Holding

The District Judge does not have inherent power to grant a mandatory injunction suo motu under Section 286(5) of the City of Nagpur Corporation Act; its jurisdiction is limited, and the order is set aside.

Summary

The appellant, a neighbour of respondent No.2, sought a mandatory injunction against the Nagpur Corporation and respondent No.2 to stop unauthorised construction and to prevent the corporation from granting any building‑plan sanction. The District Judge, invoking Section 286(5) of the City of Nagpur Corporation Act, issued a suo motu order directing the corporation to consider the plan and pass a sanction, despite no application being filed for such direction. The Supreme Court examined whether the District Judge possessed inherent power to grant a mandatory injunction and whether such power could be exercised suo motu. It held that the jurisdiction conferred by Section 286(5) is limited to granting injunctions for removal or alteration of a building and does not include the power to direct the corporation to grant a sanction, nor does it permit a suo motu mandatory injunction. Consequently, the Court set aside the District Judge’s order and remitted the matter to the District Judge for fresh consideration of the original application. The appeals were allowed and costs awarded to the appellant.

Issues considered

Whether the District Judge under Section 286(5) of the City of Nagpur Corporation Act has jurisdiction to grant a mandatory injunction suo motu without an application.
Whether the District Judge can direct the corporation to consider and grant sanction of a building plan.
Whether the District Judge possesses inherent power to issue mandatory injunctions in matters covered by the Act.
Whether the doctrine of dependent order applies to the corporation’s sanction order.

Legislation cited

City of Nagpur Corporation Act, 1948s. 273, s. 274, s. 275(3), s. 277, s. 286(5), s. 287, s. 377
Code of Civil Procedure, 1908s. 151, s. Order 39 Rule 1

Subjects

building planmandatory injunctiondistrict judge jurisdictionCity of Nagpur Corporation Actdeemed sanctionimplied powerssuo motudependent ordertown planning

Judgment

[2008] 14 S.C.R. 1091

- 1
RIKHABSAO NATHUSAO JAIN A
\I.
CORPN. OF THE CITY OF NAGPUR & ORS.
(Civil Appeal Nos.6192-6197 of 2008)
OCTOBER 22, 2008
B
[S.B. SINHA AND CYRIAC JOSEPH, JJ.]
., -i
City of Nagpur Corporation Act, 1948: s.286(5) - Juris-
diction of District Judge - Respondent no.2 did not file any
application seeking direction upon Corporation to consider c
his application for grant of sanction of building plan - District
Judge passed the order suo moto - Held: District Judge does
not have inherent power to grant mandatory injunction and
that too suo moto - Case remitted to District Judge to recon-
sider the matter afresh.
D
~.
Respondent no.2 and appellant are neighbours. Re-
:-- spondent no.2 allegedly submitted a plan for construe-
tion of a building. It was not approved within a period of
60 days. Respondent no.2 raised constructions on the
premise that said plan was deemed to be sanctioned. E
Appellant filed an application before the District Judge in
terms of s.286(5) of the City of Nagpur Corporation Act,
1948 seeking grant of mandatory injunction against re-
spondent no.1-Corporation and respondent no.2 direct-

- -~ ing them to r~move the unauthorized and illegal work
carried out by them and restraining them in future from F
undertaking illegal work in contravention of provisions '
of the Act and the bye-l~ws made thereunder.
Appellant filed application seeking an interim order
of injunction restraining respondent no.1-Corporation G
- "t
from granting any sanction of building plan submitted by
respondent no.2 as also an order of injunction restrain-
ing him from proceeding with illegal construction. The said
application was transferred to the Assistant Judge. The
1091 H
1092 SUPREME COURT REPORTS [2008] 14 S.C.R.

Assistant judge directed the Corporation to consider the
r--
A
site plan submitted by respondent no.2 and pass suitable
order granting sanction and noted that only after receipt
of suitable orders or sanction given by the Corporation
in respect of construction proposed by respondent no.2,
B
judgment would be pronounced and meanwhile, the in-
terim injunction order would continue. On the premise that
the said order was not complied with, a show cause no- ·t--r
tice was issued on 17 .11.1983, for initiation of contempt
proceeding against official of the Corporation.

c Respondent no.2 submitted a plan on 19.11.1983
which was sanctioned on 21.11.1983. An application for
vacation of stay was filed on 1.12.1983 and by order dated
4.2.1984, the order of interim injunction was vacated.
The High Court.exercising revisional jurisdiction di-
D rected disposal of injunction application. within fifteen
~
days.
"-'."
The Misc. Civil application filed by the appellant was
dismissed on the ground that having regard to s.275(3)
of the Act, respondent no.2 was entitled to start and carry
E
on constructions on the basis of deemed sanction. As /

regards the question that respondent no.2 had no title
over the property, it was held that it was open to the ap-
p~llant to file a separate suit, claiming declaration that the
said sanction was invalid. Aggrieved by the decision of
F District Judge, appellant filed appeal before the High i-
.
Court, which was allowed and matter was remitted to trial
Court for fresh consideration. The LPA preferred there-
against by respondent no.2 was allowed and trial Court
was permitted to proceed with the trial. In furtherance of
G said direction, the trial Court allowed Misc. Civil applica-
tion directing the Corporation to remove the unauthorized +-
construction made by respondent no.2. Appeal there-
against was directed to be heard with the LPA by order
dated 23.3.2008. An LPA was also filed questioning the
H order of Single Judge of High Court dated 23.3.1998. All
RIKHABSAO NATHUSAO JAIN v. CORPN. OF THE 1093
CITY OF NAGPUR & ORS.
- 1
the three appeals were taken up together and appeals pre- A
ferred by respondent no.2 was allowed. Review there-
against was dismissed.
In the instant appeals, it was contended for appel-
lant that having regard to the limited jurisdiction exercised
by the District Jugge, an order of mandatory injunction B

....,... i could not be passed and that too without any application
and that as respondent No. 1 passed an order of sane-
tion on the threat of contempt; the same should not be
given effect to.
c
Allowing the appeals and remitting the matter to Dis-
trict Judge, the Court
HELD: 1.1. The law relating to town planning having
regard to the necessity to have a planned township keep-
ing in view the ecology thereof has assumed great sig- D
--'. nificance. The statutory authorities under the City of
5 Nagpur Corporation Act, therefore, must be allowed to
~

exercise their statutory powers reasonably and in good
faith. It, however, would not mean that the right of an
owner of the land to raise constructions over the land E
would not be attended to for a long time. Erection or re-
erection of a building must precede grant of an express
sanction of building. The statute provides as to how and
in what manner an application for grant of sanction of
-t building plan should be dealt with. 5.275(3) of the Act, F
however, raises a legal fiction specifying the period of
sixty days within which an application for grant of sane-
tion of building plan should be considered by the appro-
priate authorities of the Corporation. The legislature, there-
fore, considered the said period of sixty days to be rea-
G
sonable one during which the application for grant of
-~ sanction for a building plan should be attended to and
appropriate order thereupon should be passed. However,
there cannot be any doubt whatsoever that when que-
ries are raised or defects are pointed out in the building
H
-f
1094 SUPREME COURT REPORTS [2008] 14 S.C.R.

r---
A plan, the owner of the land must reply thereto and/or re-
move the defects pointed out. [Paras 18,19] (1107-C,D,E,F)
Commissioner of Municipal Corporation, Shim/a v. Prem
Lata Sood a_nd Others (2007) 11 SCC 40 - referred to.

B 1.2. Even assuming that a deemed sanction would
amount to an order granting sanction of a building plan,
however, the jurisdiction of the District Judge can be in- t-·· __....
voked if a building is erected or re-erected in contraven-
tion of any town planning scheme or building bye-laws.
c Indisputably, right of a neighbourer is also a valuable right.
He, in the event a building plan has wrongly been sane-
tioned, is entitled to file an appropriate application before
the District Court for an injunction for removal or alter-
ation of any building plan on the premise that the same
was in contravention of any provisions of the Act or bye-
D
laws made thereunder. [Para 20] (1108-E, F) )_
r
1.3. The Court indisputably has all incidental pow- ';"--

ers so as to enable it to proceed in accordance with law.
It is, however, difficult to conceive that its jurisdiction is
E plenary in nature. The jurisdiction of the civil court in terms
of s.287 of the Act is barred. If the contention that the Dis-
trict Judge has all the powers, whether incidental or
supplemental is correct, it "is difficult to comprehend as
to why the legislature has barred the jurisdiction of the
F civil court. Keeping in view the nature of jurisdiction con- t--
c.
ferred upon the District Judge as also in view of the fact
that the Civil. Court's jurisdiction has been excluded in
determining the said question, the jurisdiction of the Dis-
trict Judge is limited. If a jurisdiction is confined to grant
of mandatory injunction, the court may in a given case
G
also exercise its power to pass prohibitory injunction. +~
Assuming that if an order of injunction can be passed in
favour of the applicant, in a given case, it may be passed
in favour of the non-applicant also. But, such a power
must be exercised whether in favour of the applicant or
H
RIKHABSAO NATHUSAO JAIN v. CORPN. OF THE 1095
CITY OF NAGPUR & ORS.

- -; non-applicant, having regard to the scope of the limited A
jurisdiction to be exercised by the District Judge in terms
of s.286(5) of the Act. It is, therefore, difficult to compre-
hend that it has an implied power to grant mandatory in-
junction and that too suo motu. [Para 22] (1108-H; 1109-A
to E) B
2. The matter was heard and judgment was reserved
•• "\ -f
by the District Judge. Respondent No. 2 did not file any
application for a direction upon respondent No. 1 to con-
sider his application for grant of sanction of the building
plan. The District Judge passed the order suo motu. It is c
one thing to say that it was done with a view to enable
him to pass an appropriate order for the purpose of find-
ing out as to whether the building plan conformed to the
building bye-laws or not, but the court cannot shut its· eyes
to the fact that respondent No. 1 found the said plan to be D
defective and returned the same to the respondent No. 2
..... for curing the defects. [Para 23] (1109-E, F, G)
t 3.1. Whereas respondent No. 2 filed an application
for grant of building plan on or about 10.11.1981 the same
was returned in August, 1983. It appears from the records E
that respondent No. 2 started constructions upon demo-
lition of the old structure in July, 1983. It is one thing to
say that the District Judge could direct respondent No. 1
to point out as to the provisions of the building bye-laws
which are said to have been violated so as to consider

- _, the merit of the application filed by appellant but it would
be another thing to say that it had the jurisdiction to di-
rect it to reconsider the matter of granting sanction of
building plan without the defect pointed out by it recti-
fied. Furthermore one may assum that it was within the
F

purview of the jurisdiction of the District Judge. For the G'
said purpose, the nature of implied power, which the civil
- -T court is entitled to exercise may be noticed. An implied
power on the part of civil court is conceived of having
regard to the interest of the parties, as for example, power
to admit appeal includes power to stay or power to grant H
1096 SUPREME COURT REPORTS [2008] 14 S.C.R.

A maintenance includes power to grant interim mainte- t- -
nance. The power to grant injunction is a special power
which may be found to be absent in certain jurisdictions,
as for example, the provisions of the Consumer Protec-
tion Act. [Paras 24,25] (1109-H; 1110-A to E)
B Income Tax Officer, Cannanore v. M. K. Mohammed
Kunhi AIR (1969) SC 430; Savitri wlo Govind Singh Rawat v.
Govind Singh Rawat (1985) 4 SCC 337-; Morgan Stanley Mu- t- ;r">
tual Fund v. Kartick Das (1994) 4 SCC 225 - relied on.
3.2 Even however assuming that the court has the
c implied power to grant injunction and that too mandatory
in nature de'hors the provisions of s.286(5) of the Act, cer-
tain principles therefor must be borne in mind. [Para 26]
(1110-F)

D 4. It is now a well-settled principle of law that Order
39 Rule 1 CPC is not the sole repository of the power of
the court to grant injunction. S.151 CPC confers power !-. (

upon the court to grant injunction if the matter is not cov-. j

ered by Rules 1 and 2 of Order 39 CPC. Unfortunately,
this aspect of the matter has not been considered by the
E
High Court. So far as the submission of respondent no.2
that the questions raised by appellant have become aca-
I
demic in view of the fact that the order granting sanction I

was not challenged, is concerned, suffice it to point out

-
that in a case of this nature, appellant was entitled to take
F recourse to the doctrine of 'dependant order'. If the order
f-
granting mandatory injunction is to be found illegal and
without jurisdiction, any order of sanction passed by the
statutory authority may also be held to be illegal. [Paras
26, 27] (1111-G, H; 1112-A, B)
G
Metro Marins v. Bonus Watch Co. (P) Ltd. (2004) 7 SCC
478; Divisional Forest Officer v. M. Ramalinga Reddy (2007) +. •
9 SCC 286; Tanusree Basu v. lshani Prasad Basu (2008) 4
sec 791 - relied on.
H G Ramegowda-, Major and Others v. Special Land Ac-
4

RIKHABSAO NATHUSAO JAIN v. CORPN. OF THE 1097
CITY OF NAGPUR & ORS.

quisition Officer, Bangalore (1988) 2 SCC 142; Ajay Bansal A
--~
v. Anup Mehta (2007) 2 SCC 275 - referred to.
5. As the Division Bench of the High Court in the in-
tra-court appeal did not consider any of the contentions
of the parties and proceeded to dispose of the same on a
wrong premise that the court of the District Judge had 8
fl the jurisdiction to pass such an order, the impugned judg-
ment cannot be sustained and is set aside accordingly.
"\ 1
The matter is remitted to the District Judge for consider-
ation of the matter afresh on the merit of the original ap-
plication filed by appellant in accordance with law, albeit c
keeping in view the subsequent events and also neces-
sity, if any, to adjust the equities between the parties. [Para
29] (1113-C, D, E)
CASE LAW REFERENCE
D
c2001) 11 sec 40 referred to Para 19
~
AIR (1969) SC 430 relied on Para 25
• (1985) 4 sec 337 relied on Para 25
(1994) 4 sec 225 relied on Para 25 E
(2004) 1 sec 478 relied on Para 26
(2001) 9 sec 286 relied on Para 26
(2008) 4 sec 791 relied on Para 26
(1988) 2 sec 142 referred to Para 27 F
...;
(2007) 2 sec 21s referred to Para 28
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.
6192-6197 of 2008
From the final Judgment and Order dated 24.9.2004 & G
6.4.2005 of the High Court of Judicature at Bonibay, Nagpur
- ...., Bench, Nagpur in LPA Nos. 115 of 1996 & 56 of 1998 & First
Appeal No. 476of1997 and Review Application Nos. 716, 717
& 718 of 2004 respectively
H
1098 SUPREME COURT REPORTS [2008] 14 S.C.R.

A Dr. Rajeev B. Masodkar and Anil K. Jha for the Appellant.
~
~
M.N. Rao, SatyajitA. Desai, M.R. Johrapurkar,Anagha S.
Desai, Venkateswara Rao Anumolu and Shivaji M. Jadhav for
the Respondents. (
B The Judgment of the Court was delivered by
'J
;
5.8. SINHA, J : 1. Leave granted.
2. Width and amplitude of jurisdiction of the District Judge f )
in terms of Section 286 (5) of the City of Nagpur Corporation (
c Act, 1948 (for short "the Act") is in question in these appeals
which arise out of judgments and orders dated 24.09.2004 and
6.04.2005 passed by the High Court of Judicature at Bombay,
Nagpur Bench.
3. The dispute between the parties herein arose due to
D refusal to grant sanction of a building plan filed by respondent
No. 2. Appellant is his neighbour. Appellant is owner of a house .
),
bearing No. 585 and respondent No. 2 is owner of a !
neighbouring house bearing No. 586. i'
I
4. A part of the land on which the constructions were said I\
E
to have been raised by respondent No. 2 belonged to the Cor-
poration of City of Nagpur (for short "the Corporation") itself.
Respondent No. 2 and his predecessors, however, are said to
be in possession thereof for a long time and acquired an inde-
feasible title thereto.
F
5. Respondent No. 2 allegedly had submitted a plan for ~
construction of a building. It was not approved within a period '1
I

of sixty days. On the premise that the said plan would be deemed I
to have been sanctioned, he raised constructions. Appellant
filed an application before the District Judge, Nagpur in terms
G
of Section 286(5) of the Act on or about 1.08.1983, inter alia for
the following reliefs:
f- .-
"(i) Grant of mandatory injunction against the non-
applicant No. 1 and 2 directing them to remove the
H un-authorised & illegal work carried out by them and
RIKHABSAO NATHUSAO JAIN v. CORPN. OF THE 1099
CITY OF NAGPUR & ORS. [S.B. SINHA, J]

restraining them in future from undertaking any A
authorized and illegal work in contravention of the
provisions of Nagpur Corporation Act and the by-
laws made thereunder.
(ii) Injunction restraining the non-applicant N0.1 from
giving sanction to the building proposal.if any, 1
B
submitted.by non-applicant No.2 without first deciding
the objection raised by the applicant;
(iii) Injunction restraining the non-applicant No.1 from 1

giving sanction to extension, modification, alteration, C
constructions or such other things in future, without
first hearing the applicant."
Appellant also filed an application seeking an interim or-
der of injunction restraining respondent No. 1 - Corporation
from granting any sanction of building plan submitted by respon- D 1

dent No. 2 as also an order of injunction restraining him from '
proceeding with illegal construction .
• 6. Respondent No. 1 - Corporation in its written state-
ment before the learned District Judge contended that the plan
submitted by respondent No. 2 was not in conformity with Bye- E
Law No. 4 of Building Bye-Laws. It was furthermore contended
that the said plan had been returned to him on 4.08.1983.
7. The said application was transferred to the Court of
Second Extra Assistant Judge. It was heard on or about F
3.10.1983 and posted for judgment on 12.10.1983. As on the'
- said date, the Presiding Officer was on leave, the matter was
posted for judgment on 21.10.1983. By an order dated
21.10.1983, the learned Judge passed the following order:
" ... Hence by invoking the principle of natural justice and G
the inherent powers vested in me under Section 151 of
the Civil Procedure Code, I hereby direct the Non-applicant 1

No. 1 Corporation through its Administrator to consider
site plan or building plan submitted by N.A. 2 Pannalal
and pass suitable order granting sanction for the proposed' Ho
1100 SUPREME COURT REPORTS [2008] 14 S.C.R.

A construction keeping in view the rules and byelaws framed
by the Corporation in regard to construction or erection of ~---
buildings on sites together with objections, if any, from
Rukhabdas Jain within fifteen days from receipt of this
order. After receipt of suitable order or sanction given by
8 the Corporation in respect of construction proposed by
the Non applicant No. 2 Pannalal on his concerned site,
judgment will be pronounced in this case in the light of the )::
said order or sanction given by the Corporation. Till then t '·
the judgment is deferred. Meanwhile, the interim injunction
c order dated 2.8.1983 to continue."

On the premise that the said order was not complied with,
a show cause notice was issued on 17 .11.1983 for initiation of
a proceeding under the Contempt of Courts Act against the
Executive Officer of the Corporation in the following terms:
t::
D
"This court had served upon you order dated 21.10.1983 in
Misc. Civil Application No. 249of1983, on 21.10.1983 vide )..
~
outward No. 348 of 1983, to consider the site plan/ building j,-

plan submitted by Non-applicant No. 2 - Pannalal S/o "

Trilokchand Khedkarof house No. 586, Circle No. 9/14, Ward
E No. 36, Ladpura, ltwari, Nagpur and to pass suitable order
granting sanction for the proposed construction etc. In the
very order you were directed to comply with the said order
within 15 days from receipt thereof. However, from the
statement of the learned Advocate for N.A. No. 2 Pannalal it
F appears that you have not complied with the said order, nor ·:
any compliance report submitted by you in this Court so far. ~ >==

~
The noncompliance on your part of the said order may amount
to contempt of court.
You are, therefore, directed to show case, why suitable
G
action for contempt of court be not taken against you within
3 days from receipt of this notice."
8. Respondent No. 2 submitted a plan on 19.11.1983, which
r
happened to be a Saturday. On 21.11.1983, i.e., Monday next,
H the plan was sanctioned in favour of respondent No. 2.
RIKHABSAO NATHUSAO JAIN v. CORPN. OF THE 1101
CITY OF NAGPUR & ORS. [S.B. SINHA, J]

.,,,'1t- 9. An application for vacation of stay was filed on 1.12.1983 A
and by an order dated 4.02.1984, the order of interim injunction
was vacated. A civil revision application was preferred there-
against before the High Court. The High Court by an order dated
20.06.1984 directed disposal of the injunction application within
fifteen days from the said date, stating: 8
"Mr. Rajkarne states that he will pull down the offending
structure should the order finally go against him. On this
m\.
-1 statement, the ad-int. injunction is vacated. The Assistant
Judge should decide the application within fifteen days.
Revision disposed of." c
10. The Miscellaneous Civil Application filed by appellant
was dismissed by an order dated 23.07.1984 inter alia on tne
premise that having regard to Section 275 (3) of the Act, re-
spondent No. 2 was entitled to start and carry on constructions
D
relying on or on the basis of the deemed sanction. As regards
the question that respondent No. 2 had no title over the prqp-
,,. '""' erty, it was held:

"41. If according to the appellant, the N.A. No. 2 has no Utle
to the property on which he is raising construction and which E
he showed to be of his own in the site plan submitted to ~he
Corporation the N.A. No. 2 has not left open required space
adjoining his building thereby contravening by law No. 32
he has shown excess area in his site plan and obtained
sanction by deceit and fraud, the sanction given to the N.A.
F
-A No. 2 by N.A. No. 1 in respect of proposed construction is
~· illegal and invalid since it is in contravention or various
provisions of the Act and byelaws thereunder, it is open to
the applicant to file a separate suit, claiming declaration
that the said sanction is invalid because of above rea~on
G
and further claiming injunction of the nature as sought in the
present application, wherein all those points can be
conclusively decided. Considering the limited scope of Sec.
286 (5) of the Act, in my opinion, this is not competent forum
I
to entertain and decide all these points."
H
'

1102 SUPREME COURT REPORTS [2008] 14 S.C.R.

A 11. Appellant, aggrieved by and dissatisfied with the said
decision of the learned District Judge, preferred an appeal ~'4

before the High Court. By a judgment and order dated
5.09.1996, the said appeal was allowed and the matter was
' remitted, directing:
),
I

B "15. Admittedly, because of the vacation of the stay, the
incomplete construction stated to have been completed
by the respondent No.2. Undisputedly, no party has led
any evidence in the matter. Under the circumstances, in -t- ;..
'
fairness and interest of the parties, the matter be remanded
c to the Trial court for fresh consideration - ~0 decision and
· in view of the provisions under Section 286(5) of the City
of Nagpur Corporation Act, giving opportunity to the parties
to lead evidence and of hearing. As held that the order
dated 02 .01.1983 is illegal, arbitrary and perverse, the
D sanction accorded by Nagpur Corporation in view of the
directions of the trial Court, be treated that there is no
sanction to the already returned application proposed plan. ). f
The trial Court is also directed to consider the two '
applications· filed by the appellant in this Court for '
E amendment to the original application under Section 286
(5) of the City of Nagpur Corporation Act. The proceeding
under the provisions of Section· 286 (5) of the City of
Nagpur Corporation Act was instituted in the year 1981.
Considering the pendency of more than 15 years, I direct
F the trial Court to decide the matter within six months from
the receipt of the writ of this Court."
>--
12. A Letters Patent Appeal marked as LPA No. 115 of ~

1996 preferred thereagainst by respondent No. 2 was allowed
and the learned Trial Judge was permitted to proceed with the
G trial.
13. Pursuant to or in furtherance of the said direction, the
learned Trial Judge upon hearing the parties allowed the Misc.
Civil Application No. 249 of 1983 directing the Corporation to
remove the unauthorized construction made- by respondent No.
H
RIKHABSAO NATHUSAO JAIN v. CORPN. OF THE 1103
CITY OF NAGPUR & ORS. [S.B. SINHA, J]
.. -4-
2. An appeal was preferred thereagainst. The said appeal A
marked as First Appeal No. 4 76 of 1997 was directed to be
heard with LPA No. 115 of 1996 by an order dated 23.03.1998.
A Letters Patent Appeal was also filed questioning the order of
the learned Single Judge dated 23.03.1998. All the three ap-
peals were taken up for hearing together and by reason of the 8
impugned judgment, the appeals preferred by respondent No.
- "f 2 have been allowed. A review application filed by appellant
has been dismissed.
14. Dr. Rajeev B. Masodkar, learned counsel appearing
on behalf of the appellant, in support of these appeals, con- c
tended:
(i) Having regard to the limited jurisdiction exercised
by the learned District Judge, an order of mandatory
injunction could not have been passed and that too
D
without any application having been filed therefor.
(ii) As respondent No. 1 passed an order of sanction
on the threat of contempt; the srme should not have
been given effect to.
15. Mr. Shivaji M. Jadhav, learned counsel appearing on E
behalf of respondent No. 1 supported the contention of Dr.
Masodkar.
16. Mr. M.N. Rao, learned senior counsel appearing on

- ~ behalf of respondent No. 2, on the other hand, submitted:
(i) Appellant, having not challenged the order of the
Corporation dated 21.11.1983 granting sanction in
F

favour of the respondent No. 2, is estopped and
precluded from raising the contention as regards
propriety of order dated 17.11.1993 before this Court G
""'~
for the first time.
(ii) As the District Judge exercises a statutory appellate
power, he must be held to have an implied power to
grant mandatory injunction.
H
1104 SUPREME COURT REPORTS [2008] 14 S.C.R.

A (iii) In any event, as an order granting sanction has been
passed by respondent No. 1, the questions raised
before this Court have become academic.
17. We may at the outset notice the relevant provisions of
the Act.
J
The Act was enacted to consolidate and amend the law
relating to the municipal affairs of the City of Nagpur. Sections
273, 274 and 277 whereof read as under:

"273. (1) No person shall-erect or re-erect any building;
C orcommence to erect or re-erect any building; ormake
any material external alteration to any building; or construct
or reconstruct any projecting portion of a building which
the Commissioner is empowered by Section 284 to
require to be set back or is empowered to give permission
D to construct or re-construct-unless the Commissioner has
either by an order in writing granted permission or has
failed to intimate within the prescribed period his refusal
of permission for the erection or re-erection of the building
or for the construction or re-construction of the projecting
E part of the building; after the expiry of one year from the
date of the said permission or such longer period as the
Commissioner may allow or from the end of the prescribed
period as the case may be:

F
Provided that nothing in this Section shall applyJo any
work, addition or alteration which the Corporation ma·y by
bye-law declare to be exempt.
(2) If a question arises whether a particular alteration in or
-
addition to an existing building is or is not a material
alteration, the decision of the District Court, Nagpur, shall
G
be final.anc conclusive.
(3) No appeal shall be admitted under this Section unless
the matter has first been determined by the Commissioner.

274.(1) Every person who intends to erect or re-erect a
H
RIKHABSAO NATHUSAO JAIN v. CORPN. OF THE 1105
CITY OF NAGPUR & ORS. [S.B. SINHA, J]
.-- ).
building shall submit to the Commissioner an application A
in writing for approval of the site together with a site plan
of the land, and in the case of land which is the property
of the Government, or of the Corporation, a certified copy
of the documents authorizing him to occupy the land, and
if so required by the Commissioner the original document . B
or documents; and an application in writing for permission
~
-f to building together with a ground plan, elevation and
section of the building and a specification of the work to
be done.
(2) Every plan of any building to be constructed wholly or ·C
partly of masonary, submitted under sub-section (1) in
token of its having been prepared by him or under his
supervision, bear the signature of a licensed surveyor.
(3) Every document submitted under sub-section (1) shall
D
.A be prepared in such manner and shall contain such
particulars as may be prescribed.
(4) Nothing herein contained shall require a person to
comply with the provisions of clause(b) of sub-section (1)
until such time as the site has been approved by the E
Commissioner or such person as he may appoint.
"277. (1) The Commissioner shall not grant permission to
erect or re-erect any building unless and until he has
~
approved of the site .thereof on an application under
Section 274. F

(2) The Commissioner may refuse permission to erect or
re-erect any building -
(a) if the plans and specifications submitted with the
application show that such building is not in accordance G
--~ with a town-planning scheme sanctioned under Section
271 or with any provisions of this Act, or any rule or by-law
made thereunder, or any provision of any law for the time
being in force: or
H
1106 SUPREME COURT REPORTS [2008) 14 S.C.R.
~· --4

A (b) if in his opinion the erection or re-erection of such
building would be in nuisance or injurious to the inhabitants
of the neighbourhood or to the public: or
(c) unless and until any plans, specifications or particulars
called for by him are supplied."
B
Sections 286(5), 287 and 377 of the Act are as under:
-t ~

"286. (5) Nothing in this section shall affect the right of the·
Corporation or any other person to apply to the District
Court, Nagpur, for an injunction for the removal or alteration
c of any building on the ground that it contravenes any
provision of this Act or of the bye-laws made thereunder,
but if the building is one in respect of which plans have
been deposited and the plans have been passed by the
Commissioner or notice that they have been rejected has
D not been given within the prescribed period after the deposit ,l.
thereof and if the work has been executed in accordance
with the plans, the Cou'rt on granting an injunction shall
have power to order the Corporation to pay to the owner
of the work such compensation as the ·court thinks just,
E but before making any such order the Court shall cause
the Commissioner if not a party, to be joined, as a party
to the proceeding."
"287. Save as otherwise expressly provided in this Act or
rules made thereunder, no Civil Court shall have jurisdiction ;....
F to settle, decide or deal with any question which is by or
under this Chapter required to be settled, decided, or
dealt with by the Corporation, or the Commissioner."
"377. Procedure in inquiries before Civil Courts- (1) For
the purposes any appeal, inquiry or proceeding under this
G
Act, the High Court and the District Court, Nagpur, may ,,__ .
I

exercise all the powers conferred on them by the Code of
Civil Procedure, 1908, and the Central Provinces and
Berar Courts Act, 1917, as the case may be, and shall
observe the procedure prescribed in the said enactments,
H
RIKHABSAO NATHUSAO JAIN v. CORPN. OF THE 1107
CITY OF NAGPUR & ORS. [S.S. SINHA, J]
,_ ~

so far as it is not inconsistent with the provisions of this A
Act.
(2) The costs of every appeal, inquiry, or proceeding under
this Act shall be payable by such parties and in such
proportions as the Court may direct and the amount thereof
shall, if necessary, be recoverable as if it were due under B
. -t a decree of the Court."
18. The law relating to town planning having regard to the
necessity to have a planned township keeping in view the ecol-
ogy thereof has assumed great significance. The statutory au- c
thorities under the Act, therefore, must be allowed to exercise
their statutory powers reasonably and in good faith. It, however,
would not mean that the right of an owner of the land to raise
constructions over the land would not be attended to for a long
time. Erection or re-erection of a building must precede grant
D
"'· of an express sanction of building. The statute provides as to
how and in what manner an application for grant of sanction of
building plan should be dealt with. Section 275(3) of the Act,
however, raises a legal fiction specifying the period of sixty days
within which an application for grant of sanction of building plan
should be considered by the appropriate authorities of the Cor- E
poration. The legislature, therefore, considered the said period
of sixty days to be reasonable one during which the application
for grant of sanction for a building plan should be attended to
J and appropriate order thereupon should be passed. However,
there cannot be any doubt whatsoever that when queries are F
raised or defects are pointed out in the building plan, the owner
of the land must reply thereto and/or remove the defects pointed
out.
19. A building plan deemed to have been sanctioned must
... --l.
G
also satisfy the conditions laid down in the building bye-laws .
This Court in Commissioner of Municipal Corporation,
Shim/a v. Prem Lata Sood and Others, [(2007) 11 SCC 40]
stated:
H
1108 SUPREME COURT REPORTS [2008] 14 S.C.R.
-~ .
A "44. There cannot be any doubt whatsoever that an owner
of a property is entitled to enjoy his property and all the
rights pertaining thereto. The provisions contained in a
statute like the 1994Act and the building bye-laws framed
thereunder, however, provide for regulation in relation to
B the exercise and use of such right of an owner of a property.
Such a regulatory statute must be held to be reasonable
as the same is enacted in public interest. Although a + -
deeming provision has been provided in sub-section (1)
of Section 247 of the 1994 Act, the same will have
c restricted operation. In terms of the said provision, the
period of sixty days cannot be counted from the date of
the original application, when the building plans had been
returned to the applicant for necessary clarification and/or
compliance with the objections raised therein. If no
sanction can be granted, when the building plan is not in
D ).._
conformity with the building bye-laws or has been made in
contravention of the provisions of the Act or the laws, in
our opinion, the restriction would not apply despite the
deeming provision."

E 20. We will proceed on the basis that a deemed sanction
would amount to an order granting sanction of a building plan.
However, the jurisdiction of the District Judge can be invoked if
a building is erected or re-erected in contravention of any town
planning scheme or building bye-laws. Indisputably, right of a
).:._
F neighbourer is also a valuable right. He, in the event a building
plan has wrongly been sanctioned, is entitled to file an appro-
priate application before the District Court for an injunction for
removal or alteration of any building plan on the premise that
the same was in contravention of any provisions of the Act or
bye-laws made thereunder.
G Ir- ...
21. The core question which, thus, arises for our consid- I

eration is as to whether the jurisdiction of the District Court in
this behalf is limited. .
22. The Court indisputably has all incidental powers so as
H
RIKHABSAO NATHUSAO JAIN v. CORPN. OF THE 1109
CITY OF NAGPUR & ORS. [S.B. SINHA, J]
..
' to enable it to proceed in accordance with law. It is, however, A
difficult to conceive that its jurisdiction is plenary in nature. The
jurisdiction of the civil court in terms of Section 287 of the Act is
barred. If the contention that the District Judge has all the pow-
ers, whether incidental or supplemental, as has been advanced
by Mr. Rao is correct, it is difficult to comprehend as to why the B
legislature has barred the jurisdiction of the civil court. Keeping
. -+ in view the nature of jurisdiction conferred upon the District
Judge as also in view of the fact that the Civil Court's jurisdic-
tion has been excluded in determining the said question, we
have no other option but to hold that the jurisdiction of the Dis- c
trict Judge is limited. If a jurisdiction is confined to grant of man-
datory injunction, the court may in a given case also exercise
its power to pass prohibitory injunction. We would also assume
that if an order of injunction can be passed in favour of the ap-
plicant, in a given case, it may be passed in favour of the non-
D
applicant also. But, such a power must be exercised whether in
favour of the applicant or non-applicant, having regard to the
scope of the limited jurisdiction to be exercised by the District
Judge in terms of Section 286(5) of the Act. It is, therefore, dif-:-
ficult to comprehend that it has an implied power to grant man-
datory injunction and that too suo motu. E

23. We have noticed heretobefore that the matter was
heard and judgment was reserved by the learned District Judge.
Respondent No. 2 did not file any application for a direction
~ upon respondent No. 1 to consider his application for grant of
F
sanction of the building plan. The learned Judge passed the
order suo motu. It is one thing to say that it was done with a view
to enable him to pass an appropriate order for the purpose of
finding out as to whether the building plan conformed to the build-
ing bye-laws or not, but the court cannot shut its eyes to the fact
G
......... that respondent No. 1 found the said plan to be defective and
returned the same to the respondent No. 2 for curing the de-
fects.

24. We are, however, not oblivious of the fact that whereas
respondent No. 2 filed an application for grant of building plan H
1110 SUPREME COURT REPORTS [2008] 14 S.C.R.

'~ ....
A on or about 10.11.1981 the same was returned in August, 1983.
It appears from the records that respondent No. 2 started con-
structions upon demolition of the old structure in July, 1983.
25. It is one thing to say that the learned District Judge
could direct respondent No. 1 to point out as to the provisions
B of the building bye-laws which are said to have been violated
so as to consider the merit of the application filed by appellant
but it would be another thing to say that it had the jurisdiction to
+ '
direct it to reconsider the matter of grantfng sanction of building
plan without the defect pointed out by it rectified.
c
We may, furthermore assume that even that was within
the purview of the jurisdiction of the learned District Judge. For
the said purpose, we may notice the nature of implied power,
which the civil court is entitled to exercise. An implied power on
the part of civil court is conceived of having regard to the inter-
D
est of the parties, as for example, power to admit appeal in-
eludes power to stay [See Income Tax Officer, Cannanore v.
M.K. Mohammed Kunhi AIR 1969 SC 430] or power to grant
maintenance includes power to grant interim maintenance [See
Savitri wlo Govind Singh Rawat v. Govind Singh Rawat [(1985)
E 4 sec 337] but we should not also be unmindful of the fact that
I

the power to grant injunction is a special power which may be
found to be absent in certain jurisdictions, as for example, the
provisions of the Consumer Protection Act [See Morgan
Stanley Mutual Fund v. Kartick Das (1994) 4 SCC 225]
F
26. Even however assuming that the court has the implied
power to grant injunction and that too mandatory in nature de' hors
the provisions of Section 286(5) of the Act, certain principles
therefor must be borne in mind.
G We may, in this regard, only notice the legal principles as
enunciated by this Court, from time to time in this behalf. t ..
In Metro Marins v. Bonus Watch Co. (P) Ltd. [(2004) 7
SCC 478], this Court held:

H "9. Having considered the arguments of the learned counsel
RIKHABSAO NATHUSAO JAIN v. CORPN. OF THE 1111
CITY OF NAGPUR & ORS. [S.S. SINHA, J]

for the parties and having perused the documents A
.. produced, we are satisfied that the impugned order of the
" appellate court cannot be sustained either on facts or in
law. As noticed by this Court, in Dorab Cawasji Warden v.
Coomi Sorab Warden it has held that an interim mandatory
injunction can be granted only in exceptional cases coming B
within the exceptions noticed in the said judgment. In our
opinion, the case of the respondent herein does not come
under any one of those exceptions and even on facts it is
-f
not such a case which calls for the issuance of an interim
mandatory injunction directing the possession being
c
handed over to the respondent. As observed by the learned
I

Single Judge the issue whether the plaintiff is entitled to
possession is yet to be decided in the trial court and
granting of any interim order directing handing over of
possession would only mean decreeing the suit even
D
before trial. Once the possession of the appellant either
directly or through his agent (caretaker) is admitted then
-""
the fact that the appellant is not using the said property for
.
=" commercial purpose or not using the same for any
beneficial purpose or the appellant has to pay huge amount
by way of damages in the event of he losing the case or E
the fact that the litigation between the parties is a luxury
litigation are all facts which are irrelevant for changing the
status quo in regard to possession during the pendency
of the suit."
F
[See also Divisional Forest Officer v. M. Ramalinga
Y.
!'
Reddy, (2007) 9 sec 286]
In Tanusree Basu v. /shani Prasad Basu [(2008) 4 SCC
791], this Court held:
G
"16. It is now a well-settled principle of law that Order 39
Rule 1 of the Code of Civil Procedure (Code) is not the
-'I-. .... sole repository of the power of the court to grant injunction.
Section 151 of the Code confers power upon the court to
grant injunction if the matter is not covered by Rules 1 and
H
1112 SUPREME COURT REPORTS [2008] 14 S.C.R.

A 2 of Order 39 of the Code."
27. Unfortunately, this aspect of the matter has not been
considered by the High Court. So far as the submission of Mr.
I-
Rao that the questions raised by appellant have become aca- )-
demic in view of the fact that the order granting sanction was
B not challenged, is concerned, suffice it to point out that in a case
of this nature, appellant was entitled to take recourse to the
doctrine of 'dependant order'. If the order granting mandatory
injunction is to be found illegal and without jurisdiction, any or- + '
der of sanction passed by the statutory authority may also be '
C held to be illegal. '

In G Ramegowda, Major and Others v. Special Land Ac-
quisition Officer, Bangalore [(1988) 2 SCC 142], this Court held:
"10. We might, perhaps, deal with the latter submission of
D Shri Veerappa first. 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 ~
I
condoning the delays. This is an instance of what are
E called "dependent orders" and if the order excusing the
delays is itself set aside in these appeals, the further
exercise, made in the meanwhile, by the High Court finally
disposing of the appeals, would be rendered nugatory.
The submission of Shri Veerappa is, therefore,
F insubstantial."
'
28. We are, however, not oblivious that the said proposi- x_
tion of law is not absolute, as has been noticed by a Division {
Bench of this Court in Ajay Bansal v. Anup Mehta [(2007) 2
sec 275], wherein it was held:
G
"14. A decree passed subsequent to the refusal of leave
to defend could either be under Order 37 Rule 3(6) of the
Code or it could be based on the affidavit evidence on the ;t.- ... '
side of the plaintiff and the documents produced or even
based on oral evidence formally proving, say, the execution
H
RIKHABSAO NATHUSAO JAIN v. CORPN. OF THE 1113
CITY OF NAGPUR & ORS. [S.B. SINHA, J]

f of a promissory note by the defendant. It may not be proper A
·" or necessary to apply the theory of "dependent order" in
such circumstances. For one, the theory may not apply.
Even if this Court were to set aside the order of the court
below and give the defendant leave to defend the suit, the
'
decree that is passed may not go automatically. It may B
have to be set aside. Secondly, the defendant can always
go to the court which passed the decree and move under
--f Rule 4 of Order 37 of the Code to reopen the decree."

The doctrine, therefore, must be applied having regard to
the fact situation obtaining in each case. c
29. As the Division Bench of the High Court in the intra-
court appeal did not consider any of the contentions of the par-
ties and proceeded to dispose of the same on a wrong premise
that the court of the District Judge had the jurisdiction to pass
D
such an order, we are of the opinion that the impugned judg-
..4._ ment cannot be sustained and is set aside accordingly. The
_;.. matter is remitted to the .learned District Judge for consider-
ation of the matter afresh on the merit of the original application
filed by appellant in accordance with law, albeit keeping in view
the subsequent events and also necessity, if any, to adjust the E
equities between the parties.
30. The appeals are allowed with costs to be payable by
the respondent No. 2. Counsel's fee assessed at Rs. 25,000/

D.G. Appeals allowed. F
;J(
.~
: