Page No.# 1/6 GAHC010044322021 2025:GAU-AS:6322 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : CRP/21/2021 NILAKSHI TALUKDAR AND ANR REPRESENTED BY SRI AYUSH BAGARIA (POWER OF ATTORNEY OLDER OF PETITIONER NO. 1) 2: AYUSH BAGARIA S/O SHIV SHANKAR BAGARIA C/O M/S PINAKSHI AUTO CENTRE GROUND FLOOR DIPTI COMMERCIAL CO OWNERSHIP COMPLEX A.T. ROAD GUWAHATI 781001 KAMRUP (M) ASSAM VERSUS JYOTSNA HAZARIKA AND 6 ORS W/O LALIT KUMAR HAZARIKA, R/O HOUSE NO. 57, SUNDARPUR, R.G. BARUAH ROAD, GUWAHATI -781005, DIST. KAMRUP (M), ASSAM. 2:HEMLATA MEDHI W/O SRI PRAKASH CHANDRA MEDHI R/O HOUSE NO. 5 SREENAGAR PATH BYE LANE NO. 7 FIRST FLOOR P.S.- DISPUR GUWAHATI 781005 DIST. KAMRUP (M) ASSAM. 3:DIPALI PHUKAN W/O DR. ARBIND PHUKAN Page No.# 2/6 R/O ARUNODAI PATH HOUSE NO. 25 CHRISTIAN BASTI P.S.- DISPUR P.O.- DISPUR GUWAHATI -781005 DIST. KAMRUP (M) ASSAM. 4:SMTI BIJULI KAKATI W/O SRI UPEN KAKATI R/O ARUNODAI PATH HOUSE NO. 29 CHRISTIAN BASTI P.S.- DISPUR P.O.- DISPUR GUWAHATI -781005 GUWAHATI 781001 DIST. KAMRUP (M) ASSAM. 5:ANJALI TALUKDAR W/O JYOTISH CHANDRA TALUKDAR R/O SBI COLONY P.S.- DISPUR P.O.- DISPUR GUWAHATI 781006 DIST. KAMRUP (M) ASSAM. 6:THE GUWAHATI MUNICIPAL CORPORATION BEING REPRESENTED BY ITS COMMISSIONER PANBAZAR GUWAHATI 1 7:THE COMMISSIONER GUWAHATI MUNICIPAL CORPORATION PANBAZAR GUWAHATI 1 DIST. KAMRUP (M) ASSAM For the Petitioner(s) : Mr. G. Imtiaz, Advocate For the Respondent(s) : Mr. P. Nayak, Standing Counsel Page No.# 3/6 BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH ORDER Date : 19.05.2025 Heard Mr. G. Imtiaz, the learned counsel appearing on behalf of the petitioners. Mr. P. Nayak, the learned Standing Counsel, Guwahati Municipal Corporation (GMC) appears on behalf of the respondent Nos. 6 and 7. 2. None appears on behalf of the respondent Nos. 1 to 5. 3. The supervisory jurisdiction of this Court has been invoked challenging the order dated 02.03.2021 passed in Misc Appeal No. 09/2021 whereby the learned Court of the Additional District Judge, FTC, No. 3 Kamrup (M), Guwahati (hereinafter referred to as, “the learned First Appellate Court”) had stayed the operation of the order dated 01.02.2021 passed by the learned Court of the Munsiff No. 3, Kamrup (M), Guwahati (hereinafter referred to as, “the learned Trial Court”) in Misc (J) Case No. 412/2019 arising out of Title Suit No. 238/2019 in exercise of the powers under Order XLI Rule 5 of the Code of Civil Procedure, 1908 (for short, ”the Code”). 4. This Court has duly taken note of that the petitioners herein are admittedly tenants of the respondent Nos. 1 to 5. A Notice was issued by the Commissioner, Guwahati Municipal Corporation on 25.02.2019 to the predecessor in interest of the respondent Nos. 1 to 5 stating inter alia that there is an unauthorized construction over the front setback. The Page No.# 4/6 petitioners submitted a reply to the said communication on 05.03.2019 to the Commissioner, Guwahati Municipal Corporation. Another Notice thereafter was issued by the Commissioner, Guwahati Municipal Corporation on 03.09.2019 to the predecessor in interest of the respondent Nos. 1 to 5 stating inter alia that the front setback was not cleared by demolition of existing old building as per the plan submitted and approved. The petitioners tenanted premises is located in the front setback. 5. The petitioners herein filed a suit which was registered and numbered as Title Suit No. 238/2019 seeking permanent injunction against the Guwahati Municipal Corporation who were arrayed as defendant Nos. 6 and 7. A perusal of the plaint would show that the suit in fact was a suit for permanent injunction restraining the defendant Nos. 6 and 7 from taking any further steps in pursuance to the Notice issued under Section 337 of the Guwahati Municipal Corporation Act, 1971 (for short, “the Act of 1971”). In the said suit, an injunction application was filed which was registered and numbered as Misc (J) Case No. 412/2019 seeking an ad-interim injunction restraining the defendant Nos. 6 and 7 for taking any further steps in pursuance to the Notice. 6. It is also seen from the records that pursuant to the filing of the suit as well as the injunction application, the landlords had filed a written statement along with a counter-claim. The landlords who were the defendant Nos. 1 to 5 had also filed their written objection. The learned Trial Court vide an order dated 01.02.2021 granted an injunction in favour of the petitioners without specifying as to what injunction has been granted. Page No.# 5/6 7. Being aggrieved, the landlords who were the defendant Nos. 1 to 5 filed an appeal before the learned First Appellate Court which was registered and numbered as Misc Appeal No. 09/2021. Along with the said appeal, an application was filed under Order XLI Rule 5 of the Code seeking stay of the order dated 01.02.2021. The learned First Appellate Court vide an order dated 02.03.2021 stayed the operation of the order dated 01.02.2021 passed by the learned Trial Court. It is against the said order dated 02.03.2021 that the present petition has been filed by the petitioners invoking the supervisory jurisdiction of this Court. 8. This Court, while hearing the learned counsels appearing on behalf of the parties inquired with the learned counsel appearing on behalf of the petitioners as to what is the right of the petitioners over the schedule premises insofar as the Notice issued under Section 337 of the Act of 1971 inasmuch as the petitioners are mere tenants in respect to a premises which is found to be violative of building approvals and the bye lanes. 9. The learned counsel appearing on behalf of the petitioners submitted that they are tenants and as such filed a suit for seeking permanent injunction. 10. This Court finds it very relevant at this stage to take note of the judgment of the Supreme Court in the case of Shiv Kumar Chadha Vs. Municipal Corporation of Delhi and Others reported in (1993) 3 SCC 161 and, more particularly, Paragraph No. 30 which specifically deals with suits of the present time pertaining to unauthorized constructions. In terms with the said judgment, the Supreme Court had made it clear that for the purpose of granting an injunction, the plaintiff/the petitioner Page No.# 6/6 required to show a prima facie case for going for trial which would include the maintainability of the suit. 11. In the instant case, it is the prima facie opinion of this Court that the suit is not maintainable sans a declaration is being sought for there is no illegality in the construction of the premises. This declaration could have been asked by the defendant Nos. 1 to 5 which had not been done. It is the opinion of this Court, that a mere suit for permanent injunction without the declaration as regards the notices issued by the GMC to be illegal and unauthorized would be contrary to Section 341 of the Act of 1971. Accordingly, in absence of a prime facie case, which includes the question of maintainability, the learned Trial Court could not have passed the order dated 01.02.2021. In that view of the matter, this Court finds no ground to interfere with the order dated 02.03.2021 passed in Misc Appeal No. 09/2021. Accordingly, the instant petition stands dismissed. 12. This Court further directs the learned First Appellate Court to decide the said appeal being Misc Appeal No. 09/2021 at the earliest and preferably within 2 (two) months from the date of the instant order. 13. The Registry shall forthwith communicate the instant order to the learned First Appellate Court. JUDGE Comparing Assistant