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Modification made by HC by order dated 4.10.2019 not within the power of JR under Art.226: SC



Decided on 10th March 2021

A Two-Judge Bench of the Supreme Court consisting of Justice Indu Malhotra and Justice Ajay Rastogi granted the applicant’s plea to open the 12.0 meter. wide road for the usage by the general public.

The appellant was primarily aggrieved by an interim order passed by the High Court dated 4th October 2019 in a writ petition filed at the instance of the 1st respondent according to which the street opened for public use has been restricted on certain terms and conditions. The 1st respondent who owns and possesses the subject land in question bearing Survey No. 65A, Hissas admeasuring 37600 sq. meters situated at Village Majri bk, Tal Haveli, District Pune decided to develop the residential project. The layout plan was submitted by the 1st respondent of the subject land comprised of 12 meters wide pathway road, on the right side of the layout, from the first end to the other end of the project, along with an application under Section 44 of the Maharashtra Land Revenue Code, 1966 to the 2nd respondent and permission was granted for non-agricultural use on terms and conditions of the subject land by order dated 25th September 2012. 1st respondent applied sanction of the revised layout and building plans of the subject property to the 2nd respondent, which was approved on the terms and conditions vide Order dated 29th December 2014/24th February 2015. The main contention, in this case, is to whether allow the usage of the road by the general public. After issuance of notice to the 1st respondent and taking note of the material on record, the appellant directed the 1st respondent to open the access of 12 meters road to the public at large vide its Order dated 4th September 2018 which came to be challenged by the 1st respondent in Writ Petition No. 11775/2018 and was disposed of with a direction to grant a fair opportunity of hearing to the 1st respondent vide Order dated 16th October 2018. The matter was examined afresh and after affording an opportunity of hearing, Order came to be passed on 18th January 2019 with a direction to the 1st respondent that the subject road and open space shall be kept open for the use of the general public and also be kept open for the use of the adjoining(neighboring) landowners.

The order passed on 18th January 2019 came to be challenged by the 1st respondent in Writ Petition No. 8242 of 2019. The Division Bench of the High Court, pending writ petition, taking note of the submissions by an interim order practically modified and made the ad-hoc arrangement by order dated 4th October 2019 on its terms, imposing certain time limits when the subject road would be made available for public use, and when it would be used strictly as an internal road for the occupants of the building. It is against this order, the present appeal is preferred.

The court observed that

“The nature of modification which has been made by the High Court vide order impugned dated 4th October 2019 in the form of an ad-hoc interim arrangement, in our view, is exceeding its jurisdiction, and not within the realm of the power of judicial review to be exercised under Article 226 of the Constitution. It is well settled that by an interim order, even the final relief ordinarily should not be granted.” (Para 11)

Concluding, the court held that

“The appeal succeeds and is accordingly allowed. The order impugned passed by the High Court dated 4th October 2019 is hereby quashed and set aside. We make it clear that the Writ Petition No. 8242 of 2019 be decided independently without being influenced by the observations made by us in the present order on its own merits in accordance with law.” (Para 12)

Saptarshi Mukhopadhyay



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