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Himachal Pradesh High Court · body

2000 DIGILAW 157 (HP)

MOON HOTEL PVT. LIMITED v. VENU BAKSHI

2000-07-04

M.R.VERMA

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JUDGMENT (M.R. Verma, J.):- By this application, the plaintiff-applicant (here- in after referred to as the applicant) has prayed for restraining the defendant-respondent No.l (hereafter referred to as the respondent) from carrying out any construction/development work whatsoever on Khewat No.21, Khatauni No. 30 min, khasra Nos. 474,475,476 and 477 situate in mauza Mehal Station Ward, Shimla, Up Mohal, Kali Ban, Teh. & Distt. Shimla till the disposal of the suit and mandatory injunction directing her to fill up the pits and take steps to ensure that no water seeps into the retaining wall of the applicant and the foundation of building known as Hotel Palace, Fingask Estate, Shimla. It is averred that the applicant has filed a civil suit for permanent prohibitory and mandatory injunction which discloses that the applicant has a very good prima-facie case which is likely to succeed in all probabilities, that in case stay is not granted irreparable loss and injury will be caused to the applicant which cannot be adequately compensated in terms of money and that the balance of convenience is in favour of grant of injunction as prayed for. 2. The suit filed by the applicant, as referred to above, is for permanent perpetual prohibitory and mandatory injunction and damages. The case as made out in the plaint, in brief, is that the applicant is owner in possession of Palace Hotel built on the land comprising khasra Nos. 456 to 460 measuring 300 square yards situate in mauza Up Mohal, Kali Bari, Mohal Station Ward, Bara Shimla, Teh. & Distt. Shimla and the respondent is the owner in possession of immoveable property i.e. a plot of land measuring 661 square yards comprising khasra No.s 474 to 477 abutted and bounded by Hotel Palace, Fingask Estate, a unit of the applicant in the East. The respondent had started construction on the said plot in a haphazard, dangerous and non-technical manner and has dug pits in the manner that large quantity of water has started seeping into the pits and resultantly to the adjoining retaining wall of the plaintiff resulting in damage to the property of the applicant assessed in the sum of Rs.9, 10,195.44 and has also endangered the building known as Hotel Palace, Fingask Estate, which may collapse due to the acts of the respondent. It is more-so because the soil of the area is not fit to sustain heavy structures. It is more-so because the soil of the area is not fit to sustain heavy structures. It is also claimed that to carry out the construction by the respondent, the pits have been dug at a distance of less than 2 from the retaining wall of the applicant. Earlier, a suit in this regard was instituted in the Court of learned Sub Judge (2), Shimla also. However, the same was subsequently withdrawn because of the higher valuation of the suit. It is also averred that the plans of the construction being raised by the respondent have been passed without application of mind and even the mandatory dry area of 5 meters between the two properties had not been kept whereas technically the respondent is required to construct a deep, concrete water proof RCC counter forte retaining wall immediately behind and near the netaining wall of the applicants hotel and in this regard, expert opinion has also been obtained by the plaintiff and has been filed with the plaint. Against this background, the plaintiff has claimed permanent perpetual prohibitory injunction restraining the respondent from carrying out the construction and development activities till she keeps mandatory setbacks around her building and constructs a deep concrete water proof RCC counter forte retaining wall at a distance of 5 meters from the existing retaining wall of the plaintiff; mandatory injunction directing the respondent to construct such a wall and directing the defendants 2 and 3 to withdraw the present sanction accorded by them in favour of the respondent and a decree for Rs.9,10,195.44 as damages alongwith interest @ 18 per annum from the date of filing of the suit till the recovery of the decretal amount. 3. It was alongwith this suit that this application for grant of temporary injunction has been moved. 4. 3. It was alongwith this suit that this application for grant of temporary injunction has been moved. 4. The respondents contested the application and in the reply, raised preliminary objections that the applicant has not come to the Court with clean hands and has suppressed material facts; that provisions of Order 39 Rule 3 CPC have not been complied with; that Ashok Kumar Goel, Managing Director of the applicant had earlier filed civil suit No.39/1998 in this Court wherein ex-parte interim injunction restraining the respondent from raising construction was obtained but finally the respondent was permitted by this Court to go ahead with the construct ion at her risk and responsibility; that appeal against this order before a Division Bench of this Court was dismissed; that on another application of" said Ashok Kumar Goel in the said suit with a prayer to restrain the respondent from demolishing the old structure, ex-parte ad-interim injunction was granted but ultimately the same was also vacated; that having failed to have the intended reliefs in the said suit/applications, said Ashok Kumar Goel as a Managing Director of the plaintiff, filed a suit in the Court of the Senior Sub Judge which was ultimately withdrawn though therein also, ex-parte stay was obtained by him and thus he has managed to get the stay extended indefinitely and now again ex-parte order has been obtained in this suit by mis-respresen-tation of facts and that the intentions of the applicant are malafide. On merits, the allegations as made in the application have been denied and it is claimed that the construction being raised by the defendant is not causing any danger or damage and is not being raised illegally, but strictly in accordance with law and the sanctioned plan. Hence it is claimed that there is no merit in the application. 5. The respondent had filed written statement also wherein various preliminary objections about the maintainability of the suit have been raised including those raised in the reply. Hence it is claimed that there is no merit in the application. 5. The respondent had filed written statement also wherein various preliminary objections about the maintainability of the suit have been raised including those raised in the reply. It has also been claimed that the applicant is estopped from filing the suit; that the suit is barred under the provisions orf Order 2 Rule 2 CPC; resjudicata; that the plaint is liable to be rejected for want of full and material particulars; that the malafides of the applicant in filing the present suit are writ large; that the suit is not properly valued for purposes of Court fee and jurisdiction and that the plaint has not been verified in accordance with law. On merits, the claim as made out in the plaint has been denied as a whole and it has been asserted that the construction is being carried out by the respondent strictly in accordance with the approved plans and that the averments regarding alleged damage etc. to the building of the applicant are incorrect and manipulated. 6. I have heard the learned counsel for the parties and have also gone through the records. 7. At the time of arguments the merits of the respective case of the, parties have also been pointed out and referred to extensively by the learned counsel for the parties. However, it will not be appropriate and proper to enter into detailed discussion thereof at this stage. Suffice to say that the main reliance of the applicant in support of his contention is based on the technical report filed with the plaint and that the concerned area is prone to slips because of loose earth- strata. Therefore, the haphazard and unplanned construction which is allegedly being carried by the respondent, if not stopped, will cause immense damage, incapable of being compensated in terms of money, to the applicants property. It is, however, not the case of the applicant that the respondent cannot at all raise any construction on his plot without causing damage to its property nor could such a plea be raised for the simple reason that the hotel of the applicant itself and so many other buildings are admittedly standing over the area surrounding the plot of the respondent. 8. The report relied upon by the applicant contains the discussion, proposals and conclusions. 8. The report relied upon by the applicant contains the discussion, proposals and conclusions. In its earlier parts the report states about the manner of construction, damage thereby caused to applicants property, how the construction should be carried out by the defendant and also observes that respondent had no right to cause undue stress, which apparently is not his subject to decide or opine amount.) His conclusion, however, is as follows: "The appropriate remedial course lies in Mrs. Veenu Bakshi, owner of proposed building on Khasra No.87/A/14,87/A/2 and 87/A/2B, seeking sound technical advice, in view of observations made in this Report, before proceeding further with her construction both in the interest of the safety of the building premises of Hotel Palace and her own building." 9. It is evident that the sum and substance of this conclusion is that respondent should proceed with the construction after obtaining technical advice. 10. It is a matter of common sense that no person will proceed with a construction costing lacs of rupees without ensuring that there is no danger to his property by any defect/lapse in construction. A perusal of the documents placed on record reveals that the respondent has got the plan of the construction under reference approved from the Municipal Corporation and the department of Town & Country Planning. The approval for construction is accorded by these bodies in the discharge of official functions, therefore, will be presumed to have been accorded in accordance with law; Thus, the respondent whose proposed construction has been approved as aofrsaid, prima-facie cannot be restrained from proceeding with such construction in the manner and subject to the conditions as provided by the approval orders which came into being presumably after taking into account all factors connected with the feasibility of the construction. 11. It also emerges from the records that Ashok Goel through whom the applicant is suing had with intention to construct upon the plot in dispute as per the approved plans/extended sanction (approval) orders, entered into an agreement with the respondent to purchase it not in the distant past. It appears that the agreement did not mature into a sale and led to litigation between him and the respondent and the suit instituted by him is still pending. It also appears that despite repeated attempts, he could not get a temporary injunction therein restraining the respondent from proceeding with the construction. It appears that the agreement did not mature into a sale and led to litigation between him and the respondent and the suit instituted by him is still pending. It also appears that despite repeated attempts, he could not get a temporary injunction therein restraining the respondent from proceeding with the construction. I am not unconscious of the fact that any dispute between Ashok Goel and respondent has no direct legal bearing on the present suit but the fact, however, remains that the managing director of the applicant himself intended to construct a building on the plot in suit as per the plan got approved and to be got re validated by the respondent. 12. The responent has placed on record a few photographs which are stated to be those of the applicants hotel which prima-facie suggest that the cause of seepage of water instead of the construction by the respondent may be the flowing water from the hotel premises. 13. On the facts and circumstances as discussed hereinabove, I am of the view that at this stage the applicant has not been able to show a prima-facie case which may legally justify a blanket ban on the respondent to proceed with the construction. However, to ensure that any unplanned or haphazard construction in deviation of the approved plan may not result in any damage to the property of the applicant, and may not lead to any fresh litigation it is desirable to impose conditions subject to which the respondent may proceed with the construction. 14. In view of the above discussion, a temporary injunction imposing total restraint on the respondent in proceeding with the construction as prayed for is declined and the respondent if so desired by her may continue the construction, but subject to the condition that the construction shall be carried out strictly in accordance with the approved/revalidated plan and no deviation shall be made and the Municipal Corporation and the Town & Country planning Department as duty bound in law, will ensure that there is no deviation from the approved plan of the proposed construction in dispute by the respondent and this order permitting the respondent to proceed with the construction as aforesaid shall have no preventive effect on the discharge of lawful duties by them. It is further ordered that the pits dug by the respondent in furtherance of the building work shall be made use of for such building work and thereby filled in subject to the above orders as expeditiously as possible but within a fortnight without fail. 15. The application is disposed of in terms of the above orders. The interim injunction as granted on 10.11.1999 stands vacated. Copy dasti, as prayed for.