The Bombay High Court at Aurangabad disposed of a Writ Petition alleging encroachment by society members on a public road. The Court directed the Chief Officer, Municipal Council to take steps on the matter and kept all issues open without opining on merits.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD
WRIT PETITION NO.4719/2009
Marutirao Keshavrao Jagtap and others
.. Petitioners
Versus The State of Maharashtra and others
... Respondents
Mr.S.S.Thombre,Adv.for petitioners. Mr.S.K.Kadam,AGP for respondents 1 & 2. Mr.S.P.Shah,Adv.for R.3 Mr.U.L.Momle,Adv.for R.4 & 5 Absent. Mr.R.D.Biradar,Adv.for R.6 Mr.Umakant Patil,Adv.for R.7 & 8.
CORAM : NARESH H.PATIL AND T.V.NALAWADE, JJ. DATE : 24th NOVEMBER, 2011
ORAL ORDER
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2] The petitioners and respondents 4 to 9 admittedly are members of the Yeshwant Cooperative Housing Society, Udgir. Some of the respondents had constructed their residential houses in the year 1975 and onwards. But according to the petitioners, it was noticed that the respondents 4 to 9 even constructed more than the permissible limits which has caused encroachments on the service road abutting the highway. The representation in this regard was made to various authorities by petitioners including the Collector and the Chief Officer, Municipal Council, Udgir. It is further contended that respondents 4 and 5 filed a Regular Civil Suit No.161/2005 claiming injunction against the municipal council. By judgment and order dated 20/4/2007 the Suit was dismissed. Appeal against the same is pending according to Shri Shah, counsel for municipal council.
3] The learned counsel for the petitioners submits that the municipal council is supposed to act on the basis of available material before it, in case it is noticed that the respondents have encroached on the public property/road which is used by public /
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members of society.
4] Respondent no.3 filed affidavit in reply today. In para 1 of the reply, the municipal council contends that respondents 4 to 9 encroached upon public property and have carried out constructions beyond permissible limits. Learned counsel Shri Shah for the municipal council submits that an Appeal bearing No. 70/07 in respect of the same subject matter is pending in the Civil Court, therefore, the municipal council was waiting for final disposal of the Appeal for taking steps accordingly.
5] The learned counsel Shri Umakant Patil appearing for respondents 7 and 8 submits that the petition raises disputed questions of facts and being matter in respect of dispute regarding the property involving members of a cooperative housing society, there is an alternate statutory remedy and so the Petition is not maintainable. Learned counsel for respondent no.6 submits that Civil Suit was filed by respondents 4 and 5. None appears for respondents 4 and 5. We have perused the material placed before
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this Court and the replies filed. This Court would not enter into the questions of facts in respect of the construction, public road and the alleged encroachment made by the parties. The petitioner has placed on record certain documents, notes of panchanamas in support of his contention that there has been encroachment on public property. Representation was already filed in the year 2008, copy of which was forwarded to the municipal council. In the facts of the case, the Chief Officer, Municipal Council, Latur shall resort to appropriate steps in accordance with law in respect of the contentions raised by the petitioners that the respondents 4 to 9 made alleged encroachments on public property. All issues are kept open. Writ Petition is disposed of. This Court has not opined on merits of any issues raised by the parties.
(T.V.NALAWADE, J.) (NARESH H. PATIL,J.)
umg/wp4719-09
2 issues framed by the court
Whether the Writ Petition alleging encroachment by society members on public property is maintainable.
Whether the Municipal Council or Chief Officer should take appropriate steps regarding the alleged encroachment.
Marutirao Keshavrao Jagtap and others
The State of Maharashtra
Yeshwant Cooperative Housing Society, Udgir
NARESH H PATIL
T V NALAWADE
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
