Shantaram Hari Dusane vs Dhule Municipal Corporation, ...
2022 Latest Caselaw 114 Bom

                                                      921 CA 14034 21 in SA 624 21.odt

                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              BENCH AT AURANGABAD

                     921 CIVIL APPLICATION NO. 14034 OF 2021
                        IN SA/624/2021 WITH SA/624/2021

                  SHANTARAM HARI DUSANE
                             VERSUS
DHULE MUNICIPAL CORPORATION, DHULE, THROUGH COMMISSIONER
        OF MUNICIPAL CORPORATION, DHULE AND ANR
                                 ...
        Advocate for Appellant : Mr. Deshmukh Mahesh S.

                              CORAM                : MANGESH S. PATIL, J.

                              DATE                 : 04.01.2022.


PER COURT :

Heard learned advocate Mr. Deshmukh for the appellant.

2. The appellant is a original plaintiff who succeeded in obtaining a decree for perpetual injunction against the respondent-Municipal Corporation. A notice under Section 53(1) of the Maharashtra Regional and Town Planning Act, 1966 was served not on him but on the tenant occupying the premises. Though the Trial Court found him entitled to claim perpetual injunction since the notice was not issued to him, the Appellate Court has taken a contrary view. It has held that since he had not challenged that notice and the premises was in possession of the tenant and not in his possession, it has quashed and set aside the decree passed by the Trial Court and dismissed the suit.

3. I have carefully gone through the judgments of both the Courts below. Prima facie no dispute has been raised about the appellant being the owner of the property. There is also no dispute that he was never served with any notice under Section 53 of the M.R.T.P. Act. Even there is no dispute about the fact that the property is in occupation of his tenant which is a school being run by some educational institute. If this is so, there is prima facie

921 CA 14034 21 in SA 624 21.odt case in favour of the appellant to protect his possession and he would suffer irreparable loss and inconvenience if in the meanwhile the respondent proceeds to execute the notice and demolishes the premises. Temporary injunction was in force during pendency of this suit.

4. In view of the above, there shall be ad interim relief in terms of prayer clause 'C' of the application till the next date.

5. Issue notice in the appeal as also in Civil Application, returnable on 15.02.2022, subject to compliance of the office objections within two weeks from today.

(MANGESH S. PATIL, J.) mkd/-