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C/CA/8397/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION (FOR STAY) NO. 8397 of 2017
In
APPEAL FROM ORDER NO. 207 of 2017
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N R AGRAWAL INDUSTRIES LTD....Applicant(s)
Versus
SIRISH B DESAI & 2....Respondent(s)
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Appearance:
MR SP MAJMUDAR, ADVOCATE for the Applicant(s) No. 1
PAULOMEE M MEHTA, ADVOCATE for the Applicant(s) No. 1
MS TEJAL A VASHI, ADVOCATE for the Respondent(s) No. 1 - 2
VIRAL K SHAH, ADVOCATE for the Respondent(s) No. 3
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 22/08/2017
ORAL ORDER
1. Heard Mr.P.C.Kavina, learned Senior Counsel assisted by Mr.S.P.Majmudar, learned counsel for the applicant, Mr.Jal Soli Unwala, assisted by Mr.Amiraj Barot, for Ms.Tejal K. Vashi, learned counsel for respondent Nos.1 and 2 and Mr.Viral K. Shah, learned counsel for respondent No.3.
2. The Appeal from Order arises out of the order dated 01.07.2017 passed by learned Principal Civil Judge, Vapi, below application Exh:5 in Special Civil Suit No.36/2017.
3. The noteworthy facts which emerge from the record of the present case are as under:-
3.1 That the applicant filed a suit for specific performance, declaration and permanent injunction. It is Page 1 of 14 HC-NIC Page 1 of 14 Created On Fri Aug 25 13:52:06 IST 2017 C/CA/8397/2017 ORDER the case of the applicant that the applicant is a Company, registered under the Companies Act, 1956 and is, inter alia, engaged in the business of manufacturing of paper and its manufacturing unit is situated at Survey Nos.69/1/P3, 69/1/p/3/P1, 72/p3, 72/P4, 73/p1, 74/p2, 74/p3, 76/2p1, 75/1p4, 83/p1, 84/p1, 86/6/p1, 88/9/p1, 92/p2, 94/p1, 94/p2 of Sarigam Kale Road, Village Angam, Sarigam, Taluka Umargaon, District Valsad. It is an admitted position that, the applicant-plaintiff being paper manufacturing unit has to obtain necessary permission under the provisions of the Water Prevention & Control of Pollution) Act, 1974, the Environment protection Act, 1986 and the Waste (Management and Handling) Rules framed thereunder and also has to obtain the consent from the concerned authorities.
3.2 The averments made in the plaint indicate that, the applicant is required to discharge its treated effluents generated at their manufacturing unit into the Common Effluent Treatment Plant (CETP) of GIDC. It is the case of the applicant that, such Common Effluent Treatment Plant of GIDC situated at a distance of 4.5 kms., away from the applicant's manufacturing unit and the applicant has to lay down the pipeline to carry out its treated effluents from its manufacturing unit into the CETP. It is the case of the applicant that, respondent Nos.1 and 2 are the owners of Survey Nos.373 and 58P/2, therefore, to lay down the entire pipeline, the applicant entered into Memorandum of Understanding with respondent Nos.1 and 2 in the month of January, 2016. By the said Memorandum of Understanding, respondent Nos.1 and 2 being the owners of the land being Survey No.373, admeasuring H.R.A. 3-25-77 and Survey No.58/p, admeasuring 17942 sq.mtrs., permitted Page 2 of 14 HC-NIC Page 2 of 14 Created On Fri Aug 25 13:52:06 IST 2017 C/CA/8397/2017 ORDER the applicant to lay down the pipeline having 1 feet diameter and 3 feet depth. It is case of the applicant that the pipeline was laid down by incurring very huge expenditure and thereafter, respondent No.3 came in picture, for which the applicant has paid an amount of Rs.13,00,000/- to respondent No.3. It is further the case of the applicant that, at present the pipeline is in working condition and treated affluents pass through the pipeline, so as to reach CETP situated at a distance of 4.5 kms., away from manufacturing unit of the applicant. It is also the case of the applicant that, lease agreement with respondent Nos.1 and 2 is also executed, however, the same could not be registered.
3.3 Record further indicates that as there was some apprehension and obstruction from respondent No.3, who has already been paid an amount of Rs.13,00,000/-, statutory notice was sent to respondent Nos.1 and 2 dated 01.07.2017. It is contended that respondent No.3 claiming to be owner of part of Survey No.373 being Survey No.373/3 and started making demand of exorbitant amount and threatened the applicant to remove the pipeline on purported claim of being the owner of alleged part of Survey No.373 i.e. Survey No.373/3. As the applicant has incurred huge expenditure and the said pipeline is in working condition, the suit has been filed alongwith the application for interim injunction before the learned Trial Court, wherein learned Trial Court vide order dated 01.07.2017 was pleased to issue notice, against which present Appeal From Order is filed.
4. This Court vide order dated 03.07.2017 was pleased to issue notice and granted order of status quo till its returnable date, which has been extended from time to Page 3 of 14 HC-NIC Page 3 of 14 Created On Fri Aug 25 13:52:06 IST 2017 C/CA/8397/2017 ORDER time.
5. The Appeal from Order as well as Civil Application were heard at length.
6. Mr.Kavina, learned Senior Counsel appearing for the applicant has taken this Court through the factual matrix and has contended as under:-
(a) It was contended that respondent No.3 is not the owner of part of Survey No.373/3 as claimed. Even before this Court, except the assertion that he has purchased the said land, sale-deed thereof is not produced.
(b) It was further contended that, respondent Nos.1 and 2 have entered into Memorandum of Understanding, on basis of which the pipeline has been laid down and it has been become operative and at present, the same is in working condition and therefore, if stay, as prayed for, is not granted, manufacturing process of the applicant would be affected. He therefore submitted that the applicant has got very good prima facie case and balance of convenience is also in favour of the applicant.
(c) It was further submitted that if the stay is not granted, the applicant is likely to suffer irreparable loss, which cannot be compensated in terms of money.
(d) That the applicant has paid a sum of Rs.10,00,000/- and Rs.3,00,000/- to respondent No.3 and the bank entries reflect the same. It was further Page 4 of 14 HC-NIC Page 4 of 14 Created On Fri Aug 25 13:52:06 IST 2017 C/CA/8397/2017 ORDER submitted that, in acceptance and even as stated in the Affidavit-in-Reply filed in the Civil Application by respondent No.3, it was permissible use and therefore, abruptly cannot be stopped in the manner in which it is sought to be done by respondent No.3.
Relying upon the judgment of Hon'ble Supreme Court rendered in the case of Bharat Petroleum Corporation Ltd vs Delhi International Airport Pvt. Ltd. [1987 (2) SCC 555], it was contended that it is license and would come within the purview of the Easement Act. Referring to the invoices, the expenses that the applicant has occurred, it was submitted that huge amount of Rs.25 lacs and more has been incurred by the applicant. It was contended that even if the alleged date of purchase, which is mentioned by respondent No.3 in its Affidavit-in-Reply before this Court is considered, the work of laying down the pipeline was completed in the month of December, 2016 and it was also submitted that though the lease deed is unregistered, license should be protected and in fact, it is irrevocable license.
(e) Mr.P.C.Kavina, on the aforesaid background, submitted that this is a fit case which falls within the rarest of the rare case as provided under Order 39, Rule 3 of the Code of Civil Procedure and if the position as on today is not continued, purpose of the suit may be lost and therefore, the order of status quo granted by this Court be continued till application Exh:5 for temporary injunction is decided by learned Trial Court and leave the parties to place their respective case before the learned Trial Court. Referring to the judgment of the Division Bench of Page 5 of 14 HC-NIC Page 5 of 14 Created On Fri Aug 25 13:52:06 IST 2017 C/CA/8397/2017 ORDER this Court reported in the case of Sandesh Ltd. & Anr. Vs. Transmedia Software Ltd. [2016 (1) GLR 574], it was contended that, as decided by the Division Bench of this Court, the appeal even against the order of notice is maintainable under Order 43, Rule 1 of Code of Civil Procedure and therefore, the appeal is maintainable and the stay may be continued. He further submitted that no reply is filed before the learned Trial court, even no notice is given for revocation and the pipeline is already installed and operative. It was submitted that the trial Court ought to have looked into the aspect of reasonable apprehension as averred in the plaint; more particularly as stated in paragraph 6 of the plaint. That even respondent No.3 has stated in the Affidavit-in-Reply that he has received an amount of Rs.13,00,000/-. It was further submitted that even though it is averred that such use was permitted till 30.06.2017, respondent No.3 has not come out with a case that, there are any arrears. It was contended that, the same has to be compensated and the applicant is duty bound to make it good and that the applicant is ready and willing to give compensation for the permissive use.
(f) It was also submitted that, as averred in the Affidavit-in-Reply by respondent No.3, purported purchase has been made on 10.01.2017 and as can be seen from the documents, it is established that the pipeline was in existence on the date on which the alleged transaction is made by respondent No.3.
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C/CA/8397/2017 ORDER
6. Therefore, in view of the aforesaid submissions and contentions, Mr.Kavina, learned Senior counsel for the applicant submitted that the appeal requires consideration and the order of status quo deserves to be continued till application Exh:5 is heard and decided by learned Trial Court on merits and the parties are required to be relegated to the Civil Court.
7. Mr.Jal Soli Unwala, learned counsel for respondent Nos.1 and 2 submitted that there is Memorandum of Agreement with the applicant and respondent Nos.1 and 2 have no dispute about the same. He further submitted that it is a matter of fact that respondent No.3 has threatened to remove the pipeline laid down with the permission of respondent Nos.1 and 2 and if the stay is not granted, it would indirectly give permission to respondent No.3 to uproot the pipeline, which would not only cause irreparable damage to the applicant, but also cause irreparable damage to the land of respondent Nos.1 and 2. It was also contended that Survey No.373 is a composite survey and that there is no part alike Survey No.373/3 and that respondent Nos.1 and 2 dispute the claim of ownership put forward by respondent No.3.
8. It was also submitted that, though respondent No.3 has claimed its right, has not filed any suit or even not undertaken any proceedings to make out a case of having legitimate right on the disputed property. He further submitted that, in the facts of the case the order of status quo granted by this Court deserves to be continued till the application Exh:5 is decided and the same would meet the ends of justice as there is threat of breaking open the pipeline in the land belonging to respondent Nos.1 and 2 and that the land has been purchased by Page 7 of 14 HC-NIC Page 7 of 14 Created On Fri Aug 25 13:52:06 IST 2017 C/CA/8397/2017 ORDER respondent No.3 is incorrect statement and respondent No.3 has only relied upon the so called map of DILR and has not even produced the sale-deed on record.
9. Mr.Viral K. Shah, learned counsel for respondent No.3 has opposed the Appeal From Order as well as the Civil Application and has contended that, the applicant-company was incorporated in the year 2009 and it has started its commercial activities in the year 2014 and there is already separate pipeline for transmitting treated effluents from its manufacturing unit to CETP at GIDC, Sarigam. It was also contended that the entire case is based on an lease-agreement with respondent Nos.1 and 2. He further submitted that respondent No.3 has purchased the land bearing Survey No.373/3 from one Lalitbhai Naginbhai Ravat and not from any of the respondents. He further contended that the contention that there is extortion done by respondent No.3 is incorrect. Rs.13,00,000/- was paid in the month of January 2017 and that too upto the period of 30.06.2017. It was further contended that, there is no reason that why problem erupted in the month of June, 2017 only. It was also contended that the permission was granted only for particular period and there is already another pipeline in existence and the applicant had sought permission only for repairs of the said pipeline. It was also contended that there is no irregularities committed by respondent No.3 and in fact, respondent No.3 is not the party to the license and therefore, there is no necessity to undertake any process for revocation. It was further asserted that respondent No.3 has become the owner by registered sale deed and there is no evidence on record to show that the pipeline was laid down before 10.01.2017. He further Page 8 of 14 HC-NIC Page 8 of 14 Created On Fri Aug 25 13:52:06 IST 2017 C/CA/8397/2017 ORDER contended that if the same would have been true, there was no reason for making payment of Rs.13,00,000/- to respondent No.3. It was also asserted that the suit is filed before the learned Trial Court with incomplete details and the same is abuse of process of the Court. Even if it is small portion of land, nobody can force respondent No.3 to permit the applicant to lay down the pipeline and then say that, respondent No.3 can be charged. It was also contended that there is nothing on record to show that Survey No.373 is only one composite number and there is no document to show that there is one part of the land and therefore, the appeal and the application filed by the applicant deserve to be dismissed.
No other and further submissions are made by learned counsel for the respective parties.
10. At the outset, it deserves to be noted that as the present appeal arises out of the order of notice and non- grant of ex parte ad-interim injunction, the matter is to be examined in said ambit. Considering the prima facie case of the applicant, it clearly bornes out from the record of the suit, which is brought on record by way of separate paper-book, that there is Memorandum of Understanding between the applicant and respondent Nos.1 and 2 in relation to the land bearing Survey No.373, admeasuring 3577 sq.mtrs. and Survey No.58/p2, admeasuring 1742 sq.mtrs. It goes without saying that, respondent Nos.1 and 2 have no objection if the pipeline which is laid down by the applicant is permitted to remain as it is at least still application Exh:5 is decided. It is also an admitted position that, the applicant is paper manufacturing unit and has to make arrangement for Page 9 of 14 HC-NIC Page 9 of 14 Created On Fri Aug 25 13:52:06 IST 2017 C/CA/8397/2017 ORDER discharge of treated affluents upto CETP, situated at a distance of 4.5 kms., away from its manufacturing unit, which is part of Sarigam Industrial Estate. As a paper manufacturing unit, the applicant is therefore bound by environment laws and has to maintain the prescribed standards for discharging its affluents for which pipeline is a sine qua non. The documents on record clearly establish the fact that, there is MOU and unregistered lease-deed. Though respondent No.3 has brought on record the Tippan/Map(sic) of DILR, which shows bifurcated part being Survey No.373/3, however, the fact remains that the names of respondent Nos.1 and 2 along with one Sanjaybhai Desai as owners and occupiers of the land bearing Survey No.373 as per the revenue records, which is brought on record of the suit. Even Tippan which is annexed with the affidavit does not support the case of respondent No.3 as if the land bearing Survey No.373 has been bifurcated into three parts (1) In addition to that, even in the Affidavit-in-Reply which is filed before this Court, respondent No.3 has not even mentioned the registered number of the sale-deed nor copy of the same has been produced on record and only oral assertion has been made by respondent No.3 to the effect that purely on humanitarian ground, permission was accorded by respondent No.3 and that the same was not beyond 30.06.2017. Further, it is also an admitted fact that respondent No.3 has accepted huge amount of Rs.13,00,000/- and huge expenses have incurred by the applicant for laying down the pipeline and therefore, the contention that there is alternative pipeline does not take the case of respondent No.3 any further.
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11. It deserves to be noted that in the Affidavit-in- Reply filed before this Court, respondent No.3 has made assertion that he has purchased the land bearing Survey No.373/3 (without even mentioning the extract of area) on 10.01.2017, however, no sale deed is produced nor any revenue entry in the name of respondent No.3 has been produced before this Court. The DILR measurement sheet does not inspire any confidence to show that respondent No.3 has become the owner of the said land.
12. In juxtaposition of such documentary evidence, the bank account produced by the applicant to show that the amount of Rs.13,00,000/- have been paid to respondent No.3, which is already admitted by respondent No.3. Moreover, one of the entry of Rs.10,00,000/-, which is paid by way of cheque dated 30.01.2017, is dated 01.02.2017. The invoices, which are annexed with the plaint, show that the material for laying down the pipeline is of 12.05.2016, 04.12.2016, 10.12.2016 and lastly, the tax invoices issued by Laxmi Techno Industries Ltd. is dated 19.12.2016, which prima facie shows that pipeline was laid down by the month of December, 2016.
13. Even if the date, which is mentioned by respondent No.3 is taken into consideration reckoning, the fact remains that assertion made by the applicant that the pipeline was laid down before 10.01.2017 is prima facie fortified by such facts and the same is operative as of now.
14. Considering the principle enunciated by Hon'ble Supreme Court in the case of Morgan Stanley Mutual Fund vs Kartick Das [1994 (4) SCC 225], in facts of the case on hand, if the interim relief is not granted, irreparable Page 11 of 14 HC-NIC Page 11 of 14 Created On Fri Aug 25 13:52:06 IST 2017 C/CA/8397/2017 ORDER mischief will ensue to the applicant/plaintiff. In the instant case, if the pipeline is removed, which is in prima facie opinion of this Court laid down before 10.01.2017, the same would cause greater injustice to the applicant herein. The facts of the case do not disclose that the applicant has trespassed into the land upon which the alleged claim of ownership is put forward by respondent No.3. Even according to respondent No.3, he has become the owner of alleged separate part of Survey No.373 i.e. Survey No.373/3 on 10.01.2017 and as observed hereinabove, the invoices on record prima facie show that the work of laying down the pipeline was over till December, 2016. It also appears that, the suit is not based merely on apprehension, but threats given by respondent No.3 and in such cases, this is a fit case for at least grant of status quo as provided under Order 39, Rule 1 read with Rule 3 of Code of Civil Procedure.
15. In light of the aforesaid, on examining the case on hand and three cardinal principles enshrined in Order 39, Rule 1 of the Code of Civil Procedure i.e. prima facie case, balance of convenience and irreparable loss is concerned, it is a matter of record that respondent Nos.1 and 2 have entered into MOU with the applicant for the land bearing Survey Nos.373 and 58/p1. It is also brought on record, which prima facie shows that the pipeline has been laid down in the month of December, 2016 and no sale deed, index or extract or any revenue records in favour of respondent No.3 has been produced on record and therefore, the applicant has very good prima facie case. The applicant being paper manufacturing unit has to keep flow of treated effluents discharged from its manufacturing unit, so as to reach into CETP in regular manner without Page 12 of 14 HC-NIC Page 12 of 14 Created On Fri Aug 25 13:52:06 IST 2017 C/CA/8397/2017 ORDER any obstruction and therefore, the balance of convenience is in favour of the applicant. Similarly, if interim relief is not granted, the applicant will suffer irreparable loss. The facts of the case clearly establishes that it falls within the ambit of Rule 3, Order 39 of Code of Civil Procedure. The aspect whether the applicant has any easement right or not is to be examined by the learned Trial Court when the application Exh:5 is taken up for hearing threadbare. The present Appeal from Order arising out of non-grant of interim relief, present appeal is maintainable, and therefore the appeal is admitted in view of the observations made by Division Bench of this Court in the case of Sandesh Ltd. & Anr. (supra).
16. In the facts and circumstances of this case, in opinion of this Court, present case falls in the category of rarest of the rare case where ex parte ad-interim injunction is required to be granted to protect the subject matter of the suit at least application Exh:5 is decided by the learned Trial Court.
17. For the foregoing, present application is allowed to the aforesaid extent and the order of status quo granted by this Court vide order dated 03.07.2017 shall continue till the application Exh:5 is decided by the learned trial Court with the following directions:-
(I)The parties shall complete their pleadings before the learned Trial Court latest by 31st August, 2017.
(II)Learned Trial Court is hereby directed to hear the application Exh:5 and decide the same independently after taking into consideration the Page 13 of 14 HC-NIC Page 13 of 14 Created On Fri Aug 25 13:52:06 IST 2017 C/CA/8397/2017 ORDER submissions that may be made by all the parties before it without in any manner being influenced by the fact that the appeal is admitted and also without in any manner being influenced by any of the observations made in this order, latest by 29th September, 2017.
(III) It would be open for the parties to take all available contentions before the learned Trial Court in the application Exh:5.
(IV) It is, however, made clear that the observations made in this order are only limited to the present application.
Application stands disposed of accordingly. Parties to bear their own cost. Direct Service is permitted.
(R.M.CHHAYA, J.) Suchit Page 14 of 14 HC-NIC Page 14 of 14 Created On Fri Aug 25 13:52:06 IST 2017