CORAM:
HON’BLE MR. JUSTICE CHANDRA DHARI SINGH

HIGH COURT OF DELHI CS(OS) 804/2022
DR AJIT ANNASAHEB SHINDE ….. Plaintiff
       versus
INDIAN ORTHOPAEDIC ASSOCIATION & ORS….. Defendants

• Specific Relief Act Section 39 Section 151 CPC Suit for declaration and permanent injunction with respect to Indian Olympic Association Election, 2022 Provision of Section 39 provides for mandatory injunction which may be granted by Court in case it is deemed necessary that to prevent breach o obligation, certain act is required be omitted or compelled to be done – Such injunction may be granted to aggrieved party when, first, there is obligation on part of defendant to perform certain acts but same breached and secondly, relief sought by aggrieved party is enforceable by court – Therefore, apparent that relief under section 39 of Specific Relief Act, 1963 is not one which may be granted in routine manner – Instead, stricter judicial scrutiny is to be exercised in cases where at the interim stage, mandatory injunction is sought – In present case, plaintiff has sought relief against defendants in form of directions from High Court to preserve data of Elections and to provide him with same – Plaintiff made several allegations against defendants to allege that IOA Elections, 2022 not conducted in transparent, legal and valid manner – Averments pertaining to illegalities in election process are subject matter of suit on merits which are not entered into at this stage for purposes of adjudicating instant application – Hence, dismissal of suit for mandatory injunction upheld.

Relevant Paras:

24. The provision provides for a mandatory injunction which may be granted by a Court in case it is deemed necessary that to prevent a breach of an obligation, a certain act is required be omitted or compelled to be done. Such injunction may be granted to an aggrieved party when, first, there is an obligation on part of the defendant to perform certain acts but the same has been breached and secondly, the relief sought by the aggrieved party is enforceable by the court.
25. The Hon’ble Supreme Court in the matter of Samir Narain Bhojwani vs. Aurora Properties & Investments, (2018) 17 SCC 203, elaborated upon the scope of Section 39 of the Specific Relief Act, 1963 and opined as under: M “24. …… The nature of order passed against the appellant is undeniably a mandatory order at an interlocutory stage. There is marked distinction between moulding of relief and granting mandatory relief at an interlocutory stage. As
regards the latter, that can be granted only to restore the status quo and not to establish a new set of things differing from the state which existed at the date when the suit was instituted. This Court in Dorab Cawasji Warden v. Coomi Sorab Warden [Dorab Cawasji Warden v. Coomi Sorab Warden, (1990) 2 SCC 117] , has had occasion to consider the circumstances warranting grant of interlocutory mandatory injunction. In paras 16 & 17, after analysing the legal precedents on the point as noticed in paras 11-15, the Court went on to observe as follows : (SCC pp. 126-27)
“16. The relief of interlocutory mandatory injunctions
are thus granted generally to preserve or restore the
status quo of the last non-contested status which
preceded the pending controversy until the final
hearing when full relief may be granted or to compel
the undoing of those acts that have been illegally done
or the restoration of that which was wrongfully taken
from the party complaining. But since the granting of
such an injunction to a party who fails or would fail to
establish his right at the trial may cause great injustice
or irreparable harm to the party against whom it was
granted or alternatively not granting of it to a party
who succeeds or would succeed may equally cause
great injustice or irreparable harm, courts have
evolved certain guidelines. Generally stated these
guidelines are:
(1) The plaintiff has a strong case for trial. That is,
it shall be of a higher standard than a prima facie
case that is normally required for a prohibitory
injunction.
(2) It is necessary to prevent irreparable or serious
injury which normally cannot be compensated in
terms of money.
(3) The balance of convenience is in favour of the
one seeking such relief.
17. Being essentially an equitable relief the grant or
refusal of an interlocutory mandatory injunction shall
ultimately rest in the sound judicial discretion of the court to be exercised in the light of the facts and circumstances in each case. Though the above guidelines are neither exhaustive nor complete or absolute rules, and there may be exceptional circumstances needing action, applying
them as prerequisite for the grant or refusal of such
injunctions would be a sound exercise of a judicial
discretion.”
(emphasis supplied)
25. The Court, amongst others, rested its exposition on the dictum in Halsbury’s Laws of England, 4th Edn., Vol. 24,
“948. Mandatory injunctions on interlocutory
applications.—A mandatory injunction can be granted
on an interlocutory application as well as at the
hearing, but, in the absence of special circumstances,
it will not normally be granted. However, if the case is
clear and one which the court thinks ought to be
decided at once, or if the act done is a simple and
summary one which can be easily remedied, or if the
defendant attempts to steal a march on the plaintiff,
such as where, on receipt of notice that an injunction is about to be applied for, the defendant hurries on the work in respect of which complaint is made so that
when he receives notice of an interim injunction it is
completed, a mandatory injunction will be granted on
an interlocutory application.”
26. The principle expounded in this decision has been
consistently followed by this Court. It is well established that an interim mandatory injunction is not a remedy that is easily granted. It is an order that is passed only in circumstances which are clear and the prima facie material clearly justify a finding that the status quo has been altered by one of the parties to the litigation and the interests of justice demanded that the status quo ante be restored by way of an interim mandatory injunction.
[See Metro Marins v. Bonus Watch Co. (P) Ltd. [Metro Marins v. Bonus Watch Co. (P) Ltd., (2004) 7 SCC 478], Kishore Kumar Khaitan v. Praveen Kumar
Singh [Kishore Kumar Khaitan v. Praveen Kumar Singh, (2006) 3 SCC 312] and Purshottam Vishandas
Raheja v. Shrichand Vishandas Raheja [Purshottam
Vishandas Raheja v. Shrichand Vishandas Raheja, (2011) 6 SCC 73 : (2011) 3 SCC (Civ) 204] .]

26. Therefore, it is apparent that the relief under Section 39 of the Specific Relief Act, 1963 is not one which may be granted in a routine manner. Instead, stricter judicial scrutiny is to be exercised in cases where NEUTRAL CITATION No.2023:DHC:3492
CS(OS) 804/2022 Page 10 of 13 at the interim stage, mandatory injunction is sought. As reiterated by the
Hon’ble Supreme Court in the aforementioned judgment, while adjudicating upon an application for mandatory injunction, the important consideration is that such a relief may be granted only to restore the status quo and not to establish a new set of things differing from the state which existed at the date when the suit was instituted. It is only in cases where
the circumstances invite intervention of the court at an interim stage for the reason that there is a likelihood of alteration of the status quo that a
relief of mandatory injunction may be granted.

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DR AJIT ANNASAHEB SHINDE versus INDIAN ORTHOPAEDIC ASSOCIATION & ORS. JUDGMENT DELHI HIGH COURT

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(REPORTABLE )
CIVIL APPEAL NO. 1416 OF 2019
(Arising out of SLP (C) No. 10850/2018)

DB – HONBLE JUSTICE ROHINTON FALI NARIMAN & VINEET SARAN SUPREME COURT OF INDIA

• Specific Relief Act Section 6 Section 115 CPC Temporary Injunction By the impugned judgment, a Single Judge of the High Court of Himachal Pradesh set aside the concurrent findings of fact and allowed a revision petition. This was done without dealing with any of the aspects set out by the first Appellate Court. From what one is able to gather, given the language used in the judgment, it appears that the learned Judge was swayed by the fact that a police compliant had been filed in which dispossession was acquiesced in A reading of this proviso will show that, after 1999, revision petitions filed under section 115 CPC are not maintainable against interlocutory orders The Court sets aside the impugned judgment and restore the judgment of the Courts below Appeal is allowed.

Relevant Paras:

5) By the impugned judgment dated 10.04.2018, a
Single Judge of the High Court of Himachal Pradesh set aside the concurrent findings of fact and allowed a revision petition. This was done without dealing with any of the aspects set out by the first Appellate Court. From what one is able to gather, given the language used in the judgment, it appears that the learned Judge was swayed by the fact that a police compliant had been filed on 03.02.2013 in which dispossession was acquiesced in.
learned

6) We are constrained to observe that every legal canon has been thrown to the winds by the impugned judgment. First and foremost, the 1999 amendment to the CPC added a proviso Section 115 which reads as follows:
“115. Revision-(1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears-
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity,
the High Court may make such order in the case as it thinks fit:
Provided that the High Court shall not, under this Section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings.

(3) A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by the High Court.
A reading of this proviso will show that, after 1999, revision petitions filed under Section 115 CPC are not maintainable against interlocutory orders.
7) Even otherwise, it is well settled that the revisional jurisdiction under Section 115 CPC is to be exercised to correct jurisdictional errors only. This is well settled. In D.L.F. Housing & Construction Company Private Ltd., New Delhi vs. Sarup Singh and Others(1970) 2 SCR 368 this Court held:

“The position thus seems to be firmly established that while exercising the jurisdiction under Section 115, it is not competent to the High Court to correct errors of fact however gross or even errors of law unless the said errors have relation to the jurisdiction of the Court to try the dispute itself. Clauses (a) and (b) of this section on their plain reading quite clearly do not cover the present case. It was not contended, as indeed it was not possible to contend, that the learned Additional District Judge had either exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction so vested in him, in recording the order that the proceedings under reference be stayed till the decision of the appeal by the High Court in the proceedings for specific performance of the agreement in question. Clause (c) also does not seem to apply to the case in hand. The words “illegally” and “with material irregularity” as used in this clause do not cover either errors of fact or of law; they do not refer to the decision arrived at but merely to the manner in which it is reached. The errors contemplated by this clause may, in our view, relate either to breach of some provision of law or to material defects of procedure affecting the ultimate decision, and not to errors either of fact or of law, after the prescribed formalities have been complied with. The High Court does not seem to have adverted to the limitation imposed on its power under Section 115 of the Code. Merely because the High Court would have felt inclined, had it dealt with the matter initially, to come to a different conclusion on the question of continuing stay of the reference proceedings pending decision of the appeal, could hardly justify interference on revision under Section 115 of the Code when there was no illegality or material irregularity committed by the learned Additional District Judge in his manner of dealing with this question. It seems to us that in this matter the High Court treated the
revision virtually as if it was an appeal.” at Pg.373.
8) Learned counsel appearing for the respondents argued before us and attempted to support the judgment. He cited the judgment of Dorab Cawasji Wardenvs. Coomi Sorab Warden and Others (1990) 2 SCC 117. Para 16 of this judgment is set out hereinbelow:
“16. The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidelines. Generally stated these guidelines are:-
(1) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction.
(2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money.
(3) The balance of convenience is in favour of the one seeking such relief.”
This judgment also makes it clear that when a mandatory injunction is granted at the interim stage much more than a mere prima facie case has to be made out. None of the aforesaid statutory provisions or judgments have either been adverted to or heeded by the impugned judgment.

9) We, therefore, set aside the impugned judgment and restore the judgment of the Courts below.
10) Since the suit filed is a Section 6 suit which is a summary proceeding in itself, the trial Court should endeavour to dispose of the Suit itself within a period of six months from today.

for Judgment Click Here :

TEK SINGH VERSUS SHASHI VERMA AND ANR. Judgement_04-Feb-2019

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+ W.P.(C) 407/2012, C.M. APPL.25579/2015 & 25580/2015 M/S. GREY SHAM AND CO. AND ANR. …..  versus UOI AND ORS.

+ W.P.(C) 4432/2015, C.M. APPL.8048/2015
SALONI MEHROTRA AND ANR. …. versus GNCTD AND ORS. …..

CORAM:
HON’BLE MR. JUSTICE S. RAVINDRA BHAT HON’BLE MR. JUSTICE S.P. GARG
03/07/17  [ DELHI HIGH COURT ]

Land Acquisition proceedings – The relief claimed in W.P.(C) is that since the property was not taken possession of by the respondents, the acquisition is deemed to have lapsed under Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 – The Court notices that the LAC whose primary responsibility is to determine compensation payable did not premise the recommendations of alternative land upon any existing policy. He rather based it upon the fact that the properties were builtup and also relied upon the MCD resolution. Here again, as far as the MCD is concerned, whilst its resolution cannot be disputed whether it actually paid for any alternative land or has any alternative land is not established. In these circumstances, the claim to alternative land in the absence of a clearly enunciated policy spelling out eligibility conditions and a class of land owners, whose properties are acquired, the Court cannot issue a direction to grant alternative land – The documents relied upon, i.e. proceedings rule out the inference that mere symbolic possession is taken.

The respondents – GNCTD in their counter affidavit rely principally upon the proceedings of possession dated 22.12.1972. It is urged here that notwithstanding the nature of the pleading which seem to suggest that mere symbolic possession was taken, the fact remains on record that physical possession of the lands was taken and witnessed by both Govind Singh, and Man Singh, the father of Mohan Singh and Govind Singh, as well as one of the petitioners. These too were partners of Greysham and Company which is the first petitioner in the W.P.(C) 407/2012. The GNCTD furthermore submits that the position of the first petitioner in W.P.(C) 407/2012 in respect of said concerned land is also that it was in effect a licensee of the MCD and admitted as such in response to the notice by the MCD, involving deposit of arrears of damages for unauthorized occupation of a portion of the suit property. It is submitted that in this light, the submission of the petitioners that they have been in the continuous possession of the suit lands and that they were never displaced bears out from the record.
9. It is evident from the above narrative that the first petition seeks a direction for denotification and the second proceeds on the footing that the land acquisition proceedings have lapsed. So far as the first claim in the first proceeding is concerned, the GNCTD relies upon the detailed minutes of the denotification committee meeting of 25.02.2010. A look at that document will show that Greysham and Company’s application in respect of the suit property too was considered. The Committee decided not to recommend denotification because the officers of the MCD, “contended that this piece of land is required for establishment of a primary school which will be a feederschool for the existing sr. secondary school in the area.” The petitioners’ endeavor was to submit that there was already an existing school and that it was entitled to alternative land in lieu of acquired land and that consequently, a direction for denotification under Section 48 has to be made. It is consequently urged to acknowledge the claim in W.P.(C) 4432/2015 that in fact actual possession was never taken because if that were the case, the application under Section 48 would not have been maintainable.
10. As far as the claim for denotification is concerned, the Court notices that there is no authority in law to suggest that a citizen who has received compensation and whose lands have been notified for acquisition had a vested right to claim denotification. Whether to leave from acquisition or not is a matter which lies within the exclusive domain of the authority. Sans successful plea of discrimination or utterly arbitrary approach to the request for denotification, the public nature of the process itself would preclude the right to claim denotification. In short, judicial review would be confined to mere considering whether reasons for declining denotification can withstand scrutiny. It would be well to recollect that without establishing illegality, procedural irregularity or lack of bona fides, in the absence of a legal right, an order – statutory or executive, cannot be set aside or characterized as arbitrary. The reasons given by the GNCTD to reject the denotification application cannot be said to be arbitrary, particularly, because the MCD went on to say that the primary school should be established, which would cater as a feeder to the existing senior secondary school in the area.
11. As far as the petitioners’ submission with respect to allotment of alternative land is concerned, no doubt, there are observations to that effect in law. At the same time, the Court notices that the LAC whose primaryresponsibility is to determine compensation payable did not premise the recommendations of alternative land upon any existing policy. He rather based it upon the fact that the properties were built-up and also relied upon the MCD resolution. Here again, as far as the MCD is concerned, whilst its resolution cannot be disputed whether it actually paid for any alternative land or has any alternative land is not established. In these circumstances, the claim to alternative land in the absence of a clearly enunciated policy spelling out eligibility conditions and a class of land owners, whose properties are acquired, the Court cannot issue a direction to grant alternative land. That brings the Court to a discussion on the applicability of Section 24(2) of the new Act. By several judgments, it has been established that by virtue of Section 24(2) where acquisition of land has been notified but the process has not been completed, i.e. in the sense that either possession is not taken or compensation not paid within five years, whether awards are made more than five years prior to coming into force of the new Act or whether either possession is not taken of the suit land or compensation not paid within the said five year period, the acquisition is deemed to have lapsed. Now in the present case, there is no dispute that the award was made on 02.09.1972. As far as possession is concerned, again, the petitioners did not dispute having received compensation in 1972-73. The only question which survives consideration is whether possession was taken or not. Here, the petitioners emphasise upon previous proceedings – in terms of the interim order permitting withdrawal dated 07.01.2010; the initial interim order made in W.P.(C) 407/2012 and the plea of the GNCTD in W.P.(C) 407/2012. It is submitted that cumulatively all these establish that compensation within the meaning of law or at least physical possession was never taken. Muchemphasis or stress is laid upon the expression “symbolic” used in para 4 of the GNCTD’s affidavit in W.P.(C) 407/2012.
12. The GNCTD counters this argument with the compensation proceedings of 22.12.1972 and the translated copies – the copies of which have been produced in these proceedings. Significantly, this document was not produced or even relied upon in any of the previous writ petitions – W.P.(C) 3876/1990 and W.P.(C) 407/2012. The petitioners too were aware of these proceedings. The document inter alia reads as follows:
“Possession proceeding in respect of property No.XII/7249 acquired by Award No.28/72-73.
Today on 22/12/72, M/s. Shri Ram Phal Kanoongo along with Ved Singh patwari reached at site of the property No.XII/7249 admeasuring 10951 sq. yards acquired vide Award No.28-72-73 for possession proceedings. M/s Chaman Lal, Kanoongo and Ram Kawar, Patwari were found present at the site on behalf of Municipal Corporation of Delhi. On behalf of owner M/s Girdhari Lal Karan Singh, Shri Man Singh Karta and on behalf of Greysham Company, Shri Govind Singh, Partner were found present at site. Nobody was present at the site on behalf of occupiers on behalf of occupiers at the time of possession proceedings. After taking measurement of this property and after moving the representative of Municipal Corporation of Delhi Shri Chaman Lal Kanoongo around in and outside the property No.XII/7249 measuring 10951 sq. yards along with sper structure and after taking possession, the proprietary possession was handed over to Sh. Chaman Lal Kanoongo. There are twenty-four (24) trees in this property for which compensation has been assessed by the award. There possession was also handed over to Shri Chaman Lal Kannoongo. This possession proceeding was announced in loud voice by beat of drum by Shri Mohan Lal, the watchman of the property. At the time of possession proceeding no hindrance was faced. One copy of this possession proceedings was handedover to Shri Chaman Lal, Kanoongo, Land and Estate Department of Corporation.
Sd/-illegible Sd/-Man Singh 22/12 22/12/72
Sd/-GovindSingh Sd/-Illegible Kgo.LA
sd/-illegible 22-12-72
Sd/-illegiblepat(LA) 22-12-72
Page 10 of 12
Sd/- illegible
Kgo.L&E, MCD/22/12/72”
13. It is immediately evident from a reading of the above document that the possession taken of the property was in absolute terms and not subject to any conditions. Furthermore, late Sh. Man Singh and one of the petitioners, Govind Singh, were parties to these documents and had signed it. As against this, the reliance by the petitioner with respect to the admissions made in the pleadings, in the opinion of the Court, is inconsequential. It is important here to notice that for reasons best known, the GNCTD did not advert to the possession proceedings of 22.12.1972 in the sense that the documents were never part of any of the records in W.P.(C) 3876/1990 and W.P.(C) 407/2012. They have been produced for the first time in answer to W.P.(C) 4432/2015.
14. As to the effect of this documents, the Supreme Court has ruled in DDA v. Sukhbir Singh and Ors. AIR 2016 SC 4275 by falling upon previous judgments in Raghbir Singh Sehrawat v. State of Haryana 2012 (1) SCC 792 and Banda Development Authority v. Moti Lal Agarwal 2011 (5) SCC 394 that there is no fixed criteria or set pattern of acquiring or taking over possession of acquired lands. Quoted with approval, the observations oinBanda Development Authority (supra) visualizing five situations and at the same time stating that they are not exhaustive, in Sukhbir Singh (supra) itself the Court approved the mode of acquisition, i.e. recording that the officials/authorities of the Government had visited the site and recorded the taking over of possession. Having regard to this position in law, the Court is of the opinion that in the present case too, the documents relied upon, i.e. proceedings dated 22.12.1972 rule out the inference that mere symbolic possession is taken.

15. For the foregoing reasons, the Court holds that Section 24(2) of the new Act has no application to the circumstances and facts in these writ petitions. W.P.(C) 407/2012 and W.P.(C) 4432/2015 are, therefore, dismissed.

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M:S. GREY SHAM AND CO. AND ANR. versus UOI AND ORS. + W.P.(C) 4432:2015, C.M. APPL.8048:2015 JUDGMENT THE LAW LITERATES

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