Dismissed

Kalyan Dombivali Municipal Corporation, Through its Commissioner v. Shri Ankush Narayan Beturkar Through his Constituted Attorney, Shri Bajubhai Rajubhai Talavia

Bombay HC30 Jan 2013SA/139/2012

Case brief

AI extract

What is this about?

Second Appeal No. 139 of 2012 involving a dispute over an illegal wall structure. The single judge observed that the lower courts correctly appreciated the facts and found no substantial question of law or error on the face of the record.

What did the court decide?

Second Appeal rejected at the stage of admission. No order as to costs.

Kalyan Dombivali Municipal Corporation… — Civil Procedure and Limitation | Bombay HC (2013)

¶1

sa139-12.sxw

¶2

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 139 OF 2012

¶3

Kalyan Dombivli Municipal Corporation .. Appellant

¶4

v/s.

¶5

Ankush Narayan Beturkar ..Respondent/s

¶6

Mr.A.S.Rao for the Appellant. Mr.Vinod Jadhav for the Respondent

¶7

CORAM: R.Y.GANOO, J. DATED : 30^th JANUARY 2013.

¶8

P.C. :

¶9

Heard learned Advocates on both sides. The respondent herein

¶10

had instituted Regular Civil Suit No.234 of 2004 in the Court of Second Joint Civil Judge, Junior Division, Kalyan, on account issuance of the notice by the present appellants wherein it was alleged

¶11

that the respondent no.1 carried out construction of a wall without the permission of the Corporation. The said notice was issued as per Section 260 of the Maharashtra Regional and Town Planning Act, 1966 (for short “Said Act”). The suit ended in favour of the

¶12

pps 1/4

¶13

sa139-12.sxw

¶14

respondent in as much as the learned trial Judge, by judgment and decree dated 23.7.2007 decreed the suit and declared the action of the appellants in terms of letter dated 3.3.2004 as illegal and gave permission to the appellant to demolish the structure by following due process. This judgment was challenged by the appellants in Civil Appeal No.98 of 2007 by filing an appeal in the District Court. The learned District Judge has dismissed the said appeal by judgment and decree dated 7.12.2010.

¶15

Mr. Rao, learned Advocate, submitted that the construction of

¶16

the wall is in violation of the provisions of the said Act, in as much as the provisions of Section 156 of the said Act are attracted. He submitted that if the permission was granted by the earlier Authority, such as Gram Panchayat, and if the construction is carried out after coming into force of the said Act, it is necessary for such person wanting to construct to obtain a fresh permission from the Corporation.

¶17

pps 2/4

¶18

sa139-12.sxw

¶19

My attention was drawn to the final order passed by the Competent Officer of the Corporation who has observed that this compound wall is required to be demolished. In the said order an observation is made that the respondent had sought time from the Corporation to remove the said compound wall. The order dated 11.5.2004 mentions that the respondent had given an assurance that he will remove the wall. Before this Court, learned Advocate Mr. Rao could not produce the text of the said letter by which the respondent had sought permission to remove the wall pursuant to the notice issued against him. In my view, this decision dated 11.5.2004 cannot be treated as a proper decision. Apart from this, the learned District Judge has given a clear cut finding that the present respondent had obtained the permission to carry out the construction of the wall in the year 1979 when the Gram Panchayat was the Authority. As against this, learned Advocate Mr. Rao relied upon the submission made before the learned District Court that the Officer of the Corporation noticed construction of the wall afresh in or about 2004. In the first place, the said contention has been negatived by the District Court.

¶20

pps 3/4

¶21

sa139-12.sxw

¶22

Secondly, it is just impossible that a person who wants to put up the compound wall and who obtains a permission in the year 1979 will wait till 2004 for construction of a compound wall. The argument advanced by learned Advocate Mr. Rao that the provisions of Section 156 of the said Act are attracted to the facts of this case is required to be rejected in view of the aforesaid observation.

¶23

In my view, both the courts have appreciated the material before them in its proper perspective. No substantial question of law is involved. There is no error apparent on the face of record. The trial court has permitted the Corporation to carry out demolition of wall by following due process of law. In my view, that order by itself is clear and that order in my view brings about the balance between the parties.

¶24

Second Appeal is therefore rejected at the stage of admission. There shall be no order as to costs.

¶25

[R.Y.GANOO, J.]

¶26

pps 4/4

Kalyan Dombivali Municipal Corporation, Through its Commissioner v. Shri Ankush Narayan Beturkar Through his Constituted Attorney, Shri Bajubhai Rajubhai Talavia

Case brief

What is this about?

What did the court decide?

Kalyan Dombivali Municipal Corporation, Through its Commissioner v. Shri Ankush Narayan Beturkar Through his Constituted Attorney, Shri Bajubhai Rajubhai Talavia

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Smt. Banubi Abdul Kadir Mukadam Vs Smt. Noorjehan Abdul Rajjak

Kacharu Kalu Jagtap and Ors. Vs Gambhir Sayaji Salve (Decd) by Lrs. Shrimati Bhimabai W/O Gabhir Salve and Ors.

Virchand Popatlal Shaha Vs Sanjaykumar Manikchand Sadriya

Chandrakant Gangadhar Sakhare Vs Digambar Gangadhar Sakhare

Sou. Kamalavva Chanappa Katte Vs Shri. Basappa Virpad Dugani (Since Deceased Thr. L/H.) 1.1 Smt. Bhagirathi Basappa Dugani

Mayuri Mahesh Jadhav Vs Mahesh Sitaram Jadhav