What is most distressing to note is that on the basis of the said status-quo order, which was binding on the appellant also, the appellant has gone ahead, demolished the existing structure and carried out and completed further construction of four floors. The photographs produced on record by respondent No.1-Municipal Corporation are self-speaking to reveal what was the condition of the suit structure in the year 2014, when the status-quo order was obtained. It was completely demolished, whereas, now, in the year 2016, when the Officers of respondent No.1-

 What is most distressing to note is that on the basis of the said status-quo order, which was binding on the appellant also, the appellant has gone ahead, demolished the existing structure and carried out and completed further construction of four floors. The photographs produced on record by respondent No.1-Municipal Corporation are self-speaking to reveal what was the condition of the suit structure in the year 2014, when  the status-quo order was obtained. It was completely demolished, whereas, now, in the year 2016, when the Officers of respondent No.1-

Municipal Corporation visited the suit premises, they found construction of four floors to be complete. Admittedly, there is not a single document under which the appellant has obtained the permission for construction of four floors. The building already existing was also only of 'ground + 1 floor'. In such situation, it is apparent that whatever construction, which is carried out by the appellant, upto four floors is in breach of the rules and regulations of respondent No.1-Municipal Corporation. It is starkly unauthorized, blatantly illegal and prima facie also in violation of the status-quo order passed by the Trial Court.

24. Needless to state that such illegal and unauthorized construction cannot be protected in any way. Moreover, as pointed out by learned counsel for respondent No.1-Municipal Corporation, the construction carried out is such that it is without plinth and also without usual slabs, but it is only on iron columns. Such construction is hazardous, to say the least, and dangerous to the lives of the occupants and also to the lives of the persons passing nearby or residing adjacent. At-least under the order of the Court, such construction can in no way be protected. Admittedly, this structure is also not occupied and is not in a position to be occupied, as is evident from the photographs dated 19th September 2016 produced  on record by respondent No.1-Municipal Corporation. Therefore, it goes without saying that, when the construction is apparently illegal, carried out in violation of the status-quo order passed by the Court, it is not qualified for protection from this Court.

25. As regards the submission of learned counsel for the appellant that the Notice of Motion and Contempt Petition preferred by respondent No.1-

Municipal Corporation, for breach of the status-quo order, are rejected by the Trial Court, the impugned orders passed by the Trial Court reveal that they were rejected it being the prima facie stage and the evidence will be necessary to prove that there was breach of such order, especially, because the contempt proceedings in the nature of Order XXXIX Rule 2A of CPC are having penal consequences, where it is required to be proved strictly so as to take the necessary penal action or criminal action against the contemnor. However, for the purpose of deciding this Appeal from Order in Notice of Motion, prima facie view has to be taken and this prima facie view is unequivocal that the appellant has carried out construction in violation of the order of status-quo and also against the 'Rules and Regulations of the Development', as prescribed in law. Such construction cannot be protected and hence the impugned order passed by the Trial Court of dismissing the Notice of Motion needs to be upheld and, accordingly, this Appeal from Order stands dismissed with costs.

Bombay High Court

M/S. United Construction vs Municipal Corporation For ... on 22 September, 2016

Bench: Dr. Shalini Phansalkar-Joshi

  Citation:2016(6) ALLMR 610,2017(2) MHLJ270

#injunction

#breach