Case Note & Summary
The appellant, owner of a building in Mumbai, obtained permission from MHADA in 2006 to repair the dilapidated building but failed due to financial crisis. In 2015, he started repair work without obtaining necessary permission from the Municipal Corporation. The Corporation issued notices under Section 354A of the MMC Act, 1888, calling upon him to show cause why the construction should not be demolished as unauthorized. The appellant filed a suit for permanent injunction and a draft Notice of Motion for interim injunction to restrain demolition. The trial court rejected the draft Notice of Motion. The appellant appealed. The High Court held that the appellant failed to make out a prima facie case as the construction was unauthorized. The balance of convenience was in favor of the Corporation, and no irreparable loss would be caused to the appellant. The appeal was dismissed.
Headnote
A) Civil Procedure - Interim Injunction - Prima Facie Case - The appellant sought interim injunction to restrain demolition of building by Municipal Corporation - The court held that when the construction is unauthorized and illegal, the appellant cannot claim any right to protect such construction - The balance of convenience is in favor of the Corporation and no irreparable loss would be caused to the appellant - Held that the trial court rightly rejected the draft Notice of Motion (Paras 5-6).
Issue of Consideration
Whether the appellant is entitled to interim injunction restraining the Municipal Corporation from demolishing the building on the ground that the construction was unauthorized and illegal.
Final Decision
Appeal dismissed. The order of the trial court rejecting the draft Notice of Motion is confirmed. No order as to costs.
Law Points
- Interim injunction
- prima facie case
- balance of convenience
- irreparable loss
- unauthorized construction
- Section 354A MMC Act
- 1888
- Section 38 Specific Relief Act
- 1963
Case Details
2016 LawText (BOM) (10) 79
Appeal From Order (Stamp) No.29277 of 2016 with Civil Application (Stamp) No.29281 of 2016
Dr. Shalini PhansalkarJoshi, J.
Mr. Satish R. Mishra for Appellant; Mr. S. Pakale a/w Mrs. Madhuri More for Respondents BMC
The Municipal Corporation of Greater Bombay & Anr.
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Nature of Litigation
Appeal against rejection of draft Notice of Motion seeking interim injunction to restrain demolition of building.
Remedy Sought
Appellant sought interim injunction restraining Municipal Corporation from demolishing the building.
Filing Reason
Appellant apprehended demolition of his building by Municipal Corporation pursuant to notice under Section 354A of MMC Act, 1888.
Previous Decisions
Trial court rejected the draft Notice of Motion on 01/10/2016.
Issues
Whether the appellant made out a prima facie case for grant of interim injunction?
Whether the balance of convenience lies in favor of the appellant?
Whether the appellant would suffer irreparable loss if injunction is not granted?
Submissions/Arguments
Appellant argued that he is owner of the building and had obtained permission from MHADA for repairs, and that demolition would cause irreparable loss.
Respondent Corporation contended that the construction was unauthorized and illegal, and no injunction can be granted to protect illegal construction.
Ratio Decidendi
When the construction is unauthorized and illegal, the appellant cannot claim any right to protect such construction. The balance of convenience is in favor of the Corporation and no irreparable loss would be caused to the appellant. Hence, no interim injunction can be granted.
Judgment Excerpts
When the construction is unauthorized and illegal, the appellant cannot claim any right to protect such construction.
The balance of convenience is in favor of the Corporation and no irreparable loss would be caused to the appellant.
Procedural History
Appellant filed suit for permanent injunction and draft Notice of Motion for interim injunction in City Civil Court, Mumbai. Trial court rejected draft Notice of Motion on 01/10/2016. Appellant preferred appeal before High Court.
Acts & Sections
- Municipal Corporation Act, 1888 (MMC Act): 354A
- Specific Relief Act, 1963: 38
