1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.4885 OF 2008 Vijaykumar s/o Kanhayalal Varma and others. Petitioners V E R S U S The State of Maharashtra and others. Respondents Shri A. P. Bhandari adv. h/f Mr. S.V. Gangapurwala, Advocate for the petitioner. Shri S.S.Shete Adv for R-1 and 2. Mr.D.P.Palodkar, Adv for R-4 and 5. Mr. N.H.Borade AGP for State. CORAM : R. M. BORDE, J. DATE : 9 TH NOVEMBER, 2009. PER COURT :- 1. The petitioners have raised exception to the order passed on 03.03.2008 by the Chief Officer, Municipal Council, Kannad whereby he has been directed to remove the wire fencing erected surrounding his property within 30 days from the date of notice. According to the petitioner, he is owner of property S.No.33/3 and has secured appropriate permission for raising wire fencing around the property. Municipal Council has issued a notice to the petitioner calling upon him to remove the wire fencing alleging therein that it affects reserved site no.13, six meter road and open space earmarked under the development plan. 2 2. According to the petitioner, he is concerned with property bearing S.no.33/3 and has secured proper permission from the planning authority and he is entitled to raise wire fencing in order to protect his property. The petitioner also states that he has presented a suit bearing No. 41/2008 claiming injunction against the Municipal Council, Kannad and in the said suit order in respect of injunction restraining the defendants from demolishing compound wall has been passed. The planning authority has called upon the petitioner by revoking permission granted earlier in respect of erection of wire fencing around the property to remove the same. 3. The contention of the Municipal Council is that, the permission sought for by the petitioner is not by following the procedure prescribed under law, so also construction permission produced by the petitioner does not bear the date or the serial number. The plan submitted along with the permission bears the signature of the Chief Officer but does not bear the stamp or seal of Municipal Council. According to Municipal Council, permission secured for by the petitioner was not granted by following the prescribed procedure and therefore it cannot be said to be legal and proper. It is also contended that petitioner is trying to raise construction over the property bearing no.33/1, which also affects the reserves sites as well as the places reserved for public amenity. 3 4. The factual disputes raised in the matter are required to be dealt with by Civil court and the parties are free to raise their contentions before the Civil Court. So far as entitlement of the petitioner is concerned, he has claimed his right in respect of property S.No.33/3. Petitioner, in these circumstances will be entitled to tender an application without prejudice to the rights and contention raised by him in the civil suit, seeking appropriate permission from planning authority. Planning authority after following due procedure shall have liberty to accord appropriate permission in favour of the petitioner. So far as grievance raised by the Municipal council in respect of acts done by the petitioner which affects reserves sites, under pretext of permission accorded by Council, which in fact relates to S.No.33/2, the Municipal Council shall have authority to take appropriate action. Petitioner shall restrict his activities only so far as property S. No.33/3 which is claimed by him. With these observations petition stands disposed off. It is made clear that civil court, shall not be influenced by any of the observations made by this court, while deciding instant petition and shall decide pending suit strictly in accordance with provisions of law. ( R. M. BORDE, J. ) aaa/4885.08 ===