Bombay High Court
Manohar S/O Vithobaji Tidke vs Smt. Subhadrabai Wd.O Nagoraoji ... on 22 January, 2019
Author: A.S.Chandurkar
Bench: A.S.Chandurkar
209-J-FA-4-07 1/6
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
FIRST APPEAL NO.4 OF 2007
Manohar s/o Vithobaji Tidke
Aged about 60 years, Occ. Retired,
R/o Bajirao Galli, Golibar Chowk,
Ganjakhet, Nagpur ... Appellant.
-vs-
1. Subhadrabai wd/o Nagoraoji Mohadikar,
aged about 65 years, Occ. Housewife.
2. Arjun s/o Nagoraoji Mohadikar
aged about 39 years.
3. Dashrath s/o Nagorao Mohadikar
aged about 50 years, Occ. Business
4. Pandurang s/o Nagorao Mohadikar
aged about 48 years, Occ. Business
No.1 to 4 are residents of Bajirao Galli,
Golibar Chowk, Ganjakhet, Nagpur
5. Corporation of the City of Nagpur,
Through its Municipal Commissioner,
Civil Lines, Nagpur ... Respondents.
Shri A. M. Ghare, Advocate with Shri P. V. Ghare, Advocate for appellant.
Shri S. P. Kshirsagar, Advocate for respondent Nos.1 to 4.
CORAM : A.S.CHANDURKAR, J.
DATE : January 22, 2019 Oral Judgment :
This appeal has been filed under Section 388 of the City of ::: Uploaded on - 29/01/2019 ::: Downloaded on - 27/03/2020 01:29:32 ::: 209-J-FA-4-07 2/6 Nagpur Corporation Act, 1948 (for short, the said Act). The appellant herein is aggrieved by the order dated 12/12/2006 in proceedings under Section 286(5) of the said Act. Those proceedings were filed by the predecessor of respondent Nos.1 to 4 herein making a grievance that the present appellant had made a construction in excess of the sanctioned plan dated 16/12/1985. According to the original applicant a marginal space of 1.5 mt was required to be left on the southern side of his construction and marginal space of 1.70 mt. was to be left on the northern side of said construction. However, without leaving that marginal space the appellant had undertaken construction. In the application it was thus prayed that the unauthorised construction which was contrary to the sanctioned plan dated 16/12/1985 be directed to be removed.
2. Reply was filed by the present appellant to the aforesaid application below Exhibit-14. It was denied that there was any common lane between the houses of the applicant and the present appellant. It was reiterated that the entire construction was in accordance with the sanctioned plan and there was no excess construction made as alleged. The Municipal Corporation also filed reply at Exhibit-15. It referred to the site inspection by the Officers of the Corporation and issuance of letter dated 19/01/1989 to the appellant herein for removing excess construction. ::: Uploaded on - 29/01/2019 ::: Downloaded on - 27/03/2020 01:29:32 ::: 209-J-FA-4-07 3/6
3. The parties led evidence before the trial Court and after considering the same the learned Judge held that there was sufficient material on record to indicate that the appellant had undertaken construction contrary to the sanctioned plan. On that basis the application filed under Section 286(5) of the said Act was allowed and the Corporation was directed to remove the excess construction. Being aggrieved the appellant has challenged the said order.
4. Shri A. M. Ghare, learned counsel for the appellant submitted that there was a dispute as to the existence of a common lane between the houses of the appellant and the original applicant. The applicant had claimed easementary right as regards the construction made by him and it was not permissible for him to invoke the provisions of Section 286(5) of the said Act to have the same demolished. He referred to the aspect that proceedings under Section 286(5) of the said Act are summary in nature and substantive rights of parties cannot be adjudicated therein. Considering the nature of defence as raised by the original applicant, his rights were required to be adjudicated in the civil Court. The learned counsel referred to the judgment dated 30/04/2014 in Civil Revision Application No.461/1995 (Babibai wd/o late Nandkishoreji Jawandhia (Dead) Thr. LR. Brijkishor Nandkishorji Jawandhia vs. The City of Nagpur Municipal Corporation and ors.) in that regard. He also referred to the decision in Rikhabsao Nathusao Jain vs. ::: Uploaded on - 29/01/2019 ::: Downloaded on - 27/03/2020 01:29:32 ::: 209-J-FA-4-07 4/6 Corporation of the City of Nagpur and ors. (2009) 1 SCC 240 to support his contentions.
5. On the other hand Shri S. P. Kshirsagar, learned counsel for respondent Nos.1 to 4 supported the impugned order. He referred to the specific pleadings of the parties and submitted that the only prayer that was made in the application was to remove the unauthorised construction which was contrary to the sanctioned plan. There was no question of adjudication of any easementary rights and it was therefore not necessary for the applicant to approach the civil Court to have the same determined. He further submitted that the appellant had applied for regularisation of his construction and this fact itself indicated that there was some excess construction beyond what was permissible under sanctioned plan. The learned counsel referred to the decision in Ashok Anantrao Chourasia and anr. vs. Durgeshnarayan Ramnarayan Jaiswal and anr. 1995(2) Mh.L.J. 567 and submitted that no interference was called for with the impugned order.
6. I have heard the learned counsel for the parties at length and I have also gone through the records of the case. After giving due consideration to the respective submissions I am of the view that the appeal is liable to be dismissed.
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7. Perusal of the application filed under Section 286(5) of the said Act indicates that it is the case pleaded that though by order dated 15/12/1985 the appellant was permitted to construct his house, he had not made that construction as per the sanctioned plan. He had not left the marginal space as required by the sanctioned plan and hence the unauthorised construction was liable to be demolished. It was also stated that the applicant had acquired valuable easementary rights with regard to public lane between the two houses. The aforesaid pleadings were denied by the appellant and it was asserted that the construction made was in accordance with the sanctioned plan. The evidence on record indicates that the appellant was permitted to undertake construction as per the sanction granted on 15/12/1985. On 19/01/1989 the Corporation issued a notice at Exhibit-56 giving details of the construction which was not in accordance with the sanctioned plan. On 10/04/2002 a further notice under Section 423 of the said Act was issued which is at Exhibit-57 calling upon the appellant to remove the excess construction. The appellant in his deposition at Exhibit-70 has stated that under the Scheme for regularisation of that construction he had taken steps before the Corporation. It is after considering this evidence on record that the learned Judge of the trial Court recorded a categorical finding that the notices issued by the Municipal Corporation at Exhibits-56 and 57 had not been challenged by the appellant hereini and therefore the contents thereof indicated excess construction ::: Uploaded on - 29/01/2019 ::: Downloaded on - 27/03/2020 01:29:32 ::: 209-J-FA-4-07 6/6 being made by him. The aforesaid conclusion recorded by the trial Court is after considering all the documentary material on record and there is no reason whatsoever to take a difference view of the matter.
7. The scope of provisions of Section 286(5) of the said Act has been considered in Rikhabsao Nathusao Jain (supra) wherein it has been held that directions cannot be issued by the District Court to the Corporation to reconsider the matter of granting sanction order otherwise and that the only aspect to be considered is removal of any building which is not in accordance with the sanctioned plan. Merely because the original applicant had referred to existence of easementary rights that by itself would not be sufficient to direct the applicant to approach the civil Court. Only relevant aspect to be considered was existence of excess construction not permissible under the sanctioned plan. The same having been found, the impugned order does not deserve to be interfered with.
8. Hence in view of aforesaid reasons there is no merit found in the appeal. The same is accordingly dismissed with no order as to costs. The interim order granted on 11/01/2007 shall continue to operate for a period of eight weeks from today.
JUDGE Asmita ::: Uploaded on - 29/01/2019 ::: Downloaded on - 27/03/2020 01:29:32 :::