PRADIP TIBREWALA vs RITESH KUMAR TIBREWALA and ORS

Heard Mr. D.K. Mishra and Mr. G.N. Sahewalla, the learned Senior counsels, assisted by Mr. B. Prasad, the learned counsel for the applicant.

Also heard Mr. M.K. Choudhury, the learned Senior Counsel, assisted by Mr. A. Parvez, the learned counsel appearing for the Opp. Party No. 1

as well as Mr. S.P. Choudhury, the learned Govt. Advocate, appearing for the Opp. Parties No. 2 and 6 to 9.

This is an application for modification/ variation/ alteration of the interim order dated 01.11.2017, passed by this Court in the connected WP(C)

6440/2017. The Opp. Party No. 1 herein (hereinafter referred to as ""OP-1) is the writ petitioner in the said writ petition, where the applicant

herein is arrayed as Respondent No.9.

The connected writ petition is the third round of litigation, by the Opp. Party No.1 herein because of the construction, which the applicant is

carrying out by the applicant on his land.

The brief facts, relevant for the purpose of this case is that the applicant had started construction on his land measuring 1 katha 13 lechas in

Tezpur Town on the basis of a provisional ""No objection Certificate (NOC for short) dated 15.02.2014. Considering the said construction to be

illegal, the OP-1 had approached this Court by filing WP(C) 4022/2015. The said writ petition was disposed of by order dated 31.08.2016, by

directing the authorities of the Town and Country Planning Department (""TCPD, Tezpur"" for short) to re-visit the provisional NOC dated

15.02.2014 in order to determine whether it conforms to the guidelines applicable as on 15.02.2014 and to determine within a time frame if there

was any deviation, further directing the applicant herein not to resume construction of the building till the directions contain in the said order were

complied with. It was provided that further construction would depend upon the outcome of the directions given in the said order. Pursuant to the

directions, the Deputy Director, TCPD, Tezpur, the Opp. Party No.6 (hereinafter referred to as ""OP-6"") had submitted his comments to the

Chairperson, Tezpur Municipal Board, the Opp. Party No.4 (hereinafter referred to as ""OP-4""). Amongst others, it was mentioned in the said

comments that at the time of granting NOC on 15.02.2014, the Bye-Laws adopted by the State Government notified on 24.08.2010 as well as

notification No. UDD (M)/145/2014 dated 31.10.2012, issued by the Urban Development Department, Govt. of Assam were in force. The OP-4

issued a notice dated 20.12.2016 to the applicant as well as to the OP-1 to be present on 28.12.2016 at 11.30 am. on spot for measurement and

to co-operate with the concerned Engineers for the measurement as per the order passed by this Court.

By a letter dated 17.01.2017, the applicant sought permission to resume construction up to the building height of 15 meters and accordingly, by

letter dated 25.01.2017, the OP-4 allowed the applicant to resume his construction up to building height of 15.0 metres under the provision of

Para-9 (Penalties)/Page No. 3007 of the Zoning Regulation of the Revised Final Master Plan for Tezpur dated 24.08.2010 (hereinafter referred to

as ""Zoning Regulation dated 24.08.2010"" for short) or to submit a modified proposal for the building as per the said Zoning Regulation of

24.08.2010. The applicant by his letter dated 27.01.2017, expressed his readiness to pay penalty and to start the construction. By a letter dated

04.02.2017, a demand for Rs.27,000/- was made towards penalty with a direction to deposit the amount to resume construction work up to the

building height of 15 metres. The penalty was deposited on the same day.

On the resumption of such construction, the OP-1 approached this Court again for the second time by filing WP(C) 689/2017, inter alia,

challenging the letter dated 21.05.2017 issued by the OP-4). The said writ petition was disposed of by order dated 15.02.2017, on the basis of

the submissions made by the learned Senior counsel for the applicant that till a fresh NOC is issued by the Tezpur Municipal Board, the Opp.

Party No. 3 (hereinafter referred to as ""OP-3 for short), based on the modified plans, the present applicant would not raise a construction. Liberty

was granted to the OP-1 to pursue such remedy as may be available in case he finds and he is aggrieved by the fact that compounding of deviation

and granting of fresh NOC are not in accordance with law. In course of time, fresh NOC dated 07.10.2017 was issued on the basis of the revised

proposal for building permission, which was forwarded to the applicant vide letter dated 16.10.2017. The OP-1 was directed to act as per the

order of dated 15.02.2017 by this Court in WP(C) 689/2017 and as per approved plan. By projecting that the applicant is pursuing illegal

construction in violation of the Building Byelaws and Zoning Regulation, the OP-1 had filed the connected WP(C) 6440/2017 on 26.10.2017.

The learned Senior Counsel for the applicant submits that the OP-6 by his letter dated 06.12.2016, had permitted the OP-4 that the issue of

NOC for the building in reference may be considered if the applicant applies through para 9 (Penalties)/ page No. 3007 of the Zoning Regulation

dated 24.08.2010, which was in force on 15.04.2014. Accordingly, the OP-4, on the basis of field measurement and communication received

from the Office of the OP-6, allowed the applicant to resume construction work up to the building height of 15.0 metres under the provisions of

para 9 (Penalties)/ page No. 3007 of the Zoning Regulation dated 24.08.2010 or to submit modified proposal for the said building and on getting

an opportunity to choose from the said two alternatives, the applicant preferred to pay the penalty of Rs.27,000/- as per the demand and resumed

his construction. However, as per the submissions which were recorded in the order dated 15.02.2017, passed by this Court in WP(C)

689/2017, the applicant was now required to apply for fresh NOC. Pursuant to the said order of this Court, a revised proposal was submitted on

29.05.2017 and resultantly a fresh NOC dated 07.10.2017 was issued by the OP-4 and the same was forwarded to the applicant along with

letter dated 16.10.2017.

The learned Senior counsel for the applicant by referring to the statements made in paragraph 29 and 30 of the writ petition has submitted that

the OP-1 has filed the present writ petition on a mere presumption that fresh NOC was not issued. On 20.10.2017, complaints against the

resumption of construction were submitted by the OP-1 before the Deputy Commissioner, Sonitpur (Opp. Party. No. 7) and Additional

Superintendent of Police, Sonitpur and thereafter, on 21.10.2017, complaint was also submitted before the OP-4 and OP-6 respectively. On

21.10.2017, the OP-1 also submitted an application before the OP-4, seeking information under the RTI Act, 2005. However, without waiting for

the lapse of the time prescribed for receiving the required information, the OP-1 had rushed to this Court and had filed WP(C) 6440/2017 on

26.10.2017. It is further submitted that before the revised NOC was issued, pursuant to the order dated 31.08.2016, passed by this Court in

WP(C) 4022/2015, the OP-1 was asked to be present on spot at the time of measurement, but he did not come and did not participate in the

process and thus, during the process of joint measurement, the OP-1 failed to point out any deficiency in the matter of grant of NOC to the

applicant. However, as soon as the applicant resumed his construction, the OP-1 had rushed to this Court by filing his third writ petition i.e.

WP(C) 689/2017.

It is further submitted that in the connected writ petition, it was alleged that the applicant was carrying out his construction without any

permission, which is perhaps the only reason which had persuaded this Court to pass the interim order dated 01.11.2017. However, on

appearance of the applicant, the OP-1 has now hired private professionals for projecting some trivial irregularities by way of an additional affidavit

filed on 08.12.2017, which, according to the learned Senior Counsel for the applicant amounts to improvement of the case projected in the writ

petition by a totally new case. It is submitted that ex parte and/or unilateral opinion given by a privately engaged professional ought not to be

considered and/or encouraged by this Court in a contested series of litigation because there is every likelihood that a privately obtained opinion

may not be independent or uninfluenced by the OP-1.

By referring to paragraph 9 of the present application, it is submitted that in the southern boundary of the applicant''s land which is about 22

(twenty two) metres, the applicant and the OP-1 share 3 (three) metres of common boundary, which is less than fifteen per cent of the entire

southern boundary of the applicant''s land and that except for the OP-1, no other neighbours have any objection with the ongoing construction of

the applicant. By referring to the statements made in paragraph 12 of the affidavit- in- reply filed by the applicant on 04.12.2017, it is further

submitted that the house of the OP-1 is situated approximately 250-300 feet away from the common boundary wall and, as such, the claim by the

OP-1 that his house is behind the proposed building of the applicant or that he and his family will face sanitation problem is a grossly incorrect

statement on oath. It is submitted that the fresh NOC dated 07.10.2017, as forwarded on 16.10.2017, being not in challenge, the applicant is

entitled to carry out his proposed construction in accordance with the said NOC, which was granted on the basis of the Zoning Regulation dated

24.08.2010. It is submitted that Clause E.17 at page 3020 of the said Zoning Regulation dated 24.08.2010 provides for appeal by the aggrieved

person and, as such, the OP-1 had alternative efficacious remedy available to him. It is also submitted that the present dispute, not being a public

interest litigation, must be treated as a private dispute involving highly disputed questions of facts, and the same cannot be resolved without shifting

through elaborate documentary evidence and intricate details requiring calculations. It is submitted that the case projected by the OP-1 can be

culled out from the statements made by the OP-1 in his affidavit- in- opposition filed on 28.11.2017, which are (i) if the illegal construction by the

applicant is allowed, the OP-1 and his family members would suffer severe sanitation problems and their residential house might become un-

inhabitable, (ii) as the house of the OP-1 is behind the proposed building and because of the illegal construction his and his family''s life would be

affected, and (iii) the NOC from State Fire Service, Structural Drawing and Area Statement had not been annexed to this application. In the said

connection it is submitted that the applicant is not required to produce the NOC from State Fire Service, Structural Drawing and Area Statement

in this present application as the said documents were not the subject matter of this case. Moreover, the Municipal Board, Tezpur would not issue

the NOC if the application for grant of NOC suffered any defect. Moreover, by referring to the additional affidavit filed by the OP- 1 on

08.12.2017, it is submitted that after fishing and roving enquiry by the Engineer engaged by the OP-1, all that he could come up is an allegation

that on dimensional calculation, 0.1m on the south side, 0.05m in north side, 0.44m on the east side and 0.09m on the west side did not tally,

which according to the learned Senior Counsel for the applicant could be because the applicant had constructed his own boundary wall and as per

the building byelaws the area actually covered by the said boundary wall is also required to be accounted for. Referring to the Assam Notified

Urban Areas (other than Guwahati) Building Rules, 2014, which is now in force, it is submitted that the lift machine room, stair case, parapet

height, roof tank and their support not exceeding 1.5m in height, ventilation, air-conditioning, stairs covered with room up to 3.0m height, chimney

and architectural features not exceeding 1.5m in height shall not be included in the height of the building, which was being followed all throughout.

Hence, when the NOC was issued for building height of 15 metres, the approved plan, which has been annexed to the additional affidavit filed by

OP-1 on 08.12.2017, clearly indicates that the additional 3 metre height at one part of the drawing/ plan is on account of the stair case room

having 3 metre height. It is further submitted that the OP-6, by his letter dated 06.12.2016, having permitted issuance of NOC for the building to

be considered if the applicant applies through Para 9 (Penalties)/ page 3007 of Zoning Regulation dated 24.08.2010, the said NOC, which is

based on the revised proposal, is not required to be subjected to fresh compliance of the directions contained in paragraph 23 of the order dated

31.08.2016 passed by this Court in WP(C) 4022/2015. It is further submitted that having not participated in the process of measurement despite

receipt of notice dated 20.12.2016, issued to the OP- 1, he is not permitted to make his own unilateral measurement of the applicant''s building so

as to create a ground to challenge the construction in the present writ proceeding, merely, as per his own surmises and conjectures.

Per-contra, the learned Senior counsel for the OP-1 submits that the applicant is an influential person and in the writ petition, it is their

projected case that the officers of Municipal Board, Tezpur (OP-3) are in hand-in-glove with the said OP-1 and therefore, illegal NOC for

construction was issued, as such, the concerned Assistant Engineer, working under the OP-3 has been arrayed as respondent No. 11 in the

connected writ petition (i.e. Opp. party No. 10 herein and hereinafter referred to as OP-10) in his personal capacity. Referring to the writ petition,

it is submitted that the earlier NOC dated 15.02.2014 was issued on the same day when the application was made. However, after filing of the

first writ petition i.e. WP(C) 4022/2015, the OP-6 gave his comments on 07.10.2016 and in Annexure-A appended thereto, as many as 16

deficiencies were reflected. It is submitted that while issuing the fresh NOC, the directions issued by this Court in paragraph 23 of the order dated

31.08.2016 passed in WP(C) 4022/2015 was not complied with. It is submitted that as because 16 instances of deviations were pointed out, the

OP-4, ought to have obtained necessary approval from the OP-6 only after such deviations were remedied. However, as the OP-4 had illegally

permitted the resumption of construction, the OP-1 was compelled to filed the second writ petition i.e. WP(C) 689/2017. It is submitted that only

when the second writ petition was filed, the applicant deemed it fit to apply for fresh NOC notwithstanding that the OP-4 had allowed the

applicant to resume his construction.

By referring to the affidavit-in-opposition, it is submitted that as there were as many as 16 violations of the first NOC by the applicant. Hence,

the construction which had come up on the basis of previous NOC was illegal, as such, without first demolishing the earlier illegal structure, the

applicant was permitted to resume his construction on the same illegal structure that had come up on the basis of illegal provisional NOC dated

15.02.2014. Moreover, it is submitted that as the present NOC was a fresh one, the same having not been routed through the OP-6, was illegal. It

is also submitted that the applicant had failed to annex NOC from the State Fire Service, Structural Drawing and Area Statement in this application

only with a view to suppress material facts. By referring to the additional affidavit filed on 08.12.2017, the learned Senior Counsel for the OP-1

has submitted that in paragraph 4 thereof, in form of a chart, the irregularities relating to the NOC dated 07.10.2017 has been pointed out.

Moreover, by referring to the approved plan/drawing, it is submitted that although the NOC dated 07.10.2017 refers to building height of 15

metres, but the approved plan shows the building height of 18 metres, which not only makes the construction illegal, but it proves that the OP-3

and OP- 4 were violating the building byelaws for the benefit of the applicant.

It is further submitted that assuming that the authority had permitted compounding, then such compounding must be in relation to the previous

NOC dated 15.02.2014, which cannot be of any help for issuing a fresh NOC. However, in the present case in hand second NOC dated

07.10.2017 was issued by taking into account the compounding done under the previous NOC. Hence, in the present case the act of

compounding as projected by the learned Senior Counsel for the applicant cannot be sustained. It is reiterated that the OP-4 had/has no option but

to comply with the directions contained in paragraph 23 of the order dated 31.08.2016 passed by this Court in WP(C) 4022/2015. By referring

to Annexure-G to the additional affidavit of OP-1 filed on 08.12.2017, it is submitted that as per the information disclosed under the RTI Act, the

NOC could not have been issued on 07.10.2017, because the OP-10 had submitted his report on the building permission of the applicant only on

09.10.2017, which shows that not only the OP-4, but the other concerned officers of OP-3 including the OP-10 were hand in glove with the

applicant. It is submitted that this is fit and proper case wherein the direction contained in paragraph 23 of the above referred judgment dated

31.08.2016 passed by this Court in WP(C) 4022/2015 should be passed again, directing the OP-6 to once again re-visit the NOC dated

07.10.2017 to ascertain if the said NOC was illegally issued and till then, the applicant should not be permitted to carry out the illegal construction.

Having considered the rival submission made by the learned Senior counsel for both sides, this Court finds that by notice dated 20.12.2016,

the applicant as well as the OP-1 were directed to be present on spot on 28.12.2016 at 11.30 a.m. for measurement as per the directions of this

Court contained in order dated 31.08.2016 passed in connection with WP(C) 4022/2015. However, the OP-1 did not take part in the said

measurement process. In this application, the applicant has annexed a copy of the rough sketch of the proposed site containing measurement done

on 28.12.2016 and the deviation as compared to the previous approved plan dated 15.02.2014 was found as follows - north setback: 0.60m;

south setback: 0.175m; rear setback: 0.02m; and front setback 0.00m.

In the meanwhile, vide letter dated 06.12.2016, the OP-6 had permitted the OP-4 to consider issuing NOC for the building if the applicant

applied through para 9 (Penalties)/page 3007 of the Zoning Regulation dated 24.08.2010. Therefore, the OP-4 had allowed compounding on

payment of Rs.27,000/- as penalty, which was promptly paid on the same date i.e. 04.02.2017 and thereafter, the OP-4 had permitted the

applicant to resume construction. However, in WP(C) No. 689/2017, after the learned Senior Counsel for the applicant had conceded to apply

for fresh NOC, the application was made on 19.05.2017, resulting in the issuance of the NOC dated 07.10.2017 by the OP-4, which was

forwarded to the applicant on 16.10.2017.

In the connected writ petition, it has been projected by the OP-1 that the construction was being illegally done without cancelling the previous

NOC dated 15.02.2014. However, in this application the applicant has disclosed that the construction was resumed on the basis of the NOC

dated 07.10.2017, which was forwarded to the applicant on 16.10.2017. Thereafter, by filing affidavit-inopposition and additional affidavit, the

OP-1 has highlighted the deficiencies which he has perceived on the basis of the unilateral measurement which was done by the private Engineers

engaged by the OP-1, which, in the opinion of this cannot be encouraged because of the fact that at the direction of this Court contained in order

dated 31.08.2015 passed in WP(C) 4022/15 that the notice of the proposed measurement on 28.12.2016 was issued by OP-4, giving an

opportunity to the OP-1 to participate in the process and pursuant to which the officials of OP-3 had carried out the measurement. Therefore, in

the opinion of this Court, the disputed question of facts now projected by the affidavit-in-opposition dated 28.10.2017 and additional affidavit

dated 08.12.2017 could have been raised and effectually addressed if the OP-1 would have remained present at the appointed time and

participated in the measurement process on 28.12.2016. In the considered opinion of this Court, a measurement of the disputed structure done at

the instance of the directions issued by this Court will have comparatively more credibility than the one purportedly done by the OP-1. It is beyond

the comprehension of this Court as to why the OP-1 would make an effort to get a favourable order dated 31.08.2016 in WP(C) 4022/2015, yet

not participate in the measurement process undertaken pursuant to the said order despite notice for the same by OP-4 and rush to court with his

own measurement of the construction disputed by him. This is a relevant query because the connected query is whether the court should encourage

a litigant to disregard the order of this Court and allow him to take recourse to such steps as he may deem proper? The answer would be a prompt

no, because, the OP-1 was bound by the said order and he could have undertaken a different process only after getting the said order modified/

altered or varied. Therefore, in the opinion of this Court, until the time the order dated 31.08.2016 passed by this Court in W.P.(C) 4022/2015

holds the field, the measurement done by the officials of OP-3 would hold the field and this Court cannot take cognizance of the privately done

unilateral measurement of the disputed structure by the OP-1. However, this Court hastens to clarify that the aforesaid opinion of this Court is only

a prima facie view for the limited purpose of considering the prayer made in this application, and this may not influence this Court for deciding the

writ petition on merit.

In paragraph 3 of the writ petition, the OP-1 had projected that the land of the applicant was contiguous to their land. In paragraph 36 thereof,

it is projected that the OP-1 shares 20% southern boundary with the applicant. In paragraph 9 of this application, it is the specific case of the

applicant that the applicant shares only 3 metre out common south boundary with the OP-1 out of the total 22 metre length of the southern portion

of the applicant, which roughly calculates to sharing of only less than 15% of the said boundary. This fact of sharing only 3 metre common

boundary at the southern side of the applicant''s land has not been denied in the affidavit- in- opposition filed by OP-1 on 21.11.2017, rather in

paragraphs 6 and 9 thereof, the OP-1 has admitted sharing of 15% common boundary. Moreover, in paragraph 12 of the affidavit- in- reply, it has

been stated that the house of the OP-1 is situated approximately 250- 300 feet away from the boundary wall of applicant. This fact has also not

been disclosed in the writ petition.

Insofar as the NOC dated 07.10.2017 and the report dated 09.10.2017 is concerned, this Court would not like to make any premature

comment without a perusal of the record, because it is seen that as per the documents filed by the applicant, although the said NOC is dated

07.10.2017, by a letter No. TMB/BP/W. No. 13/2013-14/ 323/1136 dated 16.10.2017, it was forwarded to the applicant only after the report

dated 09.07.2017 was submitted.

Therefore, this Court finds that the writ petition was structured on a basis of assumption that the construction was resumed on the basis of

NOC dated 15.02.2014, whereas it is seen that the OP-6 by his letter dated 06.12.2016, permitted the OP-4 to consider the issue of NOC if the

applicant applies through para 9 (Penalties)/ page 3007 of the Zoning Regulation dated 24.08.2010. It is only in view of the concession made by

the learned Senior Counsel for the applicant, as reflected in order dated 15.02.2017 in WP(C) 689/2017, that a fresh NOC was obtained upon

submitting the modified building plan as provided in the said letter dated 06.12.2016. The fresh application for NOC was submitted on

19.05.2017 and NOC dated 07.10.2017 was issued and forwarded to the applicant on 16.10.2017.

Therefore, as on 16.10.2017, a right had accrued on the applicant to carry out his proposed construction as per the said NOC dated

07.10.2017, forwarded on 16.10.2017.

The deviations as projected by the learned Senior Counsel for the OP-1 cannot be considered at this stage because as per the prayers made in

the writ petition, the NOC dated 07.10.2017 as forwarded on 16.10.2017 is not under challenge. Therefore, the issues sought to be raised by the

learned Senior Counsel for the OP-1 are matters which can only be considered at the time of hearing of the writ petition and not at this stage. The

order dated 01.11.2017 appears to have been passed by this Court in the connected writ petition on the basis of submissions that the construction

was resumed by the applicant in clear defiance of this Court''s order and that the compounding of the illegal construction was in the domain of the

appellate authority and in the said context, it has already been mentioned above that the OP-6 having already advised the issuance of NOC on

realization of penalty as per Zoning Regulation dated 24.08.2010, both the ground on which the said interim order was passed does not survive as

a good ground for continuing the interim order.

Thus, out of the four basic grounds, which was agitated, the first one, being that if the illegal construction by the applicant is allowed, the OP-1

and his family members would suffer severe sanitation problems and their residential house might become un-inhabitable, and the second one, i.e.

that as the house of the OP-1 is behind the proposed building and because of the illegal construction his and his family''s life would be affected, are

found to be prima facie not sustainable because the house of the applicant is stated to be 250-300 feet away from the south boundary of the

applicant. The third one, i.e. the NOC from State Fire Service, Structural Drawing and Area Statement had not been annexed to this application, is

found to have caused no prejudice to the OP-1, because it is for the competent authority to take note of the same at the appropriate stage. The

fourth ground i.e. the NOC being a fresh one, the same having not been routed through the TCPD, Tezpur, was bad in law. In this regard, it is

seen that the OP-6 had already given his observations in his letter dated 06.12.2016, had permitted the OP-4 that the issue of NOC for the

building in reference may be considered if the applicant applies through para 9 (Penalties)/ page No. 3007 of the Zoning Regulation dated

24.08.2010. Therefore, prima facie case as well as balance of convenience tilts in favour of the applicant, as the applicant is found to be carrying

out his constructing on the strength of NOC dated 07.10.2017. Therefore, the applicant is bound to suffer irreparable loss or injury if he is not able

to continue and complete his construction.

In the case of Shivashakti Sugars Limited Vs. Shree Renuka Sugar Limited & Ors., (2017) 7 SCC 729 : (2017) 0 Supreme(SC) 467, the

Hon''ble Supreme Court of India has considered the issue of economic impact of judicial decisions. By relying on the case of Raunaq International

Ltd. Vs. I.V.R. Construction Ltd., (1999) 1 SCC 492, the effect of economic impact was considered by the Hon''ble Supreme Court. The

relevant paragraph 18 and 24 of the case of Raunaq International Ltd. (supra) and paragraphs 46 and 47 of the case of Shivashakti Sugars Ltd.

(supra) are quoted below:-

a. Raunaq International Ltd. (supra):

The same considerations must weigh with the court when interim orders are passed in such petitions. The party at whose instance interim

orders are obtained has to be made accountable for the consequences of the interim order. The interim order could delay the project, jettison finely

worked financial arrangements and escalate costs. Hence the petitioner asking for interim orders in appropriate cases should be asked to provide

security for any increase in cost as a result of such delay or any damages suffered by the opposite party in consequence of an interim order.

Otherwise public detriment may outweigh public benefit in granting such interim orders. Stay order or injunction order, if issued, must be moulded

to provide for restitution.

Dealing with interim orders, this Court observed in CCE v. Dunlop India Ltd. [(1985) 1 SCC 260 : 1985 SCC (Tax) 75 : (1985) 2 SCR

190] (SCR 190 at p. 196) that an interim order should not be granted without considering the balance of convenience, the public interest involved

and the financial impact of an interim order. Similarly, in Ramniklal N. Bhutta v. State of Maharashtra [(1997) 1 SCC 134] the Court said that

while granting a stay, the court should arrive at a proper balancing of competing interests and grant a stay only when there is an overwhelming

public interest in granting it, as against the public detriment which may be caused by granting a stay. Therefore, in granting an injunction or stay

order against the award of a contract by the Government or a government agency, the court has to satisfy itself that the public interest in holding up

the project far outweighs the public interest in carrying it out within a reasonable time. The court must also take into account the cost involved in

staying the project and whether the public would stand to benefit by incurring such cost.

b. Shivashakti Sugars Ltd. (supra):

Even in those cases where economic interest competes with the rights of other persons, need is to strike a balance between the two

competing interests and have a balanced approach. That is the aspect which has been duly taken care of in the instant case, as would be

discernible from the concluding paragraph of this judgment.

Although Law and Economics trace back to the period of Jeremy Bentham [Utilitarian Theory, which is essentially economic theory.] i.e. the

18th century, in the last few decades, interplay between Law and Economics has gained momentum throughout the world. Indian judiciary has

resorted to economic analysis of law on ad hoc basis. Time has come to consider the interdiscipline between Law and Economics as a profound

movement on sustainable basis. These are the additional relevant considerations which have weighed in our mind in adopting a particular course of

action in the instant case.

In light of the above quoted observations of the Hon''ble Supreme Court of India in the case of (i) Raunaq International Ltd. (supra) and (ii)

Shivashakti Sugars Ltd. (supra), this Court is of the considered opinion that there is every likelihood of cost escalation because of the delay in

completing the proposed construction by the applicant, and that due to efflux of time allowed for completing the construction, there is every

likelihood that the NOC dated 07.10.2017 would also gets lapsed. Hence, owing to the said economic and practical considerations, any further

continuance of the stay would cause more comparative hardship and suffering to the applicant. Therefore, in view of the discussions above, this is

found to be a fit and proper case for modifying/vacating/altering the order dated 01.11.2017 passed in the connected WP(C) 6440/2017 in terms

of the liberty granted in paragraph 8 thereof. The applicant herein is permitted to proceed with his proposed construction strictly in accordance

with the NOC dated 07.10.2017 as forwarded on 16.10.2017. As the connected writ petition is pending for consideration by this Court, it is

provided that the proposed construction would be at the risk of the applicant and such construction would not confer any indefeasible right to the

applicant and, as such, the said constructions would obviously be subject to the outcome of the writ petition.

This I.A. stands allowed.