IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2131_______OF 2009 (Arising out of S.L.P.(C)NO.1868 of 2008)

M/s Joy Auto Works & Ors.        ...   Appellants  

Vs.

Sumer Builders (P) Ltd. & Anr.    ...   Respondents

J U D G M E N T

ALTAMAS KABIR, J.

1. Leave granted.

2. One  Khatau Bhanji (hereinafter referred to

as  ‘Bhanji’) was  said to  be the  owner of

Original  Plot No.227 measuring 4874.95 sq.

yards  within  the  city  of  Mumbai.   The

Arbitrator  appointed  under  the  Maharashtra

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Regional  and  Town  Planning  Act,  1966

(hereinafter referred to as the ‘1966 Act’)

passed an Award on 24.2.1962 in respect of

the said plot and Original Plot No.231 owned

by one Javle. In terms of the Award, Javle

lost all his rights to Original Plot No.231

while Original Plot No. 227 was divided into

plot No. 878 (1000 sq. yards), plot No.879

(3647 sq. yds.) and plot No. 877.  By virtue

of the said Award, Bhanji was given Final

Plot No. 879 measuring 3647 square yards in

lieu  of  Original  Plot  No.227,  while  Javle

was given plot No.878 measuring 1000 square

yards in lieu of Original Plot No.231, and

Plot  No.877  was  earmarked  for  the

construction of a 40 feet Development Plan

Road (hereinafter referred to as ‘DP Road’).

3. The appellants herein claimed that they had

been granted lease of 1305 sq. yards. out of

plot No.879 on 20.10.1962 by Bhanji, which

was  contiguous  to  plot  No.878,  which  was

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also under the occupation of the appellants.

The  appellant  No.1  claims  to  have  been

running an automobile garage and carrying on

other  connected  activities  on  the  said

properties since 1979 and in connection with

the business it had two motorable accesses

to plot No.878 through the portion of plot

No.879 demised in favour of the appellant by

Bhanji, for egress and ingress to and from

the  public  road.    According  to  the

appellants  there  was  no  other  motorable

access either to plot No.878 or the portion

of the plot No.879 under the occupation of

the appellants.

4. According to the appellants in an attempt to

have  them  evicted  from  plot  No.878  Javle

complained   to  the  Bombay  Municipal

Corporation  that  the  said  plot  was  being

used  by  the  appellants  for  commercial

purposes  although  in  the  Development  Plan

the same  had been earmarked for residential

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purposes.  On  such  complaint  notices  were

issued  for  removal  of  the  structures  in

which such commercial activities were being

carried  out.  Ultimately,  however,  plot

No.878 was purchased by the appellants from

Javle and no further steps were taken by the

Bombay Municipal Corporation pursuant to the

said notices.

5. In  the  meantime,  the  respondent  No.1

acquired Bhanji’s interest in the remaining

portion of plot No.879 and began obstructing

the  use  of  the  motorable  access  from  the

public  road  to  plot  Nos.879  and  878.

Accordingly,  on  11.6.2005  the  appellants

wrote to the respondent No.1 informing it of

their  right  in  Final  Plot  No.878  and  the

portion  of  Final  Plot  No.879  under  their

occupation  together  with  the  two  access

roads.  Since  despite  the  said  letter  the

respondent No.1 brought two iron gates and

building-material  to block the entrance to

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plot Nos.878 and 879 from the public road,

the  appellant  No.2  and  the  original

plaintiff-Mulji Shah were compelled to file

L.C. Suit No.5570 of 2005 in the City Civil

Court at Bombay for perpetual injunction and

by Notice of Motion prayed for an injunction

to restrain the respondent from obstructing

or interfering with the use, occupation and

possession of plot No.878 and plot No.879 to

the extent of 1305 sq. yards together with

the  structures  thereupon  with  motorable

access to and from the public road through

plot No.879.  The appellants prayed for an

injunction to restrain the respondents from

constructing or placing any gates upon plot

No.879,  pending  the  hearing  and  final

disposal of the suit and also to restrain

the  defendant  No.2,  the  Bombay  Municipal

Corporation,  from  approving  any  plans  for

construction of a boundary wall or gates on

plot No.879, which would obstruct the free

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and  full  use  of  the  two  accesses  by  the

appellants from the public road.

6. Considering the facts indicated hereinabove

the  Trial  Court  initially  granted  an  ad-

interim  injunction  against  the  respondent

No.1  on  23.12.2005.  Upon  notices  being

served  the respondents contested the claim

and  respondent  No.1  contended  that  he  had

acquired the ownership of Final Plot No. 879

measuring  3043.50  sq.  yards  by  a  Deed  of

Conveyance  executed  in  his  favour  on

20.12.2004.

7. When the Notice of Motion was taken up for

hearing  the Respondent No.1 contended that

in  terms  of  the  Town  Planning  Scheme–IV

(TPS-IV) there is a 40 feet wide D.P. Road

abutting  plot  No.878  through  which  the

appellants  have  a  right  of  passage.

According to the respondents the appellants

have  a  right  of  passage  from  plot  No.878

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only from the D.P. Road and at no point of

time had they enjoyed any right of passage

through the property of the respondent No.1,

nor  have they established any prescriptive

right or an easementary right of necessity

so as to attract the provisions of Sections

13, 19 and 41 of the Indian Easement Act,

1882.

8. After hearing the parties on the Notice of

Motion the Trial Court rejected the claim of

the  appellants  regarding  the  two  access

points through plot No.879 but allowed the

appellants  to  use  one  of  the  two  access

passages,  referred  to  as  Access  No.2,  to

reach their plot from the public road. Such

access was, however, denied for the use of

vehicles.

9. While passing the aforesaid order, the Trial

Court took note of the fact that Mr. Javle,

the  vendor  of  Appellant  No.2  had  by  Writ

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Petition No.1667 of 1984 sought a direction

upon  the  Bombay  Municipal  Corporation  to

remove  the  hutments  on  the  land  abutting

Final Plot No. 878 which had been set aside

for  a  40  feet  wide  D.P.  Road  and  to

construct the said road expeditiously.  The

said writ petition was withdrawn on 7.8.1984

purportedly in view of the statement made by

the Bombay Municipal Corporation that action

would  immediately  be  taken  under  the  1966

Act  and  that  the  demolition  of

encroachments,  which  was  preventing  the

construction of the road, would be carried

out in accordance with law.  A Notice issued

by  the  Bombay  Municipal  Corporation  on

8.8.1984 to that effect, was challenged by

one Arun Sales, a licensee of the Appellant

No.1, who filed L.C. Suit No. 5822 of 1984

against  the  Bombay  Municipal  Corporation

challenging the said notice. Ultimately, the

Notice of Motion taken out in the suit was

dismissed  and  the  suit  itself  came  to  be

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disposed of in view of a settlement between

the appellants and some members of the Javle

family  whereby the appellant No.2 acquired

Final Plot No.878 from the Javle family.

10. In  the  appeal  preferred  by  the  appellants

herein  the  appeal  Court  accepted  the

position that the Original Plot No.227 had

been  divided  into  Final  Plot  No.879

measuring 3043.50 sq. yards and Final Plot

No.878  which  belong  to  appellant  No.2  in

respect  whereof  there  is  no  dispute.

However,  the  appeal  Court  also  came  to  a

finding that there was no material on record

to  show  that  the  appellants  had  ever

exercised any right of access through Final

Plot No.879 belonging to the respondent No.1

and when the appellant No.2 purchased Final

Plot  No.878  under  TPS-IV  it  was  clearly

understood  that  in  order  to  approach  the

said plot she would have a right of passage

through the proposed 40 feet wide D.P. Road

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provided under the Scheme.  As a result, the

appellant  No.2  could  claim  a  right  of

passage to and from plot No. 878 against the

Bombay  Municipal  Corporation  only  through

the  proposed  D.P.  Road.  Furthermore,  the

Appellant  No.1  being  the  husband  of  the

Appellant  No.2  and  since  the  structure  on

Final  Plot  No.879  was  contiguous  to  Final

Plot No.878, he could also claim right of

passage from the said D.P. Road. The appeal

Court  held  that  merely  because  the  Bombay

Municipal  Corporation  had  failed  to

discharge its duties in providing a road and

passage  to  the  appellants  the  appellants

could  not  claim  such  a  right  through

property  belonging  to  others  and  thereby

create  obstructions  in  their  use  of  the

property.  The  appeal  Court,  accordingly

chose  not  to  interfere  with  the  limited

relief  granted  by  the  trial  Court  and

dismissed the appeal.

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11. It  is the  said order  of the  Appeal Court

dated 12.12.2007 which is the subject matter

of challenge in the present appeal.

12. Appearing in support of the appeal Mr. C.A.

Sundaram, learned Senior Counsel emphasized

the fact that in the absence of any other

access to Final plot No.878 or the portion

of plot No. 879 the only means of access for

over 35 years had been through plot No.879

which  formed  part  of  the  Original  Plot

No.227  which  was  sub-divided  into  plot

Nos.878,  879  and  877.  Mr.  Sundaram  also

submitted that the 40 feet wide D.P. Road,

indicated in the Development Plan under TPS-

IV, was only in contemplation when the Award

was passed by the Arbitrator under the 1966

Act  and  on  account  of  the  various

encroachments and obstructions the said road

has never been constructed. This, in fact,

had prompted Javle to file a Writ Petition

for  a  direction  upon  the  Bombay  Municipal

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Corporation to remove the said encroachments

and  constructions  and  to  take  up  the

construction  of  the  road  immediately.  Mr.

Sundaram  submitted  that  in  the  absence  of

any actual road adjacent to plot No.878, the

owner thereof had access to her land only

through plot No.879. Mr. Sundaram contended

that  only  after  the  respondent  No.1  had

acquired  the  ownership  of  plot  No.879  in

2004  that  such  right  was  attempted  to  be

disturbed  by  the  Respondent  No.1  by

threatening to put up a boundary wall and an

iron gate to prevent the use of such passage

which was being used for more than 35 years.

13. Mr.  Sundaram  submitted  that  though  the

Special  Leave  Petition  had  been  filed

against  an  interim  order  it  had  become

necessary to do so since the only means of

egress and ingress to and from plot No.878

and  the  portion  of  plot  No.879  under  the

possession  of  appellant  No.1  would  be

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completely  obstructed,  if  the  respondents

were  not  restrained  from  obstructing  the

motorable access to the said plots which the

appellants  had  been  enjoying  for  over  35

years.  Mr.  Sundaram  urged  that  the  Courts

below had wrongly relied on only a proposal

for the construction of a 40 feet wide D.P.

Road adjacent to plot No. 878 in passing a

limited  interim  order  without  ascertaining

whether  such  road  had  actually  been

constructed  and  was  in  existence.   Mr.

Sundaram also submitted that both the Courts

below had lost sight of the fact that plot

No.878 and the portion of plot No.879 under

the  occupation  of  the  appellants  was

completely  land-locked  since  the

construction of the 40 feet wide D.P. Road

next to plot No.878 was still in the realm

of planning and had not yet been executed.

In other words, the appellants had no access

to their portion of the plots under their

occupation except through plot No. 879.

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14. Mr.  Sundaram’s  submissions  were  strongly

opposed by Mr. Dushyant Dave, learned Senior

Counsel  appearing  for  respondent  No.1.  He

strenuously urged that the appellants never

had any right of passage through plot No.879

and  their  access  to  plot  No.878  and  the

portion  of  plot  No.879  under  their

occupation was from the 40 feet wide D.P.

Road which was adjacent to plot No.878. Mr.

Dave  also  urged  at  the  outset  that  the

Special Leave Petition was not maintainable

since  it  was  directed  against  the  orders

passed  in  an  interlocutory  application  in

which concurrent findings of fact had been

arrived at.

15. Mr. Dave then contended that, in any event,

since plot No. 878 and the portion of plot

No.879  under  the  occupation  of  the

appellants had been earmarked in the Master

Plan  for  residential  purposes  under  no

circumstances  could  the  appellants  be

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permitted under the provisions of the 1966

Act  to continue with commercial activities

thereupon.

16. Mr. Dave also contended that it is for the

very same reason that a complaint had been

made by Javle  and  notices had been issued

thereupon  by  the  Bombay  Municipal

Corporation to the appellants to remove the

structures  which  were  being  used  for  such

commercial purposes.  

17. From the site plan which had been made Exh.

‘A’ in the suit, Mr. Dave pointed out that

the claim of the appellants to a right of

motorable access through plot No.879 renders

the  said  plot  unfit  for  any  use  by  the

respondent  No.1  and  that  in  the  earlier

suits  the  appellants  have  never  asserted

such right.

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18. Mr. Dave submitted that while disposing of

the  Notice  of  Motion  dated  11.9.1975,  the

learned  Trial  Court  noticed  the  fact  that

after  obtaining  an  ad-interim  order  of

injunction,  the  appellants  had  tried  to

convert  the  temporary  structures  on  the

plots in question into a permanent ones. Mr.

Dave  also  submitted  that  while  dismissing

the Notice of Motion, the High Court also

took  into  consideration  the  Town  Planning

Scheme No.IV, Mahim, which came into force

on  15th August, 1963,  whereunder  the  Final

Plot allotted to Bhanji and Javle could not

be  used  for  commercial  purposes  and  that

accordingly the appellants were not entitled

to an order of injunction which would have

the effect of altering the said Scheme and

the  use  of  the  plots  earmarked  for

particular purposes.

19. On  behalf  of  the  Bombay  Municipal

Corporation it was submitted by Mr. Shekhar

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Naphade, learned Senior Counsel, that in the

Development Scheme conceived by the Planning

Authority different plots had been earmarked

for  different  purposes.  Mr.  Naphade  urged

that under the TPS-IV Scheme certain Final

Plots  which  had  been  identified  for

industrial purposes could be used for such

purposes  only. Similarly, except the plots

which  had  been  allotted  for  ‘public

purposes’ the remaining plots could be used

for residential purposes and Final Plot Nos.

878  and  879  fell  within  the  ambit  of

paragraph 1(n) of TPS-IV and could be used

for residential purposes only.  Mr. Naphade

submitted  that  the  appellants  had  been

offered  an  alternative  plot  of  land

measuring  500  sq.  yards  at  Powell  Land

Industrial  Estate,  Kondivili,  Bombay,  but

such  offer  had  been  turned  down  by  the

appellants.

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20. Ultimately, on the complaint made by Javle,

the  appellants  were  issued  notices  under

Sections 89 and 90 of the 1966 Act to remove

the  structures  from  the  plots  in  question

and also for the eviction of the appellants

therefrom.

21. Mr. Naphade submitted that upon service of

the said notices, the appellants filed Suit

No.6544 of 1975 in the City Civil Court at

Bombay, inter alia, for a declaration that

the Final Scheme viz. TPS-IV was not binding

on the appellants and that the said notices

under  Sections 89  and 90  of the  said Act

were illegal and void and had no effect in

law.  In the said suit, the appellants took

out  a  Notice  of  Motion  for  an  ad-interim

order of injunction to restrain the Bombay

Municipal  Corporation  from  demolishing  the

structures which had been put up in Final

Plot No.878 and a part of Final Plot No.879.

Ultimately,  as  indicated  hereinabove,  the

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Notice  of  Motion  was  dismissed  and  the

appeal  taken  against  the  said  order  was

withdrawn by Mulji Shah on 1st August, 1977.

Subsequently, on 29th September, 1977, Mulji

Shah filed another suit in the City Civil

Court in Bombay, being Suit No.7540 of 1977,

in  which  an  ex-parte  ad-interim  order  was

passed  restraining  the  Bombay  Municipal

Corporation from removing him from the Final

Plot No.878 and a part of Final Plot No.879

and  from removing the structures thereupon

in any manner.  The said Notice of Motion

came  up  for  hearing  in  1979  and  was

dismissed  for  default  and  the  ad-interim

injunction was vacated.

22. Mr.  Naphade also submitted that thereafter

Dr. K.V. Javle filed Writ Petition No.1667

of 1984 and prayed for a Mandamus upon the

Bombay  Municipal  Corporation  and  its

officers  to  carry  out  their  statutory

obligations under the 1966 Act and the rules

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framed thereunder and in particular to give

effect  to  the  TPS-IV,  Mahim,  by  directing

the  said  authorities  to  remove  all  the

structures,  temporary  or  otherwise,  from

Final  Plot  No.878  and  to  direct  the

authorities  of  the  Bombay  Municipal

Corporation to hand over and deliver vacant

possession of the said plot measuring 1000

sq. yards and for a further direction on the

said  respondents  to  construct  the  DP  road

adjoining Final Plot No.878.   Mr. Naphade

pointed out that on the assurance given on

behalf  of the Bombay Municipal Corporation

and  its  authorities  that  notice  for

demolition would be issued under Sections 89

and 90 of the 1966 Act and served within two

weeks and demolition will be carried out as

prescribed  in  law,  the  writ  petition  was

allowed to be withdrawn by order dated 7th

August, 1984.

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23. Mr. Naphade submitted that in 1984 a fresh

notice  was  given  to  the  appellants  for

removal of the structures on the plots in

question.   Thereafter,  as  mentioned

hereinabove, Arun Sales, a licensee of the

Appellant No.1, filed L.C. Suit No.5822 of

1984  against  the  Bombay  Municipal

Corporation challenging the notice dated 8th

August,  1984,  and  obtained  interim  orders

which were subsequently vacated.   

24. Mr.  Naphade  contended  that  the  structures

raised  by  the  appellants  were  not  in

conformity  with  the  Town  Planning  Scheme

though in the suit filed by the appellants

an attempt has been made to make out a case

that since the 40 feet wide DP Road had not

yet been constructed by the Corporation, it

should  not  permit  any  new  construction  on

Final Plot No.879 so as to block the only

access available over the said plot to Plot

No.878.  Mr. Naphade submitted that such a

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case was against the provisions of the Town

Planning Scheme and taking advantage of an

order  of  injunction,  the  appellants  could

not  be  allowed  to  continue  to  use  plot

No.878  and  the  portion  of  plot  No.879  in

their occupation for commercial purposes.

25. Mr. Naphade submitted that the learned Trial

Judge  had,  while  denying  motorable  access

through  plot  No.879,  allowed  access

otherwise  to  the  appellants  from  the  main

road to the premises under their occupation.

26. Since  the  appellants  have  come  up  against

the refusal of the High Court to grant their

interim prayer to have motorable access to

plot  No.878  and  a  portion  of  plot  No.879

under  their  possession  from  the  main  road

through plot No.879 during the pendency of

the suit, we can only consider the case of

the parties on a prima facie basis, inasmuch

as, the suit is yet to be decided on merits.

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The  case  being  argued  on  behalf  of  the

appellants, may not ultimately be dependent

upon  whether  the  appellants  run  any

commercial  venture  on  plot  No.878  and  the

portion  of  plot  No.879  under  their

possession, but the question of such a right

of passage may ultimately be relevant if it

is established that there is no other access

to the said premises.  Accordingly, having

regard to Exh.A in the suit, which is a site

plan which has been referred to as Exh.C in

the paper book at page 120, some provision

has to be made even at the interim stage to

preserve  a  motorable  access  from  the  main

road to the premises under the occupation of

the appellants so that upon development of

plot  No.879  such  a  right  is  not  totally

extinguished.   While  the  Trial  Court  has

allowed access on foot from the main road to

the said premises, in our view, a motorable

access should be preserved at least till the

40 feet wide DP road adjacent to plot No.878

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is  available  to  the  appellants  for  egress

and  ingress  from  their  portion  of  the

premises, which is otherwise land-locked, on

till the disposal of the suit.    

27. It would not be appropriate on our part to

make any observation on the merits of the

case of the parties since the same is yet to

be decided.   We are only required to ensure

the balance of convenience and inconvenience

and the equities between the parties at this

stage.  We are also required to consider if

any of the parties will suffer irreparable

loss and injury unless an interim order, as

prayed for by the appellants, is allowed or

denied. This is not one of those cases where

the  appellants may be suitably compensated

by damages in case their suit succeeds.

28. Having  considered  the  submissions  advanced

on  behalf  of  the  respective  parties,

including  that  of  the  Bombay  Municipal

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Corporation,  we  are  of  the  view  that  ad-

interim  protection,  as  prayed  for  by  the

appellants, should be given in the facts and

circumstances of the case.    

29. We,  therefore, direct that the appellants/

plaintiffs will be entitled to a motorable

access  from  the  main  road  to  Plot  No.878

through Plot No.879 and the portion of Plot

No.879 in their possession either till the

disposal  of  the  suit  or  till  the

construction of the 40 feet wide D.P. Road

running adjacent to Final Plot No.878 by the

Bombay Municipal Corporation in terms of the

assurance given by it on 7th August, 1984, in

Writ Petition No.1667 of 1984 and also in

terms  of  the  directions  given  in  Writ

Petition  No.2443  of  2006  filed  by  the

Respondent  No.1  before  the  Bombay  High

Court, whichever is earlier.  However, once

the  said  40  feet  wide  D.P.  Road  is

constructed  by  the  Bombay  Municipal

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Corporation,  giving  clear  motorable  access

to Plot No.878, the Respondent No.1 should

no longer be deprived of the full enjoyment

of its property and will be entitled to move

the  Trial  Court  to  get  the  right  of  way

through  Plot  No.879  granted  by  this  order

revoked and this order will not stand in the

way  of such  an order  being passed  by the

Trial  Court,  if  it  is  satisfied  that

sufficient motorable access is available to

the appellants on account of construction of

the 40 feet wide D.P. Road.  We also make it

clear that the right of motorable access to

Plot No.878 through Plot No.879 granted by

this  order  to  the  appellants  will  not

preclude  the  Bombay  Municipal  Corporation

from taking any action as it may be entitled

to  under  the  1966  Act  or  other  relevant

enactments in relation to the Town Planning

Scheme  No.IV, Mahim.  Furthermore, subject

to any order to the contrary that may have

been  passed  in  any  other  proceeding,  the

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Bombay Municipal Corporation must implement

the  assurance  given  by  it  on  7th August,

1984, when the Writ Petition No.1667 of 1984

was  permitted  to  be  withdrawn,  regarding

construction of the 40 feet wide D.P. Road

adjacent to Final Plot No.878, with utmost

expedition.    

30. We,  therefore,  allow  the  appeal  to  the

extent indicated hereinabove.   

31. There will be no order as to costs.

________________J.                               (ALTAMAS KABIR)

________________J. (MUKUNDAKAM SHARMA)

New Delhi Dated:2.4.2009   

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