-1- GPN-J-2459-ARHCBN-3-04-1,00,000-ALA4* [Spl.-H.C.,A.S.,C.D.79e. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. SECOND APPEAL NO.427/2008 Laxmandas Daulatram Wadhwani --versus-- Pralhad Sonaji Gondhane and others ----------------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram appearances, Court's orders or Directions Court's or Judge's Orders. And Registrar's Orders. ----------------------------------------------------------------------------------------------------------------------------------- CORAM : B.P.DHARMADHIKARI, J. DATED : MARCH 4, 2009. Heard Shri R.L. Khapre, Advocate for Appellant, Shri A.S. Mardikar, Advocate for respondent no.1 and learned A.G.P. for respondent no.2. The appeal was to be decided finally at the stage of admission, accordingly R & P was called for. Contention of respondent before this Court through Advocate Shri Mardikar, was that notices at Exh.84, 85 and 86 related to Temple and not to the construction of commercial complex. Advocate Shri Khapre, has invited attention to the findings recorded by the Lower Appellate Court in paragraph nos. 15 to 17 to urge that the commercial complex of respondent is found to be constructed within the prohibited area i.e. within 20 -2- meters from the centre of the Highway. He states that in view of this position, when notices were already issued for removal thereof, Section 68 could not have been used by the Lower Appellate Court to find out bar of jurisdiction of Civil Court. He states that the authorities have found that construction is unauthorised and action was initiated for removal and as that action was not proceeding further, Civil Suit was required to be filed. Advocate Shri Mardikar, contends that the Authorities did not reach to any finding regarding unauthorised construction of commercial complex and notice related only to temple which was in front of the commercial complex. He states that the commercial complex is not within the prohibited area. He further states that in view of Section 23, steps for removal of such structures are to be taken by the Authorities functioning under the Bombay High Way Act, 1955 and hence Civil Court does not have jurisdiction. It is therefore, apparent that as found earlier by this Court, question whether the said finding of Lower Appellate Court about bar of jurisdiction is proper or not, falls for determination in the present circumstances. Provisions of Section 68 shows that jurisdiction of Civil Court is barred only in relation to question which under Bombay Highway Act is -3- required to be settled, decided or dealt with by the Highway Authorities. The question whether the structure of the present respondent is unauthorised or not, is already decided, because thereafter notices vide Exh.84 to 86 have been issued. Correctness of notices was not disputed before appropriate forum by the respondent. Section 23 authorises the Authority to remove such structure and it appears that as those steps were not being taken/completed, suit was required to be filed. Thus the suit was only for implementation of decision already taken by the Highway Authorities and not for deciding any question which was required to be settled or decided by those Authorities. Findings regarding bar of jurisdiction by the Lower Appellate Court in the circumstances, is therefore unwarranted. However, during arguments Advocate Shri Mardikar has contended that the Lower Appellate Court has found that the structure of the present respondent was not unauthorised. He has also invited attention to the fact that notices Exh.84 to 86 are evaluated by the Lower Appellate Court with reference to document at Exh.81, which is government resolution dated 09.03.2001. He states that the marginal space required to be left open by the said notification will not apply to the notice which -4- were issued prior to 09.03.2001 and he points out that the position then prevailing has not come on record. In reply, Advocate Shri Khapre contends that as per the position prevailing prior to 09.03.2001 the marginal space required to be left open was more and therefore, from centre of Highway more space is required to be left open to sky. According to him, therefore, the Government Resolution dated 09.03.2001 is beneficial to the present respondent. Advocate Shri Khapre has pointed out that the recourse to the provisions of Gunthewari Act or than the subsequent sanction to the present structure by the Municipal Council has hardly got any relevance in the matter. According to him the construction needs to be scrutinized only in the light of Bombay Highways Act, 1955. I find this arguments advanced before me, are not appreciated by the Lower Appellate Court. Whether construction legally un-compoundable otherwise can be regularised due to Gunthewari Act or then which statute governs the controversy are the aspects to which attention of lower courts was not invited at all. There is no finding in this respect. In the circumstances, after holding that Civil Court has got jurisdiction to entertain the suit as filed, the -5- matter needs to be remanded back to the Lower Appellate Court to take fresh decision in accordance with law. Accordingly the judgment and decree delivered on 21.06.2008 in Regular Civil Appeal No. 119/2005 is hereby quashed and set aside and the said Appeal is restored back to the file of Principal District Judge, Buldhana for taking decision afresh in the matter after hearing the parties. Record and proceedings be sent back. Appeal is accordingly allowed with no order as to cost. JUDGE Rgd.