1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.10619 OF 2009 Anil Shivaji Dhavan ...Petitioner vs. The Chief Officer, Mhaswad Nagar Parishad, Mhaswad ...Respondent Mr.Vishwanath Talkute for the petitioner Mr.K.B.Sonwalkar for the respondent CORAM :A.S.OKA,J. DATE : FEBRUARY 17, 2010 P.C. 1 Heard the learned counsel for the petitioner and the learned counsel for the respondent. Rule. Taken up for hearing forthwith. 2 The petitioner is the original plaintiff. The petitioner claims to be in possession of a plot of land situated at Village Mhaswad, Taluka Man, District Satara more particularly described in paragraph 1 of the plaint. The petitioner has constructed a structure on the said plot of land. A suit has been filed for injunction restraining the respondent from interfering with possession of the petitioner over the suit property and from demolishing the structure thereon. The suit is filed as the respondent issued a notice date 14th October 2008 in purported exercise of power under section 189 of Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 read with section 52 (2) and section 53(1) of the Maharashtra Regional and Town Planning Act,1966. By the said notice, the petitioner was called upon to remove the structure and to remove the encroachment allegedly made on the municipal 2 land. In the suit, an application for temporary injunction was taken out. The application was contested by the respondent by contending that the suit structure is illegal and the petitioner has no right to occupy the plot below the suit structure. The trial Court rejected the application for temporary injunction and vacated the earlier ad-interim relief. An appeal preferred by the petitioner against the said order has been dismissed and therefore the present Writ Petition under Article 227 of the Constitution of India is filed. 3 There was ad-interim relief of status quo operating during the pendency of the Appeal which has been continued by this Court. Today, the learned counsel for the petitioner has tendered an undertaking of the petitioner. The undertaking is taken on record and marked `X for identification. The petitioner has stated that the structure subject matter of the notice dated 14th October 2008 will be removed by him on or before 10th March 2010 at his own costs. He has stated that he will not create any third party interests and will not construct any structure on the plot of land mentioned in paragraph 1 of the plaint. Undertaking is accepted. In view of the undertaking, now it is not necessary to grant any relief in respect of the structure as the petitioner has undertaken to remove the same. 4 Another apprehension expressed by the petitioner is that on the basis of the notice dated 14th October 2008, the petitioner may be dispossessed of the plot of land admeasuring 35` x 55 described in paragraph 1 of the plaint. Prima facie, it appears to me that in exercise of power under the said Act of 1965 or the said Act of 1966, the petitioner cannot be dispossessed of the suit plot of land and the respondent will have to adopt appropriate 3 proceedings in accordance with law. Therefore, to that extent an equitable relief will have to be granted in favour of the petitioner as the petitioner has undertaken to removed the unauthorised structure. If the petitioner fails to remove the structure as stated in the undertaking, limited interim relief will come to an end automatically. The learned counsel for the respondent suggests that instead of keeping the suit pending, the suit may be disposed of in terms of this order. The request is reasonable and deserves to be accepted. 5 Hence, the petition is disposed of by passing the following order : i) The undertaking of the petitioner dated 16th February 2010 (marked `X for identification) is accepted. ii)By a decree of perpetual injunction, the respondent is hereby restrained from dispossessing the petitioner from plot of land admeasuring 35` x 55` more particularly described in paragraph 1 of the plaint without following due process of law. iii)If the petitioner fails to comply with the undertaking dated 16th February 2010, perpetual injunction granted under this order will stand vacated automatically without further reference to the Court. iv) If the petitioner fails to remove the structure in terms of the undertaking on or before 10th March 2010, perpetual injunction will stand vacated without further reference to the Court. v) It is obvious that it will be open for the 4 respondent to adopt due process of law for taking over the possession of the aforesaid plot. vi) The trial Court will pass a formal order on the suit in terms of this order. vii) Writ Petition is disposed of in above terms. JUDGE