A227/4940/2020 of M/S HAZARI LAL SHYAM LAL STEELS PRIVATE LTD AND ANOTHER Vs KANPUR NAGAR NIGAM, THROUGH COMMISSIONER KANPUR AND 3 OTHERS on 24 December 2020

1. The accompanying petition has been filed under Article227 of the Constitution of India, during winter break.

2. Upon urgent mention made, the matter has beenplaced before me upon special bench constituted byHon'ble The Chief Justice.

3. Accordingly, the application is disposed of.

Re: Order on Petition

4. Heard Sri Prateek Sinha, learned counsel for thepetitioners and Sri Alok Mishra, learned counsel for therespondent no.1.

5. Grievance of the petitioners is that they are settingtenants in a building bearing municipal nos. 77/3 and77/3A, Collie Bazaar, Kanpur Nagar. The petitioners alongwith similarly situated persons, who are tenants in otherparts of the same building bearing municipal no. 77/3Band 77/3C, have been adversely affected by certainconstructions that are being raised by respondent no.4(builder) on the plot owned by respondent nos. 2 and 3. Itis alleged that those constructions are being made in a manner so as to weaken the constructions/tenements ofthe petitioners and other similarly situated persons. Thesaid act is stated to be a result of collusion between theowners of the building in question and the builder. A largepit is stated to have dug up by the respondent no.4, whichhas caused damage to the tenements of the petitionersand other existing structures.

6. In such circumstances, Chandra Steels and Industries& 10 Ors, who are also tenants in same building, bearingmunicipal nos. 77/3B and 77/3C, instituted an injunctionsuit no. 1072/2020. The trial court, upon hearing theplaintiffs in that suit, has granted an ex-parte temporaryinjunction in favour of those plaintiffs, vide its order dated5.12.2020. The said order is continuing.

7. Since the petitioners were similarly affected, theyinstituted suit no. 1173 of 2020 (M/s H.C. and Sons & Ors.Vs. Smt. Renu Jain & 3 Ors.). On other application forgrant of temporary injunction, the petitioners were heardon 19.12.2020. They relied upon earlier orders passed bylearned court below dated 5.12.2020 in O.S. 1072/2020(Chandra Steels and Industries & 9 Ors Vs. GBPConstructions & 4 Ors.). Yet, without any difference of factbeing noted, the learned court below has failed to grantex-parte temporary injunction to the petitioners andposted the matter for 2.1.2021.

8. Thus, it has been submitted that the learned courtbelow has failed to exercise it's jurisdiction and hascompletely erred in not protecting the petitioners, who aresimilarly situated to the plaintiffs in O.S. No. 1072/2020, inwhose favour a temporary injunction order is alreadyoperating. They further alleged that emboldened by the fact that the petitioners have not been protected, privaterespondent no.4 attempted to forcibly evict the petitionersand demolish their tenements. In that regard, it has beenfurther emphasized that till date, there is no proceedinginstituted under any law, either to seek eviction of thepetitioners or to demolish their tenements.

9. In reply, Sri Mishra submits that Kanpur Nagar Nigamwould only act in accordance with law and if at all anybuilding is to be demolished, it may be done only uponthe orders of the competent court or authority.

10. In view of such facts, no useful purpose would beserved in keeping the present petition pending or callingfor counter affidavit, at this stage, in view of the order thatis proposed to be passed.

Facts

11. Having heard learned counsel for the parties, itappears that the petitioners claim parity of facts andcircumstances with the plaintiffs in O.S. No. 1072/2020.For the purpose of grant of temporary injunction in theirfavour, the petitioners had undoubtedly relied on thetemporary injunction order granted to the plaintiffs in O.S.No. 1072/2020. This much is recorded in the order dated19.12.2020 itself. However, perusal of the impugned orderdoes not bring out any consideration made by learnedcourt below as to why the petitioners were found notentitled to equal protection with that granted to theplaintiffs in O.S. No. 1072/2020. Also, there is absolutelyno consideration of why ex-parte temporary injunction hasnot been granted in their favour despite pleadings madeof attempt to demolish their tenements and to evict themfrom their premises without adopting the process of law.

12. Since the next date fixed in the matter is 2.1.2021, it isexpected that the learned court below shall apply its mindto the facts noted above as also all other relevant factsthat are brought before it by the parties and shall passappropriate orders giving reasons for the same on thatdate itself. Till 2.1.2021, the petitioners would have thesame protection as has been granted to the plaintiffs inO.S. No. 1072/2020 wherein a temporary injunction orderwas passed on 5.12.2020. However, it is made clear thatfurther protection, as prayed for by the petitioners, woulddepend on the orders that may be passed by learnedcourt below on 2.1.2021, after hearing the parties beforeit.

13. With the aforesaid observations, the present petitionis disposed of.

Order Date :- 24.12.2020Prakhar