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

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.

4. According to the appellants in an attempt to

have them evicted from plot No.878 Javle

complained to the Bombay Municipal

Corporation that the said plot was being

used by the appellants for commercial

purposes although in the Development Plan

the same had been earmarked for residential 4

purposes. On such complaint notices were

issued for removal of the structures in

which such commercial activities were being

carried out. Ultimately, however, plot

No.878 was purchased by the appellants from

Javle and no further steps were taken by the

Bombay Municipal Corporation pursuant to the

said notices.

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.

7. When the Notice of Motion was taken up for

hearing the Respondent No.1 contended that

in terms of the Town Planning Scheme-IV

(TPS-IV) there is a 40 feet wide D.P. Road

abutting plot No.878 through which the

appellants have a right of passage.

According to the respondents the appellants

have a right of passage from plot No.878 7

only from the D.P. Road and at no point of

time had they enjoyed any right of passage

through the property of the respondent No.1,

nor have they established any prescriptive

right or an easementary right of necessity

so as to attract the provisions of Sections

13, 19 and 41 of the Indian Easement Act,

1882.

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.

10. In the appeal preferred by the appellants

herein the appeal Court accepted the

position that the Original Plot No.227 had

been divided into Final Plot No.879

measuring 3043.50 sq. yards and Final Plot

No.878 which belong to appellant No.2 in

respect whereof there is no dispute.

However, the appeal Court also came to a

finding that there was no material on record

to show that the appellants had ever

exercised any right of access through Final

Plot No.879 belonging to the respondent No.1

and when the appellant No.2 purchased Final

Plot No.878 under TPS-IV it was clearly

understood that in order to approach the

said plot she would have a right of passage

through the proposed 40 feet wide D.P. Road 10

provided under the Scheme. As a result, the

appellant No.2 could claim a right of

passage to and from plot No. 878 against the

Bombay Municipal Corporation only through

the proposed D.P. Road. Furthermore, the

Appellant No.1 being the husband of the

Appellant No.2 and since the structure on

Final Plot No.879 was contiguous to Final

Plot No.878, he could also claim right of

passage from the said D.P. Road. The appeal

Court held that merely because the Bombay

Municipal Corporation had failed to

discharge its duties in providing a road and

passage to the appellants the appellants

could not claim such a right through

property belonging to others and thereby

create obstructions in their use of the

property. The appeal Court, accordingly

chose not to interfere with the limited

relief granted by the trial Court and

dismissed the appeal.

11

11. It is the said order of the Appeal Court

dated 12.12.2007 which is the subject matter

of challenge in the present appeal.

12. Appearing in support of the appeal Mr. C.A.

Sundaram, learned Senior Counsel emphasized

the fact that in the absence of any other

access to Final plot No.878 or the portion

of plot No. 879 the only means of access for

over 35 years had been through plot No.879

which formed part of the Original Plot

No.227 which was sub-divided into plot

Nos.878, 879 and 877. Mr. Sundaram also

submitted that the 40 feet wide D.P. Road,

indicated in the Development Plan under TPS-

IV, was only in contemplation when the Award

was passed by the Arbitrator under the 1966

Act and on account of the various

encroachments and obstructions the said road

has never been constructed. This, in fact,

had prompted Javle to file a Writ Petition

for a direction upon the Bombay Municipal 12

Corporation to remove the said encroachments

and constructions and to take up the

construction of the road immediately. Mr.

Sundaram submitted that in the absence of

any actual road adjacent to plot No.878, the

owner thereof had access to her land only

through plot No.879. Mr. Sundaram contended

that only after the respondent No.1 had

acquired the ownership of plot No.879 in

2004 that such right was attempted to be

disturbed by the Respondent No.1 by

threatening to put up a boundary wall and an

iron gate to prevent the use of such passage

which was being used for more than 35 years.

13. Mr. Sundaram submitted that though the

Special Leave Petition had been filed

against an interim order it had become

necessary to do so since the only means of

egress and ingress to and from plot No.878

and the portion of plot No.879 under the

possession of appellant No.1 would be 13

completely obstructed, if the respondents

were not restrained from obstructing the

motorable access to the said plots which the

appellants had been enjoying for over 35

years. Mr. Sundaram urged that the Courts

below had wrongly relied on only a proposal

for the construction of a 40 feet wide D.P.

Road adjacent to plot No. 878 in passing a

limited interim order without ascertaining

whether such road had actually been

constructed and was in existence. Mr.

Sundaram also submitted that both the Courts

below had lost sight of the fact that plot

No.878 and the portion of plot No.879 under

the occupation of the appellants was

completely land-locked since the

construction of the 40 feet wide D.P. Road

next to plot No.878 was still in the realm

of planning and had not yet been executed.

In other words, the appellants had no access

to their portion of the plots under their

occupation except through plot No. 879. 14

14. Mr. Sundaram's submissions were strongly

opposed by Mr. Dushyant Dave, learned Senior

Counsel appearing for respondent No.1. He

strenuously urged that the appellants never

had any right of passage through plot No.879

and their access to plot No.878 and the

portion of plot No.879 under their

occupation was from the 40 feet wide D.P.

Road which was adjacent to plot No.878. Mr.

Dave also urged at the outset that the

Special Leave Petition was not maintainable

since it was directed against the orders

passed in an interlocutory application in

which concurrent findings of fact had been

arrived at.

15. Mr. Dave then contended that, in any event,

since plot No. 878 and the portion of plot

No.879 under the occupation of the

appellants had been earmarked in the Master

Plan for residential purposes under no

circumstances could the appellants be 15

permitted under the provisions of the 1966

Act to continue with commercial activities

thereupon.

16. Mr. Dave also contended that it is for the

very same reason that a complaint had been

made by Javle and notices had been issued

thereupon by the Bombay Municipal

Corporation to the appellants to remove the

structures which were being used for such

commercial purposes.

17. From the site plan which had been made Exh.

`A' in the suit, Mr. Dave pointed out that

the claim of the appellants to a right of

motorable access through plot No.879 renders

the said plot unfit for any use by the

respondent No.1 and that in the earlier

suits the appellants have never asserted

such right.

16

18. Mr. Dave submitted that while disposing of

the Notice of Motion dated 11.9.1975, the

learned Trial Court noticed the fact that

after obtaining an ad-interim order of

injunction, the appellants had tried to

convert the temporary structures on the

plots in question into a permanent ones. Mr.

Dave also submitted that while dismissing

the Notice of Motion, the High Court also

took into consideration the Town Planning

Scheme No.IV, Mahim, which came into force

on 15th August, 1963, whereunder the Final

Plot allotted to Bhanji and Javle could not

be used for commercial purposes and that

accordingly the appellants were not entitled

to an order of injunction which would have

the effect of altering the said Scheme and

the use of the plots earmarked for

particular purposes.

19. On behalf of the Bombay Municipal

Corporation it was submitted by Mr. Shekhar 17

Naphade, learned Senior Counsel, that in the

Development Scheme conceived by the Planning

Authority different plots had been earmarked

for different purposes. Mr. Naphade urged

that under the TPS-IV Scheme certain Final

Plots which had been identified for

industrial purposes could be used for such

purposes only. Similarly, except the plots

which had been allotted for `public

purposes' the remaining plots could be used

for residential purposes and Final Plot Nos.

878 and 879 fell within the ambit of

paragraph 1(n) of TPS-IV and could be used

for residential purposes only. Mr. Naphade

submitted that the appellants had been

offered an alternative plot of land

measuring 500 sq. yards at Powell Land

Industrial Estate, Kondivili, Bombay, but

such offer had been turned down by the

appellants.

18

20. Ultimately, on the complaint made by Javle,

the appellants were issued notices under

Sections 89 and 90 of the 1966 Act to remove

the structures from the plots in question

and also for the eviction of the appellants

therefrom.

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.

22. Mr. Naphade also submitted that thereafter

Dr. K.V. Javle filed Writ Petition No.1667

of 1984 and prayed for a Mandamus upon the

Bombay Municipal Corporation and its

officers to carry out their statutory

obligations under the 1966 Act and the rules 20

framed thereunder and in particular to give

effect to the TPS-IV, Mahim, by directing

the said authorities to remove all the

structures, temporary or otherwise, from

Final Plot No.878 and to direct the

authorities of the Bombay Municipal

Corporation to hand over and deliver vacant

possession of the said plot measuring 1000

sq. yards and for a further direction on the

said respondents to construct the DP road

adjoining Final Plot No.878. Mr. Naphade

pointed out that on the assurance given on

behalf of the Bombay Municipal Corporation

and its authorities that notice for

demolition would be issued under Sections 89

and 90 of the 1966 Act and served within two

weeks and demolition will be carried out as

prescribed in law, the writ petition was

allowed to be withdrawn by order dated 7th

August, 1984.

21

23. Mr. Naphade submitted that in 1984 a fresh

notice was given to the appellants for

removal of the structures on the plots in

question. Thereafter, as mentioned

hereinabove, Arun Sales, a licensee of the

Appellant No.1, filed L.C. Suit No.5822 of

1984 against the Bombay Municipal

Corporation challenging the notice dated 8th

August, 1984, and obtained interim orders

which were subsequently vacated.

24. Mr. Naphade contended that the structures

raised by the appellants were not in

conformity with the Town Planning Scheme

though in the suit filed by the appellants

an attempt has been made to make out a case

that since the 40 feet wide DP Road had not

yet been constructed by the Corporation, it

should not permit any new construction on

Final Plot No.879 so as to block the only

access available over the said plot to Plot

No.878. Mr. Naphade submitted that such a 22

case was against the provisions of the Town

Planning Scheme and taking advantage of an

order of injunction, the appellants could

not be allowed to continue to use plot

No.878 and the portion of plot No.879 in

their occupation for commercial purposes.

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.

26. Since the appellants have come up against

the refusal of the High Court to grant their

interim prayer to have motorable access to

plot No.878 and a portion of plot No.879

under their possession from the main road

through plot No.879 during the pendency of

the suit, we can only consider the case of

the parties on a prima facie basis, inasmuch

as, the suit is yet to be decided on merits. 23

The case being argued on behalf of the

appellants, may not ultimately be dependent

upon whether the appellants run any

commercial venture on plot No.878 and the

portion of plot No.879 under their

possession, but the question of such a right

of passage may ultimately be relevant if it

is established that there is no other access

to the said premises. Accordingly, having

regard to Exh.A in the suit, which is a site

plan which has been referred to as Exh.C in

the paper book at page 120, some provision

has to be made even at the interim stage to

preserve a motorable access from the main

road to the premises under the occupation of

the appellants so that upon development of

plot No.879 such a right is not totally

extinguished. While the Trial Court has

allowed access on foot from the main road to

the said premises, in our view, a motorable

access should be preserved at least till the

40 feet wide DP road adjacent to plot No.878 24

is available to the appellants for egress

and ingress from their portion of the

premises, which is otherwise land-locked, on

till the disposal of the suit.

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