Petitioner challenged alleged construction on a street via writ petition. Bench observed jurisdiction limited to street allegation only. Found petition misconceived as construction was unauthorized building not on street, relying on reply affidavit.
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933WP2495-17
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
WRIT PETITION NO. 2495 OF 2017
Balurao s/o Bapurao Bansode, Age : 64 Years, occu : Retired School Teacher, R/o : At post Bhimnagar, Ahmedpur, Tq. Ahmedpur, Dist. Latur. ...Petitioner
Versus
Mr. A. A. Mukhedkar, Advocate for Petitioner Mr. S.M. Ganachari, AGP for Respondent Nos. 1 and 3 Mr. V.P. Latange, Advocate for Respondent No. 2 Mr. G.R. Syed, Advocate for Respondent Nos. 4 and 5
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CORAM : P.B.VARALE AND MANISH PITALE, JJ.
DATE: 23rd AUGUST, 2018
ORDER :-
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The learned counsel also relied on the affidavit filed on behalf of the Municipal Council to submit that the Council admits that the construction is on street. The learned counsel then placed reliance on the Judgment of the Apex Court reported in AIR 2005 SC 1794 in the matter of
Mahendra Baburao Mahadik Vs. Subhash Krishna Kanitkar and others. Though the submission of Mr. Mukhedkar looks attractive at the first flush, on going through the material placed on record, we are of the clear opinion that the petition is misconceived. The petitioner in
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support of his submission, placed heavy reliance on the documents i.e. Exhibit "B". Even the perusal of the document, panchanama, nowhere states that it is an authoritative statement of the Council that the construction is erected on the street, it only refers to a part of construction being an unauthorized construction. Mr. Mukhedkar also made an attempt to submit before us that the council admits this factual position in the reply. Even perusing the reply and more particularly, paragraph 4 and 5 of the reply, we are unable to accept the submission of Mr. Mukhedkar, the learned counsel for the petitioner. Paragraph Nos. 4 and 5 of the affidavit in reply are as follows :-
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cannot be any dispute on the preposition of law reflected in the judgment of the Apex Court relied on by the learned counsel, we are of the opinion that the judgment hardly helps the petitioner on the backdrop of the facts which we have referred to in the earlier part of the order.
( MANISH PITALE, J ) ( P.B.VARALE, J )
mta
1 issue framed by the court
Whether construction alleged by petitioner as being on public street is unauthorized building under Maharashtra Regional and Town Planning Act.
Colour shows how this judgement treated each authority
Mahendra Baburao Mahadik Vs. Subhash Krishna Kanitkar and othersDistinguished¶21
AIR 2005 SC 1794 · Who else cites this
Balurao s/o Bapurao Bansode
The State of Maharashtra, Through its Secretary in the Department of Municipal Administration
The Municipal Council At Ahmedpur
The District Collector, Latur
Sayyed Zabin Mustafa
Shaikh Saber Jilani Shaikh
P.B. VARALE
MANISH PITALE
As recorded by the court registry
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