Bombay High Court
Ramrao Ganpatrao Chichghare vs Babruwan Vithoba Dayre & 5 Others on 19 August, 2016
Bench: Ravi K. Deshpande
sa74.04.J.odt 1/6
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO.74 OF 2004
Ramrao s/o Ganpatrao Chichghare,
Aged about 45 years, Legal Practitioner,
R/o Juni Mangalwari, Nagpur. ....... APPELLANT
...V E R S U S...
Deleted and 1] Babruwan s/o Vithoba Dayre,
amended as Aged about 45 years,
per Courts Occ: Private Business,
order dt.
26/2/10
R/o Juni Mangalwari, Nagpur.
Amended as 1-A] Smt. Seeta wd/o Babruwahan Dayare,
per Courts Aged about 44 yrs.,
order dt. Occ: Household.
26/2/10
1-B] Ku. Kalpana d/o Babruwahan Dayare,
Aged about 24 years,
Occ: Not known.
1-C] Kumar Satish s/o Babruwahan Dayare,
Aged about 22 yrs.
Occ: Not known.
1-D] Kumar Golu s/o Babruwahan Dayare,
Aged about 20 yrs.,
Occ: Not known.
All residents of Mohta Dhiwar Mohalla,
Chunakhaye Tekada, Juni Mangalwari,
Nagpur.
2] The City of Nagpur Municipal Corporation,
through its Municipal Commissioner, Nagpur,
Civil Lines, Nagpur.
As per Regr. 3] Ishwar s/o Bala Paunikar,
(J) order dt. Aged about 38 years,
2/12/10 S.A. Occ: Business.
dismissed
against R-3
::: Uploaded on - 23/08/2016 ::: Downloaded on - 24/08/2016 00:11:49 :::
sa74.04.J.odt 2/6
As per Regr. (J) order
4] Bhaskar Maroti Khapekar,
dt. 18/2/10 S.A. Aged about 36 years,
dismissed against Occ: Business.
Respdt. No.4.
Deleted 5] Vithoba s/o Mahagu Dayare,
R.No.5 as per Aged about 70 years,
Aged about 70 years,
order of this Occ: Nil.
Hon'ble Court
dt. 28.7.08
Nos.3 to 5 residents of
Juni Mangalwari, Nagpur.
6] The Assistant Engineer (Building),
City of Nagpur Corporation,
Civil Lines, Nagpur. ....... RESPONDENTS
----------------------------------------------------------------------------------------------------
Shri S.R. Chakrabarty, Advocate h/f Shri S.P. Kshirsagar, Advocate
for Appellant.
Shri C.J. Jaiswal, Advocate for Respondent Nos.1-A to 1-D.
Shri J.B. Kasat, Advocate for Respondent Nos.2 & 6.
----------------------------------------------------------------------------------------------------
CORAM: R.K. DESHPANDE, J.
th AUGUST, 2016.
DATE: 19
ORAL JUDGMENT
1] Regular Civil Suit No.973 of 1993 challenging notice dated
20.12.1988 issued under Section 286(2) and another notice dated
05.01.1993 issued under Section 286(1) of the City of Nagpur
Corporation Act, for demolition of the construction carried out in respect
of House No.798 belonging to the plaintiff was decreed by the trial Court
on 04.08.1996. The notices are held to be illegal and void. In Regular
Civil Appeal No.620 of 1996, the decree passed by the trial Court is
maintained on 20.11.2003. Hence, this second appeal by the original
defendant No.3 - Ramrao Ganpatrao Chichghare, who is the neighbourer
sa74.04.J.odt 3/6
of the plaintiff and on whose complaint the notices were issued by the
Corporation.
2] This matter was admitted on 12.04.2006 and the following
order was passed:
Heard.
Admit to consider the question whether the suit before
the Civil Court was barred, in view of the provision of Section
287 of the City of Nagpur Corporation Act, read with Section
387 of the said Act.
It appears that this question of remedy under Section
387 of the City of Nagpur Corporation Act being available to a
person affected by the actions of the Municipal Corporation
under Chapter XXIV of the Act had not been touched in the
decision of this Court in Girish vs. Purshottam, reported at
1996(1) Mh.L.J. 673.
3] In the decision of the learned Single Judge of this Court in
case of Girish Manoharlal Wazalwar vs. Purshottam Parasram Kotangale
and another, it is held that suit challenging the bona fides and jurisdiction
of the Nagpur Improvement Trust in issuing notice under section 286(2)
of the City of Nagpur Corporation Act read with Section 52 of the
Nagpur Improvement Trust Act, is not barred either expressly or
impliedly, if the action is not in accordance with law or without
sa74.04.J.odt 4/6
jurisdiction or has been issued in a colourable exercise of power or mala
fide or bad in law for any other reason.
4] Undisputedly, in the present case, the concurrent finding of
fact recorded by the Courts below is that the plaintiff is the owner of
House No.798, whereas the notices impugned in the suit were issued in
the name of his father, who had no concern with the construction carried
out in respect of House No.798. The father of the plaintiff is the owner of
the house standing on Plot No.429. According to the plaintiff, only
repairs have been carried out and there is no construction.
The Corporation intended to proceed with the work of demolition of
repairs carried out by the plaintiff, and therefore, the suit was filed.
5] In view of the fact that the demolition was proposed to be
carried out without issuing proper notice to the plaintiff, the Courts
below were right in holding that the jurisdiction of the Civil Court was
not barred, particularly when the notices challenged in the suit were
issued in the name of the father of the plaintiff, who was joined as
defendant No.6-Vithoba s/o Mahagu Dayare.
6] In view of above, the substantial question of law framed by
this Court is answered holding that the Courts below were right in
entertaining the suit as maintainable and not barred under Section
sa74.04.J.odt 5/6
286(2) of the Nagpur Corporation Act read with Section 387 therein.
The second appeal is dismissed.
JUDGE
NSN
sa74.04.J.odt 6/6
C E R T I F I C A T E
"I certify that this Judgment uploaded is a true and
correct copy of original signed Judgment."
Uploaded by : Uploaded on : 23.08.2016.
N.S. Nikhare, P.A.
