Allowed

Tower Vision India Pvt. Ltd., v. Dilshad Yakub Rais and Ors.

Bombay HC1 Mar 2011WP/1212/2011

Case brief

AI extract

What is this about?

This Court allowed a writ petition challenging an appellate order that merely declined to pass any order on a temporary injunction appeal. The High Court quashed the appellate order for failing to frame issues, give a decision, or provide reasons, ordering a retrial on merits while retaining the direction for expedited disposal.

What did the court decide?

The order of the Learned Appellate Court is set aside and a rule is made absolute for the expeditious disposal of the suit.

Tower Vision India Pvt. Ltd., Vs Dilshad Yakub… — Civil Procedure and Limitation | Bombay HC (2011)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1212 OF 2011

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Tower Vision India Pvt Ltd.

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..Petitioners

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v/s.

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Dilshad Yakub Rais & ors

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..Respondents

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Mr. H.S.Venegavkar for the Petitioners Mr. Javeed Hussen for Respondent No.1 Ms Amit Hivare for Respondent Nos.2 & 3

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CORAM:- B.R. GAVAI, J DATED :- 1st MARCH, 2011.

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P.C.

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1 Rule. Rule made returnable forthwith.

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2 Heard. By consent of the parties the Petition is taken up for

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final hearing.

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3 By way of present petition, the Petitioners challenge the order

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dated 22-10-2010 vide which, the Learned Appellate Court in an Appeal in

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Misc Application No.3 of 2010 has not passed any order which can be said to be so in law.

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4 The Respondent No.1/Plaintiff has filed an Application for

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injunction against the Petitioner and the Respondent Nos.2 and 3 herein, for declaration and injunction contending that the mobile tower which was

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being constructed by the present Petitioner was not in accordance with the legal provisions. In the said suit, application below Exhibit-5 for temporary injunction was also filed. The same was rejected. Being aggrieved thereby, the Respondent / Plaintiff preferred an Appeal. In the said Appeal, the Learned Appellate Court observed that it is necessary that the Trial Court should decide the suit on merits and therefore, has only directed the Trial to be disposed of expeditiously by the Learned Trial Court. However, in the impugned order the Appellate Court has neither observe as to whether it concurs with the order passed by the Learned Trial Court in refusing the injunction or intends to grant an injunction as prayed by the Plaintiff. Had the Learned Appellate Court, at least observed as to whether it was allowing the Appeal or dismissing the same, this Court could have at least gathered the intention of the Learned Appellate Court, whether it was granting the injunction or refusing the same.

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5 Be that as it may, since the Petitioner has approach this Court being aggrieved by the order of the Appellate Court, I am inclined to consider the merits of the matter.

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6 The grievance of the Plaintiff is on the following counts :

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(i) ongoing construction is in violation of

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provision of the Maharashtra Land Revenue Code

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as the land on which it is erected is an agricultural

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land.

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(ii) the project is hit by the provisions of coastal

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regulatory zone being situated within 500 meters

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from the high tide line

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(iii) the commissioning of tower would result a

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serious health hazard due to the signals and waves

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emitted from the base station.

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7 The scope of an Appeal against Order under Order 43 Rule 1(r)

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of the Civil Procedure Code, is very limited. Unless the Appellate Court finds that the view taken by the Trial Court is either perverse or impossible, it is not permissible for the Appellate Court to reverse the same. Equally when two views are possible, merely because the Appellate Court finds that the other view is more probable view cannot be a ground to interfere with the order of the Trial Court.

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8 The Learned Trial Court upon material placed on record, has found that the Petitioner was possessing requisite permission under the Maharashtra Land Revenue Code. Not only that but the Learned Trial Court has also found that the requisite permission from the Regional Port officer,

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Alibaug was also obtained by the present Petitioner. The Learned Trial Court relying on the Judgments of the Kerala High Court and the Delhi High Court, has observed that the mobile base stations do not pose health hazard. The Learned Trial Court, in 23 paragraph after considering the relevant factors for grant of injunction, that is priam facie case, balance of convenience and irreparable injury, has refused to grant an injunction and rejected the application below Exhibit-5.

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9 I am of the considered view that the Learned Trial Court had

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considered the mater from the point of view, which is required while considering an application under Order 39 Rule 1 & 2 of the CPC. However, the Learned Appellate Court in its order observes thus :

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“Therefore, according to my conscious, it is necessary to direct the Trial Court to deal with all issues and detailed provisions made in that regard including distances to be kept as per the norms under the CR Zone and for giving fullest opportunity to the parties to dispose of the suit on merit.”

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10 The Learned Appellate Court has not even taken trouble of

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considering as to whether the view taken by the Learned Trial Court was perverse or impossible view or a possible view. It appears that rather than considering the matter from legal provision, the Learned Judge of the Appellate Court has chosen to decide it as per his conscious. At least while doing so, the least that he was expected to observe as to whether he found that it was necessary to grant an order of injunction or not. Neither has he observed as to whether the Appeal was allowed or dismissed.

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11 In that view of the matter, I have considered the merits of the order passed by the Learned Trial court which in my view warrant no interference.

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12 Rule 31 of Order 41 deals with the contents of the Judgment

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which reads thus :

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“31. Contents, date and signature of judgment – The Judgment of the Appellate Court shall be in writing and shall state -

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(a) the points for determination;

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(b) the decision thereon;

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(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled; and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein. “

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Rule 2 of Order 43 provides that rules contained in Order 41

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and 41-A shall apply so far as may be, to Appeals from Orders.

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13 In that view of the matter, the Learned Appellate Court was required to deliver its judgment in accordance with Rule 31 of the Order 41 of CPC. Perusal of the Judgment would reveals that neither the Learned Appellate Court has framed any point for determination, nor has he given any decision thereon. Clause (d) of the rule 31 of Order 41 specifically requires the Appellate Court to state as to whether the decree appealed from, is reversed or varied. The same has also not been done. It, therefore, appears that the Learned Appellate Court has totally ignored the provisions of law and has passed the order impugned only as per its conscious.

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14 In that view of the matter, I have no other option but to set aside the order passed by the Learned Appellate Court.

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15 The Petition is therefore allowed in terms of prayer clause (b). However, only that part in the order impugned, that I find is in the interest of justice, is regarding the expeditious disposal of the suit. Though the impugned order is set aside, it is made clear that, that part of the order shall not be set aside. Rule is made absolute in the aforesaid term.

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(B.R. GAVAI, J)

Tower Vision India Pvt. Ltd., v. Dilshad Yakub Rais and Ors.

Case brief

What is this about?

What did the court decide?

Tower Vision India Pvt. Ltd., v. Dilshad Yakub Rais and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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