Nagpur Municipal Corporation ... vs Shri Ramesh Jagmohan
2016 Latest Caselaw 3900 Bom

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                                                                 sa229.14.odt




                                                                          
                                      

        IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                  
                  NAGPUR BENCH, NAGPUR


                       Second Appeal No.229 of 2014




                                                 
       1. Nagpur Municipal Corporation,
          through its Municipal Commissioner,




                                        
          Civil Lines, Nagpur.

       2. Ward Officer,
                             
          Mangalwari Zone No.10,
          Nagpur Municipal Corporation,
          Nagpur.                                     ... Appellants
                            
            Versus
      


       Shri Ramesh Jagmohan,
   



       Aged Major, R/o Hanuman Mandir
       Road, Prabhag No.14,
       Chhaoni, Nagpur.                               ... Respondent





       Shri J.B. Kasat, Advocate for Appellants.
       Shri A.M. Ghare, Advocate for Respondent.





                Coram : R.K. Deshpande, J.

                Date    : 18th July, 2016






                                                                          sa229.14.odt




                                                                                   
       Oral Judgment :




                                                           

1. The Trial Court dismissed Regular Civil Suit No.1705 of

2005 challenging the notice dated 25-10-2005 issued by the

appellants under Section 53(1) of the Maharashtra Regional and

Town Planning Act, 1966 for demolition of the shop block of the

respondent, admeasuring 23.80 sq.mtrs. in the basement area of

the building in question. The lower Appellate Court has reversed

the decision of the Trial Court in Regular Civil Appeal No.150 of

2008 and the appeal has been allowed on 8-2-2012. The suit has

been decreed and the notice dated 25-10-2005 has been declared

to be illegal.

2. On 15-4-2016, this Court passed an order as under :

" Issue notice to the respondents on the following substantial questions of law:

(i) Whether the Appellate Court was legally justified in holding that the notice dated 25/10/2005 issued by the appellant was illegal ignoring the admission given by the

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respondent that the construction in question was made without sanction?

(ii) Whether the Appellate Court was justified in reversing the findings recorded by the Trial Court in

paragraphs 8 and 9 of the judgment of the Trial Court without recording a finding that those findings were contrary to law?

Notice is made returnable on 20/06/2016.

Humdast granted."

3. Admit. Heard finally by consent of the learned counsels

appearing for the parties on the substantial questions of law,

which are framed by this Court. With the assistance of the

learned counsels for the parties, I have gone through the notice

issued under Section 53(1) of the Maharashtra Regional and

Town Planning Act, which is in respect of the unauthorized

construction of the shop block, admeasuring 23.80 sq.mtrs. in

the basement area of the building in question. The Trial Court

sa229.14.odt

has dealt with the contentions of the respondent-plaintiff that the

construction of the shop block was made prior to 70 years, and in

the year 2002, he had only affixed the shutter, removed some

portion of the suit shop block and had not carried out any

unauthorized construction. The Trial Court recorded the finding

that the respondent-plaintiff himself admitted that he carried out

the construction of shop block without any building permit and,

therefore, it cannot be held that he had not carried out any

unauthorized construction recently. It held that the construction

was not the old one and, therefore, the notice issued was legal

and proper.

4. On the last date, i.e. 20-6-2016, this Court passed an order

as under :

" The lower appellate Court has taken into

consideration the admission given by the respondent that the construction in question has been made without obtaining the sanction. The land was acquired for extension of road.

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In view of above, the learned counsel for the

respondent to produce on record the order of sanction for construction.

S.O. to 21.06.2016."

5. Shri Ghare, the learned counsel for the respondent, is

unable to show the sanction for construction of shop block in the

basement area of the building in question. The lower Appellate

Court, without taking into consideration the contents of the

notice under Section 53(1) issued under the Maharashtra

Regional and Town Planning Act, records the finding that only

the repairs were carried out and no construction was made. The

lower Appellate Court has, therefore, committed an error in

holding that the said notice was illegal. The lower Appellate

Court has failed to take into consideration the relevant findings

of fact recorded by the Trial Court. The substantial questions of

law are, therefore, answered accordingly.

6. In the result, the second appeal is allowed. The judgment

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and order dated 8-2-2012 passed by the lower Appellate Court in

Regular Civil Appeal No.150 of 2008, is hereby quashed and set

aside, and the judgment and decree dated 25-1-2008 passed by

the Trial Court in Regular Civil Suit No.1705 of 2005 is restored.

No order as to costs.

Judge.

Lanjewar

sa229.14.odt

"I certify that this Judgment uploaded is a true and correct copy of original signed Judgment."

         Uploaded by :       Uploaded on : 20-7-2016
         P.D. Lanjewar,
         PS to Hon'ble Judge