Rikhabsao Nathusao Jain vs Corpn. Of The City Of Nagpur & Ors

Appellant also filed an application seeking an interim order of injunction restraining respondent No. 1 - Corporation from granting any sanction of building plan submitted by respondent No. 2 as also an order of injunction restraining him from proceeding with illegal construction.

On the premise that the said order was not complied with, a show cause notice was issued on 17.11.1983 for initiation of a proceeding under 5 the Contempt of Courts Act against the Executive Officer of the Corporation in the following terms:

8. Respondent No. 2 submitted a plan on 19.11.1983, which happened to be a Saturday. On 21.11.1983, i.e., Monday next, the plan was sanctioned in favour of respondent No. 2.

9. An application for vacation of stay was filed on 1.12.1983 and by an order dated 4.02.1984, the order of interim injunction was vacated. A civil revision application was preferred thereagainst before the High Court. The High Court by an order dated 20.06.1984 directed disposal of the injunction application within fifteen days from the said date, stating:

10. The Miscellaneous Civil Application filed by appellant was dismissed by an order dated 23.07.1984 inter alia on the premise that having regard to Section 275 (3) of the Act, respondent No. 2 was entitled to start and carry on constructions relying on or on the basis of the deemed sanction. As regards the question that respondent No. 2 had no title over the property, it was held:

11. Appellant, aggrieved by and dissatisfied with the said decision of the learned District Judge, preferred an appeal before the High Court. By a judgment and order dated 5.09.1996, the said appeal was allowed and the matter was remitted, directing:

13. Pursuant to or in furtherance of the said direction, the learned Trial Judge upon hearing the parties allowed the Misc. Civil Application No. 249 of 1983 directing the Corporation to remove the unauthorized construction made by respondent No. 2. An appeal was preferred thereagainst. The said appeal marked as First Appeal No. 476 of 1997 was directed to be heard with LPA No. 115 of 1996 by an order dated 23.03.1998. A Letters Patent Appeal was also filed questioning the order of the learned Single Judge 9 dated 23.03.1998. All the three appeals were taken up for hearing together and by reason of the impugned judgment, the appeals preferred by respondent No. 2 have been allowed. A review application filed by appellant has been dismissed.

The doctrine, therefore, must be applied having regard to the fact situation obtaining in each case.

29. As the Division Bench of the High Court in the intra-court appeal did not consider any of the contentions of the parties and proceeded to dispose of the same on a wrong premise that the court of the District Judge had the jurisdiction to pass such an order, we are of the opinion that the impugned judgment cannot be sustained and is set aside accordingly. The matter is remitted to the learned District Judge for consideration of the matter afresh on the merit of the original application filed by appellant in accordance with law, albeit keeping in view the subsequent events and also necessity, if any, to adjust the equities between the parties.

30. The appeals are allowed with costs to be payable by the respondent No. 2. Counsel's fee assessed at Rs. 25,000/-.

October 22, 2008