Shreemangal Enterprises Throu. Tarachand Devishay Gupta v. Pramod Eknath Wankhedekar And ORS

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION WRIT PETITION NO.14450 OF 2024 SATISH RAMCHANDRA SANGAR Shreemangal Enterprises (A Proprietorship) Through:- Tarachand Devishay Gupta, Age : 68 Years, Occupation : Business, Resident of : Jaipur House, 24,

...Petitioner

Parjat Nagar, Taluka and District : Nashik (Original Plaintiff) SATISH RAMCHANDRA SANGAR Date: 2024.11.04 15:10:15 +0530

Versus

1.

Pramod Eknath Wankhedkar Age : 63 Years, Occupation : Retired, Resident of : Saraswati Nagar, Near Bali Temple, Plot No.44, Survey No.242/2/1/3, Samprawa, Nashik, Maharashtra : 422 003.

2.

Rajan Shantilal Lodha Age : 55 Years, Occupation : Retired, Resident of : Plot No.4 and 5, Survey No.252/1, Saraswati Mandir Road and Bali Mandir Premises, Nashik.

3.

Mahendra Keshav Patil Age : 41 Years, Occupation : Business, Resident of : Plot No.2, Survey No.52/2/3, Saraswati Mandir Road and Bali Mandir Premises, Nashik, Maharashtra : 422 003;

At present:- Plot No.2, Keshavanand Bungalow, Shanti Nagar, Hirawadi, Panchavati, Siddhivanayak Temple, Nashik.

4.

Chandrashekhar Kalu Patil Age : 48 Years, Occupation : Business, Resident of : Om Bungalow, Plot No.10, 1/6

Saraswati Mandir Road and Bali Mandir Complex, Panchavati, Nashik.

5.

Sachin Premchand Kothari Age : 42 Years, Occupation : Business, Resident of : Kothari Plaza, Plot No.1, Mumbai-Agra Highway, Near Bali Temple, Saraswati Temple Road, Nashik, Panchavati, Maharashtra : 422 003.

6.

Kailas Shankarrao Holkar Age : 56 Years, Occupation : Service, Resident of : Srihari, Plot No.12, Saraswati Mandir Road, Behind Kothari Plaza, Hanuman Nagar, Panchavati, Nashik - 2.

7.

The Commissioner Nashik Municipal Corporation, Nashik.

8.

The Executive Engineer Town Planning Department, Nashik Municipal Corporation, Sharanpur Road, Taluka and District :

...Respondents

Nashik.

(Original Defendants) ***** Mr.Shrishailya S. Deshmukh i/b. Mr.Nimish S. Parakh:- Advocate for Petitioner.

Mr.Anup Lahoti:- Advocate for Respondent Nos.1 to 6.

***** CORAM :

S. M. MODAK, J.

DATE :

22nd OCTOBER 2024 P. C. :- 2/6

1.

Heard learned Advocate for the Petitioner and learned Advocate for Respondent Nos.1 to 6 - Defendant Nos.3 to 8. 2.

The Defendant Nos.1 and 2 are served by private notice and an acknowledgment is produced. So also, they are served of today's circulation. Its photo copies are taken on record. Marked Annexure-X. 3.

Even though, there is a prayer for setting aside the common judgment dated 15th July 2024 (Page Nos.16-34) passed by the Appellate Court and the two orders passed below Exhibit-5 (Page Nos.35-39) and Exhibit-30 (Page Nos.40-49) dated 18th December 2023, learned Advocate for the Petitioner only pressed granting of relief in terms of prayer clause (b). It says about issuing directions to Defendant No.1 to decide the objections raised by the Defendant Nos.3 to 8. (wrongly typed as Defendant Nos.1 to 6) within one (1) month period.

4.

The Plaint is on Page No.76. My attention is also invited to the "stop work notice" dated 28th June 2022 (Page No.57) issued by the Town Planning Department-Nashik Municipal Corporation. The Plaintiff was asked not to continue with the construction until further decision is taken. It also mentions about issuance of building permission dated 16th April 2007. It also mentions about the hearing 3/6

taken place on 16th December 2010 by the Municipal Commissioner on the basis of objections taken by the residents. 5.

By way of Suit, the Plaintiff has challenged the "stop work notice" dated 28th June 2022. During pendency of Suit, a temporary injunction was sought. It was rejected by the trial Court and by the Appellate Court.

6.

It is true that "stop work notice" prohibits the Plaintiff from continuing the work till the time, further decision is taken. It is contended that up till now, no further decision is taken by the Corporation. That is also not pleaded in the Written Statement / Reply filed before the trial Court. It is contended that all the orders passed by the trial Court and the Appellate Court even do not mention about the final decision taken by the Corporation. The contention is, let a direction be given to Defendant No.1 - Nashik Municipal Corporation through the Commissioner to take a final decision on the objections taken by the residents on 18th November 2009. If, this direction is given, learned Advocate on instructions undertakes to withdraw the Suit and also undertakes not to carry out the remaining construction on the basis of building permission.

4/6

7.

I think, this is a fair submission. If it is accepted, the Suit will be disposed of. Even, liberty can be granted to the Petitioner to challenge that decision, if it goes against him. Hence, following order is passed:-

O R D E R

(i) The Defendant No.1-Nashik Municipal Corporation through the Commissioner is directed to decide the objections taken by the residents on 18th November 2009 (Defendants in stop work notice) as early as possible not later than three (3) months.

(ii) The Commissioner may decide it on his own or through his nominee.

(iii) The Officer to go through the documents and to hear the Plaintiff as well as the Defendant Nos.3 to 8 and to take an appropriate decision.

(iv) These directions are given on the undertaking that the Suit will be withdrawn within a period of two (2) weeks from today.

(v) The undertaking given that the Plaintiff will not carry out further construction on the basis of building permission dated 16th April 2007 and further permission dated 31st March 2022 is accepted as an undertaking given to the Court.

(vi) The Petitioner is granted a liberty to challenge the decision taken before the appropriate forum if it goes against him. 5/6

(vii) The decision be taken within three (3) months from the date of producing an authenticated copy of this order by the Petitioner to the Commissioner.

(viii) It is made clear that the Officer will decide the objection independently and this Court has not passed any observations on merit.

8.

In view of the above, Writ Petition stands disposed of. [S. M. MODAK, J.] 6/6