Abdul Mujim Sheikh Roshan vs Chandrapur Municipal ...
2017 Latest Caselaw 2068 Bom

 Judgment                                      1                                       wp6335.16.odt




                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                    

                             NAGPUR BENCH, NAGPUR.


                               WRIT PETITION NO. 6335  OF 2016


 Abdul Mujim Sheikh Roshan,
 Aged about 61 years, Occ. Retired,
 R/o. Bhiwapur Ward, Chandrapur,
 Tah. and District : Chandrapur.  
                                                                          ....  PETITIONER.

                                          //  VERSUS //

 1. Chandrapur Municipal Corporation,
    Chandrapur, through the Commissioner, 
    Municipal Corporation, Chandrapur. 

 2. Mohammad Gazi Sadroddn Kazi,
    aged about 46 years, Occ. Business, 
    R/o. Bhiwapur Ward, Chandrapur,
    Tah. and District : Chandrapur. 
                                                                       .... RESPONDENTS
                                                                                     .

 ___________________________________________________________________
 Shri A.S.Dhore, Advocate for Petitioners. 
 Shri M.I.Dhatrak, Advocate for Respondent No.1. 

 ___________________________________________________________________

                                CORAM : Z.A.HAQ, J.

DATED : APRIL 27, 2017.

ORAL JUDGMENT :

1. Heard.

2. RULE. Rule made returnable forthwith.

Judgment 2 wp6335.16.odt

3. The petitioner/ plaintiff has challenged the judgment passed by

the District Court dismissing the appeal filed by him under Order 43 Rule

1(r) of the Code of Civil Procedure and maintaining the order passed by the

trial Court by which the application (Exh.No.5) filed by him praying for

temporary injunction came to be rejected.

4. The plaintiff has filed civil suit praying for decree for

permanent injunction restraining the defendant from demolishing the

compound wall. The contention of the plaintiff is that the defendant is

seeking to demolish the compound wall because of some dispute of the

plaintiff with officers of the defendant. The plaintiff further contends that the

proposed action of the defendant is illegal as the plaintiff is not given any

notice as required by Section 478 of the Maharashtra Provincial Municipal

Corporations Act, 1949. In this civil suit the plaintiff filed an application for

temporary injunction which is rejected and the appeal against that order is

also dismissed.

5. The contention of the defendant is that the compound wall is

constructed by the plaintiff by encroaching on public road. According to the

defendant it has to construct a drain and because of the compound wall the

work of constructing drain is obstructed and therefore, it is necessary to

demolish the compound wall.

Judgment 1 wp6335.16.odt

6. After considering the pleadings of the respective parties and

examining the photographs, copies of which are placed on record and

originals were shown at the time of hearing, I find that the defendant has not

been able to substantiate its claim that the compound wall in question is

obstructing the construction of drain. As far as the point of encroachment is

concerned, the defendant cannot illegally and forcibly demolish the

compound wall unless it follows the prescribed procedure.

7. The subordinate Courts have failed to appreciate the relevant

aspects and therefore, the judgment and order passed by the subordinate

Courts are unsustainable.

8. Hence, the following order:

i) The impugned judgment passed by the District Court and the

order passed by the Trial Court are set aside.

ii) The application (Exh.No.5) filed by the plaintiff in the civil suit

is allowed in terms of prayer clause (a) of the application.

Rule is made absolute in the above terms. In the circumstances,

the parties to bear their own costs.

JUDGE

RRaut..