Disposed

M/S. Rajkumar Builders Pvt. Ltd. v. State of Maharashtra through the Secretary Urban Development Dept. and Ors.

Bombay HC5 Aug 2014CAW/995/2013

Case brief

AI extract

What is this about?

This order permits the applicant to erect fencing along a disputed plot while adjudicating a challenge to an arbitrator's decision and a government letter, provided the applicant serves notice and does not claim equitable possession.

What did the court decide?

Permission to erect fencing provided subject to notice service, municipal approval, non-claim of possession, and availability of police protection.

M/S. Rajkumar Builders Pvt. Ltd. Vs State of… — Municipal and Town Planning | Bombay HC (2014)

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6.CA.995-13.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.995 OF 2013 IN

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WRIT PETITION NO.2776 OF 2008

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M/s. Rajkumar Builders Pvt. Ltd. ..Applicant Versus State of Maharashtra & Ors. ..Respondents

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Mr. Sanjeev Kadam i/b. Prashant Jadhav, for the Applicant. Mr. V.P. Malvankar, AGP, “A” Panel, for Respondent No.1. Mr. Sudhir Prabhu, for Respondent No.2.

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CORAM : A.S. OKA, AND A. S. CHANDURKAR, JJ. DATE : 05^th AUGUST, 2014

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P.C.

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As of today there is no dispute between the parties that the illegal structures / encroachments on plot No.197 have been removed by the second respondent – Municipal Council.

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The applicant is the petitioner in the Writ Petition. The challenge in the Petition is to the action of arbitrator under the Town Planning Scheme under the Maharashtra Regional and Town Planning Act, 1966 of dividing the final plot No.197 into two plots by carving out a separate plot No.197A. A part of the final plot No.197 has been constructed upon by the applicant.

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Apart from the challenge to the decision of the arbitrator, there is also a challenge to a letter dated 5^th April,

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6.CA.995-13.doc

2006 issued by the State Government to the applicant.

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The learned Counsel appearing for the applicant submitted that the applicant is in possession of the entire original plot No.197. The submission of the learned Counsel appearing for the planning authority is that only the portion of the said plot which is constructed upon is in possession of the applicant and the rest of the portion is in possession of the Municipal Council which is the Planning Authority. The learned Counsel appearing for the applicant, on instructions, states that without going into the issue of possession and without claiming any equity, the applicant is ready and wiling to erect a fencing along the boundary of the final plot No.197 totally admeasuring 2754.20 square meters. He states that the applicant is willing to take the said step only with the object of preventing further encroachments on the said plot during pendency of the Petition. He pointed out that on more than one occasion, the Municipal Council was required to remove the encroachments during pendency of the Petition.

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As the applicant is not claiming any equity, the prayer made by the applicant deserves to be accepted with a view to ensure that there are no encroachments made on the said plot till the dispute in the main Writ Petition is decided.

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We according dispose of the application by passing the following order :

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i. Subject to final outcome of the main Writ Petition, it will be open for the applicant to erect the fencing along the

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6.CA.995-13.doc

boundary of final plot No.197 at his own costs. However, the applicant shall not be entitled to claim any equity on the ground that a permission has been granted by this Court to construct the fencing;

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ii. On the basis of this order, the applicant shall not be entitled to claim that he is in possession of the entire said plot. The contested issue as regards the possession of the balance portion of plot No.197 is expressly kept open to be decided in the main Writ Petition;

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iii. However, before erecting the fencing, the applicant shall serve sufficient advance notice to the Chief Officer of the Municipal Council. It will be open for the Chief Officer to nominate any Officers of the Municipal Council to remain present at the time of erection of the fencing by the applicant;

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iv. On an application being made by the applicant, the Municipal Council shall grant formal permission for erecting the fencing;

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v. In the event police protection is required at the time of erecting the fencing, the concerned local police station shall provide necessary police protection on production of an authenticated copy of this order;

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vi. Civil Application is disposed of on above terms.

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(A. S. CHANDURKAR, J.) (A. S. OKA, J.)

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M/S. Rajkumar Builders Pvt. Ltd. v. State of Maharashtra through the Secretary Urban Development Dept. and Ors.

Case brief

What is this about?

What did the court decide?

M/S. Rajkumar Builders Pvt. Ltd. v. State of Maharashtra through the Secretary Urban Development Dept. and Ors.

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

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