1 WP-3416-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Mhi WRIT PETITION NO. 3416 OF 2010 1. Dinesh Shamlal Chandanani ) Age 28 years ) 2. Dilip Hemumal Chandanani ) 3. Ashok Satavmal Chandnani ) 4. Umesh Ashok Chandanani, ) 5. Smt. Anju Shamlal Chandanani ) 6. Smt. Manju Ashok Chandanani, ) All carrying on business from ) "Selection" Nandivihar Building, ) Netaji Subhash Road, Thane. ).. Petitioners Vs. 1. Shri Uttamchand K. Jain, ) Adult, Occupation-Business, ) R/at Flat no. "B" C-4, 1st floor, ) Vikas Palms, Dr. Ambedkar Road, ) Thane West. ) 2. Thane Municipal Corporation, ) having its office at ) Mahanagarpalika Bhavan, ) Dr. Almeida Road, Chandanwadi, ) Panchpakhadi, Thane (West) 400 602. )..Respondents Mr. Ajeet A. Manwani, Advocate, for the petitioners. Mr.Sandesh D. Patil,Advocate for the respondent No.1. Shri A.R.Pitale, Advocate, or respondent No.2. 2 WP-3416-10.sxw CORAM: J.H.BHATIA,J. DATE : 12th October, 2010. JUDGMENT: 1. Rule. Rule made returnable forthwith. Heard the learned Counsel for the parties. 2. To state in brief, the respondent No.1 in the petition is the original plaintiff in Special Civil Suit No.657/2008. According to him, the defendant Nos. 1 to 6, who are the petitioners before this Court, were making unauthroised and illegal additions, construction and demolition, etc. of the building in dispute and they had also broken a slab of the first floor while carrying out such additions and alterations. The defendant Nos. 1 to 6 denied all the allegations. According to them, they are the owners of the building. They had already filed Regular Civil Suit No.396/2007 for eviction and possession against Smt. Dakubai Shrishrimal, who was tenant of the property in the said premises. At about the same time, said tenant inducted the respondent No.1/plaintiff in the said premises illegally without obtaining permission of the landlord and in view of the suit for eviction filed by the landlord earlier, the plaintiff/respondent No.1 filed Special Civil Suit No. 657/2008. 3 WP-3416-10.sxw 3. After hearing the parties, the trial Court passed the impugned order which is as follows :- "1. The application at Ex-5 is partly allowed. 2. The defendants no. 1 to 6 are hereby temporarily restrained by themselves or their servants, agents etc. from continuing with the work of unauthorised and illegal alterations, constructions, demolition, etc. and conducting any commercial activities in the suit premises i.e. blocks situated on first floor unauthroizedly till the decision of the suit." This order was challenged in Misc. Civil Appeal No.172 of 2008 before the District Court, Thane. The appeal was dismissed and hence this petition. 4. On Perusal of the impugned order, it appears that it contains two parts. In the first part, the defendants are restrained from continuing the work of unauthorised and illegal alterations, constructions and demolition. Second part is to restrain them from conducting any commercial activities in the suit premises i.e. block situated on the first floor unauthorizedly till the decision of the suit. After perusal of the impugned order, photographs and other material, I do not intend to interfere in the first part of the order. However, I do 4 WP-3416-10.sxw not see any justification in granting the temporary injunction in respect of the second part. The plaintiff is the owners of the property and according to him, the said building was constructed in the year 1948. On the previous date, this Court had directed him to produce the copy of the sanctioned plan. Today, he has produced photocopy of the sanctioned plan, which appears to have been issued by Borough Municipality, Thane long before the Municipal Corporation Than e was constituted. The Municipal Corporation has not produced any document. Therefore, at this stage, it cannot be concluded that the construction is illegal. It appears that the plaintiff had approached the Municipal Corporation seeking certain information under the Right to Information Act in respect of user of certain premises on the ground floor and at the first floor and the Municipal Corporation allegedly informed the plaintiff that there was no document to show that permission was granted for commercial user of the first floor of the building. As the building was constructed sometime in 1948 and the Plan was sanctioned by the Borough Municipality, merely because under the Right to Information Act, the present Municipal Corporation has informed that they have not given permission for use of the first floor for commercial purpose, it cannot be concluded that the use of 5 WP-3416-10.sxw the first floor for commercial purposes unlawful or unauthorised. 5. Secondly, the plaintiff himself was inducted in a portion of the ground floor premises for the first time in the year 2007 as admitted by the learned Counsel for the plaintiff/respondent No.1 before this Court after taking instructions from his client. Admittedly, the plaintiff was not inducted as a tenant or licensee by the petitiooners who are owners of the building. According to the learned Counsel for the plaintiff, he was inducted by two of the co-owners and the earlier tenant, against whom a suit for eviction was already pending. It is seriously doubtful if a person, who is inducted in a portion of the ground floor of the building, could ask the Court to restrain the landlord from using part of the property for commercial purpose. If commercial user of any portion of the property, and particularly, the first floor is illegal or unauthroised, the Municipal Corporation is competent to take action, but certainly in the given circumstances, it will not be desirable for the Court to grant any temporary injunction against the landlord and that too at the behest of the plaintiff, who himself comes in the picture in 2007 for the first time and legality of whose induction in the premises is in question. 6 WP-3416-10.sxw For the aforesaid reasons, the Writ Petition deserves to be allowed in respect of second part of the above referred impugned order. 6. For the aforesaid reasons, the Petition is partly allowed. The part of the impugned order, which reads "and conducting any commercial activities in the suit premises i.e. blocks situated on first floor unauthroizedly till the decision of the suit." shall be deleted from the said order. The trial Court shall expedite the hearing of the suit and dispose of the same as early as possible. 7. At this stage, the learned Counsel for the respondent No. 1/plaintiff makes a request to stay this order for eight weeks. Request refused. (J.H.BHATIA,J.)