Dismissed

Mahendra Kanhaiyalal Jain v. the Municipal Corporation, Jalgaon and Others

Bombay HC14 Dec 2016WP/5862/2015

Case brief

AI extract

What is this about?

The High Court disposed of a writ petition challenging a construction in Jalgaon. The Court held that since an occupancy certificate was granted, the petitioner could not presume non-compliance. Further, the petitioner lacked standing as he was not adjacent to the property. The writ was dismissed.

What did the court decide?

Writ petition disposed of with no costs; civil application also disposed of.

Mahendra Kanhaiyalal Jain Vs the Municipal Corporation… — Property and Title | Bombay HC (2016)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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7 WRIT PETITION NO. 5862 OF 2015
WITH CA/10562/2016 IN WP/5862/2015

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MAHENDRA KANHAIYALAL JAIN

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VERSUS

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THE MUNICIPAL CORPORATION, JALGAON AND OTHERS

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...

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Advocate for Petitioner : Mr. Sant Kishor C.
AGP for Respondents State: Mrs. P. V. Diggikar
Advocate for Respondents 1 and 2 : Mr. Shrikant S. Patil
Advocate for Respondent No.4 : Mr. S. P. Brahme h/for Mr. M.
V. Navandar

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Advocate for the applicant in CA/10562/2016: Mr. G. R. Syed

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CORAM: S. V. GANGAPURWALA &
K. L. WADANE, JJ.
 DATE:14th December, 2016

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ORDER:

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1. The petitioner who has invoked the jurisdiction

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of this Court under Article 226 of the Constitution of

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India, assails the construction carried out by
respondent No.4. In fact he is a stranger to the said
construction. The petitioner is no way concerned with
the property over which the construction is carried out
by respondent no.4. Even the property of the petitioner
is not abutting to or adjacent to the construction
carried out by respondent No.4.

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2. Mr.Sant, the learned counsel for the petitioner
submits that respondent No.4 and respondent Nos. 1 and

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2 were duty bound to comply with the building bylaws.

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Respondent No.4, without obtaining any legal and valid
construction permission, carried out the construction.
In 2014, the grievance was made by the petitioner that

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the construction carried out by respondent No.4 is
illegal. This Court, in Writ petition bearing No.
5853/2014 directed the Corporation to complete enquiry
within a period of 12 weeks and to take appropriate
action, if warranted, after extending an opportunity of
hearing to all concerned. 21 points were raised by the
petitioner in the enquiry that was conducted. No
satisfactory reply was given. The Authorities, on the
contrary, were expecting that respondent no.4 would
file an application seeking permission for construction
of second floor. Even no finding was given about the
parking space not being left so also the margin space
of 3 meters was not being left by respondent No.4. The
authorities, when had come to the conclusion that
respondent No. 4 had not given any application for
construction permission for the second floor, ought to

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have taken action. However, the authorities were
waiting for respondent No.4 to file an application
seeking permission. The said act of the authorities
have to be deprecated. In fact, during the pendency
of the present writ petition and when the cognizance

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was taken by this Court, respondent No.4 moved an
application seeking construction permission for the
second floor and with a jet speed, the same was granted
by the authority. In fact, the same amounts to contempt
of the orders of this Court. When this Court was seized

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with the matter, the authorities could not have
permitted or regularized the illegal construction of
respondent No.4. The learned counsel relies on the
judgment of the Division Bench of this Court in case
of Sindhu Education Society Vs. Municipal Corporation
of city of Ulhasnagar, reported in 2001(1) Mh.L.J.894.

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3.The learned counsel submits that if the

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construction is illegal and unauthorized then the same
has to be raised to the ground. Equities also cannot
be used in favour of such a construction and the Court
should also refrain from regularizing the same. The
learned counsel relies on the judgment of the Apex
Court in case of Esha Ekta Apartments Vs. Municipal
Corporation of Mumbai, reported in 2013 (5)Mh.LJ 13.

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4. Learned counsel for the petitioner further
relies on Section 478 of the Maharashtra Municipal
Corporation Act to suggest that if any work or thing
requiring the written permission is done without

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obtaining such permission, then such work is deemed to
be unauthorized and same has to be removed and pulled
down. The Authorities, instead of resorting to section
478 of the Act, on the contrary, allowed respondent
No.4 to go ahead with the illegal construction. The
authorities ought to have taken action then and there
itself. However, during the enquiry also, the reply and

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the reason given by them depict that they wanted to
ignore the illegal construction and were waiting for an
application for permission for that illegal
construction. The learned counsel submits that the
petitioner wants the provisions of the laws to be
abided and that is why, has moved this Court.

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5. Mr. Bramhe, the learned counsel for respondent

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no.4 submits that it is not a case that without

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permission, the construction was carried out.
Permission for construction of basement and upper
ground floor was already granted in February, 2010 and
then on 21st August, 2010 further permission was granted

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to raise first and second floor. Some revision was
sought in the construction permission of second floor
and that revised permission was granted in October,
2016. The completion certificate has also been granted

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in respect of the said construction. Learned counsel

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submits that the provisions of bylaws have been adhered
to.

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Corporation submits that the petitioner has a personal
grievance against respondent no.4 and the same is
sought to be raked up by filing the present writ
petition. According to the learned counsel, while
granting completion certificate, the provisions of
bylaws have been adhered to and upon satisfaction of

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the construction being as per the construction
permission and the bylaws, completion has been granted.

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7. We have considered the submissions canvassed by
the learned counsel for the respective parties.

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8. As on date, respondent No.4 has produced the
occupancy certificate for the entire building. The
construction permission is on record. On 21.08.2010,
construction permission is given for first and second
floor and also, earlier the construction permissions
appears to have been given for the basement and the
ground floor.

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9. In writ jurisdiction, it would not be possible
to enter into the arena of disputed question.

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10. As on date, as even the occupancy certificate
has been granted by the Municipal Corporation, we
cannot presume that the construction of respondent No.4
would be against the bylaws. As such, the directions as
sought cannot be given today. However, one thing is
manifest that when the enquiry was being conducted, the
authorities had come to the conclusion about the second

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floor not having a valid permissions and had opined
that the owner would be filing application for the
same. At that time, the Corporation could have taken
further action. Be that as it may, thereafter it
appears that revised permission sought for the same was
granted and even occupancy certificate was granted.
Initially on 21.08.2010, it appears that permission was

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granted to erect first and second floor also. The
permission to erect second floor is purely for
residential purpose, whereas ground floor and first
floor is partly for commercial and partly for
residential purpose. Naturally, if the permission is

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granted for part commercial and part residential, the
construction has to be in consonance with the same and
the user also has to be in consonance with the same.

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It is for the authorities to consider whether the
user is as per the occupancy certificate, which the

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authorities are bound to consider.

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11. Considering the fact that as on date occupancy
certificate has been granted in favour of respondent
No.4 of the entire building, it would not be possible
to accept the contention of the petitioner, who is in
no way affected by the said construction, as he is
neither abutting nor adjacent to the property of
respondent No.4.

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12. Writ petition is accordingly disposed of. No
costs.

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13. In view of disposal of writ petition, civil
application also stands disposed of.

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(K. L. WADANE, J.) (S. V. GANGAPURWALA, J. )

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JPC

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Mahendra Kanhaiyalal Jain v. the Municipal Corporation, Jalgaon and Others

Case brief

What is this about?

What did the court decide?

Mahendra Kanhaiyalal Jain v. the Municipal Corporation, Jalgaon and Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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Cases cited

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