation further directed the plaintiff to remove the entire construction mentioned in the notice with immediate effect. The ((-6-)) defendant corporation further directed the plaintiff to remove the entire construction mentioned in the notice with immediate effect. The defendant corporation further threatened that if the plaintiff failed to do so, the corporation shall demolish it and shall charge the expenses incurred thereon from the plaintiff." 11. In the light of the above averments it is contended that the respondent is unable to appreciate the stand of PMC declaring the construction duly sanctioned by it to be illegal. He submits that PMC is estopped from taking such a stand. He submits that all licenses have also been issued and/or renewed and he is paying taxes regularly. He submits that the grocery shop is his source of livelihood. 12. In these circumstances, if the PMC acts upon the notice, grave loss, irreparable harm and injury will be caused to the respondent and which is incapable of being compensated in money. Thereafter, in paragraph 18 of the plaint this is what is stated :- "18. The plaintiffs apprehend that the Defendant’s officers might take a drastic step and enter into the premises and might demolish the entire structure and therefore the plaintiff is constrained to file the present suit. The plaintiff ((-7-)) submits that the cause of action for filing this present suit firstly arose on 18/12/2004 when the defendant issued a notice bearing 0001183 to the plaintiff. The cause of action continues to arise day to day and hence the suit filed is well within limitation." The above is the basis for the suit. 13. An application for interim injunction was made in the above suit claiming following interim orders/reliefs :- A) That during the pendency of this suit the defendants its agents, servants, employees or any other person or agency claiming through them may kindly be restrained by an order of temporary injunction from demolishing the suit premises as per the notice dated 18/12/2004 bearing No.0001183. B) Ad-interim reliefs in respect of prayer clause no.(a) may kindly be granted. C) Any other order just and proper in the interest of justice may kindly be passed." 14. The averments to support this application read thus :- 9) The Plaintiffs submit that they have carried out the work in accordance with the sanction plan of the Pune Municipal Corporation and he has not violated the ((-8-)) road widening line as alleged by the Defendant Corporation. The entire structure of the shop has been constructed as per the sanction plan and as per the terms and conditions given in the commencement certificate issued by the Defendant Corporation. Despite this fact, the Defendant and its office bearers are threatening to demolish the entire suit premises. The Plaintiffs submit that if the Defendant Corporation succeeds in doing so, the Plaintiffs may suffer irreparable loss, which cannot be compensated in the terms of money. The bread and butter and in other words the survival of the plaintiff and his entire family is dependent upon the shop. As such the plaintiff has a strong prima facie case and the balance of convenience lies in favour of the plaintiff. The plaintiff, having a strong prima facie case is likely to succeed on merits. In the mean time if the defendant corporation succeeds in its illegal attempts of demolishing the suit property the very purpose of filing of this suit will become infructuous. The plaintiff therefore is constrained to file the present application praying for interim as well as ad-interim injunction." 15. The petitioner Corporation filed a reply/ written statement and raising challenge to the jurisdiction of the Trial Court also contended that the suit structure is coming in road widening area of proposed 42 meter Mumbai-Pune road and in order to avoid danger on account of accidents, it was absolutely necessary to demolish the structure. It is contended that even assuming that the permission was granted to the plaintiff for construction still the said ((-9-)) construction was subsequently found to be infringing the proposed road widening line of 42 mts. of Bombay Pune Road and in the interest of public and for their convenience action was taken by the defendant Corporation on 20 Dec. 2004 before 12 noon and the present suit was filed subsequently and the orders were not within the knowledge of the present defendant when action of demolition was taken. The present suit has become infructuous as a result of demolition and hence the plaintiff is not entitled to claim any relief as prayed for in the suit. It is at this stage that the respondent files an application Exhibit-18 (Page 172 of the compilation) for restoration of status-quo ante. This application is filed on 6th January 2005. An order was passed on this application on the very day i.e. 6th January 2005 directing petitioner to file say. It appears that no reply/say was filed by the petitioner to this application till 1st February 2005 and hence the Trial Court held that the hearing on this application will proceed without any reply by the PMC.. 16. The application Exhibit-18 has averments from paras 2 to 10 indicating that the structure was substantially demolished on 20th December ((-10-)) 2004. The Trial Court took up applications Exhibits 5 and 18 and delivered it’s order on 25th May 2005. The Trial Court has recorded that respondent-plaintiff has made out a prima facie case, balance of convenience lies in his favour and he will suffer irreparable loss. It is pertinent to note that while framing the points and rendering findings, the Trial Court framed following point :- "4) Whether the plaintiff is entitled to restore suit shop in the form of status-quo ante as on the date of filing of the suit?" The finding on this point no.4 is in the affirmative. 17. The reasons for abovementioned finding are set out in paragraph 23 of the order of Trial Court. According to the Trial Court, the suit shop was demolished on 20th December 2004. According to the Trial Court, the Corporation demolished the structure/suit property when status-quo was in existence. The Trial Court refers to a complaint made to the local Police Chowky. It is in these circumstances that the Trial Court considers respondent-plaintiff’s ((-11-)) prayer for mandatory injunction. It proceeds on the basis that the shop is the source of livelihood and respondent-plaintiff having been deprived of the same, restoring status-quo ante would meet the ends of justice. The order of Trial Court reads as under :- "ORDER 1) The application Exh.5 is allowed. 2) The defendant Corporation is hereby temporarily restrained to act on the suit notice dated 18/12/2004 bearing No.0001183 till disposal of the suit. 3) Application Exhibit 18 is allowed. 4) The defendant Corporation is hereby directed in the order of temporary mandatory injunction to restore the suit shop i.e. to reconstruct the suit shop in terms of building permission issued by the Corporation under Commencement Certificate No.198 dated 11/03/1994 along with the furniture, fixture, fitting and stock in trade and articles and things mentioned in the schedule at its costs on or before 31/03/2005 and report it to the court. 5) The plaintiff is hereby directed to give undertaking that he will reimburse the cost to be incurred by the Corporation for compliance of the above order if he failed in the suit. 6) Undertaking shall be given in the proceeding under the copy to the defendant Corporation. 7) Costs in cause." ((-12-)) 18. Petitioner aggrieved by this order preferred Miscellaneous Civil Appeal and in the memo of appeal one of the grounds which the petitioner Corporation raises is that the learned Trial Court should not have granted status-quo ante. 19. The Lower Appellate Court heard this appeal and on 11th April 2005 dismissed the same. The finding of Lower Appellate Court at paragraph 14 is that inspite of service of notice and summons on 20th December 2004 at about 10.30 a.m., on the same day, at about 12.00 noon, the petitioner started demolishing the suit structure. Thus, according to the Lower Appellate Court this action is high handed and lacks bona fides. The order proceeds on the basis that the Trial Court’s direction of status-quo is ignored and structure has been demolished by the petitioners. In the light of this conclusion at paragraph 16, the Lower Appellate Court, after observing that the suit shop was standing on the date of suit and before service of summons to petitioner, faulted the action of it’s alleged demolition. Thus, the Trial Court’s order was upheld and the appeal was dismissed. 20. The present petition is filed challenging ((-13-)) these orders. 21. At this stage it is material to note one development namely that the respondent-plaintiff presented an application Exhibit-20 invoking Trial Court’s power under Order XXXIX, Rule 2A of the CPC.. Respondent is praying that the Trial Court should take action against the petitioners for disobeying the orders and directions passed by it and attaching the Corporation building situate at Shivaji Nagar, Pune 411 005 and all movables lying in the office/chamber of the Municipal Commissioner in the Corporation building including the table, chair of the Municipal Commissioner and all other furniture, fixtures, etc. lying in the said office of the Municipal Commissioner, and thereafter selling the same and from such sale proceeds compensate the respondent- plaintiff. So also, the officers of petitioner be detained in the civil prisons. The above application is filed on 6th January 2005. Thereafter another application was presented on the same day (Exhibit-21) invoking Trial Court’s power under Order XXXIX, Rule 11 of the CPC praying that defence of the petitioner-defendant be struck off and the suit should proceed further in accordance with law. I ((-14-)) am informed that these applications are pending. 22. When this writ petition appeared for admission before this Court, after hearing learned counsel for the petitioner and the respondent this Court passed following order (Coram : S.A.Bobde, J.) : "Mr.Ketkar, learned counsel for the petitioner undertakes to serve the caveator. In the mean while, the Executing Court shall not proceed for a period of two weeks. S.O. two weeks." This ad-interim order has been continued from time to time. 23. Thereafter, a without prejudice proposal was made on behalf of petitioner to the respondent stating that an area admeasuring 400 sq.ft. would be provided to the petitioner. That proposal was later on found to be acceptable. When this matter once again appeared in October 2005 an order by consent was passed in following terms (Coram : S.A.Bobde, J) :- ((-15-)) "Heard Mr.R.G.Ketkar, learned counsel for the petitioners and Mr.A.V.Anturkar for the Respondent. Following order is passed by consent:- The Municipal Corporation may proceed with the construction over the disputed area and shall complete the construction as expeditiously as possible and in any case, not later than 30th December, 2005. S.O. 2nd January 2006." Thereafter, an affidavit has been filed by the petitioners to the effect that construction of shop premises admeasuring 200 sq.ft. would be made for the respondent. Paras III and IV of the affidavit of 27th January 2006 filed by the petitioner read thus:- III. I say that pursuant to the Order passed by this Hon’ble Court, the P.M.C. invited the Tenders for construction of 200 sq.ft. shop of the Respondent along with construction of slab on nalla. The tenders were accepted by the Additional Municipal Commissioner (Special) of the P.M.C. and the Work Order is issued on 27.1.2006 Order No.53/6. As directed by this Hon’ble Court, I am enclosing herewith the plan of proposed construction of 200 sq.ft. shop for the Respondents. Annexed hereto and marked as Exhibit "2" is the copy of the said plan. I say that the Respondent’s shop will have the necessary frontage. IV. I further say that the construction of the aforesaid shop will be completed by the P.M.C. within two months from today. I say that perusal of plan at ((-16-)) Exhibit "2" will displace the apprehension of the Respondent having regard to its height above the drainage line as also as the proposed construction is away from the manhole. I crave liberty to this Hon’ble Court to make appropriate submissions at the time of hearing of the above writ petition." This proposal on affidavit does not appear to be acceptable to the respondent because he has filed a rejoinder affidavit dated 29th January 2006. Paras 3, 4 and 10 of this affidavit read thus :- "3. I say that, the proposed alternative site which is sought to be given to me, by the Municipal Corporation if shop is constructed it will be on the Nala and I will be pushed back by a distance of 10 ft. from the original place which was allotted to me. 4. I say that, in that eventuality, I will not get the opening frontage on the road, because it will not be under the control, even of the Municipal Corporation also, to stop the portion in between the road and the new alternative site, which is offered to me, which is a portion of 10 ft. being encroached upon by the other persons. In that eventuality, my shop is bound to be adversely affected. 10. I say that, the whole object of pushing me back by 10 ft. from the main road, is for the purpose of somehow justifying the high handed action, which has been taken by the Municipal Corporation. I say that, if the Municipal Corporation would have come fairly with the case that, it has actually committed a mistake by demolishing my shop and would have prayed for the help of this Hon’ble Court, then ((-17-)) a lenient view from this Hon’ble Court could have been prayed for. However, the Municipal Corporation is coming with the stand in the Affidavit, that they were justified in demolishing my shop then, the question as to whether my shop was really coming in the road line or not, is to be seen and the proposal which has been given by the Municipal Corporation, is therefore not acceptable to me and I pray that the matter may be heard on merit." With regard to certain allegations about other construction/structure, the petitioner filed a further affidavit in this Court and denied the allegations. In any event, it is contended by the petitioner Corporation that with regard to the construction mentioned in the affidavit dated 29th January 2006 action is being taken by issuing notices and the PMC will follow due process of law and ensure that road widening line prescribed for Mumbai-Pune Road (Engineering College Chowk, Mariaai Gate) in the revised Development Plan sanctioned on 5th January 1987 is maintained after taking possession of the structures that are constructed with the permission of PMC, by following due process of law. 24. Since the proposal of the petitioner is not acceptable to the respondent, I have proceeded to ((-18-)) hear the parties on merits. 25. At the outset Shri Ketkar - learned counsel appearing for the petitioner submits that the petitioner is still agreeable to provide accommodation as per the affidavit filed in this Court and statement made in that behalf. However, in his submission, the order under challenge granting status-quo ante is ex-facie bad in law. It is vitiated by serious error apparent on the face of record. In his submission, grant of such an order is an exception and not a rule. Such order cannot be passed as a matter of course. Such order has drastic consequences inasmuch as the suit virtually stands decreed by mandatory order and injunction. Such order to be passed at the interlocutory stage, must be justified by strong prima facie case and irreparable loss and injury which cannot be compensated in money at all. He relies upon decisions of Supreme Court and this Court emphasising this aspect. 26. That apart, according to Shri Ketkar, the impugned order proceeds on a total misconception of facts. He submits that the basis upon which the Courts below have proceeded, is that despite ((-19-)) being intimated by the respondent about passing of an status-quo order, the PMC proceeded to demolish the suit structure. He was at pains in pointing out that demolition had begun before plaint and proceedings were served and neither is there breach or violation of order of status-quo nor the action of the PMC can be termed as illegal. 27. Shri Ketkar has invited my attention to the averments in the application wherein respondent states that the Trial Court was pleased to issue notice on the application (Exhibit-5) and posted the matter on 20th December 2004. Notice of said application at Exhibit-5 and suit summons were immediately served on 20th December 2004. It is pointed out that this notice was served at about 10.30 a.m. and till the service of suit summons and notice, the shop was in existence. 28. Shri Ketkar submits that this is not the factual position at all. He submits that the say was filed and the contention raised therein is to the following effect :- ... ... ... ((-20-)) 5. That the order below Ex.5 purporting to be the order of status quo was not received through court but the advocate for plaintiff vide letter dt. 20 Dec. 2004 informed the Commissioner of Pune Municipal Corporation that the court directed the status quo in respect of the suit property till 23rd Dec. 2004. The said letter was received by the Reception Counter of the Municipal Commissioner on 21 Dec. 2004 vide Inward No.201-3582 and the same was forwarded to the Legal Department of the Corporation on 22 Dec. 2004 vide Inward No. MP/IN/4322 and the same was received by Building Control Department on 23 Dec. 04 under Inward No.10379 and the action of demolition of the structure coming in the road widening line was removed by 12 p.m. The action was started in the morning of 20 Dec. 2004 and the same was completed by afternoon and thus, the whole process of demolition was completed before the order of status quo and thus it is wrong to allege that the officers of the Corporation committed breach of the order of Court. In fact, at the time of action there was neither injunction order nor order of status quo and hence the present application is not maintainable and deserves to be dismissed with compensatory cost. In