1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR. Writ Petition No. 1011 of 2008 (Rachana Construction Co. Vs. Shri Parmod N. Kholkute) Appeal District : Application No. of 200 Writ petition - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's Orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. S.V. Purohit, Adv. for the petitioner. Mr. A.V. Khare, Adv. for respondent. CORAM : Smt. Vasanti A. Naik, J. DATE : 16 th October, 2008 Heard the learned counsel for the parties. The application filed by the petitioner under Order XXXIX, Rule 1 and 2 of the Code of Civil Procedure for grant of injunction, has been rejected by the trial as well as the first appellate Court. The petitioner challenges the orders by this writ petition. The petitioner had filed a suit for permanent injunction restraining the respondent from completing erection of the beams, putting in place any hoarding, banner, display, etc., as the same may be prejudicial to the rights and interest of the petitioner. The property of the respondent is situated on the 2 northern side of the property of the petitioner. A three storeyed building known as “Sabrang Apartments” was purchased by the petitioner and after demolishing that building, the petitioner was constructing a complex on the said plot. According to the petitioner, the erection of the iron beams for the purpose of putting huge hoardings for display, would completely obstruct the natural light, heat and air to the aforesaid complex. It was the case of the petitioner that the huge hoardings would cause nuisance to the petitioner and would also cause obstruction to the beautiful complex which was being built on the plot by the petitioner. The respondent had denied the claim of the petitioner and had pleaded that the respondent had entered into a contract with an advertising agency and permitted the advertising agency to erect the hoardings on the southern side of the respondent's house. It was denied that the petitioner would be deprived of the necessary easementary right and it was pleaded that the petitioner had not pleaded as to how many doors or windows 3 were on the northern side of his house. It was the case of the respondent that the advertising agency had duly applied for permission from the Nagpur Municipal Corporation and after getting the said permission, had erected the pillars for hoardings in the month of August, 2007. It was further pleaded that the advertising agency was the owner of the hoardings and, therefore, it was necessary for the petitioner to join the advertising agency as a party-defendant to the suit. According to the respondent, the petitioner had himself violated the Building Bye-laws by making construction of his complex in contravention to the sanctioned building plan. After hearing the learned counsel for the parties and after perusing the documents on record, the trial Court rejected the prayer for grant of a temporary injunction. The first appellate Court also dismissed the appeal against the order of the trial Court. Both the orders are impugned in the instant petition. Shri S.V. Purohit, the learned counsel for the petitioner, submitted that there was no permission granted by the Nagpur Municipal 4 Corporation in favour of the advertising agency for erection of the hoardings. According to the counsel for the petitioner, the so called permission which was produced by the respondent before the trial Court, was not a permission at all as it mentioned certain conditions which the advertising agency was to comply with. It was further submitted on behalf of the petitioner that the Outdoor Advertising Policy of Nagpur Municipal Corporation of the year 2001 did not contemplate the granting of such permission and in that case, the so called permission which is produced by the respondent on record, would be in contravention to the Outdoor Advertising Policy. In the absence of the permission, the trial and the appellate Courts were not justified in rejecting the application for grant of temporary injunction specially when the erection of the hoardings would affect the easementary rights of the petitioner. Shri Abhijit Khare, the learned counsel for the respondent, supported both the orders and submitted that the Courts have rightly considered the documents pertaining to 5 the grant of permission to the advertising agency and have rightly rejected the application filed by the petitioner on the ground that the petitioner had not made out a prima facie case. It is submitted on behalf of the respondent that the petitioner did not plead as to how many doors and windows were situated on the northern side of his house and which of them would be blocked because of the hoarding. It is then submitted on behalf of the respondent that both the Courts have observed that the petitioner has not placed the sanctioned map of his building on record and the photographs produced by the petitioner were enough to show that the petitioner had not left any margin from the northern side of his house. The counsel for the respondent sought for the dismissal of the petition. I have perused both the orders as also the plaint and the written statement. I have also perused the documents of permission granted by the Nagpur Municipal Corporation in favour of the advertising agency. It is necessary to note that it is the case of the respondent that the respondent is not erecting 6 the hoardings, but the advertising agency with whom the respondent had entered into a contract, is erecting the hoardings and the advertising agency is not a party to the suit. Both the Courts rightly considered the documents pertaining to the permission granted by the Nagpur Municipal Corporation, to the respondent to erect the hoardings subject to certain conditions. If the conditions mentioned in the documents of permission are not complied with by the respondent, it would be a matter between the Nagpur Municipal Corporation and the respondent. For proving a prima facie case, it was only necessary for the petitioner to prove that his easementary rights were affected by the erection of the hoardings and the balance of convenience was also in his favour. In the instant case, both the Courts have rightly held that the petitioner had failed to prove a prima facie case as the petitioner had not produced the proposed/sanctioned map of construction on record, though it was the case of the petitioner that he had demolished the entire building after the purchase of the property in the year 2006 and 7 was making a new construction. The Courts rightly observed that the petitioner had not produced any evidence to, at least, prima facie show that the previous owners or the persons residing in the property at the earlier point of time, had a right to receive light, air and heat through the place where the hoardings were erected. Both the Courts observed that the photographs produced on record clearly showed that the petitioner himself had not left any margin from the northern side of his property and that prima facie showed that there was a contravention of the Building Bye- laws. Since the petitioner had failed to prove a prima facie case, both the Courts rightly rejected the application for grant of temporary injunction. There is no merit in the submission made on behalf of the petitioner about the contravention of the Outdoor Advertising Policy of the Nagpur Municipal Corporation. Neither the Nagpur Municipal Corporation nor the advertising agency who is erecting the hoardings, is a party to the suit. Even otherwise, as the petitioner himself had failed to make out a prima facie case, there was no 8 question of granting a temporary injunction in favour of the petitioner. For the reasons aforesaid, the petition is dismissed with no order as to costs. The counsel for the petitioner makes a request for staying this order or continuing the interim order passed by this Court, for a period of six weeks. The counsel for the respondent strongly opposes the prayer made on behalf of the petitioner. I do not feel that this is a fit case for continuation of the interim order. The oral request is, therefore, rejected. JUDGE RMP