1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 1334 OF 2004 Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders Court's or Judge's Orders Mr. S.V.Kurundkar, Advocate for the appellant. Mr.V.G.Sakolkar, Advocate for resp. nos. 1 & 2. ............................. CORAM : S.V. GANGAPURWALA, J. DATE : 16/11/2010 PER COURT : 1. This is defendant’s Second Appeal. 2. The present respondents/ original defendants had instituted Suit for injunction against the present appellant from taking any action pursuant to the Order dated 29/07/1991. The plaintiff had constructed the tin shed in June, July 1991. The suit plot was allotted by the erst- while Municipal Council to the plaintiff by resolution. 3. The Trial Court decreed the Suit restraining 2 the defendant from removing the tin shed till the defendant – Municipal Council passes necessary resolution under Section 92 of the Maharashtra Municipalities Act. The defendant – Municipal Council assailed the said Judgment and decree before the appellate Court. The appellate Court dismissed the Appeal and confirmed the Judgment of the Trial Court. The Municipal Council challenged the said Judgment and Decree in the present Appeal. 4. Mr. Kurundkar, the learned counsel for the appellant submits that no finality was attached to the resolution as the procedure was not complete and the plaintiff can not have vested right over the said plot. More over, even if it is assumed that the plaintiff’s possession was not unauthorized, still the construction has to be made by the plaintiff by adhering to the provisions of law and by seeking necessary permission. In absence of the same, the erst-while Municipal Council was justified in issuing the impugned notice. According to the learned counsel, the Courts have not dilected on this aspect of the matter. 5. Per contra, Mr. Chandole, the learned counsel for the respondent submits that the resolution was passed by the erst-while Municipal Council and thereafter only the plaintiff was put in possession of the said plot. Not only that, subsequently also a fresh resolution was passed allotting the said plot to the plaintiff. The 3 construction made is not of the permanent nature, but is temporary of the tin shed, which does not require any permission. 6. With the assistance of the learned counsel for the respective parties, I have gone through the Judgments delivered by both the Courts. 7. It is a fact that subsequently also by fresh resolution passed by the Municipal Council, the said plot is allotted to the plaintiff and thereafter only the plaintiff has been inducted in possession of the said plot. The construction made is merely a tin shed and not pakka construction. No error can be found in the Judgments passed by the Courts below. 8. Mr. Kurundkar, the learned counsel submits that by passage of time, the Nanded Municipal Council has now become Municipal Corporation and the Judgment of the Trial Court restraining the defendant till the defendant Council passes necessary resolution under Section 92 of the Maharashtra Municipalities Act should be accordingly modified. 9. Needless to state that the orders passed would be in regard to the law as would be enforced if the Municipal Council is converted to Municipal Corporation, then the law as applicable to the Municipal Corporation would be applicable and the order of restrain would be read in that context. 4 10. The Second Appeal is sans substantial question of law, the same is dismissed, however with no order as to costs. [ S.V. GANGAPURWALA ] JUDGE knp/SA 1334.04