JUDGMENT
1. Both aforesaid appeals arise out of the common order dt. 28-2-1992 passed by Bombay City Civil Court of Notice of Motion No. 6544 of 1991 in L. C. Suit No. 7977 of 1991, and, hence have been heard together and are disposed of by this common judgment.
2. The respondents Nos. 2 and 3 in the Appeal No. 312 / 92, and, appellants in Appeal No. 313 / 92 are owners of the property known as ‘Khandelwal Easte, Opp. L&T Welfare Centre, Saki-Vihar Road. The respondent No. 1 in both the appeals viz. Shri Bishandas Motilal Shrama Claims himself to be tenant of the structure admeasuring 22’x15″ in the said Khandelwal Estate since 21-3-1986. The tenant B. M. Sharma was carrying business in the said structure in the name and style of ‘Asian Tyres and Battery’ as a sole proprietor. It appears that some dispute arose between the owners and the tenant on the question of electric meter and according to tenant, the owners threatened him that he would be dispossessed. According to the tenant, he filed the suit against the owners on 11-2-1988 and had obtained an injunction. On 30-8-1991, a notice purporting to be under S. 351, of the B. M. C. Act, 1888 (for short B. M. C. Act) was issued to tenant Shri B. M. Sharma and in the said notice it was alleged that he has erected / commenced to execute the work viz. a structure having size of 30’x20″, with the height of 8’x10′ having 9 inch thick brick for commercial purpose without authority and without obtaining the permission from Municipal Corporation. The tenant Shri B. M. Sharma replied the said notice dt. 30-8-1988 on 3-9-1991 denying the allegation made in the notice about any unauthorised construction raised by him, and, it was stated by him that he was occupying the premises since 1988 and he wanted to carry out some repairs to which his landlord objected and hence at his behest this notice has been given. The Dy. Municipal Commissioner, Gr. Bombay considered the reply submitted by the tenant B. M. Sharma and the documents submitted by him and held that the reply was without any substance and that the construction carried out by him was unauthorised and did not show that the structure was in existence prior to 1-4-1962. Accordingly the Dy. Municipal Commissioner by the order dt. 1-10-1991 ordered demolition of the disputed structure. The tenant then filed the suit in the court of Bombay City Civil Court, Bombay against his landlord owners who are respondents No. 2 and 3 in Appeal No. 312 / 92 and Appellants in Appeal No. 313 / 92 and the Municipal Commissioner, Gr. Bombay (hereinafter referred to as Defendant No. 1). In the said suit, the tenant Plaintiff prayed that the notice dated 30-8-1991, and, the order of Dy. Municipal Commissioner dated 1-10-1991 be declared bad, illegal, in breach of natural justice and not binding on the plaintiff. The tenant plaintiff also prayed that the defendants plaintiff also prayed that the defendants be ordered and directed by mandatory order an injunction to reconstruct his structure i.e., the shop admeasuring 22′ x 15′ consisting of roof of cement sheet and brick walls on the four side and shutter on the from side at the road cross or in the alternative the plaintiff be permitted to reconstruct the structure at the cost of the defendant according to tenant plaintiff after the aforesaid suit was filed on 16-10-1991, defendants were intimated that he would take out notice of motion for the grant of temporary injunction in his favour and against the defendants on 22-10-1991. It is further case of the tenant plaintiff that the defendant No. 1 was served with the aforesaid intimation on 19-10-1991 while defendants No. 2 and 3 were served with intimation on 21-10-1991. The allegation of the plaintiff is that to frustrate and defeat the notice of motion which the plaintiff was to take out on 22-10-1991 before the trial court in the suit filed by him, the defendant No. 1 demolished the disputed structure on 22-10-1991. In view of this unauthorised demolition of the disputed structure by defendant No. 1, according to plaintiff he took out notice of motion for reconstruction before the trial Court on 15-11-1991. To the said notice of motion, the defendant No. 1 filed reply on 20-2-1992. The defendants No. 2 and 3 filed reply to the said notice of motion on 19-2-1992. The trial Court after hearing the learned counsel for the parties by the order dated 27-2-1992 made the notice of motion absolute and the defendant No. 1 was directed to re-erect the structure on the same portion of the land with the same dimension and with the same material within one (sic) from the date of the order. The defendants were further restrained by an order of temporary injunction not to disturb and / or demolish the said structure after its re-erection till the hearing and final disposal of the suit. Suit was ordered to be heard expeditiously.
3. This order directing defendant No. 1 to re-cent the structure is subject-matter of challenge in the aforesaid appeals.
4. I have heard Mr. Walawalkar, learned counsel for the Bombay Municipal Corporation defendant No. 1 Mr. M. P. Vashi for the tenant plaintiff and Mr. S. G. Vakil, learned counsel for owners defendants No. 2 and 3 at considerable length and perused the impugned order dated 27-2-1992 and other relevant documents.
5. While contesting the notice of motion taken out by the plaintiff seeking prayer for re-construction, the defendant No. 1 viz B. M. C. set out two reasons for not granting any relief to the plaintiff and the said reasons were– (i) that the demolition dated 22-10-1991 was done after following the due process of Law and in accordance with law and it was bona fide act and done in good faith, and, (ii) that for widening the road the disputed structure was required to be demolished and it was not at the behest of the owners of the property as alleged and that along with the demolition of the disputed structure 72 other structure were also demolished.
6. On the other hand, the plaintiff urged before the trial court that the act of demolition on 22-10-1991 by the defendant No. 1 Municipal Corporation was mala fide and was solely intended to frustrate and defeat the notice of motion which the plaintiff was to take up on 22-10-1991 and for that due intimation was given to the defendant No. 1 as well as to defendants No. 2 and 3. The plaintiff also contested the claim of the defendant No. 1 that disputed structure was required to be demolished for widening the road. According to plaintiff in the absence of any cogent material placed by the defendant No. 1 to show that the disputed structure was required to be demolished for widening the road, such reason was concocted by defendant No. 1 B. M. C. and should not be believed.
7. The trial court while passing the impugned order found that the action of the demolition was without following the procedure and while relying upon an unreported judgment of this court in Appeal No. 513 of 1982 Palakdhari Jaykumar Yadav, Appellant v. 1 Municipal Corporation of Gr. Bombay; 2. Rameshkumar M. Dubey; 3. Mataprasad Dubey, Respondents, ordered reconstruction of the demolished structure.
8. Since the learned counsel for the plaintiff / respondent No. 1 is strongly relying upon the decision of this court in Palakdhari’s case in support of the order, few relevant facts of Palakdhari’s case may be noted. In that case a notice under Section 351, of the B. M. C. Act was issued in respect of alleged unauthorised construction on 22-12-1981. The notice challenged the said notice by filing the suit on 5-3-1982 and plaintiff in that case also gave intimation to the Corporation that he would move the court for ad interim relief on 8-3-1982. In that case the plaintiff’s advocate had also given two letters to the Corporation on 6-3-1992 about moving the court for ad-interim relief on 8-3-1982. However, despite the said intimation, on 8-3-1982 the Officer of the Corporation demolished the unauthorised construction. The trial court dismissed notice of motion and aggrieved by the said order an appeal was preferred before this Court. While deciding the appeal this court observed that since the action of demolition on 8-3-1982 was not bona fide nor done in good faith and the plaintiff in that case was not guilty of latches in pursuing his remedy after filing the suit, the demolished construction should be ordered to be restored. Adverting to the facts of the present case, it would be seen that a notice under Section 351, of the B. M. C. Act was issued to the present plaintiff on 30-8-1991. To the said notice reply was filed on 3-9-1991, and, the Dy, Municipal Commissioner after considering the reply and the documents did not find any substance in the cause shown by the present plaintiff and ordered demolition. The plaintiff filed the present suit on 16-10-1991. According to him intimation was given to the B. M. C. on 19-10-1991 that he would take out notice of motion for grant of ad interim relief on 22-10-1991. According to the plaintiff the respondents No. 2 and 3 were also intimated on 21-10-1991 that he would take-out notice motion before the trial court on 22-10-1991 but in fact no notice of motion was taken out on that date. On 22-10-1991 the disputed structure was demolished. There is no dispute that the plaintiff filed the motion for reconstruction before the trial court on 15-11-1991. In the aforesaid facts it is to be found whether the demolition undertaken by the Municipal Corporation on 22-10-1991 was not bona fide and can it be said that it was not done in good faith and whether plaintiff has been able to make out a case for reconstruction during the pendency of the suit.
9. The impugned order passed by the trial court is undisputedly in the nature of mandatory injunction during the pendency of suit. It is true that the courts to possess power to grant injunction in the mandatory from during the pendency of the suit, but such relief is not an ordinary relief and is not granted as a matter of course. It is only in the exceptional and rare cases that the court exercises its discretionary power in granting the relief in the mandatory form. The question is whether the aforesaid facts narrated make out the present case as exceptional case.
10. Admittedly there was no injunction operating against the defendant No. 1 B. M. C. on 22-10-1991. Mere pendency of suit does not debar and preclude the authority to discharge its duty in accordance with law or to proceed in accordance with law. Therefore, mere filing of the suit by the plaintiff did not come in the way of defendant No. 1 B. M. C. to proceed in accordance with law pursuant to the demolition order passed by the Dy. Municipal Commissioner on 1-10-1991 after following due process of law i.e. issuance of a notice under Section 351 of the B. C. Act on receipt of the reply from the affected notice and consideration of the reply and relevant documents filed by the affected party to the said notice. Obviously if the defendant No. 1 proceeded in accordance with law to execute the order dated 1-10-1991, it cannot be said that the demolition conducted by the defendant No. 1 on 22-10-1991 was not in good faith or was not bona fide. Merely because an action of an authority is sought to be challenged by way of filing suit or for praying an interim relief, in the absence of any injunction or restrain order, if the authority proceeds in accordance with law in execution of such action, it cannot be inferred that such action was mala fide or actuated with an ulterior motive or that it was not bona fide or not done in good faith. It is true that if a litigant or a party to the suit seeks to overreach the process of the court, the court is not powerless to pass an appropriate order to meet the ends of justice and to restore statusquo ante but that power is to be exercised by the Court sparingly and in deserving cases, and, not by way of routine manner. In this context and settled position of law, if the facts of the present case are examined it cannot be said that demolition of the construction by the defendants No. 1 on 22-10-1991 was not done in good faith or lacked bona fides. Admittedly on 22-10-1991 no notice of motion was taken out by the plaintiff for which an intimation was given. The justification for not taking out notice of motion on 22-10-1991 pointed by the learned counsel is that since the demolition had already taken place there was no purpose in taking out the notice of motion on that day and, therefore, a notice of motion was taken out subsequently for reconstruction. On the other hand the learned counsel for the defendants No. 2 and 3 brought to my notice a communication dated 23-10-1991 sent by the counsel for defendants No. 2 and 3 to plaintiff wherein it was made clear that the counsel for defendants No. 2, 3 were present in the court but no application was made. Be that as it may, the fact remains that not only that no notice of motion was taken out by the plaintiff on 22-10-1991 but also after demolition for about 3 weeks the plaintiff kept quiet, and, for the first time the notice of motion for reconstruction was taken out on 15-11-1991. In this background, I am of the view that since the plaintiff failed to make out a case of exceptional and rare nature for the grant of mandatory injunction pending suit, the trial court was not justified in directing reconstruction the dispute structure pending the suit.
10-A. Besides that Mr. Walawalkar, learned counsel for defendant No. 1 B. M. C. strenuously urged that the disputed structure was required to be demolished for widening of the road and in fact in all about 72 structures were demolished on 22-10-1991 including the disputed structure. Though the trial court observed that despite opportunity being given to the defendant No. 1 B. M. C. no documents were shown that the disputed structure was required to be demolished for widening the road and before me also original documents relating to widening of the road have not been shown, yet I find that an affidavit was field by the defendant No. 1 in answer to Civil Application No. 212 / 92 where in it was averred that the plaintiff’s structure was unauthorised one affected by roadline and that the Corporation wanted to have it removed along with several other structures affected by roadline about 72 in number in order to proceed with the work of road widening which was held up because of the said structure and such other structures. This statement made on solemn affirmation in the affidavit has not been controverted and there is no reason to disbelieve this statement made by the Corporation in the affidavit in C. A. No. 2125 / 92.
11. All in all, in the aforesaid circumstances, I am of the firm view that the order impugned cannot be allowed to stand and is liable to be set aside.
12. Consequently, both the appeals are allowed. The order dated 27-2-1992 is quashed and set aside. Notice of motion taken out by the plaintiff for reconstruction is dismissed. However, in the facts and circumstances of the case, the trial court is directed to hear and decide the suit as expeditiously as possible, and, preferably within one year from today.
13. No costs.
14. Needless to say that any observation made in this order shall not influence the trial court while deciding the suit on merits after recording the evidence.
Appeal allowed.
