Article 141 of constitution of india
Sadanand bhisaji Panchal
(Querist) 07 March 2023
This query is : Resolved
Respected Experts,
I am residing at Room No.3 in ground floor patra Chawl. In the year 2013 the lady occupying room adjacent to my room illegally started construction of Ground plus first floor cutting my kaula roof with the effect my roof got damaged and there was heavy leakage of rain water inside my room causing short circuit. Therefore, I lodged complaint with the Building & Factory of BMC with the effect, the Designated Officer of the Department issued a stop work notice under Section 354 A of the MMC Act to the lady. As the construction was not stopped, the Designated Officer with his employees on 14.06.2013 demolished part of the first floor, but the walls of first floor intentionally hammered to destroy my entire roof. On the contrary, the lady having nexus with the officers of the Corporation reconstructed the demolished first floor and the Designated Officer issued Notice under Section 488 of the MMC Act against lady and then lady filed a collusive suit and taken out Notice of Motion in the Mumbai City Civil Court against the Defendant Municipal Corporation challenging the said Notice. Advocate for the Corporation did not file Reply to the Notice of Motion for four initial adjournments, therefore the court on 10.03.2015 passed order against the Corporation directing not to implement the Notice of 488 till next date as such the said Order (E. O.) was extended till every adjournment. When I filed Chamber Summons to implead myself as party in the suit and on same date the Advocate for Corporation filed Affidavit-In-Reply, Demolition Report with Photographs to the Notice of Motion and thereafter, the court allowed my Chamber Summons. On 20.09.2016 when I was remained absent, the Advocate for Plaintiff lady without any Application obtained Order of interim injunction from the court till further Order though the Plaintiffs Notice of Motion was not finally heard. Being aggrieved by the said Order, in the year 2017, I preferred Application under Order 39, Rule 4 praying for setting aside the Order dated 20.09.2016.
It is important to note that the Hon’ble Supreme Court on 15/10/2022 passed Order in the Miscellaneous Application No. 1577 of 2022 in the matter of Asian Resurfacing of Road Agency Pvt. Ltd. & Anr. v/s Central Burao of Investigation ruling that whatever stay has been granted by any court including High Court expires within period of six months and unless extension is granted for good reason. Thus, from the said date 15/10/2022, the Plaintiff failed to obtain ad-interim relief after hearing above Notice of Motions. Therefore, the extension Order (E. O.) to the earlier Order dated 10/03/2015 was automatically vacated after six months from the date 15/10/2022. Therefore, I taken out Application Ex.7 in the court praying to vacate the stay Order dated 20.09.2016 which was merged in the earlier Application under Order 39, Rule 4 by the court. After hearing of the parties, the court on 04.03.2023 passed Order rejecting my both Applications under Order 39, Rule 4 and Ex.7 on ground that I the Defendant No.2 is not made out prima facie case to cancel or vacate the ad-interim protection order granted in favour of Plaintiff.
In the above case, the fact that the Plaintiff by suppressing first floor was already demolished by the Municipal Corporation on 14.06.2013 filed the said suit pleading on oath that the suit premises was in existence since prior to 1961-62. Advocate for the Municipal Corporation being State of Maharashtra also filed Affidavit-In-Reply, demolition Report dated 14.06.2013 with colour photographs and Police Report stating that the first floor of suit premises was demolished on 14.06.2013 which is prima facie case made out by me at the time of arguments pointing out the said record. My Application under Order 39, Rule 4 includes photographs of demolition, how my roof destroyed. In spite of this the court rejected my Applications.
In the above case, another fact that after pronouncement of Order dated 04.03.2023, I pointed out the Court why another Application Ex.7 was not entertained where I have cited Reported Order and judgment passed by the Hon’ble Supreme Court ruling that whatever stay has been granted by any court including High Court expires within period of six months and unless extension is granted for good reason. The court answered that the judgment is not binding to the court.
Kindly inform me-
1) whether the Order and judgment passed by the Hon’ble Supreme Court is binding upon all lower courts in the territory of India as per Article 141 of the Constitution of India.
2) What to do in the matter of Order dated 04.03.2023 passed by the City Civil Court rejecting my both Applications.
Thanks in advance,
Regards,
(Sadanand B. Panchal)
T. Kalaiselvan, Advocate
(Expert) 10 March 2023
Article 141 of the Constitution of India stipulates that the law declared by the Supreme Court shall be binding on all Courts within the territory of India. Thus, the general principles laid down, by the Supreme Court are binding on each individual including those who are not a party to an order.
If you are aggrieved by the orders passed by the city civil court against you in the IAs, you can prefer a revision petition before high court to set aside the trial court's order, by clearly explaining your grievances including the circumstances by which you are affected by the unlawful activity of your neighbor and seek remedy accordinlgy.
P. Venu
(Expert) 15 March 2023
The Supreme Court has since clarified by the Order dated 25th April 2022 that "This Court cannot be understood as having intended to apply the principle to the fact situation which is presented in this case." Obviously, the principle laid down in Asian Resurfacing ................ cannot be said to be a binding law in terms of Article 141.
Please refer to the link https://www.livelaw.in/top-stories/supreme-court-writ-proceedings-asian-resurfacing-automatic-stay-vacation-asian-resurfacing-of-road-agency-private-limited-vs-central-bureau-of-investigation-2022-livelaw-sc-440-198147
