ash 1 ao-109.10-oj IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION APPEAL FROM ORDER NO. 109 OF 2010 Municipal Corporation for Greater Mumbai. .. Appellant Vs Khakhar Apartment Co-op.Hsg. Society Ltd. .. Respondents -- Shri E.P. Bharucha, Sr. Counsel along with Shri Vinod Mahadik for the Appellant. Shri Chirag Shah h/f Shri M.M. Vashi for the Respondents. -- CORAM ; A.S. OKA, J DATED : 9TH JUNE, 2011 ORAL JUDGMENT : . The Appeal was finally heard on 4th May, 2011. The Appellant-Mumbai Municipal Corporation is the Original Defendant which has taken an exception to the judgment and order dated 4th January, 2010 passed by the learned Judge of the City Civil Court at Mumbai on a Notice of Motion for temporary injunction. By the impugned order, temporary injunction has been granted by the Trial Court. 2. The Respondent-Plaintiff is a registered Co-operative Housing Society. The Respondent is claiming to be in possession of a property. The case made out in the Plaint is that the developers of the ash 2 ao-109.10-oj property of the Respondent after obtaining permission constructed a building known as “Khakar Apartments” comprising “A” and “B” Wings which consists of ground plus 7 upper floors. In between the two Wings, bungalows have been constructed. It has been stated in the Plaint that the builders have provided a garden. It is stated that the builders have constructed another building known as “New Khakar Apartments” consisting of stilt plus 5 upper floors. It is stated that the builders also constructed a septic tank for two buildings and a water tank for the new building. It is stated that the compound wall has been erected which is shown in red colour on the sketch annexed to the Plaint. It stated that touching the compound wall on eastern and southern sides, there is a Nalla. It is stated that the purchasers of the flats in the building constructed by the builders have formed the Respondent – Society. 3. The challenge in the suit is to the notice dated 18th December, 2008 issued by the Deputy Municipal Commissioner of the Appellant-Corporation. The said notice is for widening of the Nalla which makes a reference to the fact that the Appellant is implementing the recommendations of Brimstowad as modified by Government in a larger public interest in terms of the directions issued by this Court in certain Writ Petitions. It is contended in the said notice that in exercise of powers under Section 222 of the Mumbai Municipal Corporation Act, ash 3 ao-109.10-oj 1888 ( hereinafter referred to as “the said Act”), the Appellant as a Planning Authority, intends to carry out the work of widening of the Nalla, as shown in the sketch annexed to the notice. The said sketch showed that the compound wall of the property of the Respondent was required to be demolished and certain portion of the land of the Respondent was required for widening of the Nalla. The material part of the notice reads thus:- “I therefore give you notice that the work of widening /deepening/training of nalla/ river as shown in the accompanying sketch will be executed immediately after seven days from the date of service of this notice, by removing obstructions like compound walls/ carriage entrances/ C.C. Pavements/drainage lines/ cultivations etc. without disturbing the main building if any and privacy. MCGM will reconstruct at its own cost the compound walls/carriage entrances/CC pavements/drainage lines which may be removed or damaged while carrying out aforesaid work. A plan of proposed work may be inspected in the office of Deputy Chief Engineer (Storm Water Drains) Western Suburbs situated at K/West Municipal Ward Office, 6th Floor, Paliram Path, Andheri (West), Mumbai – 400 058, on application being made to him during office hours.” 4. The Respondent-Society replied to the said notice by a letter dated 2nd January, 2009. Various contentions were raised in the reply including a suggestion that widening of Nalla should be made on ash 4 ao-109.10-oj the southern side where there is an open ground without any building. There is further correspondence made by the Respondent regarding the said notice. It was contended in the Plaint that the proposed action is illegal inasmuch as no proceedings have been initiated by the Appellant-Corporation in accordance with law. It is pointed out that the approach road on the eastern side is very narrow and if the compound wall comes into existence inside the property, then there will be no approach road for the vehicles to enter into the house. It is pointed out that there is no sewerage system and therefore, the Respondent-Society has constructed its own septic tanks which will be removed for the purpose of proposed widening of the Nalla. It is contended that the work of road widening of Nalla should be carried out on the other side where there is an open land. It is contended that there is no direction by the High Court to take possession of the property of the Respondent. 5. In the suit, the first prayer is for a declaration that the notice dated 18th December, 2008 is illegal, improper and malafide. The 2nd prayer is for perpetual injunction restraining the Appellant from taking action on the basis of the said notice and from demolishing the compound wall in existence. In the said suit, a Notice of Motion for temporary injunction was taken out which was contested by the Appellant Corporation. Various contentions were raised in the reply ash 5 ao-109.10-oj including the fact that the work of improvement of sewerage system as per the Brimstowad project started in the year 2006 for which the Central Government has granted aid of Rs.1200/- crores. It was stated that the septic tanks will not be necessary as the Appellant will connect the internal drainage line to the main drainage line. As regards the water tank, it was contended that the same will be reconstructed at the same place after construction of retaining wall and in the meantime, temporary arrangement of PVC tanks will be made by the Appellant Corporation. It is contended that the proposed widening of nalla does not cause any damage to any of the existing buildings and there will not be any prejudice to the Respondent. By the impugned order, temporary injunction has been granted by the Trial Court by which the Appellant has been restrained from carrying out work on the basis of the notice dated 18th December, 2008. 6. Learned Senior Counsel appearing for the Appellant has taken the Court through the provisions of Sections 222 and Section 224 of the said Act. He pointed out to the assertions in the reply to the Notice of Motion as well as in the affidavit dated 16th March, 2011 filed by Mr. A.S. Valotia, the Executive Engineer (S.W.D.), Zone VII. He pointed out various statements in the said affidavit including a statement that the Appellant before demolishing the septic tanks will provide a connection to the existing municipal sewage network. He ash 6 ao-109.10-oj pointed out that the Respondent will be entitled to use the FSI of the portion of the plot taken up for widening of the said Nalla. Alternatively, the Respondent will be entitled to TDR as compensation for handing over the said land for widening of the said Nalla as per the Notification dated 9th March, 2010. He submitted that the work of widening of Nalla is required to be carried out and completed expeditiously in a larger public interest. He submitted that the Brimstowad project is being implemented to prevent flooding in various parts of the City in monsoon. He pointed out the statement in the affidavit that a part of retaining wall has been already constructed on the property opposite the Respondent’s property before a stay was obtained by the owners of the said property. He submitted that the proposed alignment of the Nalla has been determined after taking into consideration several relevant aspects which are indicated in Paragraph 4 of the said affidavit. He submitted that the work is required to be carried out in the larger public interest and there is no serious prejudice to the Respondent. 7. Learned counsel appearing for the Respondent pointed out that unless the property of the Respondent is acquired in accordance with law, in purported exercise of the powers either under Section 222 or under Section 224 of the said Act, the Corporation will not be entitled to take over any portion of the property. He submitted ash 7 ao-109.10-oj that it is easily possible for the Municipal Corporation to take up the work of widening of Nalla on the other side of the Nalla as the plot on the other side is vacant and no structures will be affected of the work of widening. He relied upon certain photographs to show that if the work threatened is carried out, the passage of vehicles will be obstructed. Even the existing garden will be damaged. He submitted that without following due process of law, the Appellant Corporation cannot be permitted to carry out work of a drastic nature which will take a portion of the property of the Respondent-Society. 8. I have gone through the submissions. I have perused the documents and affidavit on record. From the sketch produced by the Appellant on record, it appears that for the purpose of widening of Nalla, the existing compound wall of the Respondent will have to be demolished and a small portion of the property in possession of the Respondent abutting Nalla will have to be taken over. It appears that there are two septic tanks and one water tank existing in the property which will have to be removed to enable the Appellant to carry out the work. 9. As far as grant of temporary injunction is concerned, apart from the issue of prima facie case, the issue of balance of convenience and irreparable loss are required to be considered. On this aspect, it ash 8 ao-109.10-oj will be necessary to make a reference to the decision of the Apex Court in the case of Mahadeo Savlaram Shelke & Others Vs. Pune Municipal Corporation & Another [(1995)3 SCC 33 ]. Paragraphs 14 and 15 of the said decision. Paragraphs 14 and 15 of the said decision read thus:- “14. It would thus be clear that in a suit for perpetual (sic) injunction, the court should enquire on affidavit evidence and other material placed before the court to find strong prima facie case and balance of convenience in favaour of granting injunction otherwise irreparable damage or damage would ensue to the plaintiff. The court should also find whether the plaintiff could adequately be compensated by damages if injunction is not granted. It is common experience that injunction normally is asked for and granted to prevent the public authorities or the respondents to proceed with execution of or implementing scheme of public utility or granted contracts for execution thereof. Public interest is, therefore, one of the material and relevant considerations in either exercising or refusing to grant ad interim injunction. While exercising discretionary power, the court should also adopt the procedure of calling upon the plaintiff to file a bond to the satisfaction of the court that in the event of his failing in the suit to obtain the relief asked for in the plaint, he would adequately compensate the defendant for the loss ensued due to the order of injunction granted in favour of the plaintiff. Even otherwise the court while exercising its equity jurisdiction in granting injunction has also jurisdiction and power to grant adequate compensation to mitigate the damages caused to the defendant by grant of injunction restraining the defendant to proceed with the execution of the work etc. The pecuniary award of damages is consequential to the ash 9 ao-109.10-oj adjudication of the dispute and the result therein is incidental to the determination of the case by the court. The pecuniary jurisdiction of the court of first instance should not impede nor be a bar to award damages beyond its pecuniary jurisdiction. In this behalf, the grant or refusal of damages is not founded upon the original cause of action but the consequences of the adjudication by the conduct of the parties, the court gets inherent jurisdiction in doing ex debito justitiae mitigating the damage suffered by the defendant by the act of the court in granting injunction restraining the defendant from proceeding with the action complained of in the suit. It is common knowledge that injunction is invariably sought for in laying the suit in a court of lowest pecuniary jurisdiction even when the claims are much larger than the pecuniary jurisdiction of the court of first instance, may be, for diverse reasons. Therefore, the pecuniary jurisdiction is not and should not stand an impediment for the court of first instance in determining damages as part of the adjudication and pass a decree in that behalf without relegating the parties to a further suit for damages. This procedure would act as a check on abuse of the process of the court and adequately compensate the damages or injury suffered by the defendant by act of court at the behest of the plaintiff. 15. Public purpose of removing traffic congestion was sought to be served by acquiring the building for widening the road. By orders of injunction, for 24 years the public purpose was delayed. As a consequence execution of the project has been delayed and the costs now stand mounted. The courts in the cases where injunctions are to be granted should necessarily consider the effect on public purpose thereof and also suitably mould the relief. In the event of the plaintiffs losing the suit ultimately, they should necessarily bear the consequences, namely, escalation of the ash 10 ao-109.10-oj cost or the damages the Corporation suffered on account of injunction issued by the courts. Appellate court had not adverted to any of the material aspects of the matter. Therefore, the High Court has rightly, though for different reasons, dissolved the order of ad interim injunction. Under these circumstances, in the event of the suit to be dismissed while disposing of the suit the trial court is directed to assess the damages and pass a decree for recovering the same at pro rate against the appellants.” ( underline supplied ) 10. The Apex Court has held that the public interest is one of the material and relevant consideration while granting or refusing relief of temporary injunction. 11. It will be necessary to make a reference to the material averments made in the Plaint. The challenge to the notice has been incorporated in Paragraph 9 of the Plaint. It will be necessary to make a reference to the material grounds (c) to (g) which reads thus:- “(c) The impugned notice amounts to dispossession of the plaintiff from their own property and the defendants are intending to acquire the said property without even offering any extra F.S.I. (d) Before issuing the said notice no officer of the corporation had any official visit at the site as the approach road on the eastern side is very narrow and if the compound wall came into ash 11 ao-109.10-oj existence inside the property then there will be no approach road to enter into the house and motors vehicles cannot be entered into the property of the plaintiff. (e) The society has 58 flats. There is no municipal sewerage system for bath room municipal sewerage system for bath room water. The society has their own septic tank and the septic tank is proposed to be removed in that event, there is no possibility to construct of the same size of septic tank in the said compound which is a basic requirements. (f) On eastern side of nallah, there is an open land which can be acquired and construct their nallah if the corporation wanted to do so. There is no building on the eastern side of the said nallah. (g) The nallah can be diverted on the northern side as it is an open area without any structures thereon. The building of the plaintiff is on a piece of land with nallah on three sides.” 12. Apart from these grounds, it is contended that no acquisition proceedings have been initiated by the Appellant Corporation. One of the contentions raised is that the Appellant Corporation is intending to acquire the property without even offering the extra FSI. The second contention is that there will be no approach road to enter into the house and motor vehicles cannot enter into the property of the Respondent. The third difficulty expressed is that the septic tanks will have to be removed and there is no municipal sewerage system. The next contention is that the work of widening of ash 12 ao-109.10-oj Nalla can be carried out on the other side where there is an open plot. Another objection is on the ground that the water tank will have to be removed for carrying out the work of widening of the Nalla. 13. In the reply to the Notice of Motion taken out by the Respondent, various contentions have been raised by the Appellant- Corporation. In clauses (b) and (c) of Paragraph 7 of the said reply, it is stated thus:- “(b) I say and submit that after deluge of 26/07/2005, State Government of Maharashtra also appointed an expert Committee known at facts finding Committee, under Chairmanship of Dr. Madhavrav Chitale, in their report, committee has recommended certain additional improvement to the recommendation of the BRIMSTOWAD Project Report, State Government of Maharashtra has accepted this report. I crave leave to refer to and rely upon the above mentioned copy of Report as referred hereinabove as and when produced. (c) I say and submit that the work of improvement of S.W.D. System as per BRIMSTOWAD Project was started in year 2006, after considering the vital importance of this work, Central Government has also provided the aid of Rs.1200/- crore for the referred project work.” 14. As regards the septic tanks and access to the vehicles, in Clauses (d), (e) and (f) it is stated thus: - ash 13 ao-109.10-oj “(d) I say and submit that there are two septic tanks which are affected by the proposed work. However M.C.G.M. Has laid drainage line in the area under reference as such there is no need of septic tanks any more, M.C.G.M. at its own cost. (e) I say and submit that there is one water tank in the society premises, this water tank will also be reconstructed at the same place after construction of retaining wall. Also the temporary arrangement of PVC tanks would be made by M.C.G.M. before demolishing the water tank at its own cost. (f) I further say and submit that there are two accesses to every building/bungalow in enter layout of society, as such reduction in one access due to widening of river is possible. However if the Plaintiff desire then the construction of carriage way to the tune of existing width can be carried out by M.C.G.M. There is no cause and damage of the building of society if the Plaintiff allows to reduce the garden area abutting the building in the society. Therefore, I say and submit that the plaintiff has failed to make out any prima facie case against these defendants and hence plaintiff’s notice of motion is liable to be dismissed with costs.” 15. As far as septic tanks are concerned, there is a categorical statement made by the Appellant Corporation that the Appellant will connect the existing internal drainage line in the society area to the main drainage lines of the Appellant at its own cost. There is a statement made on oath that before removing the water tank, the PVC ash 14 ao-109.10-oj tank will be installed and after construction of retaining wall, a new water tank would be constructed. It is pointed out that if the garden area abutting the building of the Respondent is reduced, the construction of carriage way to the tune of existing width can be carried out by the Appellant-Corporation. 16. During the course of hearing of the Appeal, an additional affidavit has been filed by the Appellant. It will be necessary to make a reference to the said additional affidavit filed by the Executive Engineer. In Paragraph 6 of the said affidavit, the assurances earlier given have been reiterated. Relevant portions of Paragraphs 6 and 7 read thus:- “6. .....All that is required to be ensured is that as little damage as possible is caused to the affected persons and also that they are compensated for any damage that may have been caused. In the present case, the Appellant will reconstruct the boundary wall/retaining wall of the Respondent and also provide a connection to the existing Municipal sewage network (which is available at the nearby D.P.Road) since the Respondent’s septic tanks will ne4ed to be removed in the premises, the Respondent will not be inconvenienced by the widening of the said Nalla and will instead benefit from the connection to the Municipal sewage network. The reconstruction of the retaining wall and the connection to the sewage lines of the Respondent to the Municipal sewers will be done at the cost of the Appellant. 7. After the said Nalla is widened, the Respondent would be entitled to use the FSI ash 15 ao-109.10-oj of the portion of the plot taken up for widening of the said Nalla. Alternatively, the Respondent would be protected as it would be entitled to TDR as compensation for handing over the land for widening of the said Nalla as per the Notification dated 9 th March 2010 passed by the Urban Development Department of the Government of Maharashtra. Such TDR can then be sold by the Respondent in accordance with law. Hereto annexed and marked as Exhibit C is a copy of the said Notification dated 9th March 2010.” ( underline supplied ) 17. As set out in the reply to the Notice of Motion, it is pointed out that the work of widening of Nalla is to be carried out in the larger public interests as per the recommendation of Committee of experts. It is pointed out that the recommendations were made by a fact finding committee headed by the experts after large scale flooding of 26th July, 2005. It must be noted here that in the affidavit filed by the Appellant and in particular Paragraph 5, it is stated that the Appellant has widened the said Nalla even on the other side. In fact, a part of the retaining wall has already been constructed in the property opposite the property of the Respondent. The prejudice which was likely to be caused to the Respondent by the removal of septic tank has been taken care of by the statements made on oath by the officer of the Appellant. Necessary directions can be issued to ensure that the septic tanks are not removed before connecting drainage line of the Respondent to the Municipal sewage network. In case, the Appellant is required to ash 16 ao-109.10-oj remove the water tank, the statement made in the affidavit in reply to the Notice of Motion in that behalf will bind the Appellant. The said statement is found in clause (c) of Paragraph 7 of the reply to the Notice of Motion. As far as the loss of property is concerned, one of the contentions raised in the Plaint is that the Appellant has not offered FSI in respect of the portion required for widening of Nalla. That aspect has been taken care of by the affidavit filed in this Appeal wherein a statement is made that the Respondent will be entitled to use the FSI of the portion of the property taken over for the widening of the Nalla. Moreover, a statement has been made by the Appellant that in the alternative, the Respondent would be entitled to TDR as compensation for handing over the land for