Smt. Shahnaza Akhtar Ashfaq ... vs Loknarayan S/O Deonarayan Pande ...
2017 Latest Caselaw 4013 Bom

 fa1091.16.J.odt                           1



          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH, NAGPUR

                       FIRST APPEAL NO.1091 OF 2016

 1]       Smt. Shahnaza Akhtar Ashfaq
          Ansari, Aged 52 years, 
          Occ: Service.

 2]       Mohammad Ashfaq Ansari,
          Aged about 57 years,
          Occ: Service.

          Both R/o Between Girza Apartment
          and Rathod Layout, Zingabai Takli
          (Police Line Takli), Nagpur. ....... APPELLANTS


                                   ...V E R S U S...


 1]       Shri Loknarayan s/o Deonarayan Pande,
          Aged 66 years, Occ: Nil,
          R/o Rathod Layout, Zingabai Takli
          (Police Lind Takli), Nagpur.
          (Ori. Applicant).

 2]       City of Nagpur Municipal
          Corporation, through its
          Municipal Commissioner, 
          Civil Lines, Nagpur
          (Ori. Non-Applicant No.1)

 3]       Nagpur Improvement Trust,
          through its Chairman,
          Civil Lines, Nagpur
          (Ori. Non-Applicant No.4).                ....... RESPONDENTS
 -------------------------------------------------------------------------------------------
          Shri V.S. Kukday, Advocate for Appellants.
          Shri P.K. Mishra, Advocate for Respondent No.1.
          Shri T.M. Zaheer, Advocate for Respondent No.2.
          Shri J.B. Kasat, Advocate for Respondent No.3.
 -------------------------------------------------------------------------------------------



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  fa1091.16.J.odt                      2

 CORAM:            DR. (SMT.) SHALINI PHANSALKAR-JOSHI, J. 

 DATE:               th
                   5    JULY, 2017.


 ORAL JUDGMENT



 1]               This appeal takes an exception to the judgment and

order dated 20.09.2016 passed in Misc. Civil Application

No.111/2010 by the learned Adhoc District-1, Nagpur, thereby

allowing the application filed by the respondent No.1 herein

under Section 286 (5) of the City of Nagpur Corporation Act,

1948 (for short "the Act").

2] The brief facts of the appeal can be stated as follows:

The respondent No.1 herein claims to be the owner

and possessor of the house constructed on Plot No.247 situated at

Rathod Layout, which is part and parcel of Khasra No.273 of

Mouza Zingabai Takli. Towards the eastern side of his house,

there is a house of Smt. Shahina Parveen, which is constructed on

the Plot No.246. According to him, towards the western side of

Plot Nos.246, 247 and 248 there was a triangular strip of land,

which was part and parcel of Khasra No.273, and was left open by

original owner for the purpose of drainage of waste water and

rain water. It was not meant and was not feasible for the

construction of any nature. However, the present appellant who

was appearing as non-applicant No.2 in the Trial Court, claimed

to have purchased the said strip of land and started filling up

Nallah and by making encroachment on the said piece of land,

constructed her own house thereon. As a result, due to closer of

Nallah, the rain water and drainage water started accumulating

and spreading in the houses in the locality. The water from

Rathod Layout was also obstructed on account of the filling of the

Nallah. The respondent No.1, therefore, filed an application

before the Trial Court under Section 286 (5) of the Act, directing

the Municipal Corporation to take necessary action for removal of

such obstruction.

3] This application came to be resisted by the appellants

herein admitting that they had purchased the triangular strip of

land and it is part and parcel of Khasra No.273. However, it was

denied by them that the said strip of land is admeasuring 26 ft.

and they are making construction thereon which is causing

obstruction to the drainage of water. According to the appellants,

they have not committed any illegality and hence, the application

filed by respondent No.1 herein, needs to be dismissed.

4] The City of Municipal Corporation was already

arrayed in the petition as respondent. The appellant No.1

however, filed a Pursis vide Exh.11, contending that the property

in question comes under the jurisdiction of the Nagpur

Improvement Trust. Hence, the respondent No.1 herein made the

Nagpur Improvement Trust as respondent No.4 to the said

proceeding.

5] On this application, the learned Trial Court heard

both the parties and on the basis of the case record, which was

produced before it came to conclusion that as a result of the

construction being carried out by the appellant herein, which

construction was without obtaining the necessary sanction from

the Competent Authority, the drain water was not obstructed, and

therefore, it was necessary to remove the said construction. It was

also pointed to the learned Trial Court that the notice for removal

of the construction was already issued by the Nagpur

Improvement Trust by letter dated 04.09.2008. In view thereof,

the application filed by respondent No.1, came to be allowed by

the Trial Court vide its impugned judgment and order.

6] While challenging this judgment and order, the

submission of the learned counsel for the appellants is that the

learned Trial Court has not given sufficient opportunity to the

appellants to prove their case on record. It was submitted that the

appellants are the bona fide purchasers of the said property and

that too for valuable consideration. Hence, they cannot be

restrained from carrying out construction on the said strip of land.

It is submitted that the record of the Trial Court reveals that on

two occasions the application for adding Nagpur Improvement

Trust was allowed, rejected and thereafter without giving

opportunity to the parties to lead evidence or to prove their case,

the Trial Court has simplicitor proceeded to decide the dispute

and allowed the application filed by respondent No.1. Hence,

according to learned counsel for appellants, the impugned order

passed by the Trial Court cannot stand on merit and is required to

be quashed and set aside.

7] Per contra, learned counsel for respondent No.1 and

respondent No.3 has supported the said order, by submitting that

both the parties were given sufficient opportunity and otherwise

also, as respondent No.3 Nagpur Improvement Trust has already

initiated the requisite action by issuing notice for removal of the

construction, no fault can be found in the impugned order passed

by the Trial Court.

8] According to learned counsel for appellant, in order

to give an opportunity to both the parties, it is necessary to

remand the matter back to the Trial Court, so that parties can

adduce the oral evidence and also documentary evidence, if

required.

9] It is true that, if normally when such prayer for

remanding the matter is made then the Court allows it so that

both the parties should get sufficient and ample opportunity to

prove their respective contentions. However, in the instant case,

on the perusal of the record and the provisions of Section 286 (5)

of the Act, I do not find it necessary to remand matter.

The provisions of Section 286 (5) of the Act read as follows:

"(5) Nothing in this section shall affect the right of the Corporation or any other person to apply to the District Court, Nagpur, for an injunction for the removal or alteration of any building on the ground it contravenes any provision of this Act or of the byelaws made thereunder, but if the building is one in respect of which plans have been deposited and the plans have been passed by the Commissioner or notice that they have been rejected has not been given within the prescribed period after the deposit thereof and if the work has been executed in accordance with the plans, the Court on granting an injunction shall have power to order the Corporation to pay to the owner of the work such compensation as the Court thinks just, but

before making any such order the Court shall cause the Commissioner if not a party, to be joined as a party to the proceeding."

Thus this section gives a right to any person affected by the

contravention of any of the provisions of the Act and byelaws

made thereunder to approach the District Court for removal of

such unauthorized construction. Herein the case, as per the

respondent No.1, herein the construction carried out by the

appellant was without due sanction from the Nagpur

Improvement Trust, the Planning Authority. The burden was then

naturally on the appellants to prove that the said construction was

with due sanction and getting the plans approved. However, no

such document is produced on record of the Trial Court to prove

the legality and validity of the construction carried out by the

appellants. It is thus apparent, on the face of record, that the

legality and validity of the construction carried out, was not

proved by the appellants by producing relevant documentary

evidence. Hence, no fault can be found in the order of the Trial

Court directing respondent No.4 the Nagpur Improvement Trust

to take appropriate steps for removal of such construction,

especially when already the notice dated 04.09.2008 is issued by

the said Trust calling upon the appellants to remove the said

construction. Thus when the proceedings were already initiated by

the Planning Authority after satisfying itself that the construction

was apparently illegal and without getting the plans sanctioned,

the Trial Court was justified in allowing the application filed

under Section 286 (5) of the Act.

10] As regards the grievance of the appellant, that no

sufficient opportunity was given to them, not only the impugned

order of the Trial Court reveals that such opportunity was given to

them, but thereafter they did not participate in the proceeding,

even the roznama of the proceeding shows that they had

participated in the proceeding till the last date upto 26.08.2016.

Only on the next date of 17.09.2016 and 29.09.2016 as they

remained absent, the Trial Court has proceeded with whatever

material was placed on record and accordingly decided the said

application.

11] In such circumstances, as no illegality is committed by

the Trial Court in allowing the said application, the appeal holds

no merit and hence, stands dismissed.

12] At this stage, learned counsel for appellants submits

that the stay order granted by this Court to the execution of the

impugned judgment and order of the Trial Court is in existence till

today and it may be extended for a period of four weeks. On his

request the stay is extended by four weeks.

JUDGE

NSN