Allowed

Shri. Mahadev Kondiba Wagh and Ors. v. Satara Nagar Parishadh, Satara and Ors.

Bombay HC14 Dec 2012WP/5769/2012

Case brief

AI extract

What is this about?

This writ petition challenged a trial court's rejection of an application for police aid protecting the petitioner's right to construct on his sanctioned property. The High Court allowed the petition, held that appeal filing does not automatically stay the injunction, and directed the Superintendent of Police to provide aid.

What did the court decide?

The impugned order rejecting the application for police aid is set aside; the petitioner's application is allowed, and the Superintendent of Police is directed to provide necessary police aid for cons

Shri. Mahadev Kondiba Wagh and Ors. Vs Satara Nagar… — Specific Performance | Bombay HC (2012)

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WP – 5769 /12.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO. 5769 OF 2012

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Mahadev Kondiba Wagh & Ors. Versus Satara Nagar Parishad, Satara and Others.

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..Petitioners.

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..Respondents.

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Mr. P. B. Gujar for the Petitioner. Mr. P. B. Shah for Respondent No. 1. Mr. R. H. Patil for Respondent Nos. 2 to 8.

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Coram : RANJIT MORE, J. Date : December 14, 2012 .

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P. C. :

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Rule. Rule made returnable forthwith. Counsel for the respondents waive notice for the concerned respondents. As controversy involved is short, petition is taken up for final disposal forthwith by consent.

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The Petitioner, who is original Plaintiff by filing this writ petition under Article 227 of Constitution of India is challenging the impugned order whereby his application at Exhibit-68 for police protection is rejected by the learned trial Court. Few facts giving rise to the present petition are as follows :

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The dispute is about City Survey No.94/A, admeasuring 924 sq. meter situated at Peth Kamathi Pura, Satara city (for short, “ the suit property ”). The suit property was allotted to one Chandrakant Bhurke by the Collector, Satara on 29/12/1950. Said Chandrakant Bhurke, in turn, sold the suit property to the Petitioners by registered sale-deed in the year 1970. These facts are admitted by the Respondents. In the year 2005, the Petitioners entered into development agreement and submitted the plans to Respondent No.1– Municipal Council. The plans are sanctioned on 16/10/2010 and commencement certificate is also granted. The Petitioner in pursuant of this plan, commenced construction work. However, it was obstructed by Respondent No.2, who is a local corporator with the help of Respondent Nos.3 to 8, the persons from the constituency of Respondent No.2. The Petitioner, therefore, filed suit being Regular Civil Suit No.93 of 2011 for injunction restraining the Respondents from obstructing him from carrying out construction in pursuance of the sanctioned plans.

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. In this suit, application at Exhibit-5 was filed for temporary injunction in terms of the permanent injunction

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WP – 5769 /12.

claimed in the suit. The learned trial Court by its order dated 9/11/2011 restrained the Respondents from obstructing the construction work being carried out in the suit property.

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. Respondent No. 2 to 8 have not challenged the interim order of injunction, however, interestingly Respondent No.1 has challenged the same before the appellate Court - District Court, Satara. In view of delay, an application for delay condonation is also filed.

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The fact remains that trial court's order referred to above, granting temporary injunction in favour of the Petitioner is not disturbed or stayed by any superior Court. Despite this, Respondent Nos.2 to 8 are causing obstruction to the Petitioner from making construction on the suit property. The Petitioner, therefore, filed application at Exhibit- 68 under section 151 of the Code of Civil Procedure, 1908 for police aid. As stated above, this application is rejected and therefore present writ petition.

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Trial Court has rejected Petitioner's application for police aid at Exhibit-68 on the ground that Respondent No.1 has challenged the order granting temporary injunction before

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the appellate Court and said appeal is pending. In my view, this reasoning cannot be sustained. It is settled law that filing of an appeal by ipso facto does not operate as a stay to the trial court's order under challenge. In the present case, it is pertinent to note that lay out plans were sanctioned by Respondent No.1 itself on 16/10/2010. The Petitioner is being obstructed from making construction by Respondent Nos.2 to

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Though Respondent No.1 has filed appeal there is a delay and separate application for delay condontation is also filed and it is still pending. In the absence of any stay to the trial Court's order granting interim injunction in favour of the Petitioner, the said order granting injunction remains operative.

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Respondent Nos.2 to 8 also admit the allotment of the suit property in favour of the predecessor-in-title of the Petitioner and the Petitioner's ownership to the suit property pursuant to the sale deeds by the said predecessor in title. In these circumstances, in my view, the learned trial Court ought to have granted police protection to the Petitioner as same is necessitated to protect the Petitioner's right.

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Mr. Shah, learned counsel for Respondent No.1 tried to contend that the proceedings for cancellation of plans is in progress. However, he fairly admitted that as on today lay out plans or commencement certificate is not cancelled. The learned trial Court granted interim injunction as long back as on 9/11/2011 and till date, Municipal Council has not taken any action. In the light of this background, Municipal Council cannot oppose the grant of police protection to the Petitioner.

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After going through facts and circumstances of the case, I am satisfied that the Petitioner has made out case for police aid. In the above conspectus of facts and circumstances, the impugned order so far as it relates to application at Exhibit-68 is concerned, it is set aside. The Petitioner's application at Exhibit-68 is allowed. The Superintendent of Police, Satara is directed to give necessary police aid, subject to charges/costs as applicable, to the Petitioner for carrying out construction on the suit property as per the sanctioned plan. Rule is made absolute accordingly.

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(RANJIT MORE, J.)

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Shri. Mahadev Kondiba Wagh and Ors. v. Satara Nagar Parishadh, Satara and Ors.

Case brief

What is this about?

What did the court decide?

Shri. Mahadev Kondiba Wagh and Ors. v. Satara Nagar Parishadh, Satara and Ors.

Case brief

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What did the court decide?

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