Bombay High Court
Sakharam Pandurang Sonune And ... vs Sau. Shalini Bapusaheb More And ... on 17 November, 2017
Bench: Z.A. Haq
1 wp2569.2015.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Writ Petition No. 2569/2015
1] Sakharam Pandurang Sonune (Dead),
Age 45 years, Occ. Agriculturist
1.a) Smt. Nalubai Wd/o Sakharam Sonone,
Aged about 50 years.
1.b) Nitin S/o Sakharam Sonone,
Aged about 20 years.
1.c) Anita D/o Sakharam Sonone,
Aged about 20 years.
1.d) Sheetal D/o Sakharam Sonone,
Aged about 18 years.
All R/o Lande Layout, Buldhana,
Tq. And Dist. Buldhana
(Amendment carried out as per Courts order
dated 30/03/2017)
2] Onkar Narayan Tekade,
Age 74 years, Occ. Pensioner
Both R/o Lande Layout, Buldhana,
Tq. And Dist. Buldhana ..... PETITIONERS
...V E R S U S...
1] Sau. Shalini Bapusaheb More,
Aged 68 years, Occ. Pensioner,
R/o Dandge Layout, Buldhana
Tq. And Dist. Buldhana
2] Municipal Council Buldhana,
through its Chief Officer,
Buldhana ... RESPONDENTS
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Shri S.O. Ahmed, Advocate for the petitioners
Shri K.P. Sadavarte, Advocate for the respondent no. 1
=====================================
CORAM:- Z.A. HAQ,J.
th
DATED :- 17 November
,
201
7
ORAL JUDGMENT :-
Heard.
Rule. Rule made returnable forthwith.
2] The original defendant no. 2 and the legal heirs of the
original defendant no. 1 have challenged the order passed by the
Sub-ordinate Courts upholding the claim of the
respondent/plaintiff for temporary injunction restraining the
defendants from undertaking any construction over the plot in
question. The Subordinate Courts have granted temporary
injunction in favour of the plaintiff and against the defendants
mainly on the ground that the construction is being undertaken
without there being any permission/sanction from the Municipal
Council .
3] The learned advocate for the petitioners has pointed
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out the commencement certificate issued by the office of
Municipal Council, Buldhana on 11/12/2013 and the map
sanctioned by the Municipal Council. The learned advocate for the
plaintiff has not disputed that the Municipal Council has granted
the sanction and the commencement certificate, however, it is
submitted that the construction which is proposed to be
undertaken by the defendants is not as per the sanctioned map. It
is further submitted that during the pendency of the Misc. Civil
Appeal before the District Court, an order was passed on the
application (Exh. 27) filed by the plaintiff appointing the
commissioner to submit report regarding the construction after
local inspection. It is submitted that the commissioner has
submitted report dated 07/07/2014 stating that because of the
objection taken by the defendants, the commission could not be
executed.
In terms, the submission on behalf of the respondents
is that though the Municipal Council has granted the sanction and
the commencement certificate, the defendants cannot undertake
the construction as proposed by them as it is not according to the
sanctioned map.
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4] In my view, this contention of the plaintiff cannot be
accepted. It is well settled that the Civil Court can entertain the
grievance only if the construction is without sanction and it will
not be within the jurisdiction of the Civil Court to examine the
grievance as to whether the construction is as per sanctioned plan
or not and it will be within the authority of Municipal Council.
Moreover, the Subordinate Courts have granted temporary
injunction observing that there is no sanction by the Municipal
Council, which is factually not correct.
5] In view of the above, the following order is passed:-
O R D E R
1] The impugned orders are set aside.
2] The application (Exh. 5) filed by the plaintiff praying
for grant of temporary injunction is dismissed.
Rule is made absolute in the above terms. In the
circumstances, the parties to bear their own costs.
JUDGE
A n s a r i
