In such suit where mandatory relief is sought against defendant, vigilance and alertness is always expected from a citizen that he ought to lodge a written complaint with the Ward Officer or civic authority concerned in the Municipal ward concerned, particularly, when complaint is of emergency nature, or nuisance such as severe drain choking, dangerous building likely to collapse. Unless citizen can show that he had acted with responsibility and sought to redress his grievance through the civic authority concerned, there can be no justification for him to directly go to the court without any legal evidence to support his claim for mandatory injunction against the defendant Municipal Corporation, or qua illegal or dangerous construction because plaintiff is not entitled to claim an order in the nature of injunction as a matter of right or course. Plaintiff has to make out prima facie case including on the question of maintainability of the suit so that court has to be satisfied about the illegality, irrationality or impropriety in the decision of the civic authority or omission on its part not to take action or to take unlawful action. When such illegal act or omission is under challenge in the civil court, prima facie case has to be made out that civic authority or Municipal Corporation committed breach of statutory obligation which is a sine-qua-non for grant of mandatory injunction against Municipal Corporation, and against any person who constructed unauthorizedly without obtaining prior necessary permission to construct from the Municipal Corporation.Court : Mumbai
Judge : A.P. BHANGALE
Decided On : Sep-27-2013
Case Number : First Appeal No.689 of 2002
Appellant : Sitaram Sakharam Keluskar
Respondent : Dayaram Gulzarilal
Citation; 2014 (2) ALL MR 154
1 The appeal is preferred against judgment and order dated 22.12.2000 passed by learned First Additional Principal Judge, Bombay City Civil Court, Mumbai, in S.C.Suit No.5167 of 1989 whereby the suit was dismissed with costs.2 The appellant (original plaintiff) had prayed for mandatory injunction against respondent to the effect that defendant should be ordered to remove the construction of drainage allegedly on the door step of the plaintiff and affecting the entrance of the plaintiff with damages claimed in the sum of Rs.25,000/- and also mandatory injunction in terms that dangerous portion of the first floor falling on the plaintiff's room be removed as unauthorized and illegal construction. According to plaintiff (appellant) he is tenant occupying Room No.24, situated at 9, Punjabi Chawl, Jawahar Nagar, Khar (E), Mumbai, while defendant is owner of the said chawl. When tenant wanted to carry out certain repairs with the permission of Municipal authorities, landlord had objected and he had filed civil Suit No.811 of 1986 in the court of Small Causes for injunction, while in the Bombay City Civil Court, suit was filed against Bombay Municipal Corporation and tenant, in which tenant had to file writ petition in the High court. Eventually, tenant was permitted to carry out repairs pursuant to the orders by the High court. The plaintiff had also alleged that defendant constructed a bungalow within four feet distance of the plaintiff's tenement which resulted in lowering the level of the plaintiff's premises and stoppage of drainage water, which according to plaintiff, defendant did without permission from the Municipal Corporation. Further, according to the plaintiff, he had approached Municipal authority but no action was taken against the defendant. Thus, on the ground that defendant carried out unauthorized construction without permission from Municipal corporation, and for mandatory injunction as stated above, the suit was instituted.
3 It appears that learned trial Judge considered the evidence led before the court including evidence of the Ward Officer of the Municipal Corporation examined as PW7, as also Sanitary Inspector from the Municipal Corporation, examined as PW6, regarding the alleged unauthorized construction and nuisance due to construction of drainage. Learned trial Judge also considered the pleadings in the plaint so as to observe that the plaintiff cannot be allowed to travel beyond the pleadings in the plaint. He pleaded that construction of bungalow and the drainage line was without permission of the Municipal Corporation, was considered in details with reference to the evidence led before the trial court. Learned Judge on the basis of evidence led could not find that the alleged construction of bungalow and the drainage was without permission from the Municipal Corporation. On the other hand, from the evidence led before the court, learned Judge noted portion of deposition in the evidence of Ward Officer. In the cross examination, in which the Ward Officer agreed that necessary permission for the drainage line of the defendant was granted to the defendant. It was also found that regarding the alleged construction of bungalow, no illegality was detected by Municipal Corporation, and regarding the drainage line concerned, it had necessary permission from the Municipal Corporation. Unfortunately, letters which were communication by the plaintiff with the Municipal Corporation were not proved by the plaintiff and learned Judge rightly held that contents of the letters were not proved and could not be read in evidence.4 In such suit where mandatory relief is sought against defendant, vigilance and alertness is always expected from a citizen that he ought to lodge a written complaint with the Ward Officer or civic authority concerned in the Municipal ward concerned, particularly, when complaint is of emergency nature, or nuisance such as severe drain choking, dangerous building likely to collapse. Unless citizen can show that he had acted with responsibility and sought to redress his grievance through the civic authority concerned, there can be no justification for him to directly go to the court without any legal evidence to support his claim for mandatory injunction against the defendant Municipal Corporation, or qua illegal or dangerous construction because plaintiff is not entitled to claim an order in the nature of injunction as a matter of right or course. Plaintiff has to make out prima facie case including on the question of maintainability of the suit so that court has to be satisfied about the illegality, irrationality or impropriety in the decision of the civic authority or omission on its part not to take action or to take unlawful action. When such illegal act or omission is under challenge in the civil court, prima facie case has to be made out that civic authority or Municipal Corporation committed breach of statutory obligation which is a sine-qua-non for grant of mandatory injunction against Municipal Corporation, and against any person who constructed unauthorizedly without obtaining prior necessary permission to construct from the Municipal Corporation.
5 Testing the present case by applying the above elementary principle, it has to be concluded that there was no proper and legal evidence to issue mandatory injunction as prayed for and also to award damages, as prayed for by the plaintiff in the present case. Although, respondent and advocate remained absent today at the final hearing of this appeal, since I cannot find fault with the impugned judgment and order, the appeal has to fail as it has no merit and is therefore dismissed with no orders as to costs.
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