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The Provincial Insolvency Act, 1920
The Indian Penal Code
The Municipal Corporation Of The ... vs Ben Hiraben Manilal on 5 April, 1983
United Commercial Bank vs Bank Of India And Others on 26 March, 1981
The Specific Relief Act, 1963

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Bombay High Court
Sopan Maruti Thopte And Another ... vs Pune Municipal Corporation And ... on 9 February, 1996
Equivalent citations: AIR 1996 Bom 304
Author: C M. Shah
Bench: S . M.B., A Savant

ORDER

M. B. SHAH, C. J.

1. Heard the learned

Counsel for the parties.

2. This group of Writ Petitions, has been referred to Division Bench by A. P. Shah, J. by order dated 11th October, 1995. In referring order it is observed that these matters are required to be decided with some priority because the Courts are virtually flooded with the demolition matters and there are conflicting views expressed by this Court in various decisions mentioned therein. It was also observed that unauthorized structures are mushrooming in this city every day and, therefore, it was stated that the matters may be decided with some priority.

3. Similarly, in Appeal from Order No. 477 of 1994, S. N. Variava, J. has also referred the matter to the Division Bench by observing that following question of law be decided by the Division Bench.

"Whether in the very Scheme of the provisions of Section 351 of the Bombay Municipal Corporation Act, it is obligatory on the Deputy Municipal Commissioner to give a personal or early hearing to the parties after notice under clause (a) of sub-section (1) of Section 351 is issued."

In that order also, the Court has observed that it is well known jn the city of Bombay that unauthorized constructions are regularly put up; when caught out, an application for regularisation is made or suit is filed and stay applied for with an intention to white away the time. Very often the party has no proof, documentary or oral, to show that structure/ work/construction is authorized; even knowing fully well that the work/construction is unauthorized and cannot be justified even without having asked for a personal hearing, in the Court a plea is raised that personal hearing was not given and stay orders are obtained. It is also observed that there cannot be any automatic stay order of demolition merely because it is contended that personal hearing was not given."

4. For deciding the questions involved, we would firstly refer to the relevant provisions of Section 351 of the Bombay Municipal Corporation Act, 1888, hereinafter re-

ferred to as the B.M.C. Act, which are as under:

"Sec. 351(1): If the erection of any building

or the execution of any such work as is

described in Section 342 is commenced con

trary to the provisions of Section 347, the

Commissioner, unless he deems it necessary

to take proceedings in respect of such building

or work under Section 354, shall--

(a) by written notice, require the person who is erecting such building or executing such work, or has erected such building or executed such work, (or who is the owner for the time being of such building or work) on or before such day as shall be specified in such notice, by a statement in writing subscribed by him or by an agent duly authorised by him in that behalf and addressed to the Commissioner, to show sufficient cause why such building or work shall not be removed, altered or pulled down; or

(b) shall require the said person on such day and at such time and place as shall be specified in such notice to attend personalty, or by an agent duly authorised by him in that behalf, and show sufficient cause why such building or work shall not be removed, altered or pulied down.

(2) If such person shall fail to show sufficient cause, to the satisfaction of the Commissioner, why such building or work shall not be removed, altered or pulled down, the Commissioner may remove, alter or pull down the building or work and the expenses thereof shall be paid by the said person."

Section 354 provides for removal of the dangerous structures likely to fall. With regard to that provision, we are not concerned in this reference.

5. Section 260 of the Bombay Provincial Municipal Corporation Act, 1949, hereinafter referred to as the B.q1 P.M.C. Act, 1949, is similar to Section 351 which reads as under:

"Sec. 260: Proceedings to be taken in respect of building or work commenced contrary to rules or by-law (1) if the erection of any building or the execution of any such

work as is described in Section 254 is commenced or carried out contrary to the provisions of the rules or bye-laws, the Commissioner unless he deems it necessary to take proceedings in respect of such building or work under Section 264, shall--

(a) by written notice require the person who is erecting such building or executing such work cr has erected such building or executed such work on or before such day as shall be specified in such notice, by a statement in writing subscribed by him or by an agent duly authorized by him in that behalf and addressed to the Commissioner, to show sufficient cause why such building or work shall not be removed, altered or pulled down, or

(b) shall require the said person on such day and at such time and place as shall be specified in such notice to attend personally or by an agent duly authorized by him in that behalf, and show sufficient cause why such building or work shall not be removed, altered or pulled down.

(2) If such person shall fail to show sufficient cause, to the satisfaction of the Commissioner, why such building or work shall not be removed, altered or pulled down, the Commissioner may remove, alter or pull down the building or work and the expenses thereof shall be paid by the said person."

6. For the erection of the new building or of reconstruction of any building, the procedure is prescribed under Sections 337 to 341 of B.M.C. Act. Sections 342 and 343 provide procedure for making any additions or alterations cr repairs to a building. Thereafter Section 344 provides the form of notices for the purpose of Section 337 or 342. Section 347 provides that no person shall commence to erect any building or to execute any such work as is described in Section 342 until he has given a notice of his intention as provided in the said section to erect such building or execute such work and Commissioner has either intimated his approval of such building or work or failed to intimate his disapproval thereof within a period prescribed in this behalf in Section 345 or 346. Under

Section 351, the Commissioner is entitled to issue a written notice requiring the person who is erecting building or executing work or has erected building or executed work, contrary to the aforesaid provisions, to show sufficient cause by a statement in writing why such building or work should not be demolished, altered or pulled down. Alternatively under clause (b) of sub-section (1) of Sec. 351 discretion is with the Commissioner to issue a written notice to require the person who is erecting building or executing work or has erected building or executed work contrary to the provisions of the Act, to attend personally on such day and at such time and place to show sufficient cause why such building or work should not be removed or altered or pulled down. This section empowers the Commissioner either to call for a statement in writing showing sufficient cause or to give personal hearing for showing sufficient cause why such building or work should not be demolished.

7. The contention advanced by the learned Counsel for the petitioner before us is that clauses (a) and (b) of sub-sec. (1) of Section

351 are to be read together to the effect (hat clause (a) requires issuance of show cause notice to show sufficient cause why such building or work shall not be removed, altered or pulled down and clause (b) provides that after issuance of such show cause notice, the personal hearing for that purpose should be given.

8. In our view, this contention cannot be accepted. This would be in clear violation of the language used in clauses (a) and (b). If the Legislature intended to provide that in all cases personal hearing was necessary, then there was no necessity of providing separate clauses (a) and (b). In clause (a) itself the legislature could have provided that personal hearing should be given by adding word "and" at the end of clause (a). Further, after clause (a), the word "or" is mentioned. This clearly gives a discretion to the Commissioner either to call for the written cause or to give personal hearing.

9. Further the question of issuance of notice under Section 351 of B.M.C. Act or

Sec. 260 of B.P.M.C. Act arises only in case where erection of new building is commenced, or is carried out or addition to the building or repairs to a building is carried out without the " approval as required under the provisions of the Act. For erection, if no such sanction is obtained, thon it would be unauthorized and in such case a show cause notice along with a statement in writing would be sufficient compliance of the Act and principles of natural justice. It is open to the person receiving notice to show cause why such building or work should not be removed, altered or pulled down. But in those cases where it is disputed whether the construction was authorised or that the additions, repairs and alterations are carried out in conformity with the rules and regulations then it is open to the Commissioner to consider such a case even by giving personal hearing also to the concerned party as provided under clause (b).

10. In this context, a question was considered by one of us (A. V. Savant, J ) in the case of Safat Mohammed_Razak v. Municipal Corporation of Greater Bombay, . In that case it was contended that rule of audi alteram partem requires that oral or personal hearing should be given to the affected party. After referring to various circumstances, the Court observed that in the scheme of the provisions of clause (a) of sub-sec. (1) of Section 351 of the Corporation Act, it is not obligatory on the Municipal Commissioner to give oral or personal hearing to the affected person. The principle of natural justice is not violated because the affected person can make written representation. It was held that giving a notice to show sufficient cause why such building or work should not be removed, altered or pulled down would be sufficient compliance with the principles of natural justice. It is in the discretion of the Commissioner to issue notice under clause (b) of sub-sec. (1) of Sec. 351 which contemplates an oral or personal hearing. With regard to the interpretation of the word "or" at the end of clause (a), the Court held that the word "or" could not be interpreted as "and" and that the clear intention of the statute did not require such a reading.

11. Again, thereafter, the said section was interpreted in the case of Nurayan Megha Gohil v. Municipal Corporation of Greater Bombay, . The Court considered the question of demolition of unauthorized construction by the officers ot the Corporation without any notice to the concerned person. It was submitted on behalf or the Counsel for the Corporation that on visit to the site, having found that unauthorized construction had been undertaken by the petitioner, it would have served no purpose to serve a notice on the petitioner to initiate the proceedings. It was submitted that in such a situation, the service of the notice before demolition will be a mere formality and non-service thereof would not vitiate the action. In this context, Court referred to Sections 354, 354(A), 350 and 351 and observed that on a plain reading of the said provisions, it was clear that notice in writing and opportunity of hearing to the affected persons before any action is taken against him for carrying on any unauthorized construction is required to be given. Elaborate procedure of notice and hearing has been laid down in sub-section (1). It is only after such a hearing and only on failure of the person concerned to show sufficient cause to satisfy the Commissioner, that the Commissioner can remove, alter or pull down such unauthorized construction. The Court further observed that it is well settled that where rights of the persons are adversely and prejudicially affected by order made by the Authority in the proceedings, such person is entitled to pre-decisional notice. The Court also held that only power that can be exercised by the Commissioner without any notice is the power under Section 350 of the Act to make inspection of the construction or work at any time during the erection of the building or execution of the work. Thereafter, the Court observed that power of demolition of the structure is a drastic power and such power cannot be exercised by the officers without notice and without hearing and that requirement of notice and hearing to the affected person is not a mere formality or a ritual that the authority concerned has to observe before taking any action, It must be

real, and reasonable and not a pretence.

12. From the aforesaid discussion, it is apparent that the Court has not discussed clauses (a) and (b) of sub-section (1) of Section 351. The observation of the Court with regard to notice and hearing is a general one because in that case before demolition of the premises no notice was given and it was contended by the Corporation that notice was not required to be given.

13. With regard to the principles of natural justice, it has been repeatedly made clear by the Supreme Court that audi alteram partem principle is a part of the principles of natural justice and doctrine of hearing is not extended in every case. Requirement of natural justice cannot be of an uniform mode and cannot be laid down on any strait-jacket formula. It is also held that order may not contain the detailed reasons like the Court's order and the principles of natural justice should not be stretched to make the law lifeless, absurd, stultified as self-defeating. In the case of Union of India v. W, N. Chadha, , dealing with similar contention with regard to principles of natural justice and audi alterani partem, the Court held as under:

"81. Thus, there is exclusion of the application of audi alteram partem rule to cases where nothing unfair can be inferred by not affording an opportunity to present and meet a case. This rule cannot be applied to defeat the ends of justice or to make the law lifeless, absurd, stultifying and self-defeating or plain-ly contrary to the common sense of the situation and this rule may be jettisoned in very exceptional circumstances where com-pulsive necessity so demands.

82. Bhagwati, J. (as the learned Chief Justice then was) in Maneka Gandhi, , speaking for himself, Untawalia and Murtaza Fazal Ali, JJ. has stated thus (at p. 629):

Now. it is true that since the right to prior notice and opportunity of hearing arises only by implication from the duty to act fairly, or to use the words of Lord Morris of Borth-y-Gest, from fair play in action, it may equally

be excluded where, having regard to the nature of the action to be taken, its object and purpose and the scheme of the relevant statutory provision, fairness in action does not demand its implication and even warrants its exclusion."

Applying the aforesaid ratio to the question in the present case, where action is required to be taken against an unauthorised construction or construction carried out without prior permission as required under the law, once notice is given stating the grounds for arriving at a conclusion that the construction was unauthorized and asking the concerned person to show cause why the construction should not be demolished and in case where no sufficient cause is shown, it is not necessary for the Commissioner to give personal hearing. As stated earlier, the Municipal Commissioner may either call for statement in writing showing cause or give personal hearing to show cause why the unauthorised construction should not be demolished. This would be sufficient compliance with the principles of natural justice and also provisions of Section 351 of the Bombay Municipal Corporation Act or Section 260 of the Bombay Provincial Municipal Corporation Act.

14. Section 260 of the B.M.C. Act came up for consideration before the Supreme Court in Municipal Corporation of the City of Ahmedabad v. Ben Hiraben Manilal, . The Court after considering clauses (a) and (b) of Section 260 held that those are alternative provisions. It observed at page 679 (of SCR) : (at p. 538 of AIR) as under: "Clause (b) of Section 260 provides that in the contingency specified in sub-section (1) set out hereinbefore, in the alternative the Commissioner shall require the person to show cause why such building and work shall not be removed, altered or pulled down."

Thereafter while considering the object of the said section the Court observed that it should be read broadly which will effectuate the intention of the Legislature and prevent the mischief which is sought to be avoided by the provisions. The relevant observations are as

under at page 682 (of SCR) : (at p. 540 of AIR) of the report.

"Chapter XV of the Bombay Provincial Municipal Corporation Act, 1949 as applicable to the area concerned, deals with the building regulations and includes Section 260 of the Act. These provisions are to regulate the building construction for the safety, health and well-being of the inhabitants of the particular municipality or corporation. Therefore, the provisions should be read broadly which will effectuate the intention of the Legislature and prevent the mischief which was intended to be remedied or avoided by the provisions."

As stated, the object of the provisions of the B.M.C. Act is to regulate the building construction for the safety, health and well being of the inhabitants of the Municipality or the Corporation. The construction also should be according to sanctioned plan or town planning scheme if it is in force. Therefore, also, Section 260 of the B.P.M.C. Act or Section 351 of the B.M.C. Act is required to be broadly interpreted.

15. In this view of the matter, with respect, it is difficult to accept the general observation made in the decision rendered by this Court in case of Narayan Megha Gohil (supra) that the notice and hearing is a must before demolishing the premises unauthorisedly constructed. The proposition that personal hearing must be given in all cases before demolishing the premises also cannot be accepted. The section empowers the Commissioner either to call for written statement or give a personal hearing for showing cause why such unauthorised construction should not be demolished, altered or pulled down. It is open to the Commissioner, after considering the written statement, to give personal hearing, if at all he requires it.

16. Then comes the question of considering the provisions of Section 478 of the B.P.M.C. Act, 1949 which reads as under:

"Sec. 478: Work or thing done without written permission of the Commissioner to be deemed unauthorized : (1) If any work or

thing requiring the written permission of the Commissioner under any provision of this Act, or any rule, regulation or bye-law is done by any person without obtaining such written permission or if such written permission is subsequently suspended or revoked for any reason by the Commissioner, such work or thing shall be deemed to be unau:horized and, subject to any other provision of this Act, the Commissioner may at any time, by written notice, require that the same shall be removed, pulled down or undone, as the case may be, by the person so carrying out or doing. If the person carrying out such work or doing such thing is not the owner at the time of such notice then the owner at the time of giving such notice shall be liable for carrying out the requisition of the Commissioner.

(2) If within the period specified in such written notice the requisitions contained therein are not carried out by person or owner, as the case may be, the Commissioner may remove or alter such work or undo such thing and the expenses thereof shall be paid by such person or owner as the case may be."

This section was interpreted by this Court in the case of Pune Municipal Corporation v. Nanasaheb Nagoji Bhosale, reported at . While interpreting this section, the Court has observed that the procedure prescribed under Section 260 of B.P.M.C. Act, 1949 presupposes the situation whereby an application for grant of permission has been made and the application has been rejected or permission granted has been executed or a situation whereby deemed permission is pleaded but is not justified. Section 478 contemplates an entirely different set of cases whereby record of the Corporation indicates that no application whatsoever was ever made and, consequently, it was neither rejected nor granted nor was there any deemed permission and in such situation, under Section 478 of the B.P.M.C. Act, 1949, the Commissioner is entitled to demolish the unauthorized structure by giving a notice directing the person carrying out the said work or doing such work to remove or pull down the said construction. Sub-section (2) of S. 478 provides that if within a

period specified in such a written notice

requisitions contained therein are not carried

out by the person or owner, as the case may

be, the Commissioner may remove or alter

such work or undo such thing and expenses

thereof shall be paid by such person or owner,

as the case may be.

17. In our view, this section empowers the

Commissioner to take action not only with regard to the construction of the premises but also the other things which require permission before doing it. This is also considered by the Supreme Court in the case of The Municipal Corporation of the City of Ahrnedabad v. Ben Hiraben Manilal, reported at , and the Court held that it comprehends both the owner or occupier, who has actually constructed, and as well as the owner or occupier of the building which has been unauthorisedly constructed. The Court further held that Section 260 (1)(a) read in conjunction with Section 478 empowered the Municipal Corpo-ation to take action for demolition or removal of unauthorised construction.

18. The learned Counsel Shri Reis, appearing on behalf of the Municipal Corporation for Greater Bombay, and Shri Ketkar, appearing on behalf of Pune Municipal Corporation, have also submitted that necessary procedure is required to be evolved so that pending cases could be disposed of and that further increase in unnecessary litigation could be avoided.

19. Hence, on the basis of the law as

discussed above, it is directed that after 1st

May, 1996 the Bombay Municipal Corpo

ration or the Municipal Corporations con

stituted under the B. P.M.C. Act would follow

the following procedure before taking action

under Section 351 of the B.M.C. Act or under

S.260 of the B.P.M.C. Act.

"(i) In every case where a notice under Section 351 of the B.M.C. Act/ under Sec. 260 of B.P.M.C. Act is issued to a party 15 days' time shall be given for submitting the reply. In case the party to whom notice is issued sends the reply with the documents, and shows cause, the Municipal Commissioner or

Deputy Municipal Commissioner shall consider the reply and if no sufficient cause is shown, give short reasons for not accepting the contention of the affected party.

(ii) It would be open to the Commissioner to demolish the offending structure 15 days

after the order of the Commissioner/Deputy Municipal Commissioner is communicated to the affected person.

(iii) In case the staff of the Corporation detects the building which is in the process of being constructed and/or reconstructed and/ or extended without valid permission from the Corporation, it would be open to the Commissioner to demolish the same by giving a short notice of 24 hours after drawing a panchanama at the site and also by taking photographs of such structure and/or extension. The photographs should indicate the date when the same were taken.

(iv) In case where the Municipal Corporation has followed due process of law and demolished the unauthorised structure and

or extension, if the same is reconstructed without valid permission within a period of one year, it would also be open to the Corporation to demolish the same by giving a short notice of 24 hours.

(v) If the offending structure and/or extension which is assessed by the Corporation for two years, notice shall provide for 15 days' time to show cause. If the Deputy Municipal Commissioner comes to the conclusion that he requires assistance of the party, he may give an oral hearing if he deems fit and proper before passing the order. It is made clear that oral hearing is not at all compulsory but it is at the discretion of the authority.

(vi) In any other case the Corporation is directed to issue a show cause notice in case of any structure and/or extension other than those mentioned in clauses (i) to (iv) above. The Corporation shall provide for 7 days' time to show cause in such a case."

20. In case the notice is issued under Sec. 478 of the B.P.M.C. Act, 1949 and if the person has not complied with the requisitions of the Commissioner, then it would be open to

the Commissioner to demolish the unauthorised structure after expiry of 30 days of the period specified in the notice for removal of such construction.

21. The Municipal Corporations in the State of Maharashtra would follow the above directions so as to avoid unnecessary litigation:

22. Now, we would deal with the contention that in most of cases, which are pending before the Courts, ad interim relief is granted without proper verification of plaintiff s right. In both the referring judgments, the learned Judges have emphasised this aspect and observed that unauthorised constructions are mushrooming in this city every day and unauthorised constructions are regularly put up and the interim reliefs continue without any hindrance. It is true that the stay order or interim relief in such cases affects the society as a whole and administration of Municipal Corporations. Further the result is number of suits are filed and pending against Municipal Corporations or Government bodies restricting the authorities from removing the unauthorised construction, Interim reliefs continue for years, may be in some cases the authorities do not file written statements or reply promptly or they do not move the Court for vacating the interim reliefs. The result is that implementation of law suffers. This also tends to lower the Court's prestige and clearly undermines the Rule of Law.

23. It has come to our notice that in many cases subordinate Courts are granting ad interim reliefs without following the mandate of Rule 3 of Order XXXIX of the Code of Civil Procedure. Only under exceptional circumstances ex parte stay order or interim relief is required to be granted by recording reasons. But recording of reasons should not be an empty formality, such as by mentioning that the record is seen and the plaintiff establishes prima facie case. The Courts should bear in mind the following principles enunciated in the case of Morgan Stanley Mutual Fund v. Kartick Das, : "36. As a principle, ex parte injunction could be granted only under exceptional circumstances. The factors which should weigh with the Court in the gram of ex parte injunction are--

(a) whether irreparable or serious mischief will ensue to the plaintiff.

(b) whether the refusal of ex parte injunction would involve greater injustice than the grant of it would involve.

(c) The Court will also consider the time at which the plaintiff first had notice of the act complained so that the making of improper order against a party in his absence is pre-vented.

(d) The Court will consider whether the plaintiff had acquiesced for sometime and in such circumstances it will not grant ex parte injunction.

(e) The Court would expect a party applying for ex parte injunction to show utmost good faith in making the application.

(f) Even if granted, the ex parte injunction would be for a limited period of time.

(g) General principles like prima facie case, balance of convenience and irreparable loss would also be considered by the Court."

24. In our view, passing interim orders indiscriminately and without apparent and due application of mind, which has the effect of allowing the plaintiff to continue to enjoy the fruits of his illegal actions including unauthorised construction tends to lower the Court's prestige and clearly undermines the Rule of Law.

25. The need to see that a prima facie case is made out, before a Court grants an ad interim injunction, cannot but be over-emphasised, Prima facie case also should be such that it should appear on record that there is a bona fide contest between the parties and serious question is required to be tried. If the plaintiff has no right, title or interest in the property, normally there is no question of granting equitable relief in his favour. The fact of dispute could hardly be a ground. In this

regard, reference may usefully be made to the following observations of the Supreme Court in the case of United Commercial Bank v. Bank of India, , which was quoted with approval in Morgan Stanley's case (1994 AIR SCW 2801) (supra) at page 787 (of SCC) : (at p. 1440, Para 50 of AIR): "52. No injunction could be granted under O.39, Rr. 1 and 2 of the Code unless the plaintiffs establish that they had a prima facie case, meaning thereby that there was a bonafide contention between the parties or a serious question to be tried. The question that must necessarily arise is whether in the facts and circumstances of teh case, there is a prima facie case and, if so, as between whom? In view of the legal principles applicable, it is difficult for us to say on the material on record that the plaintiffs have a prima facie case. It cannot be disputed that if the suit were to be brought by the Bank of India, the High Court would not have granted any injunction as it was bound by the terms of the contract. What could not be done directly cannot be achieved indirectly in a suit brought by the plaintiffs."

26. The need to give reasons before passing ex parte orders of injunctions has been emphasised by the Supreme Court in the case of Shiv Kumar Chadha v. Municipal Corporation of Delhi, , when, at page 177, it was observed as follows :

"....The Parliament has prescribed a particular procedure for passing of an order of injunction without notice to the other side, under exceptional circumstances. Such ex parte orders have far-reaching effect, as such a condition has been imposed that Court must record reasons before passing such order. If it is held that thc'compliance with the proviso aforesaid is optional and not obligatory, then the introduction of the proviso by the Parliament shall be a futile exercise and that part of Rule 3 will be a surplussage for all practical purposes. Proviso to Rule 3 of Order 39 of the Code, attracts the principle, that if a statute requires a thing to be done in a particular manner, it should be done in that manner or

not at all. The principle was approved and accented in well-known cases of Taylor v. Taylor (1875 (1) Ch D 426) and Nazir Ahmed v. Emperor . This Court has also expressed the same view in respect of procedural requirement of the Bombay Tenancy and Agricultural Lands Act in the case of Ramchandra Keshav Adke v. Govind Joti Chavare .

As such whenever a Court considere it necessary in the facts and circumstances of a particular case to pass an order of injunction without notice to other side, it must record the reasons for doing so and should take into consideration, while passing an order of injunction, all relevant factors, including as to how the object of granting injunction itself shall be defeated if an ex parte order is not passed."

27. Further the Supreme Court in Premji Ratansey Shah v. Union of India, was dealing 'with a case where an injnction had been granted in favour of a trespasser on Government land. Even though, in that case, the land had been acquired by the Government, the same had been sold by the original owners to two persons, who were defendants Nos. 3 and 4 in civil suit which had been filed. The appellants before the Supreme Court were the successors to the said defendants Nos. 3 and 4. As the land had been acquired, before its sale to defendants Nos. 3 and 4, the Supreme Court observed as follows at page 550 (of SCC) : (at pp. 2426-27 of AIR):

".....Thus defendants 3 and 4 had no ghost of right, title or interest in the lands acquired from the original owner Maibai. The said sale is a void sale and the petitioners, therefore, cannot derive any interest under the agreement of sale to resist the possession of the lawful owner nor could the declaration sought for be given. The question, therefore, ii whether an injunction can be issued against the true owner. Issuance of an order of inunction is absolutely a discretionary and equitable relief. In a given set of facts, injunction may be given to protect the possession of the owner or person in lawful possession. It is not mandatory that for mere

asking such relief should be given. Injunction is a personal right under Sec. 41(j) of the Specific Relief Act, 1963; the plaintiff must have personal interest in the matter. The interest of right not shown to be in existence, cannot be protected by injunction.

5. It is equally settled law that injunction would not be issued against the true owner. Therefore, the Courts below have rightly rejected the relief of declaration and injunction in favour of the petitioners who have no interest in the properly. Even assuming that they had any possession, their possession is wholly unlawful possession of a trespasser and an injunction cannot be issued in favour of a trespasser or a person who gained unlawful possession as against the owner. Pretext of dispute of identity of the land should not be an excuse to claim injunction against true owner....."

28. Considering the aforesaid decisions it should be borne in mind before issuance of an injunction that it is a discretionary and an equitable relief. It is not mandatory that for mere asking such relief should be given. It is not a charity at the cost 6f public. However, we make it clear that the procedure established by law has to be followed by the public authorities, whether it be the State or a local body, including the Municipal Corporations. At the same time, the procedural lapses, unintentional or intentional, which do not seriously affect the substantive rights of a person, ought not to result in ad interim orders which protect illegality having already been committed by the plaintiff and to give licence of continuing fruits of such illegality for years. Violators of law should not liberally be allowed to take protection of Court of law by obtaining ad interim injunctions which have the effect of continuing such violation.

29. References stand disposed of as above.

30. In view of the above answers to the question of law referred for our decision, all the learned Counsel make a statement that nothing survives in the Writ Petitions and

Appeal from order. The same are, therefore, dismissed with no order as to costs.

31. Petitions dismissed.