Amol Bhalchandra Lad vs The Municipal Corporation ...
2021 Latest Caselaw 10524 Bom

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         IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                     BENCH AT AURANGABAD
                  WRIT PETITION NO.3876 OF 2020

Amol S/o Bhalchandra Lad
Age 48 years, occ. Service
R/o R.H. B-01, Gut No. 230/2
Rameshwarpuram, Honaji Nagar
Aurangabad                                                    Petitioner

       Versus

1.     The Municipal Corporation
       Aurangabad
       Through its Commissioner
       Aurangabad Municipal Corporation
       Aurangabad.

2.     Sakshi Builders
       Through is Partners
       Sambhaji S/o Ramkrushna Atkare
       Age 44 yeas, Occ. Business
       R/o Plot No. 33, N-4, Cidco
       Aurangabad.                                            Respondents

Mr. M.R. Sonawane, Advocate for the petitioner.
Mr. A.R. Vaidya, Advocate for respondent No. 1.

                                  CORAM : M.G. SEWLIKAR, J.

DATE : 6th August, 2021.

ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith.

2. By consent, heard fnally at the stage of admission.

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3. Plaintiff-petitioner herein fled Regular Civil Suit No.

68/2018 in the Court of Civil Judge, Senior Division (Corporation

Court), Aurangabad for declaration that the notice dated 6 th August,

2018 is null, void and illegal and, for perpetual injunction restraining

the Municipal Corporation from taking any action on the basis of this

notice.

4. Respondent-Municipal Corporation appeared in the

matter and fled written statement denying all the contentions made

in the plaint.

5. During the pendency of the suit, petitioner fled

application under Order XXVI Rule 9 of the Code of Civil Procedure

for inspection of the disputed compound wall of the Row House of the

petitioner for elucidating the matter in dispute. Respondent -

Municipal Corporation opposed this application.

6. Learned trial Court rejected the application fled by the

petitioner holding that by fling such an application the petitioner is

trying to collect evidence.

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7. Heard Shri Sonawane, learned counsel for the petitioner

and Shri Vaidya, learned counsel for respondent No. 1. None for

respondent No. 2.

8. Learned counsel Shri Sonawane submitted that the

Municipal Corporation has issued notice dated 6 th August, 2018

calling upon him to demolish the illegal construction of compound

wall made by the petitioner. He submitted that this application for

appointment of Court Commissioner is fled with an object that the

Commissioner will be able to elucidate whether construction is legal

or illegal. He submitted that the application is not fled for collection

of evidence. It is fled for elucidation of the matter in dispute. He

submitted that notice has been issued indicating therein that

petitioner has made encroachment and without measuring the land

encroachment cannot be decided. He, therefore, prayed for

appointment of Court Commissioner.

9. Learned counsel Shri Vaidya opposed the application

contending that the Municipal Corporation has not issued notice for

removal of encroachment. He submitted that the impugned notice

clearly states that the petitioner has made construction without prior

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permission from the Municipal Corporation. For deciding whether

construction is legal or illegal, appointment of Court Commissioner is

not necessary. He, therefore, prayed for rejection of the application.

10. From the impugned notice dated 6th August, 2018, it

cannot be inferred that the Municipal Corporation has issued notice

for removal of encroachment. Notice specifcally states that the

petitioner has made construction of compound wall without

obtaining prior permission from the Municipal Corporation. The

notice nowhere indicates that the petitioner has made encroachment

by constructing a compound wall. For deciding whether construction

was without permission or with permission, appointment of Court

Commissioner is not necessary.

11. In this view of the matter, I do not see any substance in

the petition. Learned trial Court committed no error in rejecting the

application. Writ petition is bereft of any merit. Hence it is

dismissed with no order as to costs. Rule discharged.

( M. G. SEWLIKAR ) Judge dyb