Dismissed

Mrs. Nutan Pathare v. Shri. Onali Faizanehusain Bohari (Since Decd) through Legal Heirs, Smt. Shirinbai Onali Vora and or

Bombay HC25 Aug 2014WP/5714/2012

Case brief

AI extract

What is this about?

Petitioner sought demolition of alleged unauthorized construction and production of permission records via writ petition. Court declined interference citing disputed questions of fact and existence of pending civil suit execution.

What did the court decide?

Writ petition rejected. Civil application dismissed. Ad-interim relief vacated. No adjudication made on disputed questions.

Mrs. Nutan Pathare Vs Shri. Onali Faizanehusain Bohari… — Landlord and Tenant | Bombay HC (2014)

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FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE AT BOMBAY. CIVIL APPELLATE JURISDICTION.

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WRIT PETITION NO. 5714 OF 2012 WITH CIVIL APPLICATION NO. 1245 OF 2014

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Mrs. Nutan Pathare … Petitioner V/s. Shri. Onali Faizanehusain Bohari & Ors. … Respondents

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Mr. Uday Warunjikar for the petitioner & applicant.

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Mr. A. Y. Sakhare, Sr. Counsel i/b Joel John Carlos for the respondent nos. 1A to 1c & 2A to 2E.

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Mr. Sudhir Prabhu for the respondent no.3.

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CORAM : A.S. OKA AND G. S. KULKARNI, JJ. DATED : 25/08/2014.

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P.C.:

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Heard learned Counsel appearing for the petitioner.

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2 By this petition under Article 226 of the Constitution of India, the Petitioner has prayed for following two substantive reliefs:

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“a) That issue a writ of mandamus or any other writ, order or direction in the nature of mandamus, directing the Respondent no.3 to demolish the unauthorized and illegal construction carried out by the Respondents no.1 to 2 at the suit property which is in dispute.

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b) That issue a writ of certiorari or any other writ, order or direction in the nature of certiorari directing the Respondent no.3 to bring the records pertaining to the permission granted to the Respondent for construction of the building.”

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Sneha Chavan

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3 There is no dispute that the petitioner is one of the plaintiffs in Regular Civil Suit No. 191 of 1987 filed in the Court of Joint Civil Judge, Junior Division, Panvel. The legal representatives of respondent nos. 1 and 2 were also parties to the said suit. The suit was decreed on 20^th December, 2005 and an application for execution of the said decree is pending.

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4 The learned Counsel appearing for the petitioner does not dispute that the land subject matter of this petition and the land subject matter of the decree is one and the same. He pointed out that in the affidavit-in-reply filed by Dr. Sudharkar T. Jagtap, the Chief Officer of the third respondent- Panvel Municipal Council, there is a categorical assertion that the Municipal Council has not granted any permission to the first and second respondents to carry out construction on the disputed land. He has relied upon the report of the Court Commissioner submitted in the pending execution application. He has also relied upon the opinion of structural Engineer/Architect dated 05^th August, 2014. He submits that these two documents clearly show that the legal representatives of the first and second respondent have carried out construction on the disputed portion of land, for which admittedly the Municipal Council has not granted any permission. He, therefore, submitted that the third respondent - Municipal Council as the planning authority must initiate appropriate action for demolition of illegal construction in accordance with law.

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5 We have given careful consideration to the submissions. In the affidavit-in-reply of Dr. Sudhakar T. Jagtap, the Chief Officer of the

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Sneha Chavan

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Municipal Council, a categorical statement has been made that Municipal Council has not granted development permission to the first and second respondents in relation to the disputed land. There is also categorical assertion that no construction has been carried out on disputed land as alleged by the petitioner. There is an affidavit filed by Shri. Ram Naresh Sunderlal Yadav, the Constituted Attorney of the first and second respondents, in which a similar statement has been made.

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6 If the concerned respondents have carried out construction in breach of the decree of perpetual injunction passed by the Civil Court in Regular Civil Suit No. 181 of 1987, the remedy of the petitioner is to execute the decree, for which the execution application is already pending.

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7 There is a serious dispute as to whether the contesting respondents have carried out any construction on the disputed portion. As stated earlier, the Chief Officer has stated on oath that the no construction has been carried out on the disputed portion. The issue whether the concerned respondents have carried out construction on the disputed portion involves adjudication of various factual aspects. The evidence will have to be adduced for recording finding on the said dispute. The documents relied by the petitioner are not at all conclusive. A report of the Court Commissioner has been submitted in the pending execution application and there is no final finding recorded by the Executing Court on the report of the Commissioner. The learned Counsel for the petitioner has relied upon an opinion of a Structural Engineer.

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Sneha Chavan

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8 Considering the fact that this petition involves disputed questions of fact, no interference is called for in writ jurisdiction. We, accordingly, decline to entertain the petition. The petition is rejected.

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9 However, we make it clear that no adjudication is made on the disputed questions arising in this petition. The remedies of the petitioner are kept open.

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10 Civil application no. 1245 of 2014 does not survive and same is dismissed. Accordingly, the ad-interim relief granted earlier stands vacated.

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(G. S. KULKARNI, J.)

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(A.S.OKA, J.)

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Sneha Chavan

Mrs. Nutan Pathare v. Shri. Onali Faizanehusain Bohari (Since Decd) through Legal Heirs, Smt. Shirinbai Onali Vora and or

Case brief

What is this about?

What did the court decide?

Mrs. Nutan Pathare v. Shri. Onali Faizanehusain Bohari (Since Decd) through Legal Heirs, Smt. Shirinbai Onali Vora and or

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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Statutes considered

Parties & counsel

Coram

Case details

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