IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.3748 OF 2008
Rajesh Balwantrao Deshmukh & Ors. ...Petitioners
Versus
Solapur Municipal Corpn. & Anr. ...Respondents
......
Mr.G.S.Godbole for Petitioners.
Mr.Nitin Jamdar i/b Mr.Vijay Killedar for
Respondent No.1.
......
ig CORAM: A.M.KHANWILKAR, J.
JULY 18, 2008.
P.C.
1. Heard Counsel for the parties.
2. The argument of the Petitioners that the
interim relief has been wrongly refused by the
Appellate Court, even though the Appeal is pending,
at the first blush, seems to be attractive.
However, in the fact situation of the present case,
the order passed by the Trial Court which has been
upheld by the Appellate Court for the limited
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purpose of considering interim relief during the
pendency of appeal, does not warrant any
interference in exercise of writ jurisdiction.
This is so because, the Petitioners were conscious
of the fact that even for putting up a fencing, it
was necessary to seek prior approval of the
Corporation. The Petitioners did apply to the
Corporation in that behalf, which request was
rejected. The Petitioners, however, without formal
approval from the Corporation, unilaterally
proceeded to erect fencing around the building on
the
assumption that the portion where the fencing
has been put up is within the boundary of the land
owned and possessed by the Petitioners. The fact
as to whether the fencing has been put up within
the boundary is not a relevant fact for our
consideration. The moot question is: whether the
Petitioners could have erected such fencing without
taking prior permission of the Corporation? The
answer is an emphatic “NO”. For, even fencing is
covered by the expression “building” as defined by
the Bombay Provincial Municipal Corporations Act,
1949. The expression “building” in the Act of 1949
reads thus:
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“2(5) “building” includes a house,
out-house, stable, shed, hut and otherenclosure or structure whether of masonry,
bricks, wood, mud, metal or any other
material whatever whether used as a humandwelling or otherwise, and also includes
verandahs, fixed platforms, plinths,
doorsteps, walls including compound walls
and fencing and the like.”
3. Counsel for the Petitioners, however, was
at pains to argue that only if the fencing results
in enclosure of the property, it would constitute
building
within the meaning
‘building’ reproduced hereinabove.
of definition
This submission
is complete misreading of the said provision.
Indeed, in the first part of the provision, the
expression hut and other enclosure or structure
whether of masonry, bricks, wood, mud, metal or any
other material whatever whether used as a human
dwelling or otherwise has been mentioned. However,
the latter part of the definition of ‘building’ is
an inclusive definition. It postulates that it
would also include verandahs, fixed platforms,
plinths, doorsteps, walls including compound walls
and fencing and the like. It is an expansive
definition which not only includes but expressly
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refers to fencing and the like, which is the
structure put up by the Petitioners without taking
prior permission of the Corporation.
4. The Trial Court has relied on the decision
of our High Court in the case of Pune Municipal
Corporation vs. Nanasaheb Nagoji Bhosale reported
in 1995 (1) Mh.L.J. 427,
427 in particular, exposition
in paragraph 3 of the said decision to buttress the
view taken by it for rejecting the prayer for
interim relief.
5. Counsel for the Petitioners, however,
would rely on observations in Paragraph 2 of the
said decision to distinguish the Judgment on the
specious reasoning that in that case, the structure
erected by the Respondent was of fencing or a
compound wall partition measuring 5′ x 5′ in height
which consisted of wooden pillars and tin-sheets
around the open space admeasuring 60′ x 60′ in the
said property. However, to my mind, the nature of
structure cannot be the basis to answer the issue
in the context of the definition of expression
‘building’ appearing in the Act of 1949. The
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definition as aforesaid is an expansive definition
so as to include even structure like fencing and
the like, whether it is enclosure or otherwise. In
other words, even an act of erecting barbed wire
fencing around the boundary line would constitute
building within the meaning of Section 2(5) of the
Act of 1949 for the purpose of the said Act, and
that structure can be erected only after taking
prior permission of the Corporation. No more and
no less.
6.
There is yet another facet in this case,
for which, no interim order can be passed in favour
of the Petitioners. The Respondent Corporation has
issued impugned notice calling upon the Petitioners
to remove the disputed structure (fencing) also on
the ground that the same comes within the public
road area. The plan produced by the Counsel for
the Respondents clearly indicates that the stated
fencing has been put up in area which would
obstruct the road (area in road widening).
7. The argument of the Petitioners that even
if it comes within the road area, the same cannot
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be usurped by the Corporation without following due
process of law, cannot be the basis to grant
injunction to the Petitioners to permit them to
perpetrate the illegality of having erected fencing
– which is a building within the meaning of Act of
1949 – without seeking prior permission of the
Corporation. In the first place, the Petitioners
will have to remove the said fencing and agitate
all other issues before appropriate forum as and
when occasion arises.
8.
Suffice it to observe that no indulgence
is warranted in this Writ Petition. Although the
Appellate Court has not adverted to the latter
aspect of fencing obstructing the road area, the
conclusion reached by the Appellate Court will have
to be upheld in larger public interest.
9. Hence, Writ Petition is dismissed.
10. At this stage, Counsel for the Petitioners
seeks six weeks time to enable the Petitioners to
carry the matter in appeal. I see no propriety in
acceding to this request when the Petitioners have
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admittedly erected fencing without prior
permission; and more so because the same is
obstructing road area. Hence, this request is
rejected. Additionally, it will not be out of
place to record that the fencing is nothing but
some wooden logs erected around the boundary and
barbed by wire fencing. If that structure is to be
removed and even if the Petitioners succeed in
appeal, it can be re-erected, without causing much
hardship to the Petitioners. Even for this reason,
prayer for continuation of stay is rejected.
A.M.KHANWILKAR, J.
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