High Court of Bombay dismissed a Writ Petition seeking mandatory direction for access to a landlocked plot and prohibition of certificate issuance, holding that disputed facts necessitate a civil suit as the appropriate remedy.
Petition dismissed on ground of alternate efficacious remedy by filing a suit.
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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BDPPS
IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 1530 OF 2015 WITH CHAMBER SUMMONS NO.16 OF 2016 IN WRIT PETITION NO.1530 OF 2015
Mr. Umesh Madhusudan Chande and Anr.
….Petitioners.
V/s
Brihanmumbai Mahanagar Palika and Anr. ….. Respondents.
Mr. Joaquim Reis, Senior Counsel with Mr. Mehul Rathod i/b Mr. Kaushik Kothari for the Petitioners.
Ms. Shobha Ajit Kumar for Respondent/BMC.
Mr. Piyush Shah for Respondent No.2.
Mr. Omkar Kulkarni for the Applicant in Chamber Summons No.16 of 2016.
CORAM: V. M. KANADE &
M.S. KARNIK, JJ.
DATE: 6th April, 2016
P.C.:-
1 By this Petition which is filed under Article 226 of the Constitution of India, Petitioners are seeking the following reliefs:-
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(a) That this Hon'ble Court be pleased to issue a writ of Mandamus or a Writ in the nature of Mandamus or any other appropriate Writ, Order or Direction directing the Respondent Nos. 1 Corporation to provide “Access” to the Landlock Plot belonging to the Petitioners through the Adjoining Plot belonging to the Respondent No.2;
(b) That this Hon'ble Court be pleased to issue a writ of Prohibition or a Writ in the nature of Prohibition or any other appropriate Writ, Order or Direction restraining the Respondent No.1 Corporation from issuing any Occupation and/or Building Completion Certificate to the Respondent No.2 for the said building “Silver Heights”;
(c) That by a mandatory order and injunction of this Hon'ble Court, the Respondent No.1 Corporation be ordered and directed to derive / obtain a road of entry or an “Access” to the Landlock Plot of the Petitioners from the Adjoining Plot of the Respondent No.2;
(d) That pending the hearing and final disposal of this Writ Petition, by an order and injunction of this Hon'ble Court, the Respondents No.1 by themselves and by their servants, agents and representatives, be restrained from issuing an Occupation and/or Building Completion Certificate to the Respondent No.2 in respect of the building “Silver Heights” constructed by the Respondent No.2 upon the Adjoining Plot described in the Second Schedule written in Exhibit “A” hereto and thereby giving permission to any flat
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purchaser to occupy any flat in said building “Silver Heights” prior to grant of Occupation and/or Building Completion Certificate by the Respondent No.1 Corporation to the Respondent No.2.
(e) That by an order and injunction of this Hon'ble Court, the Respondent No.2 and by itself and its servants, agents and representatives be restrained from in any manner obstructing the Petitioner's use of the “Access” or “Road” for ingress and egress to the said Plot from the Adjoining Plot belonging to the Petitioners;
(f) that pending the hearing and final disposal of the above Petition, this Hon'ble Court be pleased to appoint a Commissioner for the purpose of visiting the said Plot and the Adjoining Plot for making an inventory and submitting a report thereof to this Hon'ble Court;
(g) that interim and ad-interim reliefs be granted to the Petitioners in terms of prayers (c ), (d) and (e) above;
(h) that such further and other reliefs be granted to the Petitioners as nature and circumstances of the case may require;
(i) that the Respondents be ordered to pay the costs of this Petition to the Petitioners.”
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efficacious remedy of filing a suit. Mr. Reis, the learned Senior Counsel appearing on behalf of the Petitioners, on the other hand, invited our attention to para 8 of the affidavit-in-reply. He submitted that in view of this, the only dispute is regarding payment of consideration to the Respondent/Corporation
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parties are kept open.
(M.S. KARNIK, J.) (V.M. KANADE, J.)
2 issues framed by the court
Whether the Writ Petition relating to the Petitioners' right of access to a landlocked plot is maintainable in this Court given the existence of disputed questions of fact.
Whether an alternate efficacious remedy of filing a suit in the Civil Court precludes the Court from exercising its jurisdiction under Article 226.
1 provisions across 1 enactments
Umesh Madhusudan Chande and Anr.
Brihanmumbai Mahanagar Palika and Anr.
V. M. Kanade
M.S. Karnik
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
