Rameshwar Krushnasa Banubakode and another v. Municipal Corporation, Akola, Thr.Commissioner and another

wp7385.2024.odt 1/5 IN THE HIGH COURT OF JUDICATURE AT BOMBAYNAGPUR BENCH, NAGPUR.Writ Petition No.7385/2024Rameshwar Krushnasa Banubakode and another Vs. Municipal Corporation, Akola, Thr. Commissioner and another__________________________________________________________________________Office Notes, Office Memoramda of Coram, appearances, Court's orders of directionsCourt's or Judge's orders.and Registrar's Orders. Mr. H.R.Gadhia, Advocate with Mr. Aniket Sawal, Advocate for petitionersMr.J.B. Kasat, Advocate for respondent nos.1 and 2.CORAM : SIDDHESHWAR S. THOMBRE, J. DATE : 10/10/2025.

Heard Mr. H.R.Gadhiya, learned counsel for thepetitioners and Mr. J.B.Kasat, learned counsel for respondentnos.1 and 2.

The petition is directed against the order dated12.4.2024 passed by learned 4th Join Civil Judge, Junior Division, Akola in Regular Civil Suit No.554/2023, wherein the presentpetitioners filed a suit for declaration and permanent injunction. During the pendency of suit, an application under Order XXXIXRules 1 and 2 read with Section 151 of the Code of CivilProcedure came to be rejected.

The petitioners’ main contention before the TrialCourt was that the Corporation vide its order dated 27.03.2023granted permission to construct a temporary shed for a period ofsix months. Before the expiry of said period of six months, thepetitioners submitted an application to the Municipal Corporationfor extension of period for continuance of the Tin Shed on theproperty. However, no extension was granted by the Corporationand thereafter on 29.09.2023, the petitioner submitted Plan toconstruct new building. wp7385.2024.odt 2/5 4. The respondent-Corporation thereafter issued a noticedated 26.10.2023 under Section 260 and 267 of the MaharashtraMunicipal Corporation Act (“The Act” for short) directing thepetitioners to remove unauthorised construction. After receipt ofthe said notice, the petitioners replied the same, however, nodecision was taken by the Corporation on their application forextension of time. Instead another notice dated 24.11.2023 wasissued asking the petitioners to remove unauthorisedconstruction. Considering the extreme urgency in the matter, thepetitioners approached the Civil Court and filed Regular Civil SuitNo. 554/2023 for grant of perpetual injunction on the groundthat the notices issued by the Corporation were illegal.

The learned Trial Court, after hearing the learnedcounsels for the petitioners and the respondents, rejected theapplication below Exhibit 5. The petitioners filed Misc. CivilAppeal No.38/2024 before the learned District Judge-3, Akolawhich was also dismissed vide its order dated 21.11.2024.Hence, the present writ petition.

Mr. Gadhiya, learned counsel for the petitioners, would submit that admittedly, no objection certificate wasgranted by the Corporation vide its order dated 27.3.2023. Butbefore expiry of the said period, the petitioner filed an applicationfor extension, but the same was not granted. Subsequently whenthe petitioners submitted a Plan for new construction, the Corporation neither granted permission nor refused it. Aftercompletion of six months, the respondent-Corporation issuednotice under Section 260 and 267 of the Act asking thepetitioners to remove unauthorised construction within a periodof seven days immediately after date of receipt of notice. Thepetitioners replied to the said notice and pointed out that they wp7385.2024.odt 3/5 had submitted an application for extension of time and forpermission to construct new structure. But, no any order waspassed on those applications. He contended that the MunicipalAuthority ought to have considered reply and passed an order butinstead of passing an order, another notice was issued which wasillegal. He would further submit that after receipt of the reply bythe petitioners, the Corporation ought to have recorded thereasons as to why the reply of the petitioners has not beenconsidered or why no decision was taken on the reply to thenotice given by the petitioners. He further submitted that thelearned Trial Court as well as Appellate Court ought to havegranted temporary injunction and, therefore, prayed for settingaside both orders.

Per contra, learned counsel for the Corporationsubmitted that the action which was taken by the Corporation isin accordance with law. The order dated 27.3.2023 itself is clearand the time of six months is mentioned, and therefore, afterexpiry of said period the construction was declared unauthorised. Thereafter, the notice was issued against the petitioners toremove unauthorised construction within seven days from thedate of receipt of notice. He would further submit that the orderdated 27th March, 2023 itself specified the period of six monthsand the Corporation never extended it. He further submitted thatthe Corporation has rightly issued notice to the petitioners toremove unauthorised construction and therefore, supported theorder passed by both the Courts below.

I have perused the record along with documentsplaced on record and also have gone through the order dated27.03.2023, it is clear that the order dated 27.3.2023 is veryspecific and clear in its terms that the Corporation gave no wp7385.2024.odt 4/5 objection to construct tin shed for a period of six months. Aftercompletion of six months, the Corporation issued notices forremoval without further extending period which was alreadyexpired. There is no fault on the part of the Corporation in issuingnotices to the petitioners.

The learned counsel for petitioners vehemently arguedthat the action taken by the Corporation is improper and no orderwas passed on his application for the extension of time andapplication for the permission of new construction. In support ofthe contentions, he relied upon the judgments in Sopan MarutiThopte and another Vs. Pune Municipal Corporation and anotherreported in (1996) Mah.L.J.963 and Municipal Corporation of Greater Mumbai and others Vs. Sunbeam High Tech DevelopersPrivate Limited (2019)20 Supreme Court Cases 781.

In the case of Sopan Maruti Thopte (supra) it washeld that if notices are issued either under Section 351 and/or Section 260 of the Mumbai Municipal Corporation Act, 1888, it ismandatory on the part of the Corporation to consider the reply, pass a reasoned order on it and then take appropriate action. There is no dispute about the proposition of law laid down in theabove cases.