(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 985 OF 2011 Gulabsa Sonusa Mahajan (Kshatriya) (Deceased through his L.Rs.) Dattatraya Gulabsa Kshatriya (Deceased through his L.Rs.) Alka Dattatraya Kshatriya .. Petitioners & others. (Original plaintiffs) versus Ramchandra Govinda Wani (Deceased through his L.Rs.) Vitthal Ramchandra Wani (Deceased through his L.Rs.) Nandkishor Vitthal Wani .. Respondents & others. (Original defendants) ....................... Mr. R.M. Deshmukh, Advocate, for the petitioners. Mr. Girish Rane, Advocate, for the respondents. ........................ (2) CORAM : B.P. DHARMADHIKARI, J. DATE : 15TH MARCH 2011 COURT'S ORDER : 1. Heard Adv. Mr. R.M. Deshmukh, for the petitioners, and Adv. Mr. Girish Rane, for the respondents. 2. The petitioners have challenged the order dated 17-1-2011, passed by the learned Civil Judge (Junior Division), Parola, below Exhibits 44 and 65 in Regular Civil Suit No. 27/2007, thereby permitting the respondent / tenant to effect repairs under Section 14 of the Maharashtra Rent Control Act, 1999. 3. Adv. Mr. R.M. Deshmukh has contended that premises are dilapidated and the Municipal Council has already taken action under Section 195 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 (For short, "1965 Act"). In this situation, there is no question of permission to repair or permission to construct any wall. The entire structure needs to be pulled down. 4. Adv. Mr. Girish Rane has contended that after filing (3) of application under Section 14 of the Maharashtra Rent Control Act, Civil Engineer of Municipal Council is appointed as court commissioner with consent of both the parties and application for repairs has been moved in accordance with court commissioner's report. He pointed out that the report of the Civil Engineer was never objected to by anybody. 5. Report of Civil Engineer appointed as court commissioner shows that after conducting spot inspection on 12-11-2000, the Civil Engineer has submitted report on three points. He has pointed that wall on western side has fallen completely and it can be re-constructed. It is further mentioned that because of construction work of that wall or for any other reason, the suit property is in danger. Its northern wall (towards land) is made of earth without plastering and its roof is of wooden rafters. Tin sheets are placed upon it temporarily. The property, therefore, is in dangerous condition. Lastly, it is mentioned that as per rates prevalent for 2008-09, cost of construction of western wall would be Rs. 65,609/-. 6. It is not in dispute that this report was not objected to by anybody and after this report, respondents / tenants moved the trial court and sought leave to erect that western wall. By the impugned order, that leave has been granted. (4) 7. The notice under Section 195 of 1965 Act has been issued by the Municipal Council, Parola. Perusal of the notice dated 26-8-2010 reveals that it is issued by the Chief Officer of the Municipal Council and it is with reference to communication dated 20-8-2010 from one Alka Dattatraya Kshitriya, through her Advocate Smt. Afe. In the first paragraph, it is mentioned that as disclosed in that communication, certain portion of suit property is dilapidated and hence loss to life and property because of its fall cannot be denied. Because of this mention in that communication, the Chief Officer has given time of two days to remove dilapidated portion. He has warned that in default, said Alka and one Devidas would be responsible for the loss caused. Said Alka is the landlord i.e. petitioner before this Court and Devidas is the tenant i.e. respondent no.2B before this court. 8. Section 195 of 1965 of the Act warrant a finding by Chief Officer that any building or other structure or anything affixed to such building or structure is in a ruinous condition or likely to fall. The communication dated 26-8-2010 does not indicate any such opinion of the Chief Officer. 9. Thus, before trial court, there was absolutely no (5) material to show that entire building is in dilapidated condition. The court commissioner appointed with consent of parties opined that western wall can be erected and that opinion was not objected to. The trial court has, therefore, proceeded further and permitted tenants to erect that western wall. 10. I do not see any jurisdictional error or perversity. 11. In the result, the petition is dismissed. No costs. ( B.P. DHARMADHIKARI ) JUDGE ......................... bgp/wp985