Bombay High Court
RAPTAKOS BRETT AND COMPANY LIMITED AND ANRversusTHE JOINT COMMISSIONER OF POLICE AND ORS
- Decided
- Disposal
- Disposed Off
Holding
A writ of mandamus cannot be issued to enforce a temporary injunction where the underlying property right and the identity of the disputed land remain unsettled; the matter must be resolved through the civil suit and a local investigation.
Summary
Raptakos, Brett & Co. Ltd., a pharmaceutical company, filed a civil suit seeking a declaration and injunction against alleged trespass, tree felling and demolition of a wall on its land. The civil court granted temporary injunctions directing the Vartak Nagar Police to enforce the orders, but the police claimed the matter was a civil dispute and took no action. The company then filed a writ petition under Article 226 seeking a mandamus directing the police to implement the injunctions. The High Court examined whether a writ of mandamus could be issued when the underlying property right and the exact location of the alleged construction were still in dispute. Relying on Supreme Court precedents, the Court held that the High Court cannot intervene to enforce a civil injunction without a clear determination of possession and that the appropriate remedy is a civil suit with a local investigation. Consequently, the petition was disposed of, with directions to seek a commission under CPC Order XXVI Rule 9 to ascertain the facts before any further relief is granted.
Issues considered
- The High Court’s jurisdiction to issue a writ of mandamus directing police to enforce a temporary injunction in a pending civil suit.
- Whether the civil court’s interim injunction can be implemented without a precise description of the disputed land.
- Whether the petition is maintainable under Article 226 given the existence of a pending civil suit.
- Whether the police’s inaction amounts to a violation of statutory duty.
Legislation cited
- Code of Civil Procedure, 1908 — s. Order VII Rule 3, Order XXVI Rule 10, Order XXVI Rule 9
- Constitution of India — s. Article 226
Subjects
- writ of mandamus
- interim injunction
- civil suit
- police assistance
- property dispute
- CPC Order VII
- CPC Order XXVI
- Article 226
- temporary injunction
- jurisdiction
Judgment
ASWP-12225-2024.doc
Shephali
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 12225 OF 2024
1. Raptakos, Brett & Company Limited
A Company incorporated under the
provisions of Indian Companies Act
1913, having its corporate office
address at 21/A, Mittal Tower, 210,
Nariman Point, Mumbai – 400 021,
India,
and having its factory site at:
01st, Pokharan Road, Shastri Nagar,
Thane (West), Thane, Maharashtra
400606.
Through Its Authorized
Representative/ Sr. Vice President
Mr. Dinesh R. Mishra
2. Mr. Dinesh R. Mishra
Sr. Vice President (Corporate, Finance,
Audit & Legal) of Raptakos, Brett &
Company Limited, having his office at
21A, Mittal Tower, 210, Nariman Point,
SHEPHALI Mumbai – 400021. …PETITIONERS
SANJAY
MORMARE
Digitally signed
by SHEPHALI ~ versus ~
SANJAY
MORMARE
Date: 2026.09.22
17:59:22 +0530
1. The Joint Commissioner of Police,
Thane City,
Near Kalawa Bridge, Kharkar Alley,
Thane (West), Maharashtra – 400 601.
2. The Deputy Commissioner of Police,
Thane City Zone-V
At 1st Floor, Wagle Estate,
Kasarwadavli Police Station,
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Thane, Maharashtra 400 610.
3. Commissioner of Police, Thane
Near Kalawa Bridge, Kharkar Alley,
Thane (West), Maharashtra – 400601.
4. Senior Police Inspector,
Vartak Nagar Police Station,
Vartak Nagar, Thane,
Maharashtra – 400606.
5. Hubtown Ltd.
(Formerly Akruti Builders),
A public limited company having its
Registered office at Ramkrishan
Chemburkar Marg, Next to Fine Arts
Society, Posta Colony,
Mumbai – 400 071.
6. Bhagwan Ningappa Devkate
Age: Adult, having his address at
Flat No. 4, Milind Society, Opposite
Raymond Ltd., Pokhran Road No. 1,
Thane (W) – 400 606.
Alternative address at:
Flat No. 103, B-2, Chhabhaiya’s
Vihang Garden, Pokhran Road No. 1,
Opposite Raymond Ltd.,
Thane – 400 606.
7. Hubtown Greenwoods A Co-op. Hsg
Ltd
Having its address at Pokharan Road
Number 1, next to Apana Bhandar,
Jay Jaywanti Society, Vartak Naka,
Thane West, Thane,
Maharashtra 400606.
8. Hubtown Greenwoods B Co-op. Hsg
Ltd
Having its address at Pokharan Road
Number 1, next to Apana Bhandar,
Jay Jaywanti Society, Vartak Naka,
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Thane West, Thane,
Maharashtra 400606.
9. Hubtown Greenwoods C Co-op. Hsg
Ltd
Having its address at Pokharan Road
Number 1, next to Apana Bhandar,
Jay Jaywanti Society, Vartak Naka,
Thane West, Thane,
Maharashtra 400606.
10. Hubtown Greenwoods D Co-op. Hsg
Ltd
Having its address at Pokharan Road
Number 1, next to Apana Bhandar,
Jay Jaywanti Society, Vartak Naka,
Thane West, Thane,
Maharashtra 400606.
11. Hubtown Greenwoods E Co-op. Hsg
Ltd
Having its address at Pokharan Road
Number 1, next to Apana Bhandar,
Jay Jaywanti Society, Vartak Naka,
Thane West, Thane,
Maharashtra 400606.
12. Hubtown Greenwoods F Co-op. Hsg
Ltd
Having its address at Pokharan Road
Number 1, next to Apana Bhandar,
Jay Jaywanti Society, Vartak Naka,
Thane West, Thane,
Maharashtra 400606.
13. Purple Carrot Food Curators LLP
Having it address at 12th Floor,
Dev Corpora,
Near Cadbury Company,
Near Khajiana E.e. Highway,
Khopat, Thane,
Maharashtra, India, 400601.
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14. State of Maharashtra
Through Govt pleader,
Appellate Side, High Court Bombay. …RESPONDENTS
A PPEARANCES
For the PETITIONERS Mr Rahul Narichania, Senior
Advocate, with Mr Sidharth
Chabbria & Simran Wagle, i/b Uma
Kshirsagar Wagle.
For Respondent State Ms Shruti D Vyas, Addl GP, with AR
Deolekar, AGP.
For Respondent No. 6 Ms Druti Datar.
For Respondent No. 13 Mr Ashish Kamat, Senior Advocate,
with Yash Dewal & Ashwin Kulkarni.
CORAM : SUMAN SHYAM &
ADVAIT M. SETHNA, JJ
RESERVED ON : 2nd SEPTEMBER 2026.
PRONOUNCED ON : 22nd SEPTEMBER 2026.
JUDGMENT (Per Suman Shyam, J):-
1. The Writ Petitioner No. 1 is a Company incorporated under
the provisions of the Indian Companies Act,1913, and the
Petitioner No.2 is its Vice President (Corporate, Finance, Audit &
Legal). The Petitioner No.1, as the sole Plaintiff, had instituted
Regular Civil Suit No. 272 of 2024 before the Court of Civil Judge,
Senior Division, Thane, at Thane, seeking a decree of declaration
and injunction simpliciter involving the “Suit Property” covered
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under Survey No. 217/1 and 217/2 admeasuring about 126 Ares
(12623 Sq. Mtrs). The learned Civil Court has granted temporary
injunction with a further direction for police assistance to
implement the order. The Petitioners have approached this Court
by filing this Writ Petition alleging inaction by the Vartak Nagar
Police in their failure to provide necessary assistance for
implementation of the orders of interim injunction passed by the
Civil Court on 29th May 2024, 20th July 2024 and 19th August 2024.
The facts and circumstance, giving rise to this Writ Petition, in a
nutshell, are narrated hereinbelow for ready reference:
2. The Writ Petitioner No. 1 is a pharmaceutical company
having its operational factory in Thane. The said factory is in
existence since the year 1959. As per the projections made in
paragraph 4 of the Plaint, the Petitioner No. 1 claims to be the
owner of the total area of land admeasuring 1055.49.00 Sq. Mtrs.
covered by various survey numbers including Survey Numbers
217/1 and 217/2. According to the Petitioner No. 1/ Plaintiff, over
the above land, a factory as well as a 105 bed superspeciality
exclusive children’s hospital named “MRR Children’s Hospital” is
also standing thereupon. The case of the Petitioner No. 1 is that on
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13th April 2024, some unidentified persons had forcibly trespassed
upon the land of the Petitioner No. 1, more particularly, the “Suit
Property” from the eastern side and started recklessly cutting trees
standing thereupon which were geo-tagged. When the security
guards and the staff of the Petitioner No. 1 present there tried to
stop them, the Respondent No. 6 ( i.e. the Defendant No. 2 in the
Plaint) had informed the staff of the Petitioners that they were the
contractors of the Thane Municipal Corporation (TMC) and were
acting under the instructions of the TMC for widening the “ nalla”
flowing through the land. When being opposed, the Respondent
No. 6 had threatened them with dire consequences. The Petitioner
No. 1, therefore, wrote a letter to the Municipal Commissioner of
TMC requesting a legal action to be initiated for illegal felling of
trees.
3. On 7th May 2024, at around 10:30 am, the Respondent No. 6
along with his men, broke down the RCC compound wall of the
Petitioners from the eastern side and entered the subject property
along with JCB bearing registration No. MH 04 DT 3918 and
destructed the trees planted on the land. When they were sought
to be obstructed by the security guard, staff and officers of the
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Petitioner No. 1-Company, the Respondent No. 6 and his men had
pelted stones on them and also threatened them with dire
consequences by claiming that he is a close aid of the local MLA
and, therefore, cannot be stopped by anyone. On 7 th May 2024
itself the Petitioner No. 1 made a complaint before the police about
the incident. However, the police did not take any action against
the Respondent No. 6 and his men, who had illegally demolished
the RCC compound wall of the Petitioners and had cutdown the
trees standing thereupon. Since the letters written to the TMC as
well as police authorities failed to evoke any response, the
Petitioner was compelled to approach the Court of Civil Judge
Senior Division, Thane, by filing Civil Suit No. 272 of 2024 seeking
the following reliefs:
“A) It be ordered, decreed, and declared that the claim of
the Defendants individually or jointly or through their
representatives or of their persons of ownership over the suit
property/said property is illegal and unlawful;
B) It be ordered, decreed, and declared that the action of
the Defendants to make attempts to encroach and enter upon
the suit property, cutting plants and conserved trees and
partially demolishing the RCC compound wall of the Plaintiff is
illegal and therefore direct the Defendants and their
representatives and/or persons, entities claiming through them
individually or jointly to cease from and desist committing the
same in future;
C) The Hon'ble Court may pass an order of Permanent
injunction restraining the Defendant and all other persons
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claiming through or under them, including their persons,
entities, employees, agents, associates, and representatives:
i. from entering into the suit property or the said
property of the Plaintiff Company, in any manner
whatsoever;
ii. from resorting to any kind of acts, deeds, or any
sort of coercive activity including obstructing the
security, staff and officers of the Plaintiff Company or its
unit of MRR Children Hospital from protecting and
safeguarding its property more particularly the suit
property.
D) Interim and Ad-interim reliefs in terms of the above
prayers may be granted by this Hon'ble Court till the
adjudication of the Suit:
E) Cost of constructing the compound wall and also the
cost of replacing the 20 numbers of conserved trees be
provided for.
F) Cost of the Suit be provided for.
G) Any other and favorable order or relief in favor of the
Plaintiff herein be passed in the interest of justice.”
4. In the aforesaid Suit, the Plaintiff had also filed an
application for temporary injunction. On 29 th May 2024, the 2nd
CJSD, Thane, who was acting as the in-charge of the Vacation
Court on that day, by taking note of the colour printouts of the
photographs produced by the Plaintiff/Petitioner to show that
construction was going on a day-to-day basis over the suit property,
had passed an order directing the Defendant No. 2, i.e.,
Respondent No. 6 to maintain status-quo till 10th June 2024, i.e.,
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the next date fixed in the Suit. The order dated 29 th May 2024 is
reproduced hereinbelow:
“Heard Ld. Advocates for plaintiff and defendant no.1. On
perusal of record and proceeding, it reveals that the
defendant no.2 has not appeared despite due service of
summons on 17/05/2024. The plaintiff is seeking relief for
ad- interim status-quo by way of the instant application
contending all the grounds against the defendant no.2 only.
An affidavit is annexed with the application. According to it,
the defendant no.2 is day by day encroaching on the suit
property survey no.217 by not appearing before the court. If
it is not restrained, it would finish the construction and
encroach further land. It reveals from record that my Ld.
Predecessor did not incline to grant ex-party ad-interim
status-quo. She has also not granted status-quo on
21/05/2024 with the observations that there was no
extraordinary emergency for granting the status-quo. She has
directed both the parties to argue on Exh.5 on next date and
kept the matter on today's board.
2. This court is acting as in-charge vacation court and
therefore, it is not expected to take the final hearing on an
application for temporary injunction (Exh.5), to which the
regular court is expected to give full and final considerations.
The plaintiff has produced on record photographs coloured
prints dated 27/05/2024, 28/05/2024 and 29/05/2024. It
reveals that the construction is going on, on day to day basis
over the suit property. It is the basic principle of granting the
temporary injunction to maintain the status-quo of the suit
property until adjudication of the lis between the parties.
3. Since, this court is in-charge court and vacation period
would come to an end after 12 days, therefore, it is necessary
to keep the matter before the regular court more particularly
on 10/06/2024. Ex-parte is yet to be passed against the
defendant no.2. Considering the day to day construction
going on over the suit property, it would be direct the
defendant no.2 to maintain status-quo till 10/06/2024.
Accordingly, the defendant no.2 shall maintain the status-quo
till 10/06/2024.
(Dictated and pronounced in Open Court.)
Date.29.05.2024 A. C. Doiphode)
I/C 2nd CJSD,Thane.”
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5. On 20th July 2024, the 3rd Joint CJSD, Thane had passed a
further order, the operative part of which, is reproduced
hereinbelow:-
“1] The application Exh. 44 is allowed.
2] Defendants no. 3 to 9 are restrained from entering and
carrying out any civil works by using any machinery like JCB,
Earth movers, Dumper, Pocklain, hydrolic and cement mixer
upon the suit property till next date.
3] P. I. of Vartak Nagar Police station be informed about
providing police aid to Plaintiffs for implementation of the
order of stopping the alleged construction work, on payment of
necessary bhatta for the same by plaintiffs.
4] Plaintiff to comply as per Order XXXIX Rule 3 of Civil
Procedure Code.”
6. According to the Petitioners, in the order dated 20 th July
2024, there was a clear direction to the Vartak Nagar Police Station
to implement the order of the Court by stopping the alleged
construction work. Notwithstanding the same and despite the
Petitioners having informed the police, no action was taken by the
police in the matter. On the contrary, the Police had replied that
“the nature of the present matter is civil dispute”. Situated thus,
the Petitioner No. 1 had once again approached the Civil Court
seeking further orders of Police assistance. On 19 th August 2024,
the Court of learned CJSD, Thane, had passed the following order:-
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“By this application, the plaintiff sought directions to
Vartak Nagar Police Station for compliance of the order passed
below Exh. 44 Dt- 20/07/2024. Accordingly Vartak Nagar
Police station had to provide police aid to plaintiff. But instead
of provide police aid they had sent letter Dt- 04/08/2024
stating that the nature of present matter is civil dispute.
Therefore it is necessary to direct them for compliance of order
dated 20/7/2024. Hence, the application.
2] Today, also defendant and their counsel are absent
when called and not proceeded for further hearing of Exh. 5.
Defendants no. 3 to 9 are already restrained vide order Exh. 28
dt. 29/5/2024 and Exh. 44 dt. 20/7/2024 from entering into
the suit property and from carrying out any work of
construction over the suit property.
3] In spite of the aforesaid orders the construction is going
on. Therefore, considering submission police aid is also
provided while passing order below Exh. 44. But if officers of
Vartak Nagar Police Station is not complying the order, it is
again necessary to direct them specifically for providing police
aid to plaintiff for stopping of alleged construction work.
Hence, the order:
ORDER
Sr. Police officer of Varak Nagar police station is directed
to provide police aid to plaintiff for stopping of the alleged
construction work, on necessary Bhatta.
Dt- 19/08/2024 (A.S.Nalge)
Thane 3rd Civil Judge S.D., Thane.”
7. On 18th February 2025, the Civil Court had confirmed the
earlier orders and disposed of the Interim Application by the
following order:
:ORDER:
1. The application at Exh.No. 5 is allowed.
2. Defendants, or any other persons
through them including their co-employees,
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agents, associates and representatives are
hereby restrained from entering into the suit
property of the said property of the plaintiff’s
company.
3. They are also restrained from resorting
to any kind of acts, deeds or any sort of
coercive activity including obstructing the
security, staff and officers of the plaintiff
company or its unit of MRR children hospital
from protecting and safeguarding its property.
4. Costs in main cause.”
8. It is the case of the Petitioner that notwithstanding the
successive orders passed by the Civil Court, the construction work
went ahead unabated and the police did not take any action to
stop the construction so as to implement the order of the Civil
Court. Hence, this Writ Petition before this Court with the
following prayers:-
“(a) That this Hon'ble Court be pleased to issue writ of
mandamus or a writ, order or direction in the nature of
mandamus or any other appropriate writ, order or direction
under Article 226 of the Constitution of India directing the
Respondent Nos. 1 to 4 to forthwith give necessary, adequate
and appropriate police aid and assistance and implement the
Orders dated 29th May, 2024, 20th July, 2024 and 19th August,
2024 passed by the Hon'ble Court of Civil Judge, Senior
Division, Thane so as to prevent any encroachment, trespass
and illegal construction on the Petitioner No. 1's subject
property;
(b) That this Hon'ble Court be pleased to issue writ of
mandamus or a writ, order or direction in the nature of
mandamus or any other appropriate writ, order or direction
under Article 226 of the Constitution of India ordering and
directing the Respondent Nos. 1 to 4 to forthwith restrain the
Respondent No. 6, his servants, agents and/or any person/s
acting through or under him or on his behalf from entering,
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trespassing over, encroaching upon and/or carrying out any
construction work, building work or any other activity upon the
Petitioner No. 1's subject property;
(c) Interim and/or ad-interim relief in terms of prayer (a)
and (b) above be granted;
(d) Costs of this Petition may kindly be granted;
(f) Any other just equitable and consequential relief/order may
kindly be passed in favour of the Petitioner as this Hon'ble High
Court may deem fit and proper in the interest of justice.”
9. After taking note of the projection made in the Writ Petition,
this Court had passed an order dated 30th August 2024 inter alia
directing the Vartak Nagar Police Station to ensure that “all
construction activities on the suit property are stopped forthwith”
and to also ensure that machinery like JCB, Earth movers, Dumper,
Poclain, hydraulic and cement mixer lying upon the suit property is
forthwith removed. By the order dated 30th August 2024, this Court
had further directed the Vartak Nagar Police Station to ensure that
Respondents Nos. 6 to 13, either through their agents, servants
and/or any person(s) acting through or under them or on their
behalf, shall not enter, trespass, encroach upon and/or carry out
any construction work, building work or any of the activity upon
the Petitioner No. 1’s suit property.
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10. It is the case of the Petitioners that when the suit being RCS
No. 272 of 2024 was filed on 9th May 2024, the illegal construction
had not yet begun but only forcible trespass, tree cutting and
demolition of wall had taken place. The illegal construction upon
the suit property, according to the Petitioners, began after the filing
of the suit.
11. The stand of the contesting Respondents/ defendants is that
no construction is being undertaken upon the “suit property” and
the construction is being carried out upon the land of the
defendants based on permission granted by the statutory
authorities. The contesting Defendant(s) has/have thus,
categorically denied that any construction is being carried out over
the land of the Petitioner No. 1, as has been claimed.
12. Mr. Rahul Narichania, learned Senior Counsel for the
Petitioners, by referring to the material on record, submits that in
view of the categorical order passed by the Civil Court, it was
incumbent upon the police to implement the court order. However,
instead of doing so, the Vartak Nagar Police has ignored the order
of the Civil Court and allowed the construction to continue merely
because the Respondent No.6 is associated with a powerful
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politician from the ruling party. Situated thus, the Petitioners did
not have any alternative under the law but to approach this Court
by filing the present Writ Petition.
13. Contending that as per the law laid down by the Hon’ble
Supreme Court in the case of Tayabbhai M. Bagasarwalla & Anr. Vs.
Hind Rubber Industries Pvt. Ltd. reported in AIR 1997 SC 1240, an
order of the court must be complied with even if it is subsequently
found that the same was without jurisdiction. The learned senior
counsel for the Petitioners has further argued that the stand of the
police that the matter is in the “nature of a civil dispute” is nothing
but an excuse not to implement the Court’s order on account of the
political influence exerted upon the police at the instance of the
Respondent No.6. Therefore, unless the Writ Court issues
directions to the police to implement the Court’s order, serious
injury will be caused to the interest of the Petitioners.
14. By referring to the interim order dated 30 th August 2024
passed by this Court in the present petition, Mr. Naricharia has
further argued that taking note of the coloured photographs
produced by the Petitioner showing that the construction activities
are still going on, this Court has passed stringent order/directions
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as a result of which the construction has stopped. Therefore, the
present is a fit case whereby, the order dated 30 th August 2024, be
made absolute pending disposal of the Civil suit.
15. Resisting the above arguments advanced on behalf of the
Petitioners, Mr. Kamat, learned senior counsel representing the
Respondent No. 13 has questioned the maintainability of the Writ
Petition by contending that in view of the pendency of the Civil
Suit, the Writ Petition would not be maintainable in the eyes of law
inasmuch as, even assuming that the claim of the Petitioners is
correct, even then, the Code of Civil Procedure provides the
requisite mechanism for the Petitioners/Plaintiff to seek remedy
before the Civil Court.
16. By referring to Order VII Rule 3 of the Code of Civil
Procedure, Mr. Kamat has further argued that there is no proper
description of the suit property in the plaint or in the injunction
application and therefore, the order of “status-quo” passed by the
Civil Court is not capable of being implemented. Situated thus, the
police has rightly taken a stand that the issue falls within the realm
of a civil dispute.
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17. It is also the submission of Mr. Kamat that although his client
has not assailed the orders dated 29th May 2024, 20th July 2024,
19th August 2024 and 18th February 2025 passed by the Civil Court,
yet, that by itself would not give any advantage to the Petitioners
since the contesting Respondents/Defendants, more particularly,
the Respondent No. 6 has all along maintained that the
construction activities are being carried out over the land of the
Respondent No.6 and in accordance with the permission granted
by the Competent Authority, viz, the Thane Municipal Corporation.
Mr. Kamat has emphatically argued that the assertion of the
Petitioners/ Plaintiff that constructions has been carried out over
the land falling in the “Suit Property” is wholly incorrect and is
being stoutly denied by the Respondents. Therefore, the suit of the
Petitioners is wholly misconceived and is liable to be dismissed. In
view thereof, no relief as prayed for in this Writ Petition is
maintainable in law.
18. It is in the aforesaid factual backdrop that this Court is called
upon to consider as to whether, the reliefs prayed for in the Writ
Petition would be maintainable in the present form. Before
considering the prayers made in the Writ Petition we deem it
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necessary to point out certain features in the Plaintiff’s suit, which
in our opinion, would have a relevant bearing in the outcome of
this proceeding.
19. It is an admitted position of fact that when the Suit No. 272
of 2024 was instituted, no construction had commenced. At that
stage, as per the own showing of the Petitioners/ Plaintiff, only
forcible trespass, tree cutting and demolition of the wall had taken
place. The Petitioners as Plaintiffs had apparently sought
amendment in the plaint to add the Defendants Nos.3 to 9 as
parties. However, there is no amendment to the plaint so as to
incorporate the factum of alleged illegal construction over the suit
property.
20. In paragraph No. 4 of the plaint the Plaintiff/Petitioner No.1
has mentioned that the Plaintiff is the absolute owner of land
measuring 1055.49.00 sq. meters falling under different surveys
mentioned therein, out of which the land covered by Survey No.
217/1/b covering an area of 77.93.00 sq mtrs under Survey No
217/1 and an area admeasuring 48.30.00 sq. mtrs covered by
survey No. 217/2 constitute the “suit property”. It is therefore,
evident from the projections made in the plaint that although the
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Plaintiff claims to be the owner of a much larger area of land, yet,
the alleged illegal construction is pertaining to a much smaller
area of land i.e., the “suit Property” which apparently forms a part
of the larger plot of land. Yet, we find from a reading of the Plaint
that the description of the property provided therein is insufficient
to precisely identify the land over which the alleged illegal
construction is being carried out or for that matter, to ascertain if
the same is being carried out over the land under the ownership
and possession of the Plaintiff.
21. It is to be noted herein that Order VII Rule 3 of the Code of
Civil Procedure (CPC) provides that where the subject matter of
the suit is immovable property, the plaint should contain a
description of the property sufficient to identify it and in case such
property can be identified by boundaries or numbers in a record of
settlement or survey, the plaint shall specify such boundaries or
numbers. Therefore, it would not be enough to provide some
description of the property but the description must be sufficient to
clearly identify the disputed property i.e. the “suit property”. It is
only then that an order of temporary injunction passed by the
court can be effectively implemented.
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22. It is no doubt correct that the Plaint does mention the area
of land and the corresponding Survey numbers of the “suit
property” and there is also a sketch map attached to the plaint.
However, the same, in our opinion, are not sufficient for this Court
to arrive at a conclusion that the alleged illegal construction is
being carried out over the land under the possession of the
Plaintiff. The coloured photographs produced by the Petitioners/
Plaintiff do go to show that some construction activities are going
on over the land but the same also, in our considered opinion, does
not furnish conclusive evidence of the fact that the construction is
being carried out over the land of the Plaintiff.
23. There can be no quarrel with the proposition that an order
passed by the competent court of jurisdiction must be complied
with at all costs. However, it must also be borne in mind that in
case of an order of temporary injunction of this nature, it would
not only be necessary to clearly establish the identity of the
disputed property but also the fact that the alleged illegal
construction activity is going on over such land, which is under the
ownership and possession of the Plaintiff. This is more so if there is
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a boundary dispute between the owners and occupiers of adjacent
lands.
24. We are conscious of the plea raised by the learned senior
counsel for the Petitioners that since the Respondents have not
challenged the successive order(s) of temporary injunction granted
by the Civil Court, hence, those orders have attained finality and,
therefore, ought to be complied with by all concerned. However,
what cannot be lost sight of is that by filing this Writ Petition, the
Petitioners are basically seeking implementation of the order(s) of
temporary injunction through police assistance. Therefore, before
issuing any Writ Order or Direction, it will be incumbent upon this
Court to examine the record and satisfy itself, if the order, in its
present form, is capable of being implemented without causing
any prejudice to either parties to the pending Civil Suit.
25. From a careful examination of the material on record, we are
of the view that the order(s) of temporary injunctions do not
contain sufficient particulars of the land over which the
construction is being undertaken. The mere claim of the
Petitioners/ Plaintiff to the effect that the construction is being
carried out over the land of the Plaintiff, which is sought to be
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substantiated by producing photographs cannot, in our view, be a
valid basis for this court to issue a Writ of Mandamus , in the facts
of the present case, directing Police action, more so since, heavily
disputed questions of fact are involved in the matter regarding the
identity of the disputed land.
26. In so far as the order dated 30th August 2024, passed by
this Court is concerned, we find that it was an interim order passed
by a coordinate Bench by taking note of some photographs
produced by the Petitioners alleging that illegal constructions were
being conducted over their land. It is no doubt correct that by the
order dated 30th August 2024, this Court has restrained further
construction over the “suit property”. However, the order dated
30th August 2024, was based on a prima facie satisfaction of the
court based on the material brought on record and the restraint
order was with regard to construction over the “suit property” and
not over the land of the Defendants. It would be noteworthy that
while the Petitioners seek confirmation of the order dated 30 th
August 2024, even the Respondents are not aggrieved by the said
Order since the restraint is on construction being carried out over
the “suit property”, in respect of which, they do not have any
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claim. There is also no prayer from the Respondents to modify that
order. Therefore, it is evident that neither party has any grievance
as regards the Order dated 30th August 2024, passed by this Court.
27. As noted above, save and except the assertion of the
Petitioners, there is nothing on record to establish that the alleged
illegal construction is taking place over the “suit property” which is
under the possession of the Petitioners. As a matter of fact,
whether the alleged construction is being under taken over the
land of the Petitioners or not is a disputed question of fact. Such
disputed questions of fact cannot be adjudicated in a Writ Petition.
28. Whether a writ of mandamus would lie directing the police
authorities to protect the claim of possession of the Petitioner over
the property without first establishing his possession in an
appropriate Civil Court come up for consideration before the
Hon’ble Supreme Court in the case of P. R. Murlidharan & Ors. Vs
Swami Dharmananda Theertha Padar & Ors. reported in (2006)4
SCC 501, whereby the Hon’ble Supreme Court has made the
following observations in paragraph 17.
“17. A writ petition under the guise of seeking a writ of
mandamus directing the police authorities to give protection to
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a writ petitioner, cannot be made a forum for adjudicating on
civil rights. It is one thing to approach the High Court, for
issuance of such a writ on a plea that a particular party has not
obeyed a decree or an order of injunction passed in favour of
the writ petitioner, was deliberately flouting that decree or
order and in spite of the petitioner applying for it, or that the
police authorities are not giving him the needed protection in
terms of the decree or order passed by a court with jurisdiction.
But, it is quite another thing to seek a writ of mandamus
directing protection in respect of property, status or right which
remains to be adjudicated upon and when such an adjudication
can only be got done in a properly instituted civil suit. It would
be an abuse of process for a writ petitioner to approach the
High Court under Article 226 of the Constitution seeking a
writ of mandamus directing the police authorities to protect his
claimed possession of a property without first establishing his
possession in an appropriate civil court. The temptation to
grant relief in cases of this nature should be resisted by the
High Court. The wide jurisdiction under Article 226 of the
Constitution would remain effective and meaningful only when
it is exercised prudently and in appropriate situations.”
29. Having held as above, the Hon’ble Supreme Court has made
the following observations in paragraph No. 19 of the said decision
which is quoted hereinbelow:-
“19. A writ for "police protection" so-called, has only a limited
scope, as, when the court is approached for protection of rights
declared by a decree or by an order passed by a civil court. It
cannot be extended to cases where rights have not been
determined either finally by the civil court or, at least at an
interlocutory stage in an unambiguous manner, and then too in
furtherance of the decree or order.”
30. As has been mentioned above, the present proceeding arises
out of an order passed by the Civil Court in a pending Civil Suit.
The relief as prayed for in this Writ Petition, if granted in the form
of final relief, would have a binding effect on the learned Court
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below and hence, would undoubtedly have a relevant bearing in
the pending Civil Suit wherein, the property rights over the
disputed property is pending adjudication.
31. The Hon’ble Supreme Court has time and again reiterated
that a regular Civil Suit is the appropriate remedy for settlement of
disputes relating to the property rights between private persons
and the remedy under Article 226 of the Constitution shall not be
available except where there is a violation of some statutory duty
on the part of the statutory authority. The High Court should not
allow the constitutional jurisdiction to be used for deciding
disputes for which remedy under the general law i.e. civil or
criminal is available.
32. In Mohan Pandey & Anr. Vs Usha Rani Rajgaria (Smt) & Ors.
reported in (1992) 4 SCC 61, and in another recent decisions in
the case of Roshina T Vs Abdul Azeez K. T. & Ors. reported in 2018
SCC OnLine SC 2654, the Hon’ble Supreme Court has observed
that a regular suit is an appropriate remedy for settlement of the
disputes relating to the property rights between private persons
and the remedy under Article 226 of the Constitution shall not be
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available except where a violation of some statutory duty on the
part of statutory authority is alleged.
33. Coming to the facts of the present case, the claim of the
Petitioners/Plaintiffs that illegal construction is being carried out
over the land of the Plaintiff by encroaching upon the same is
disputed by the Respondent(s)/Defendant(s). We find that there is
sufficient ambiguity as regards the property over which the alleged
construction activity is actually going on as a result of which the
Police is reluctant to take any action in the matter. As such, the
present is not a case of violation of statutory duty of any statutory
authority.
34. The successive orders of temporary injunction do not also go
to show that the Petitioner No.1/ Plaintiff could, prima facie
establish its title or possession over the land upon which the
construction activity is allegedly being undertaken. Determination
of the question of possession, the actual site of construction and
identity of the disputed land may require further evidence to be
considered by the Court even if it is for the limited purpose of
arriving at a prima facie satisfaction for granting interim relief.
Such evidence can either be furnished by the Plaintiff or the same
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can be collected through local investigation by appointing a
commissioner.
35. Order XXVI Rule 9 of the CPC permits the Civil Court to
make local investigation by issuing a Commission, inter alia for the
purpose of elucidating any matter in dispute. Rule 10 of Order
XXVI which lays down the procedure of the Commissioner, also
provides that the report and deposition of Commissioner shall be
evidence in the suit and shall form part of the record. Further, the
Court or any party, with the permission of the Court, may examine
the Commissioner, in the open Court, touching upon any of the
matter(s) referred to him or mentioned in the report or as to the
manner in which he has made the investigation.
36. It is, therefore, evident that the CPC contains adequate
provision for collecting evidence as regards any matter in dispute,
through the Court process and during the pendency of the suit by
issuing a Commission. Such evidence, can throw light on the
critical questions as to which party is in possession of the disputed
land and whether any construction is being carried out by the
opposite party by encroaching upon the land of the Petitioner
No.1 /Plaintiff. Since there is a serious dispute in this case as
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regards to the identity of the land over which the construction is
being carried out and as to which party is in actual physical
possession of such land, an order of “status quo”, passed by the
Civil Court, in our view, cannot be effectively implemented unless
there is clarity on the above issues. Therefore, we see no reason as
to why, evidence on such disputed questions of fact, should not be
laid and/or collected by issuing a Commission for conducting a
local investigation and a report should not be submitted by such
Commissioner to such effect. Such a recourse, in our opinion,
would not only be just, fair and reasonable in the facts and
circumstances of the case but the same would also permit an early
and permanent resolution of the dispute by and between the
parties.
37. For the aforementioned reasons, we dispose of this Writ
Petition with the following directions:
-O R D E R-
A) The Petitioner No.1/ Plaintiff is granted liberty to make an
application in the Civil Suit No. 272 of 2024 pending before
the learned Civil Court for issuing a Commission for local
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investigation under Order XXVI Rule 9 of the CPC for
elucidating the matter(s) in dispute viz. the issue of
encroachment, identity of the disputed land and the actual
site of construction, in the light of the observations made
herein above, within 4 (four) weeks from the date of
uploading this order.
B) If such an application is made by the Petitioner No. 1 /
Plaintiff within the aforesaid time frame, the same be dealt
with as expeditiously as possible, preferably within a period
of 8 (eight) weeks thereafter and appropriate order be
passed therein in accordance with law.
C) Upon submission of report, if any, by the Commissioner and
the evidence brought on record on such behalf, both parties
shall be granted reasonable opportunity to examine the
Commissioner along with the report.
D) On completion of the above process, the Ld. Civil Court to
pass fresh order on the prayer of temporary injunction made
by the Plaintiff, if necessary, by suitably modifying/ altering
the order dated 18th February 2025.
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E) Subject to the adherence to the steps delineated above, the
interim order dated 30th August 2024, passed by this Court
in the present proceeding shall continue to operate until
such time the above process is completed and a fresh order
is passed by the learned Civil Court on the prayer of
temporary injunction made by the Petitioner No.1/ Plaintiff,
F) There shall be no order as to costs.
(ADVAIT M. SETHNA, J.) (SUMAN SHYAM, J.)
{
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