1 W.P.No.8639/11 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO.8639 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's orders Mr.R.R.Mantri, advocate for the petitioner. CORAM : S.V.GANGAPURWALA,J. Date : 16.11.2011. PER COURT : 1. Heard. 2. The present petitioner has filed suit for perpetual and mandatory injunction. Along with the suit the petitioner also filed an application for temporary injunction. The trial Court rejected the said application. Aggrieved thereby, the petitioner preferred an appeal before the District Court. The District Court also dismissed the appeal. Aggrieved thereby, the present petition is filed. 3. Mr.Mantri, learned counsel for the petitioner submits that the Courts below have rendered absolutely perverse findings. The Municipal Council had also issued notice to the defendant Nos.1 and 2 to remove the illegal construction which is carried out. Even the Municipal Council had stated that the permission was granted 2 W.P.No.8639/11 only for repairs and additional construction is made by the Respondent Nos.1 and 2. In such circumstances, the Court should have restrained the present Respondent Nos.1 and 2 from making any further construction and using the said property. Mr.Mantri, learned counsel contends that there is eminent apprehension that the Respondent Nos.1 and 2 may expand the said construction. Even otherwise the Respondent Nos.1 and 2 should be restrained from using the said additional construction made. The learned counsel further contends that there is ample record placed before the Court to show that the society has allotted these shops/flats to defendant Nos.1 and 2 and there can not be any dispute about the same as defendant Nos.1 and 2 claim through the petitioner only. 4. With the assistance of the learned counsel, I have gone through the orders and the pleadings. No doubt, there is a notice on record issued by the Respondent No.3 Municipal Council to the Respondent Nos. 1 and 2 that they were given permission to carry out repairs but under the garb of the same, they had made additional construction and it should be removed. To-day, there is nothing that the construction is being carried out or that the said alleged additional construction is being used for any other purpose except giving support. The case of defendant Nos.1 and 2 was that the property is in dilapidated condition and so it was necessary to carry out repairs and whatever construction is made is pursuant to 3 W.P.No.8639/11 the permission granted. 5. If eventually on adducing the evidence it is proved that the construction carried out is not in consonance with the permission then the plaintiff is entitled for the relief he has claimed. Today, there is nothing on record to show that any further construction is being made and that the defendant Nos.1 and 2 have changed the user or has used some additional construction made nor there is any such prayer in the application that the defendants could not use the said premises which is alleged to have been additionally constructed. In such circumstances, the said argument of Mr.Mantri, learned counsel can not be considered. As it is, no injunction has been clamped or granted against the Respondent No. 3 - Municipal Council. 6. The petitioner can not claim any relief of which there is no eminent apprehension as on today nor any overtacts are on record. If the petitioner in future notices some overtacts on behalf of the defendants which according to the plaintiff would be against the law then the plaintiff is always at liberty to amend the pleadings and claim appropriate relief. As on today, no error can be found in the order passed. The view taken by the Courts below is a plausible view. In such circumstances, the Writ Petition is dismissed. However, there shall be no order as to costs. 7. The observations made herein are prima facie in nature and 4 W.P.No.8639/11 the Court would decide the suit or any further applications, dehors the observations made herein and on its own merits. (S.V.GANGAPURWALA,J.) Dt.16.11.2011. asp/office/wp8639.11 5 W.P.No.8639/11