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BOMBAY HIGH COURT
A.A. SAYED, ABHAY AHUJA, JJ
Shirish Bhaskar Sathye – Appellant
Versus
The Nashik Municipal Commissioner and Another – Respondent
Writ Petition No. 3086 of 2015
For the Appellants/Petitioners: Mr. Sanjeev P. Kadam, Mr. Aditya S. Targe, Sneha G. Sanap
For the Respondents:Mr. R. S. Apte, Senior Advocate, Mr. Vaibhav P. Patankar
Petitioner failed to prove non-compliance of previous orders, and could not revive previously settled issues instead of following due legal procedures.
Headnote:(A) Maharashtra Regional and Town Planning Act, 1966 - Section 88 - Relief sought for possession of land and removal of encroachments - Court determined that the Respondent Corporation complied with prior court orders regarding encroachments - The Petitioner was aware of encroachments prior to filing and could have pursued appropriate legal remedies instead of reopening the case - The case was dismissed. (Paras 4, 9, 10, 14)
(B) Compliance with Court Orders - Emphasizing substantial compliance with orders, highlighting the Petitioner's obligations and prior knowledge of existing encroachments. (Paras 10, 12)
Facts of the case:
The Petitioner sought possession of land and removal of illegal encroachments, previously filed a related Writ Petition seeking similar relief.
Findings of Court:
The Court found substantial compliance with previous orders and indicated that further directions were unnecessary.
Issues: Whether the Respondent Corporation fully complied with the prior court order concerning encroachments.
Ratio Decidendi: The court noted that the Petitioner had failed to pursue other available legal remedies and could not reopen issues already addressed.
Result: Writ Petition dismissed.
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| 1. prior compliance of court orders was substantially achieved. (Para 4 , 8) |
| 2. petitioner held accountable for prior knowledge of encroachments. (Para 10 , 11 , 12 , 13) |
(a) We accept the statements made on oath by Shri Vijay B. Shende and Shri Rohidas Mangu Bahiram in the afÏdavit dated 27th November 2014 as the statements made on behalf of the first Respondent Nashik Municipal Corporation
(b) The first Respondent Nashik Municipal Corporation shall comply with the said statements within the time stipulated in Paragraph 4 of the said afÏdavit;
(c) We direct the second Respondent to provide requisite police assistance to the ofÏcers of the first Respondent Municipal Corporation for removing encroachments on the plots described in Paragraph 4 of the said afÏdavit upon the OfÏcers of the Municipal Corporation producing an authenticated copy of this order before the OfÏcer in charge of the concerned local police station;
(d) Subject to the above directions, the Petition is disposed of;
(e) Place this Petition on 5th March 2015 for reporting compliance. Appropriate OfÏcer of the first Respondent Nashik Municipal Corporation shall file compliance afÏdavit on or before the said date.
5 Accordingly, on 5th March 2015, the Petition was listed for reporting compliance. A joint compliance AfÏdavit was filed by the Dy. Commissioner (Encroachment) and the Dy. Engineer Town Planning of Respondent Corporation. It would be necessary to set out the contents of the said compliance AfÏdavit. Paragraphs 2 to 13 of the said compliance AfÏdavit read as follows:
“2) We say that we have also perused the joint afÏdavit (hereafter the said joint afÏdavit) sworn on 26.11.2014 by the Asst. Director of Town Planning and Dy. Commissioner (Encroachment) of Nashik Municipal Corporation so also the Order dtd. 01.12.2014 passed by this Hon'ble Court in the aforesaid matter.
3) We say that amongst all other clauses in the said joint afÏdavit paragraph Nos 4 and 5 reads as under:-
"We say that the as shown in the map as annexed to this afÏdavit the Respondent Corporation, within period of three (03) months shall remove the Encroachment on the portion shown in blue (two triangles), pink (one triangle) gray (one triangle) which forms the part and parcel of Final Plot No. 105-B (T.P. Scheme No. II) and handover possession of the said final plot No. 105-B to the petitioner. We say that necessary police help be provided for removal of encroachment. We say that the petitioner shall accept vacant and peaceful possession of Final Plot No. 105- B soon after intimation regarding the same is issued to the petitioner."
“We say that as far as yellow portion as shown in map annexed hereto is concerned the same which is carved out of and which forms the part of Original Plot No. 156 and is admittedly already in possession of the petitioner and question of handing over possession of the said land does not arise."
Hereto annexed and marked "Exh.A" is the copy of joint afÏdavit alongwith the part plan of Town Planning Scheme - II.
4) We say that this Hon'ble Court having accepted statement made in the said joint afÏdavit made on behalf of the respondent-Corporation, by Order dtd 15.12.2014 directed the respondent Corporation to comply with the statement as per paragraph No. 4 of the said joint afÏdavit. Hereto annexed and marked "Exh.B” is the copy of Order dtd 01.12.2014 passed by this Hon'ble Court in Writ Petition No. 399 of 2012 .
5) We say that for the necessary compliance of the said joint afÏdavit as well as the Order dtd. 01.12.2014 passed by this Hon'ble Court, the ofÏce order dtd.21.02.2015 was issued by the Commissioner of respondent-Corporation for removal of encroachment and accordingly the action to remove the respondent-Corporation took action for removal of encroachment on 23.02.2015. Hereto annexed and marked "Exh. C" is the copy of OfÏce Order dtd. 21.02.2015.
6) We say that respondent Corporation accordingly intimated the petitioner by letter dtd. 21
