LexRIKHABSAO NATHUSAO JAIN versus CORPN. OF THE CITY OF NAGPUR & ORS.
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[2008] 14 S.C.R. 1091 - 1 RIKHABSAO NATHUSAO JAIN A \I. CORPN. OF THE CITY OF NAGPUR & ORS. (Civil Appeal Nos.6192-6197 of 2008) OCTOBER 22, 2008 B [S.B. SINHA AND CYRIAC JOSEPH, JJ.] ., -i City of Nagpur Corporation Act, 1948: s.286(5) - Juris- diction of District Judge - Respondent no.2 did not file any application seeking direction upon Corporation to consider c his application for grant of sanction of building plan - District Judge passed the order suo moto - Held: District Judge does not have inherent power to grant mandatory injunction and that too suo moto - Case remitted to District Judge to recon- sider the matter afresh. D ~. Respondent no.2 and appellant are neighbours. Re- :-- spondent no.2 allegedly submitted a plan for construe- tion of a building. It was not approved within a period of 60 days. Respondent no.2 raised constructions on the premise that said plan was deemed to be sanctioned. E Appellant filed an application before the District Judge in terms of s.286(5) of the City of Nagpur Corporation Act, 1948 seeking grant of mandatory injunction against re- spondent no.1-Corporation and respondent no.2 direct- -~ ing them to r~move the unauthorized and illegal work F - carried out by them and restraining them in future from undertaking illegal work in contravention of provisions ' of the Act and the bye-l~ws made thereunder. Appellant filed application seeking an interim order of injunction restraining respondent no.1-Corporation G - "t from granting any sanction of building plan submitted by respondent no.2 as also an order of injunction restrain- ing him from proceeding with illegal construction. The said application was transferred to the Assistant Judge. The 1091 H 1092 SUPREME COURT REPORTS [2008] 14 S.C.R. A Assistant judge directed the Corporation to consider the r-- site plan submitted by respondent no.2 and pass suitable order granting sanction and noted that only after receipt of suitable orders or sanction given by the Corporation in respect of construction proposed by respondent no.2, B judgment would be pronounced and meanwhile, the in- terim injunction order would continue. On the premise that the said order was not complied with, a show cause no- tice was issued on 17 .11.1983, for initiation of contempt ·t--r proceeding against official of the Corporation. c Respondent no.2 submitted a plan on 19.11.1983 which was sanctioned on 21.11.1983. An application for vacation of stay was filed on 1.12.1983 and by order dated 4.2.1984, the order of interim injunction was vacated. The High Court.exercising revisional jurisdiction di- D rected disposal of injunction application. within fifteen ~ days. "-'." The Misc. Civil application filed by the appellant was dismissed on the ground that having regard to s.275(3) E of the Act, respondent no.2 was entitled to start and carry on constructions on the basis of deemed sanction. As / regards the question that respondent no.2 had no title over the property, it was held that it was open to the ap- p~llant to file a separate suit, claiming declaration that the F said sanction was invalid. Aggrieved by the decision of i- District Judge, appellant filed appeal before the High . Court, which was allowed and matter was remitted to trial Court for fresh consideration. The LPA preferred there- against by respondent no.2 was allowed and trial Court was permitted to proceed with the trial. In furtherance of G said direction, the trial Court allowed Misc. Civil applica- tion directing the Corporation to remove the unauthorized + - construction made by respondent no.2. Appeal there- against was directed to be heard with the LPA by order dated 23.3.2008. An LPA was also filed questioning the H order of Single Judge of High Court dated 23.3.1998. All RIKHABSAO NATHUSAO JAIN v. CORPN. OF THE 1093 CITY OF NAGPUR & ORS. - 1 the three appeals were taken up together and appeals pre- A ferred by respondent no.2 was allowed. Review there- against was dismissed. In the instant appeals, it was contended for appel- lant that having regard to the limited jurisdiction exercised B by the District Jugge, an order of mandatory injunction ....,... i could not be passed and that too without any application and that as respondent No. 1 passed an order of sane- tion on the threat of contempt; the same should not be given effect to. c Allowing the appeals and remitting the matter to Dis- trict
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