2006 (5) TMI 545 - SC - Indian Laws

Supreme Court Upholds Order to Remove Unauthorized Structures in Mumbai's Moonim Compound, Dismisses Petitions.

Seema Arshad Zaheer & Ors. Versus Municipal Corporation of Greater Mumbai & Ors.

The SC dismissed all seven SLPs concerning unauthorized structures on government-leased land at Moonim Compound, Mumbai. It upheld the HC's decision to ... Unauthorized and illegal structures put up in plot - from the respective sub-tenants, made improvements/partitions in the existing old structures and then let out the same to different sub-tenants (who are the petitioners) - seeking a temporary injunction restraining the Municipal Corporation from taking any action in respect of the said structure - HELD THAT:- The discretion of the court is exercised to grant a temporary injunction only when the following requirements are made out by the plaintiff : (i) existence of a prima facie case as pleaded, necessitating protection of plaintiff's rights by issue of a temporary injunction; (ii) when the need for protection of plaintiff's rights is compared with or weighed against the need for protection of defendant's rights or likely infringement of defendant's rights, the balance of convenience tilting in favour of plaintiff; and (iii) clear possibility of irreparable injury being caused to plaintiff if the temporary injunction is not granted. In addition, temporary injunction being an equitable relief, the discretion to grant such relief will be exercised only when the plaintiff's conduct is free from blame and he approaches the court with clean hands. It is true that in cases relating to orders for demolition of buildings, irreparable loss may occur if the structure is demolished even before trial, and an opportunity to establish by evidence that the structure was authorized and not illegal. In such cases, where prima facie case is made out, the balance of convenience automatically tilts in favour of plaintiff and a temporary injunction will be issued to preserve status quo. But where the plaintiffs do not make out a prima facie case for grant of an injunction and the documents produced clearly show that the structures are unauthorized, the court may not grant a temporary injunction merely on the ground of sympathy or hardship. To grant a temporary injunction, where the structure is clearly unauthorized and the final order passed by the Commissioner (of the Corporation) after considering the entire material directing demolition, is not shown to suffer from any infirmity, would be to encourage and perpetuate an illegality. Where the lower court acts arbitrarily, capriciously or perversely in the exercise of its discretion, the appellate court will interfere. Exercise of discretion by granting a temporary injunction when there is 'no material', or refusing to grant a temporary injunction by ignoring the relevant documents produced, are instances of action which are termed as arbitrary, capricious or perverse. When we refer to acting on 'no material' (similar to 'no evidence'), we refer not only to cases where there are total dearth of material, but also to cases where there is no relevant material or where the material, taken as a whole, is not reasonably capable of supporting the exercise of discretion. In this case, there was 'no material' to make out a prima facie case and therefore, the High Court in its appellate jurisdiction, was justified in interfering in the matter and vacating the temporary injunction granted by the trial court. We find no reason to interfere with the order of the High Court in the seven appeals. We accordingly dismiss these SLPs. as having no merit. The petitioners are granted 15 days time to make alternative arrangements. Parties to bear their respective costs. Issues Involved:1. Unauthorized structures on government-leased land.2. Validity of notices issued under Section 351 of the Mumbai Municipal Corporation Act, 1888.3. Temporary injunctions granted by the City Civil Court.4. Appellate jurisdiction and interference by the High Court.5. Prima facie case and balance of convenience in granting temporary injunctions.Detailed Analysis:1. Unauthorized Structures on Government-Leased Land:The central issue revolves around certain alleged unauthorized structures on plots renumbered as Plot Nos. 7 to 10 of Palton Road Estate, Mumbai, leased to Mohamedbhai Abdullabhai Moonim in 1939. The property, known as Moonim Compound, was later assigned to M/s Global Marketing in 2000, which made improvements and let out portions to sub-tenants. The Municipal Corporation of Greater Mumbai issued show-cause notices for unauthorized structures, leading to multiple suits and appeals.2. Validity of Notices Issued Under Section 351 of the Mumbai Municipal Corporation Act, 1888:The Corporation issued notices under Section 351 to remove unauthorized structures. The petitioners argued that the structures existed before the datum line (1.4.1962) and should be regularized. However, the Commissioner of the Corporation, after considering the objections, held that the structures were unauthorized and directed their removal.3. Temporary Injunctions Granted by the City Civil Court:The occupants of the structures obtained temporary injunctions from the City Civil Court, restraining the Corporation from taking action. The Corporation appealed these injunctions, and the Bombay High Court vacated the temporary injunctions, leading to the filing of special leave petitions.4. Appellate Jurisdiction and Interference by the High Court:The High Court, upon reviewing the documents, found that the occupants failed to establish a prima facie case that the structures were authorized or existed prior to 1.4.1962. The High Court concluded that the structures were of recent origin and unauthorized, justifying the Corporation's action.5. Prima Facie Case and Balance of Convenience in Granting Temporary Injunctions:The Supreme Court emphasized that a temporary injunction should only be granted when a prima facie case is established, the balance of convenience favors the plaintiff, and there is a clear possibility of irreparable injury. The Court found no material to support the petitioners' claims and upheld the High Court's decision to vacate the temporary injunctions.SLP(c) No.9479/2005:The petitioners claimed that the structure existed before 1961-62 and was in the occupation of Abdul Samad. The Corporation had issued a notice in 1991 for an earlier unauthorized structure, which was not demolished due to a temporary injunction. The structure was either extended or replaced by a new unauthorized structure in 2001-02. The High Court found no evidence to support the petitioners' claims, and the Supreme Court upheld this finding.SLP (C) No. 9490/2005:Similar to SLP(c) No.9479/2005, this case involved another structure in Moonim Compound. The petitioners relied on the same documents and contentions. The Supreme Court dismissed this petition for the same reasons.SLP (c) No.9688/2005:This case involved a structure consisting of ground plus two floors. The petitioners claimed it was earlier in the occupation of Abdul Samad. The Supreme Court found no evidence to support the existence of any old structure in the area and dismissed the petition.SLP(c) No. 10294/2005:This case involved an unauthorized structure on the western side of Moonim Compound. The petitioners claimed it was in existence prior to 1961-62. The Supreme Court found no evidence to support this claim and dismissed the petition.SLP(c) No. 10280/2005:This case involved an unauthorized structure on the eastern side of Moonim Compound. The petitioners claimed it was earlier in the occupation of Crescent Gas Supply Agency. The Supreme Court found no evidence to support the existence of the structure before 1.4.1962 and dismissed the petition.SLP(c) No. 10095/2005:This case involved an unauthorized structure on the western side of Moonim Compound. The petitioners claimed it was earlier in the occupation of Zulfikar (Masook & Sons). The Supreme Court found no evidence to support this claim and dismissed the petition.SLP(C) No.10016/2005:This case involved an unauthorized structure on the eastern side of Moonim Compound. The petitioners vaguely alleged it was part of a structure earlier in the occupation of M/s. New Sangam Transport Company. The Supreme Court found no evidence to support the existence of any structure before 1.4.1962 and dismissed the petition.Common Submissions:The petitioners argued that the appellate court should not interfere with the trial court's discretion in granting temporary injunctions. The Supreme Court reiterated that temporary injunctions should only be granted when a prima facie case is made out, and the balance of convenience favors the plaintiff. The Court found no material to support the petitioners' claims and upheld the High Court's decision to vacate the temporary injunctions.Conclusion:The Supreme Court found no reason to interfere with the High Court's order in the seven appeals and dismissed the special leave petitions, granting the petitioners 15 days to make alternative arrangements. The Court emphasized that unauthorized constructions should not be protected by temporary injunctions, as it would encourage and perpetuate illegality.