Rohee K.J., J.
1. Heard the learned Counsel for the appellant, respondent No. 1 in person and the learned Counsel for respondent No. 2 in both the Letters Patent Appeal.
2. The appellant/original non-applicant No. 2 preferred Letters Patent Appeal No. 115 of 1996 against the judgment dated 5-9-1996 passed by the learned Single Judge in First Appeal No. 177 of 1984, by which M.C.A. No. 249 of 1983 was remanded to the District Court for fresh consideration and decision. Letters Patent Appeal No. 56 of 1998 has been preferred by the appellant against the order dated 23-3-1998 passed by the Single Judge in First Appeal No. 476 of 1997 directing that the First Appeal be heard with Letters Patent Appeal No. 115 of 1996.
3. The facts which are relevant for the purposes of the present appeal are that respondent No. 1/original applicant preferred an application under Section 286(5) of the City of Nagpur Corporation Act, 1948 (hereinafter referred to as C.N.C. Act for brevity) for mandatory injunction against the appellant and respondent No. 2. The Corporation of City of Nagpur (hereinafter referred to as the 'Corporation') for removal of unauthorised construction and for restraining the Municipal Commissioner from giving sanction to the building proposal of the appellant. According to respondent No. 1, he owns House No. 585 in Ward No. 36, Ladpura Itwari, Nagpur. The said property was purchased by the father of respondent No. 1 by sale deed dated 14-10-1920. While constructing the house, the father of respondent No. 1 left 2 feet of lands on the Eastern as well as Southern side of property. The appellant purchased House No. 586, which is to the East of respondent No. 1's house, by sale-deed dated 1-9-1980. The appellant demolished the old building and started new construction thereon without sanction plan. When respondent No. 1 objected to the construction, the appellant did not show any document to respondent No. 1. By applications dated 2-7-1983 and 21-7-1983, respondent No. 1 moved the Corporation authorities. However, they did not take any action and allowed the construction work of the appellant to continue. Hence, on 1-8-1983 respondent No. 1 preferred an application under Section 286(5) of C.N.C. Act against the appellant and respondent No. 1 before the District Judge, as stated earlier.
4. Respondent No. 1 also moved an application for interim injunction under Order 39, Rules 1 and 2 read with Section 151 of the Code of Civil Procedure. The learned Joint Judge, Nagpur by his order dated 2-8-1993 granted ex parte ad interim injunction restraining respondent No. 1 from proceeding with the construction and restraining respondent No. 2 from granting sanction to the proposed construction, until further order.
5. The appellant opposed the application by his reply (Exh. 14). According to him, he had submitted a plan to the Corporation on 10-11-1981, however no intimation was given by the Corporation to him. Hence, on 28-4-1983, he sent application by way of reminder. As there was no refusal of the plan, the sanction is deemed to have been granted under Section 275(3) of the C.N.C. Act. Only after statutory period, the appellant started construction in July, 1983 and hence the construction cannot be said to be unauthorised under any circumstances. The application moved by respondent No. 1 is not tenable. According to the appellant, he had explained this position to respondent No. 1. However, respondent No. 1 was not satisfied and proceeded to initiate proceeding. Respondent No. 1 is not entitled to relief of injunction against the appellant and respondent No. 2 and the application is liable to be dismissed.
6. The Corporation also opposed the application for grant of injunction as sought by respondent No. 1. However, according to the Corporation, the site plan submitted by the appellant was not in conformity with the Building Bye-Law No. 4 and hence the site plan was not approved and the same was returned to the appellant on 4-8-1983. Thereafter, instead of re-submitting the correct site plan as per the Building Bye-Laws, the appellant started construction without authorisation from the Corporation. In this regard, notice under Section 286(2)(a) of the C.N.C. Act was sent to the appellant, however, it was refused by him.
7. It appears that while considering as to whether the ex parte ad interim injunction should be confirmed, 2nd Extra Assistant Judge, to whom the matter came to be transferred, passed an order on 21-10-1983, where-under he directed the Corporation to consider the Site plan/Building plan submitted by the appellant and to pass suitable orders thereon according sanction keeping in view the rules and bye-laws framed by the Corporation in regard to construction of building. Thereafter, on 19-11-1983 the appellant re-submitted Building plan. The same was sanctioned by the Corporation by granting Building Permit on 21-11-1983. The appellant was informed accordingly on 30-11-1983. It is relevant to note that this order was and is not challenged by respondent No. 1. In view of the said sanction, the 2nd Extra Assistant Judge vacated ex parte interim injunction by order dated 4-2-1984. The said order was challenged by respondent No. 1 by preferring Revision Application No, 379 of 1984. The same was disposed of by order dated 20-6-1984 on the assurance given by the Counsel for the present appellant that in case the result of M.C.A. No. 249 of 1983 goes against the appellant, the building would be demolished. Ultimately, the Revision Application was dismissed.
8. Respondent No. 1 challenged the Judgment delivered by the Land Extra Assistant Judge, dated 23rd July, 1984 dismissing the Misc. Civil Appeal No. 249/1983 filed by the respondent under Section 286(5) of the Act, by preferring First Appeal No. 177 of 1984. The learned Single Judge allowed the appeal and remanded the matter to the trial Court for fresh consideration and decision on the ground that the order dated 21-10-1983 was passed by the trial Court without jurisdiction/powers and the same is nothing but a colourable exercise of jurisdiction/powers, which the trail Court did not have. The said order passed by the by the learned Single Judge on 5-9-1996 is under challenge in this appeal.
9. It appears that no stay was granted to the impugned order dated 5-9-1996. Hence, the matter proceeded before the trial Court after remand. The parties also adduced oral evidence and by the order dated 31-7-1997, the 3rd Additional District Judge allowed M.C.A. No. 249 of 1983 and directed respondent No, 1 and the Corporation to remove the unauthorised construction made by the appellant. By order dated 23-3-1998, the learned Single Judge admitted the appeal and directed it to be heard with Letters Patent Appeal No. 115 of 1996. The appellant preferred Letters Patent Appeal No. 56 of 1998 against the said order and that is why both L.P.A. Nos. 115 of 1996 and 56 of 1998 have been heard together.
10. Respondent No. 1, who appeared in person, objected to the very ten-ability of L.P.A. No. 115 of 1996, on the ground that it has become infructous, as there was no stay to the order remanding the matter to the trail Court for fresh hearing and decision, that accordingly the matter proceeded before the trial Court and that the trial Court granted mandatory injunction against the appellant and the Corporation by order dated 31-7-1997.
11. Shri R.L. Khapre, the learned Counsel for the appellant however, urged that the legality of the order dated 31-7-1997 depends on the order passed by the learned Single Judge dated 5-9-1996. If the order dated 5-9-1996 is held to be untenable, the proceedings after remand to the trail Court become null and void. In this respect, Shri Khapre relied on G. Ramegowda, Major etc., v. The Special Land Acquisition Officer, Bangalore A.I.R. 1998 SC 897(A), wherein the doctrine of dependent orders has been dealt with thus :
'The fact that the main appeals are themselves, in the meanwhile, disposed of finally on the merits by the High Court would not by itself detract from and bar the consideration of the correctness of the order condoning the delays. This is an instance of what are called 'dependent-orders' and if the order excusing the delays is itself set aside in the Supreme Court appeals, the further exercise, made in the meanwhile, by the High Court finally disposing of the appeals would be rendered nugatory.'
12. In view of the above principle, Letters Patent Appeal No. 115 of 1996 is perfectly tenable and the correctness or otherwise of the impugned order passed by the learned Single Judge on 5-9-1996 can be examined.
13. Shri R.L. Khapre, the learned Counsel for the appellant, assailed the reasoning given by the learned Single Judge in the impugned order dated 5-9-1996 to the effect that the order dated 21-10-1983 was passed by the leaned trail Judge without jurisdiction/powers under any provisions of law and that the same is nothing but a colourable exercise of the power which the trail Court did not have. In this respect, the learned Counsel for the appellant submitted that the District Court is the Court of Original Civil Jurisdiction and it has got inherent powers under Section 151 of the Code of Civil Procedure. Section 286(5) of the C.N.C. Act does not confer jurisdiction on the District Court. The District Court has wide powers to give suitable direction in order to avoid complications. There was nothing wrong in the trial Court directing the Corporation to consider the Site Plan/Building plan submitted by the appellant and pass suitable order by keeping in view the Rules and Bye-Laws framed by the Corporation regarding construction of building on sites. The learned Counsel for the appellant pointed out that by the same order the trial Court had also directed the Corporation to consider the objection, if any, from respondent No. 1. However, respondent No. 1 did not file any objection before the Corporation, The Building Plan re-submitted by the appellant was sanctioned by the Corporation with modifications. The learned Counsel for the appellant submitted that the learned Single Judge erred in observing that the order dated 21-10-1983 was nothing but a colourable exercise of jurisdiction and power which the trial Court did not have. Respondent No. 1, on the other hand, justified the impugned order of the learned Single Judge passed on 5-9-1996.
14. We have carefully considered the rival submissions. A careful reading of the relevant provisions of C.N.C. Act shows that Section 286(5) of the Act does not create any new forum for adjudication the dispute covered by the said sub-section, but it only declares that nothing in Section 286 shall affect right of the Corporation or any person to apply to the District Court, Nagpur for an injunction. The District Court, Nagpur continues to exercise its jurisdiction as the District Court and as such, continues to possess the jurisdiction to deal with civil cause. The practice and procedure of the Court while dealing with the civil cases continues to be passed by the said Court even while adjudicating a grievance falling under Sub-section (5). There is nothing is Sub-section (5) which goes to suggest that the District Court, Nagpur has been set up as a different forum and as such, the powers of the District Court cannot be truncated. The District Court shall be as such possessed of all the powers and jurisdiction which otherwise it possesses while dealing with a civil cause and adjudicating common law rights or rights akin to common law rights. Besides the jurisdiction and power specifically spelt out in Sub-section (5) in regard to injunction, the District Court can also exercise jurisdiction and power under the Code of Civil Procedure including the inherent power. While interpreting Sub-section (5), in the event of ambiguity, the jurisdiction, practice and procedure followed by the District Court need to be preserved and protected rather then restricted and truncated. In our view, there is no reason to restrict the jurisdiction of the District Court in the matter of injunction by construing Sub-section (5) in narrow manner. A wider construction ought to be given to Sub-section (5).
15. The District Court while adjudicating the dispute under Sub-section (5) possesses power to issue injunction in all forms. 'Injunction' is a term which is well understood in legal parlance to require elaboration. Injunction could be preventive or mandatory and the same could as well as be interim or perpetual. Injunction in a preventive form is restraining the person from doing something whereas mandatory injunction postulates commanding something to be done or not done. Sub-section (5) enables the Corporation or any other person to apply to the District Court for an injunction and further provides that the person could so apply for removal or alteration of any building on certain grounds. The fact that the District Court has been chosen for adjudicating the grievance under Sub-section (5) is indicative of the fact that the Legislature knew well the powers and jurisdiction possessed by the District Court when it framed Sub-section (5). The Legislature did not intend to curtail the said jurisdiction but has chosen the District Court, a Superior Court, to adjudicate the dispute having regard to seriousness of the dispute which could affect both the parties substantially. It may be noted that the interim order dated 21-10-1983 has not been challenged and amendment to the application which was proposed to be made before the High Court was not pressed before the District Court and was specifically given up by respondent No. 1. In view of the subsequent events, the very application under Sub-section (5) is rendered nugatory and infructuous.
16. Respondent No. 1 has placed reliance on the judgments of the learned Single Judge i.e. Ashok Anantrao Chourasia and Anr. v. Durgeshnarayan Ramnarayan Jaiswal and Anr. : 1996(5)BomCR333 and Girish Manohar Wazalwar v. Purshottam Parasram Kotangale : (1995)97BOMLR44 and pointed out this Court has already taken a view that the power of the District Court while dealing with the dispute under Sub-section (5) is very limited and extends only to the passing of an order in the form of removal or alteration of any building and does not extend to the area dealing with preventive injunction. In this view of the matter, it is then submitted that the injunction. In this view of the matter, it is then submitted that the District Court, not being possessed of the power and jurisdiction as is otherwise possessed by the Civil Court while dealing with the civil dispute, could not have issued directions in the nature of calling upon the appellant to re-submit the building plan to the Commissioned of the Corporation and in further issuing directions to the Commissioner to consider the same in accordance with the provisions of the Corporation Act and the Building Bye-Laws and take a decision. It is submitted that though the interim order dated 21-10-2003 is not specifically challenged, the challenge to the final order would permit raising of all challenges to the interlocutory order as the interlocutory order would stand merged in the final order.
17. What is to be noted is that in the present appeal, the controversy revolves around the question as to whether the District Court have passed the interim order dated 21-10-1983 directing consideration of the building plan during the pendency of the case before the District Court. If the District Court was competent to issue the said directions, then the application moved by respondent No. 1 under Sub-section (5) would fail, because the Commissioner has sanctioned the plan, after making few modifications and this subsequent sanction of the plan has not been challenged. No action either on the part of the present appellant or on the part of the Corporation subsequent to the sanction of the plan are subject-matter of challenge before any forum. The application moved under Sub-section (5) has not been amended. The only grievance which is made is that the initial commencement of the construction of the building by the appellant is without sanction of the plan.
18. We have given our anxious consideration to the submissions made by the rival parties and have also gone through the judgments of the learned Single Judge dealing with the scope of the jurisdiction and power of the District Court while considering the application under Sub-section (5). Perusal of the judgments rendered by the learned Single Judge which are referred to hereinabove bring home the following position :-
That, the District Court shall have power to direct removal or alteration of any building, but shall not have power, authority and jurisdiction to prevent an illegal constriction. Ordinarily, relief in the nature of mandatory injunction in the form of directing removal/demolition or alteration of building would be granted as final relief and as such, the situation would be that ordinarily, the District Court cannot pass an order of interim injunction.
We find ourselves unable to agree with the said position. If the Court has power to issue direction in regard to removal of a building it shall be deemed to possess power to prevent an illegal construction of building. Such power would be inherent in the Court. If the Court can pass an order of removal or demolition of a building, it is not possible to even conceive that the Court lacks jurisdiction to prevent illegal construction by granting interim injunction (in preventive form). To us, the said situation appears to be absurd. We are in agreement with the submission made by the learned Counsel for the appellant that the legislature has chosen an existing Court viz. the District Court to try the dispute under Sub-section (5) and as such, the existing procedure and practice of that Court while dealing with the civil cause shall be inherent in the Court, including the inherent powers. There is nothing in Sub-section (5) which curtails or restricts the said jurisdiction. Sub-section (5) categorically states that nothing in the said section shall affect the right of the Corporation or any other person to apply to the District Court for an injunction. It is in the form of a declaration that the right of litigant shall not be affected by Section 286 of the Act to apply to the District Court for an injunction. If this is so, we are of the clear view that the District Court would continue to possess the same jurisdiction and follow the same practice and procedure which is ordinarily followed by the District Court while adjudicating a civil cause. In this view of the matter, we respectfully hold that the judgments reported in : 1996(5)BomCR333 and : (1995)97BOMLR44 do not lay down correct position of law.
19. At this stage, reference to Section 377 of the Act will not be out of place. Section 377 which deals with the procedure in enquiries before the Civil Court lays down that for the purpose of any appeal, enquiry or proceeding under the Act, the High Court and the District Court, Nagpur may exercise all the powers conferred on them by the Code of Civil Procedure and shall observe the procedure prescribed in the enactment so far as it is not inconsistent with the provisions of the Act. We do not find any inconsistency in preserving the jurisdiction of the District Court, to pass all orders in regard to injunction and in all forms viz. preventive or mandatory and the same could be either by an interlocutory order or by final order, depending upon the fact situation in each case. When the District Court is vested with wider jurisdiction in the matter of removal or demolition of a building, the same would always include power to issue direction in the nature of alterations, so also, power to prevent an illegal ongoing construction. Any order having colour of an order of injunction in relation to orderly construction of a building would be well within the jurisdiction of the District Court, as the District Court is vested with the ultimate power of removal/demolition of the building.
20. In this view of the matter, we are of the opinion that the interim order under which the District Court directed submission/re-submission of the plan by the appellant for consideration of the Commissioner of Corporation and the further direction to the Commissioner to consider the plans according to the Building Bye-Laws are the directions in furtherance of the cause and object sought to be achieved by Sub-section (5), and hence are very much permissible to be issued by the District Court. The object of Section 286 and the Building Bye-Laws is to ensure orderly development of the city by regulating the construction activity, so that right to safety, privacy, air, light etc. could be protected. Initially, the case of the appellant before the District Court was that he is possessed of a 'deemed sanction' for constricting the building. The District Court being of the view that the Commissioner ought to examine, scrutinise and consider the Building Plans and then take a decision either to sanction or reject the same, is an order which is in furtherance of the object sought to be achieved by Sub-section (5) and hence cannot be faulted. If Sub-section (5) is narrowly construed, the object would be defeated. If the restrictive construction is given to Sub-section (5), the District Court would be precluded and would be hamstring in dealing with variety of fact situations which emerge in a dispute under Sub-section (5). While construing Sub-section (5), we are only preserving the ordinary jurisdiction of a Civil Court and its practice and procedure including the inherent power which otherwise is available with the District Court for effective adjudication of the dispute. We have no doubt that the District Court while dealing with the dispute under Sub-section (5) can pass all such orders and directions in the nature of injunction or which partake the colour of an order of injunction, which are covered by Order 39, Rules 1 and 2 and Section 151 of the Code of Civil Procedure.
21. In view of this legal position, the order dated 5-9-1996 passed by the learned Single Judge cannot be sustained and needs to be quashed and set aside. We therefore, pass the following order :
(i) Letters Patent Appeal No. 115 of 1996 is allowed. The order passed by the learned Single Judge on 5-9-1996 remanding the matter to the trial Court is quashed and set aside.
(ii) It, therefore, follows that Letters Patent Appeal No. 56 of 1998 and First Appeal No. 476 of 1997 are allowed and the order passed by the trial Court on 31-7-1997 directing removal of House No. 586 situated at Ladpura, Itwari, Nagpur is set aside.