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CASE NO.: Special Leave Petition (civil)  9479 of 2005

PETITIONER: Seema Arshad Zaheer & Ors.

RESPONDENT: Municipal Corporation of Greater Mumbai & Ors.

DATE OF JUDGMENT: 05/05/2006

BENCH: S B Sinha & R V Raveendran

JUDGMENT: J U D G M E N T With [SLP (C) Nos. 9490/2005, 9688/2005, 10016/2005, 10095/2005,10280/2005 and 10294/2005]

RAVEENDRAN,  J.

       These matters relate to certain alleged unauthorized structures put up  in plot no. X, XI, XIIA later renumbered as Plot Nos. 7 to 10 of Palton  Road Estate, Saboo Siddique Road, Mumbai - 40 bearing Cedestral Survey  No.14/1504 of Fort Division, Mumbai, belonging to the Central Works  Public Department, Government of India. The said land, it is alleged, was  leased to one Mohamedbhai Abdullabhai Moonim under lease-deed dated  6.7.1939. The said property was thereafter known as Moonim compound.  2.      According to the petitioners, the said tenant - Mohamedbhai  Abdullabhai Moonim, who was carrying on business therein under the  name of M/s Abdullabhai Faizullabhai, assigned his business to M/s  Abdullabhai Faizullabhai Private Ltd, a company promoted by him, in or  about the year 1947; and the said company let out several portions thereof  to different sub-tenants. It is alleged that Abdullabhai Faizullabhai Private  Ltd assigned all its right, title, interest and claim in the said property to M/s  Global Marketing, a partnership firm, under deed of assignment dated  21.9.2000, for a consideration of Rs.18 Lakhs, on ’as is, where is basis’  subject to the condition that it shall be the sole responsibility of the  assignee to obtain tenancy/occupancy/possessory  rights of the assignor in  respect of the said property and to continue to use and enjoy the said  property on such terms and conditions that the CPWD may stipulate in that  behalf.  

3.      It is alleged by the petitioners that Global Marketing obtained  possession of various portions of Moonim Compound from the respective  sub-tenants, made improvements/partitions in the existing old structures  and then let out the same to different sub-tenants (who are the petitioners  herein) in the year 2001-02. It is further alleged that the Municipal  Corporation of Greater Mumbai (Brihan Mumbai Municipal Corporation,  for short ’the Corporation’) issued seven show cause notices dated  13.5.2003 followed by final orders dated 2.9.2003 under section 351 of the  Mumbai Municipal Corporation Act, 1888 (’Act’ for short) to remove/pull  down seven unauthorized and illegal structures in the said premises  (Moonim Compound). The occupants of these seven structures filed seven  suits (O.S. Nos.4344 to 4350/2003) in the City Civil Court, Mumbai and  obtained a temporary injunction (by common order dated 25.11.2003)  restraining the Corporation from taking action in pursuance of such notices.  The seven appeals (A.O. Nos.1024 to 1030/2003) filed by the Corporation  against the said order of temporary injunction were allowed by the Bombay  High Court by common order dated 21/22.2.2005 and the temporary  injunction was vacated. These petitions seeking special leave are filed  against the said common order of the High Court. We will briefly refer to  each case separately.  

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SLP(c) No.9479/2005 (from L.C. Suit No. 4345/2003/ A.O.  No.1025/2003)

4.      It is alleged that one Abdul Samad was carrying on business under  the name and style of ’A to Z Auto Garage’ in a portion of Moonim  Compound; that he surrendered possession of the said portion to Global  Marketing who converted the shed situated in the said portion, that is  South-Eastern corner, into 33 shops and let out the said shops to different  tenants [Seema Arshad Zaheer & Ors.] under various unregistered tenancy  agreements.  

5.      The Municipal Corporation of Greater Mumbai [Brihan Mumbai  Municipal Corporation, for short the ’Corporation’] issued a notice dated  13.5.2003 under section 351 of the Mumbai Municipal Corporation Act  1888 [’Act’ for short] to the occupants thereof namely Mohamedbhai  Abdullabhai Moonim and A. R. Shaikh (one of the partners of Global  Marketing) alleging that an unauthorized structure with brick masonary  walls and A.C. Sheet roofing measuring 17.5m X 7m  (with a sloping roof  of  3.50m on one side and 3.10m on the other) had been unauthorizedly  constructed, and calling upon them to show cause why the said  unauthorized construction should not be removed or pulled down. A reply  dated 26.5.2003 was sent through counsel by 33 occupants of the said  Building, to the said notice, alleging that the entire property (Moonim  Compound) measured 2766 sq.yds., that it had several structures, that the   structure in regard to which the notice had been issued was in existence  even prior to 1961-62 and was earlier in the occupation of Abdul Samad  who was carrying on business therein under the name and style of M/s A to  Z Auto Garage, that the said structure had been assessed to municipal tax  by the Corporation and provided with electricity and water connection, that  Abdul Samad who was running A to Z Auto Garage surrendered the said  structure in his occupation to Global Marketing, and that Global Marketing  partitioned the said existing structure into 33 shops and let out those shops  to 33 tenants. It was contended that as per the policy of the Corporation  contained in its Circular dated 11.11.1980, all non-residential structures,  authorized or unauthorized, which were in existence prior to datum line  (1.4.1962) were to be "tolerated" and regularized, and therefore, the said  structure should not be demolished.  

6.      The Commissioner of the Corporation after considering the   objections received in reply to the notice dated 13.5.2003 and the  documents produced by the objectors, passed a considered order dated  2.9.2003 holding that the objectors have failed to prove that the structure  which was the subject matter of the notice, existed prior to the datum line  (1.4.1962) or that it was subsequently constructed authorisedly. He,  therefore, directed the said unauthorized construction to be removed within  15 days failing which it would be demolished.  

7.      Feeling aggrieved, the 32 occupants of that structure (Seema Arshad  Zaheer and Others) filed L.C. Suit No. 4345/2003 in the City Civil Court,  Mumbai for a declaration that the notices dated 13.5.2003 and 2.9.2003  were illegal and for a permanent injunction restraining the Corporation  from taking any action pursuant to the said notices. They also moved a  notice of motion seeking a temporary injunction restraining the  Corporation from taking any action in respect of the said structure. The  City Civil Court passed a common order dated 25.11.2003 (in the said suit  and connected suits relating to similar suits filed by occupants of other  structure in the said property), granting a temporary injunction restraining  the Corporation and its officials from taking any action in pursuance of the  notices dated 13.5.2003 and 2.9.2003 respectively.  

8.      The Corporation challenged the said temporary injunction by filing  an appeal before the Bombay High Court in A.O. No.1025/03. A learned  Single Judge of the High Court, by judgment dated 21/22.2.2005 (passed in  the said appeal and connected appeals) set aside the order of the temporary

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injunction granted by the City Civil Court and dismissed the notices of  motion for temporary injunction. Leave is sought in this special leave  petition [SLP(c) No. 9479/05] to challenge the said order.   

9.      The trial court was of the view that the plaintiffs had established  prima facie that the structure in which the 33 small shops were situated,  was in existence for several years and was assessed to property tax, and  therefore, the plaintiffs were entitled to the temporary injunction sought till  disposal of the suit. On the other hand, the High Court held that the  occupants-plaintiffs had failed to make out a prima facie case that the  structure was authorized, or put up prior to 1.4.1962, and that the trial court  had, without noticing and drawing correct inferences from the documents,   had proceeded in a very vague manner. The High Court, after referring to  the documents in detail, has concluded that the structure was of recent  origin and unauthorized and there was no justification for staying the action  in pursuance of the notices dated 13.5.2003 and 2.9.2003. The question for  consideration is whether the order of the High Court calls for interference.  

10.     The documents produced show that the Corporation had earlier  issued a notice dated 21.10.1991, under section 351 to Abdul Samad  carrying on business under the name of A to Z Auto Garage alleging that a  L-shaped structure had been constructed in the Moonim compound (as  shown in the sketch annexed to the notice). It showed that by using the  compound wall as the support wall, and by fixing  MS Poles parallel to the  compound wall and using MS angle purlins and AC sheets and G.I. sheets,  a structure (longer wing of the L-shaped structure measuring 18.15m X  4.25 m and shorter wing measuring 2.5m X 2.7 m with an average height  of 3m) had been unauthorisedly constructed. The notice called upon Abdul  Samad to show cause why it should not be pulled down. Abdul Samad filed  a Long Cause Suit no. 8446/1991 in the City Civil Court, Bombay to  restrain the Corporation from enforcing the said notice. On 5.11.1991, on a  notice of motion moved by the said Abdul Samad, the City Civil Court  granted an ex parte interim temporary injunction in the said suit restraining  the Corporation from giving effect to the notice dated 21.10.1991. During  pendency of the said suit, a final order dated 27.12.1996 was made by the  Corporation in regard to the said unauthorized structure. Abdul Samad, by  another notice of motion sought a temporary injunction, and the court by  order dated 22.1.1997 granted another temporary injunction restraining the  Corporation from taking any action in pursuance of the said notice dated  27.12.1996, subject to Abdul Samad filing an undertaking not to carry out  any additional construction, alteration, or extension to the suit property. In  view of the said temporary injunctions, the unauthorized structure could  not be demolished by the Corporation. Subsequently, the said suit (LC Suit  No. 8446/1991) was dismissed for non-prosecution on 10.12.1998. No  attempt was made to revive the said suit and the dismissal became final. It  would appear that Abdul Samad thereafter delivered possession to Global  Marketing. It is also evident that between 2001-2002, Global Marketing  either dismantled the said unauthorized construction (subject matter of  notice dated 21.10.1991) and put up a new unauthorized structure in its  place, or made extensive extensions/additions/alterations to the said  unauthorized structure and converted it into 33 shops. It is in these  circumstances, a fresh notice under section 351 of the Act was issued by  the Corporation on 13.5.2003 followed by final order dated 2.9.2003.     

11.     In the meanwhile, it would appear that the partners of Global  Marketing were found to be engaged in organized crime and the Special  Court functioning under the Maharashtra Control of Organised Crimes Act,  1999 (MOCA Act) passed an order dated 19.5.2003 in MCOC Special  Case No.3 of 2003, appointing a Receiver to take possession of the entire  property with the structures thereon. In the said suit, the special court has  made an order directing the Corporation to take action only by following  due process of law.  

12.     The petitioners assert that the 33 small shops in their possession have  been carved out of the existing structure wherein A to Z Auto Garage was

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run. In para 15 of the plaint, the petitioners alleged that ’the structure  mentioned in the notice issued in the year 1991 and the suit structure which  is the subject matter of the impugned notice and present suit are one and  the same.’ There was already an order for demolition of the said structure  by the Corporation in pursuance of the notices dated 21.10.1991 issued  under section 351 of the Act. The challenge thereto in LC Suit No.  8446/1991 having ended in dismissal, the said order for demolition became  final. The structure could not be demolished in pursuance of the earlier  notice, on account of the pendency of L.S. Suit No.8446/1991 and the  orders of temporary injunction granted therein. When the suit was  dismissed and when it was found that the said structure has been either  extended or replaced by a new structure, action was rightly taken by the  Corporation, by issuing the notice dated 13.5.2003 followed by trial order  dated 2.9.2003. Admittedly, no plan was sanctioned in regard to the   structure. No document is produced to show that the structure in question  existed prior to or on the datum line 1.4.1962. The documents produced  only show that a temporary shed was unauthorisedly put up in the year  1991 and the order for its demolition has become final. The High Court  was, therefore, justified in vacating the temporary injunction.  

13.     Some documents were produced to show that Abdul Samad was  running an Auto Garage in an area measuring about 81.158 sq. meters and  he took permission to use an additional space of 70 sq. feet for the Auto  Garage; that the small temporary structures were erected in the 1970s; and  that those had been replaced by an unauthorized structure in the year 1991,  leading to the first notice by the Corporation and again by another  unauthorized structure in the year 2002-03 leading to the second notice by  the Corporation dated 13.5.2003. Some other documents produced by the  petitioners refer to existence of structures bearing Ward Nos. A3357,  A3358 and A3369, but a careful examination of the documents shows that  they do not relate to the area in question which were earlier in occupation  of Abdul Samad, (A to Z Auto Garage) or to existence of the present  structure prior to 1.4.1962. Petitioners also produced certain documents to  show that there were, in fact, two structures in the premises prior to  1.4.1962 which had been assessed to municipal tax by producing  documents relating to the same. Moonim compound is a huge property,  more than half an acre in extent. The two old structures were demolished  and in their places two new structures (in the occupation of Sara Shoppee  and Sahara Shoppee) have come up, constructed in the year 1997 and 2001  respectively, after obtaining licence. Therefore, merely showing that some  structures had existed prior to 1.4.1962 and assessed to tax, is not sufficient  unless it is shown the demolition order has been passed in regard to that  structure. We are concerned with the structure on the South-Eastern portion  corner which was earlier in occupation of Abdul Samad, proprietor of A to  Z Auto Garage. No document is produced to show that  any structure of the  size or shape now existing, existed prior to 1.4.1962 in the said area. Nor  any document is produced to show that any licence/sanctioned plan was  obtained for putting up the existing structure at any point of time. The  Commissioner of the Corporation in his final order dated 2.9.2003 has  considered the documents and found that they did not establish that the  existence of the structure in regard to which the notice was issued. The  High Court has also considered these documents and found them to be not  relevant. Therefore, this S.L.P. is liable to be rejected.

SLP (C) No. 9490/2005 (from L.C. Suit No. 4344/2003/  A.O.No.1024/2003)  

14.     This relates to another structure in Moonim Compound measuring  11.30 m x 6.60 m (with a height of  3.10 m on one side and 3.50 m. on the  other side) with brick masonary walls and A.C. sheet roofing. The structure  is situated on the Southern side of the Moonim compound property and lies  between Sara Shoppee on the Western side and the unauthorized structure

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which is the subject matter of SLP (c) No.9479/2005 on the Eastern side.  

15.     Mohd. Hajif A Hamid and 16 others filed L.C. Suit No.4344/2003 in  the City Civil Court, Mumbai for quashing the notices dated 13.5.2003 and  2.9.2003 issued by the Corporation and for an injunction. These occupants  also claimed that the structure (which has been divided to small shops and  let out to them by Global Marketing) was earlier in the occupation of  Abdul Samad (A to Z Auto Garage). The documents relied on and  contentions urged are the same as those in SLP (c) No.9479/2005. This  petition is liable to be rejected for the reasons stated above, for dismissing  SLP (c) No. 9479/2005.  

SLP (c) No.9688/2005 (from L.C. Suit No. 4346/2003/ A.O. No.  1026/2003

16.     This relates to another structure consisting of ground plus two floors  with brick masonary walls measuring 38.35 m x 3.85 m with a ground floor  (height 3.2 m), first floor (height 3.2 m) and second floor with AC sheet  roofing (2.85 M on one side and 2.55 M on the other). The structure is  situated north of the Sahara Shoppee in Moonim Compound, in the set  back area between the northern boundary wall and Sahara Shoppee.  

17.     One Fatimabi Abdul Rehman Shaikh filed L.C. Suit No.4346/2003  in the City Civil Court, Mumbai, in regard to the said property for  declaring the notices dated 13.5.2003 and 2.9.2003 issued by the  Corporation as illegal and for an injunction. She claims to be the tenant of  the premises under Global Marketing. She also claimed that the structure  was earlier in the occupation of Abdul Samad (A to Z Auto Garage).  

18.   The facts of the case and the documents relied on are the same as  earlier cases, dealt with in SLP [C] No.9479/2005. In fact the structure in  question by the side of the northern boundary has nothing to do with the  area or structure on the south-eastern side of the property which was in  occupation of A to Z Auto Garage. No document is produced to show the  existence of any old structure in the area where the present structure is  situated. For the reasons stated in regard to SLP (C) No.9479/2005, this  SLP is liable to be dismissed.            

SLP(c) No. 10294/2005 (from L.C. Suit No. 4349/2003/A.O.  No.1029/2003)

19.     This relates to an unauthorized structure measuring North to South:   35.80m and East to West 4.20m constructed in the set back area on the  Western side of Moonim compound with brick masonary walls. The  structure consists of a ground floor (150.36 sq.m.) and part first floor (92.4  sq.m.). It abuts the structures of Sara Shoppee and Sahara Shoppee as also  the unauthorized structure which is the subject matter of SLP (C)  No.10095/2005.

20.     M. Yunus M. Ali and 41 others filed L.C. Suit No. 4349 of 2003 in  the City Civil Court, Mumbai for declaring the notices dated 13.5.2003 and  2.9.2003 issued by the Corporation as invalid and for a permanent  injunction. They claimed that the present structure was earlier in the  occupation of one Zulfikar son of Masook Khan, who was carrying on  business under the name and style of ’Masook & Sons’, and that the  structure formed part of the property assigned the No.A3357-58(1) and   assessed to municipal tax. They rely on the property register extract for the  year 1997 to contend that the property bearing ward no. A3357-58(1) was  assessed to property tax prior to 1961-62. As in the earlier cases what is  significant is that no document has been produced to show that the  structure is an authorized structure constructed after obtaining a sanctioned  plan and licence nor is any document produced to show that the said

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structure existed prior to datum line 1.4.1962 so as to attract the benefit of  the Corporation circular dated 11.11.1980. On the other hand, the  Corporation contends that earlier there was a smaller unauthorized  structure in that portion of Moonim Compound and it had issued a show  cause notice dated 21.10.1991 for its demolition; and the present  unauthorized structure of a larger area had been put up in 2001-02. While  the documents produced show the existence of some smaller unauthorized  structure in Moonim compound around 1990, they do not show or refer to  the structure of the measurements now existing.  The High Court after  referring to the documents (in paras 29 to 31) has rightly recorded a clear  finding after that none of the documents show the existence of the structure  in that area prior to 1.4.1962.

SLP(c) No. 10280/2005 (out of L.C. Suit No. 4347/2005/ A.O. No.1027  of 2003)  

21.        This relates to an unauthorized structure measuring East to West :  13.4 M and North to South : 12.8 M (in all 171.52 sq.m.) situated on the   Eastern side of Moonim compound, to the south of Sahara Shoppee and  north of the unauthorized structure which is the subject matter of SLP (c)  No. 10016/2005.  

22.       Dawood Vadia Hussain and 7 others filed L.C. Suit No. 4347/2003  in the City Civil Court, Mumbai alleging that they were the occupants of  different portions of the said structure. They alleged that the said structure  was earlier in the occupation of Crescent Gas Supply Agency who had  been granted trade licence by the Corporation and the structure was in  existence prior to 1.4.1962. It is stated that Crescent Gas Supply Agency  surrendered the premises to Global Marketing who converted the structure  into several shops. None of the documents produced disclose or establish  that the said structure was in existence on or before 1.4.1962 or that it was  constructed thereafter after obtaining licence and sanction plan. A copy of  licence dated 29.3.1983 issued by the Corporation to Crescent Gas Supply  Agency is produced. This merely shows that licence was granted to keep  26 gas cylinders in the premises of Moonim compound and does not show  the size of the structure or the age of the structure. In fact, it is stated that  the Corporation had issued a notice dated 15.12.1987 under section 351 of  the Act to Crescent Gas Supply Agency alleging that an unauthorized  structure measuring 8.35 m X 4.65m (in all 38.83 sq.m.) with brick  masonary walls and Shahabad flooring had been put up and calling upon  them to remove the same. Even assuming such structure was situated in the  area which was earlier occupied by Crescent Gas Supply Agency in the  year 1987, it is evident that unauthorized additions have been subsequently  made to such structure which was in existence in 1987 or it has been  demolished or replaced by a new unauthorized structure. Further, there is  nothing to show that even the structure mentioned in the notice dated  15.12.1987 was in existence on or before 1.4.1962. The High Court after  referring to the documents in detail (in paras 20 to 25) has rightly recorded  a finding that there is no evidence to show that the present structure is the  shed of Crescent Gas Supply Agency or that it was in existence on or  before 1.4.1962.  

SLP(c) No. 10095/2005 (out of L.C. Suit No. 4348/2003/A.O. No.1028 of  2003)  

23.     This relates to an unauthorized structure measuring East to West:  15.40m and north to south: 12.70m (in all 195.58 sq.m.) on the western  side of Moonim compound constructed with brick masonry walls and AC

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sheet roofing. The structure is squeezed between the Sara Shoppee on the  south and Sahara Shoppee on the north.  

24.     Md. Rizwan Taibani and 31 others filed L.C. Suit no. 4348/2003 for  declaring the notices dated 13.5.2003 and 2.9.2003 as illegal and for  permanent injunction restraining the Corporation from interfering with the  said structure. In the plaint, they alleged that the said structure was earlier  in the occupation of one Zulfikar son of Masook Khan, who was carrying  on business in the name and style of Masook & Sons and Global Marketing  obtains possession from the said tenant and divided them into 32 shops. It  is alleged that the structure has been in existence prior to 1.4.1962. On the  other hand the Corporation contended that a show cause notice was issued  on 21.10.1991 in regard to an unauthorized structure measuring 10M x  6.9M (in all 69 sq.m.) in the occupation of Masook & Sons. The facts of  the case and the documents relied on are similar to those in SLP (C) No.  10294/2005. The High Court has considered the documents in detail (in  paras 26 to 28) and rightly recorded a finding that there is nothing to show  that the existing structure was earlier in the occupation of Zulfikar (Masook  & Sons) or that the structure existed prior to 1.4.1962.  

SLP(C) No.10016/2005 (from L.C. Suit No.4350/2005/A.O.  No.1030/2003) :  

25.     This relates to an unauthorized structure measuring about east to  west : 18.4M and north to south : 9.10 M (on the eastern side and lesser  measurement on the western side) with ground floor and first floor of a  total constructed area of 323.76 sq.m. The structure is situated on the  eastern side of Moonim Compound with the unauthorized structure which  is the subject matter of SLP [C] No.10280/2005 on the northern side and  vacant space and thereafter the unauthorized structure in SLP {C}  No.9479/2005 on the southern side.

26.     Asma Mohamed Rafique and 11 others filed LC Suit No.4350/2003  on the file of the City Civil Court, Mumbai, for declaring the notices datd  13.5.2003 and 2.9.2003 as illegal and for a permanent injunction  restraining the Corporation from interfering with the said structure. In the  plaint they vaguely allege that the structure was part of a structure earlier in  the occupation of M/s. New Sangam Transport Company. The High Court  has considered the material in detail (in paras 32-34) and found that  nothing is produced to show the existence of any structure earlier, in  particular on or before 1.4.1962. It was obviously put up during 2001-02.  

Common submissions :

27.     Learned counsel for the appellants submitted that a temporary   injunction granted by the trial court in exercise of its discretion, should not  ordinarily be interfered by the appellate court, by re-appreciating the entire  material merely because another view is possible. It is also submitted that  refusal of temporary injunction would lead to immediate demolition,  causing of irreparable injury to the petitioners and rendering their suits  infructuous. Strong reliance is placed on the following observations of this  Court in Wander Ltd. v. Antox India P. Ltd. [1990 Supp SCC 727] in regard  to grant of temporary injunction and interference by appellate courts in  regard to such discretionary order :

"Usually, the prayer for grant of an interlocutory injunction is at a  stage when the existence of the legal right asserted by the plaintiff  and its alleged violation are both contested and uncertain and  remain uncertain till they are established at the trial on evidence.  The court, at this stage, acts on certain well settled principles of  administration of this form of interlocutory remedy which is both  temporary and discretionary. The object of the interlocutory  injunction, it is stated :

"\005... is to protect the plaintiff against injury by violation of his

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rights for which he could not adequately be compensated in  damages recoverable in the action if the uncertainty were resolved  in his favour at the trial. The need for such protection must be  weighed against the corresponding need of the defendant to be  protected against injury resulting from his having been prevented  from exercising his own legal rights for which he could not be  adequately compensated. The court must weigh one need against  another and determine where the ’balance of convenience’ lies."

The interlocutory remedy is intended to preserve in status quo, the  rights of parties which may appear on a prima facie case\005\005..  

\005.\005  the appellate court will not interfere with the exercise of  discretion of the court of first instance and substitute its own  discretion except where the discretion has been shown to have  been exercised arbitrarily, or capriciously or perversely or where  the court had ignored the settled principles of law regulating grant  or refusal of interlocutory injunctions. An appeal against exercise  of discretion is said to be an appeal on principle. Appellate court  will not reassess the material and seek to reach a conclusion  different from the one reached by the court below if the one  reached by that court was reasonably possible on the material. The  appellate court would normally not be justified in interfering with  the exercise of discretion under appeal solely on the ground that if  it had considered the matter at the trial stage it would have come to  a contrary conclusion. If the discretion has been exercised by the  trial court reasonably and in a judicial manner the fact that the  appellate court would have taken a different view may not justify  interference with the trial court’s exercise of discretion."

28.     Reference was also made to Laxmikant V. Patel v. Chetanbhai Shah  [2002 (3) SCC 65], where this Court, after referring to the above  observations in Wander (supra), proceeded to observe as follows :  

"Neither the trial court nor the High Court have kept in view and  applied their mind to the relevant settled principles of law  governing the grant or refusal of interlocutory injunction in trade  mark and trade name disputes. A refusal to grant an injunction in  spite of the availability of facts, which are prima facie established  by overwhelming evidence and material available on record  justifying the grant thereof, occasion a failure of justice and such  injury to the plaintiff as would not be capable of being undone at a  later stage. The discretion exercised by the trial court and the High  Court against the plaintiff, is neither reasonable nor judicious. The  grant of interlocutory injunction to the plaintiff could not have  been refused, therefore, it becomes obligatory on the part of this  Court to interfere."

       This Court also observed that this Court in exercise of jurisdiction  under Article 136, would not ordinarily interfere with the exercise of  discretion in the matter of grant of temporary injunction by the High Court  and the trial court and substitute its own discretion therefor, except where  the discretion has been shown to have been exercised arbitrarily,  capriciously or perversely or where the order of the court under scrutiny  ignores settled principles of law.   

29.     The discretion of the court is exercised to grant a temporary  injunction only when the following requirements are made out by the  plaintiff : (i) existence of a prima facie case as pleaded, necessitating  protection of plaintiff’s rights by issue of a temporary injunction; (ii) when  the need for protection of plaintiff’s rights is compared with or weighed  against the need for protection of defendant’s rights or likely infringement  of defendant’s rights, the balance of convenience tilting in favour of  plaintiff; and (iii) clear possibility of irreparable injury being caused to

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plaintiff if the temporary injunction  is not granted. In addition, temporary  injunction being an equitable relief, the discretion to grant such relief will  be exercised only when the plaintiff’s conduct is free from blame and he  approaches the court with clean hands.  

30.     It is true that in cases relating to orders for demolition of buildings,  irreparable loss may occur if the structure is demolished even before trial,  and an opportunity to establish by evidence that the structure was  authorized and not illegal. In such cases, where prima facie case is made  out, the balance of convenience automatically tilts in favour of plaintiff and  a temporary injunction will be issued to preserve status quo. But where the  plaintiffs do not make out a prima facie case for grant of an injunction and  the documents produced clearly show that the structures are unauthorized,  the court may not grant a temporary injunction merely on the ground of  sympathy or hardship. To grant a temporary injunction, where the structure  is clearly unauthorized and the final order passed by the Commissioner (of  the Corporation) after considering the entire material directing demolition,  is not shown to suffer from any infirmity, would be to encourage and  perpetuate an illegality. We may refer to the following observations of this  Court in M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu [1999 (6) SCC 464]  made in a different context :

"This Court in numerous decisions has held that no consideration  should be shown to the builder or any other person where  construction is unauthorized. This dicta is now almost bordering  the rule of law. Stress was laid by the appellant and the prospective  allottees of the shops to exercise judicial discretion in moulding the  relief. Such a discretion cannot be exercised which encourages  illegality or perpetuates an illegality. Unauthorised construction, if  it is illegal and cannot be compounded, has to be demolished.  There is no way out. Judicial discretion cannot be guided by  expediency. Courts are not free from statutory fetters. Justice is to  be rendered in accordance with law. Judges are not entitled to  exercise discretion wearing the robes of judicial discretion and  pass orders based solely on their personal predilections and  peculiar dispositions. Judicial discretion wherever it is requires to  be exercised has to be in accordance with law and set legal  principles."

31.     Where the lower court acts arbitrarily, capriciously or perversely in  the exercise of its discretion, the appellate court will interfere. Exercise of  discretion by granting a temporary injunction when there is ’no material’,  or refusing to grant a temporary injunction by ignoring the relevant  documents produced, are instances of action which are termed as arbitrary,  capricious or perverse. When we refer to acting on ’no material’ (similar to  ’no evidence’), we refer not only to cases where there are total dearth of  material, but also to cases where there is no relevant material or where the  material, taken as a whole, is not reasonably capable of supporting the  exercise of discretion. In this case, there was ’no material’ to make out a  prima facie case and therefore, the High Court in its appellate jurisdiction,  was justified in interfering in the matter and vacating the temporary  injunction granted by the trial court.  

32.     We find no reason to interfere with the order of the High Court in the  seven appeals. We accordingly dismiss these SLPs. as having no merit. The  petitioners are granted 15 days time to make alternative arrangements.  Parties to bear their respective costs.