M/S Joy Auto Works & Ors vs Sumer Builders (P) Ltd. & Anr

3. The appellants herein claimed that they had been granted lease of 1305 sq. yards. out of plot No.879 on 20.10.1962 by Bhanji, which was contiguous to plot No.878, which was 3 also under the occupation of the appellants. The appellant No.1 claims to have been running an automobile garage and carrying on other connected activities on the said properties since 1979 and in connection with the business it had two motorable accesses to plot No.878 through the portion of plot No.879 demised in favour of the appellant by Bhanji, for egress and ingress to and from the public road. According to the appellants there was no other motorable access either to plot No.878 or the portion of the plot No.879 under the occupation of the appellants.

5. In the meantime, the respondent No.1 acquired Bhanji's interest in the remaining portion of plot No.879 and began obstructing the use of the motorable access from the public road to plot Nos.879 and 878. Accordingly, on 11.6.2005 the appellants wrote to the respondent No.1 informing it of their right in Final Plot No.878 and the portion of Final Plot No.879 under their occupation together with the two access roads. Since despite the said letter the respondent No.1 brought two iron gates and building-material to block the entrance to 5 plot Nos.878 and 879 from the public road, the appellant No.2 and the original plaintiff-Mulji Shah were compelled to file L.C. Suit No.5570 of 2005 in the City Civil Court at Bombay for perpetual injunction and by Notice of Motion prayed for an injunction to restrain the respondent from obstructing or interfering with the use, occupation and possession of plot No.878 and plot No.879 to the extent of 1305 sq. yards together with the structures thereupon with motorable access to and from the public road through plot No.879. The appellants prayed for an injunction to restrain the respondents from constructing or placing any gates upon plot No.879, pending the hearing and final disposal of the suit and also to restrain the defendant No.2, the Bombay Municipal Corporation, from approving any plans for construction of a boundary wall or gates on plot No.879, which would obstruct the free 6 and full use of the two accesses by the appellants from the public road.

6. Considering the facts indicated hereinabove the Trial Court initially granted an ad- interim injunction against the respondent No.1 on 23.12.2005. Upon notices being served the respondents contested the claim and respondent No.1 contended that he had acquired the ownership of Final Plot No. 879 measuring 3043.50 sq. yards by a Deed of Conveyance executed in his favour on 20.12.2004.

8. After hearing the parties on the Notice of Motion the Trial Court rejected the claim of the appellants regarding the two access points through plot No.879 but allowed the appellants to use one of the two access passages, referred to as Access No.2, to reach their plot from the public road. Such access was, however, denied for the use of vehicles.

9. While passing the aforesaid order, the Trial Court took note of the fact that Mr. Javle, the vendor of Appellant No.2 had by Writ 8 Petition No.1667 of 1984 sought a direction upon the Bombay Municipal Corporation to remove the hutments on the land abutting Final Plot No. 878 which had been set aside for a 40 feet wide D.P. Road and to construct the said road expeditiously. The said writ petition was withdrawn on 7.8.1984 purportedly in view of the statement made by the Bombay Municipal Corporation that action would immediately be taken under the 1966 Act and that the demolition of encroachments, which was preventing the construction of the road, would be carried out in accordance with law. A Notice issued by the Bombay Municipal Corporation on 8.8.1984 to that effect, was challenged by one Arun Sales, a licensee of the Appellant No.1, who filed L.C. Suit No. 5822 of 1984 against the Bombay Municipal Corporation challenging the said notice. Ultimately, the Notice of Motion taken out in the suit was dismissed and the suit itself came to be 9 disposed of in view of a settlement between the appellants and some members of the Javle family whereby the appellant No.2 acquired Final Plot No.878 from the Javle family.

21. Mr. Naphade submitted that upon service of the said notices, the appellants filed Suit No.6544 of 1975 in the City Civil Court at Bombay, inter alia, for a declaration that the Final Scheme viz. TPS-IV was not binding on the appellants and that the said notices under Sections 89 and 90 of the said Act were illegal and void and had no effect in law. In the said suit, the appellants took out a Notice of Motion for an ad-interim order of injunction to restrain the Bombay Municipal Corporation from demolishing the structures which had been put up in Final Plot No.878 and a part of Final Plot No.879. Ultimately, as indicated hereinabove, the 19 Notice of Motion was dismissed and the appeal taken against the said order was withdrawn by Mulji Shah on 1st August, 1977. Subsequently, on 29th September, 1977, Mulji Shah filed another suit in the City Civil Court in Bombay, being Suit No.7540 of 1977, in which an ex-parte ad-interim order was passed restraining the Bombay Municipal Corporation from removing him from the Final Plot No.878 and a part of Final Plot No.879 and from removing the structures thereupon in any manner. The said Notice of Motion came up for hearing in 1979 and was dismissed for default and the ad-interim injunction was vacated.

25. Mr. Naphade submitted that the learned Trial Judge had, while denying motorable access through plot No.879, allowed access otherwise to the appellants from the main road to the premises under their occupation.

27. It would not be appropriate on our part to make any observation on the merits of the case of the parties since the same is yet to be decided. We are only required to ensure the balance of convenience and inconvenience and the equities between the parties at this stage. We are also required to consider if any of the parties will suffer irreparable loss and injury unless an interim order, as prayed for by the appellants, is allowed or denied. This is not one of those cases where the appellants may be suitably compensated by damages in case their suit succeeds.

28. Having considered the submissions advanced on behalf of the respective parties, including that of the Bombay Municipal 25 Corporation, we are of the view that ad- interim protection, as prayed for by the appellants, should be given in the facts and circumstances of the case.

29. We, therefore, direct that the appellants/ plaintiffs will be entitled to a motorable access from the main road to Plot No.878 through Plot No.879 and the portion of Plot No.879 in their possession either till the disposal of the suit or till the construction of the 40 feet wide D.P. Road running adjacent to Final Plot No.878 by the Bombay Municipal Corporation in terms of the assurance given by it on 7th August, 1984, in Writ Petition No.1667 of 1984 and also in terms of the directions given in Writ Petition No.2443 of 2006 filed by the Respondent No.1 before the Bombay High Court, whichever is earlier. However, once the said 40 feet wide D.P. Road is constructed by the Bombay Municipal 26 Corporation, giving clear motorable access to Plot No.878, the Respondent No.1 should no longer be deprived of the full enjoyment of its property and will be entitled to move the Trial Court to get the right of way through Plot No.879 granted by this order revoked and this order will not stand in the way of such an order being passed by the Trial Court, if it is satisfied that sufficient motorable access is available to the appellants on account of construction of the 40 feet wide D.P. Road. We also make it clear that the right of motorable access to Plot No.878 through Plot No.879 granted by this order to the appellants will not preclude the Bombay Municipal Corporation from taking any action as it may be entitled to under the 1966 Act or other relevant enactments in relation to the Town Planning Scheme No.IV, Mahim. Furthermore, subject to any order to the contrary that may have been passed in any other proceeding, the 27 Bombay Municipal Corporation must implement the assurance given by it on 7th August, 1984, when the Writ Petition No.1667 of 1984 was permitted to be withdrawn, regarding construction of the 40 feet wide D.P. Road adjacent to Final Plot No.878, with utmost expedition.

30. We, therefore, allow the appeal to the extent indicated hereinabove.

31. There will be no order as to costs.

________________J.

(ALTAMAS KABIR) ________________J.

(MUKUNDAKAM SHARMA) New Delhi Dated:2.4.2009