Case Note & Summary
The appeal arises from an order of the City Civil Court, Bombay, granting an ad-interim injunction in favor of the plaintiff (Respondent No.1) to protect the construction of a balcony outside his flat. The appellant, owner of the flat below, complained to the Mumbai Municipal Corporation (MMC) about the unauthorized balcony constructed by the plaintiff. The MMC issued a notice on 1st August 2007, to which the plaintiff replied on 7th August 2007, stating he had applied for regularization on 6th August 2007. The plaintiff then filed a suit seeking protection of the construction and obtained an ad-interim injunction. The appellant challenged this order. The High Court analyzed the facts and found that the plaintiff's own application for regularization admitted the construction was irregular and not part of any sanctioned plan. The court held that an injunction cannot be granted to protect an unauthorized construction, as it would be against public policy. The balance of convenience was in favor of the appellant, who had complained about the illegal structure. The court also noted that the MMC had not regularized the construction, and the mere application for regularization did not make it legal. Consequently, the High Court allowed the appeal, set aside the ad-interim injunction, and dismissed the plaintiff's application for injunction.
Headnote
A) Injunction - Unauthorized Construction - Ad-interim Injunction - Specific Relief Act, 1963, Section 38 - The plaintiff sought injunction to protect a balcony constructed without sanctioned plan. The court held that an injunction cannot be granted to protect an unauthorized construction, as it would be against public policy and the balance of convenience lies with the defendant who complained of the illegal structure. (Paras 1-6) B) Municipal Law - Regularization - Unauthorized Construction - Mumbai Municipal Corporation Act, 1888 - The plaintiff applied for regularization after the notice was issued. The court noted that the application itself admits the construction is irregular, and mere application does not make it legal. The injunction was rightly refused as the structure remained unauthorized. (Paras 4-5)
Issue of Consideration
Whether an ad-interim injunction can be granted to protect a construction that is admittedly unauthorized and not regularized, and whether the balance of convenience lies in favor of the plaintiff or the defendant.
Final Decision
The appeal is allowed. The order dated 18th July 2012 granting ad-interim injunction is set aside. The plaintiff's application for injunction stands dismissed.
Law Points
- Injunction cannot be granted to protect unauthorized construction
- Regularization application does not confer legality
- Balance of convenience lies with party complaining of unauthorized construction
