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2023 Supreme(Bom) 117
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Milind N. Jadhav, J.
Dr. Ravindra Rajaram Patil and ors. – Petitioners
Versus
Yuvraj Appaso Neharkar – Respondent
Writ Petition No. 12657 of 2022
Decided On : 24-01-2023
Advocate Appeared:
For the Petitioner:Mr. Ashutosh M. Kulkarni i/by Mr. Akshay Kulkarni, Advocate
For the Respondent:Mr. Surel S. Shah a/w. Mr. Ranjeet Patil, Advocate
Headnote:
Maharashtra Regional and Town Planning Act, 1966 – Section 37 – Maharashtra Gunthewari Developments (Regulation, Upgradation and Control) Act, 2001 – Section 5, 20 – Planning Authority – Whether suit property belongs to him – Held, Court has also returned its findings and held that balance of convenience is in favour of Petitioners – Perusal of impugned order by Appellate Court shows that learned Appellate Court ought to have seen that development carried out by Petitioners was in accordance with development permission or otherwise – Perusal of pleadings clearly show that there are disputed questions of fact raised by Respondent, however at time of hearing Application for temporary injunction, well settled principles of prima-facie case, conduct of Respondent and irreparable loss / balance of convenience are to be adhere to and same have been adequately gone into by learned Trial Court and court find that completely missing in order of learned Appellate Court – Court find that learned Trial Court has adequately dealt with aforementioned principles and given its findings – Learned Appellate Court however has merely given cursory findings – Hence, impugned order passed by learned Appellate Court calls for interference and deserves to be set aside – Ordered Accordingly.
JUDGMENT:
1. By the present Writ Petition filed under Article 226 of the Constitution of India, Petitioners have challenged the impugned Judgment and Order dated 28.09.2022 passed by the learned District Judge-1, Sangli (for short “Appellate Court”) in Misc. Civil Appeal No.199 of 2022. By the impugned Judgment, the learned Appellate Court has set aside the order dated 05.09.2022 passed below Exhibit-5 in Regular Civil Suit No.265 of 2022 filed by Respondent in the Trial Court.
2. Such of the relevant facts which are necessary to decide the present Writ Petition are as under : -
2.1. Plaintiff (Respondent herein) filed Regular Civil Suit No.265 of 2022 for seeking perpetual injunction against Defendants (Petitioners herein) in respect of suit property described in paragraph No.1-B of the plaint. Plaintiff was aggrieved with the use of an area admeasuring 130 ft. into 12 ft. D.P. Road situated in between his property and Defendants’ property which are adjacent to each other. Admittedly, Defendants developed their property on Survey No.32 after following the due process of law and have constructed a hospital after adhering to the sanctioned development plan and left the set back area i.e. open spaces on all four sides of the developed building. According to the sanctioned plan, there is a right of ingress and egress on the eastern side and western side provided in the plan for parking of vehicles into the basement below the hospital building.
2.2. Plaintiff is the owner of Survey No.34-A(1) on the western side adjacent to Survey No.32 and separated by the alleged disputed area of D.P. Road in between the two properties.
2.3. Plaintiff is aggrieved and claims to be the owner of the entire disputed road area and on that ground he has filed a suit in the Trial Court. He is aggrieved with the Defendants regarding the ingress and egress provided by the Corporation in the sanctioned plan to Defendants on the ground that he is the owner of this disputed road area.
2.4. Though it is claimed by Plaintiff that this disputed road area belongs to him, there are disputed questions of fact which have been pleaded by him in the plaint which will require evidence to prove that this disputed road area indeed belongs to his ownership.
2.5. Alongwith the Civil Suit, Plaintiff filed Application below Exhibit-5 for temporary injunction to restrain the Defendants from completing construction on this disputed portion so as to enable them to access their parking facility in the basement of their building.
2.6. According to Defendants, the primary defence is that description and claim of the suit property made by Plaintiff in the suit plaint is incorrect. That the entire description of suit property given by Plaintiff in the suit plaint claiming to be its owner and in possession is false and contrary to the record of ownership. According to Defendants, on the western side of the suit property there are two hotels / eateries; viz. Radhey Garden and Gavthi Katta and the old wall description claimed to be owned by Plaintiff which in fact belongs to the ownership of Chattrapati Shahu Institute in old Survey No.875 situated adjacently.
2.7. Defendants have also placed on record material to show the existence of the suit property and Plaintiff’s property distinctly. Plaintiff has been running an eatery called Kolhapuri Jhatka Hotel on the adjacent plot i.e. Survey No.34-A(1). Admittedly, his eatery has a barbed wire fencing which distinctly separates it the Petitioners’ property on Survey No.32 and the alleged contentious D.P. Road area in between the two properties.
2.8. According to Defendants, the D.P. Road area in between two properties belonged to the State Government, but has now been cancelled after following the due process of law by the Corporation.
2.9. Defendants have pleaded that the Planning Authority has sanctioned the development of the property in accordance with the provisions of the Maharashtra Regional and Town Planning Act, 1966 (for short “MRTP Act”
