Amol Bhalchandra Lad v. The Municipal Corporation Aurangabad And Another

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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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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 6th 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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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 6th 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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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