1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 7680 OF 2008 Sufiyan Ahemad Izhar Ahemad and another .... PETITIONERS V E R S U S Dhule Municipal Corporation and others .... RESPONDENTS Mr. C.R.Deshpande, Counsel for Petitioner. [ CORAM : S.S.SHINDE, J. ] DATE : 14/08/2009 PER COURT : 1. This Writ Petition is filed challenging the Order dated 5/9/2008 passed by the District Judge, Dhule in Misc. Civil Appeal No. 78 of 2003. 2. The petitioners herein are the original plaintiffs, have filed R.C.S. No. 144 of 2002 in the Court of the Civil Judge (J.D.), Dhule for permanent injunction against defendant no. 2, restraining him from demolishing the construction of the shop as well as factory. On 3/6/2002, the petitioners had filed an application Exh. 5 in R.C.S. No. 144 of 2002 praying for temporary injunction 2 restraining the defendant no. 1 from demolishing the construction of the shop and factory raised by the plaintiff over the suit property. 3. On 3/11/2003, the learned Civil Judge (J.D. ), Dhule pleased to reject the application Exh. 5. Being aggrieved, the petitioner filed Misc. Civil Appeal No. 78 of 2003 before the District Judge, Dhule. Same was rejected on 5/9/2008, hence this Writ Petition. 4. The learned counsel appearing for the petitioners submitted that notice was issued by the Respondent – Corporation, in which it is stated that petitioners should remove unauthorized encroachment within 24 hours, otherwise the same structure would be removed by the Municipal Corporation. The learned counsel further submitted that if the relief as prayed is not granted to the petitioners, their construction will be demolished by the Respondent – Corporation. The learned counsel invited my attention to the pleadings in the petition and grounds taken therein and submitted that both the Courts below have not appreciated the contentions of the petitioners and, therefore, this Court may entertain this Writ Petition by setting aside the order passed by the courts below and directing the Corporation not to demolish the structures of the petitioner. At this stage, the learned counsel for the petitioners prayed for liberty to move application in case further action is taken by the 3 defendant to demolish the structures of the petitioners. I do not think that such prayer can be granted. Hence, said prayer is rejected. 5. I have heard the counsel appearing for the petitioner. Perused the impugned Order below Exh. 5 in R.C.S. No. 144 of 2002. On perusal, I find that the learned Judge has arrived at conclusion in paragraph 5 that Section 179 of the Maharashtra Municipal Council Act, 1965 empowers local body like Municipal Council to issue notice to remove encroachment. It is also observed that the Section is clear that the word drain, Gatar is also used in it and thereby defendant - the Nagar Palika, is justified in issuing notice dated 1/6/2002 which is challenged by the plaintiffs as illegal. The learned Judge in paragraph 7 has observed that the evidence adduced is short of satisfying him, the possession of admeasuring the area of 5406 Sq. Ft. and thereby it is difficult to restrain respondent. The learned Judge in conclusion held that the plaintiffs failed to establish prima facie possession as per pleadings and, therefore, declined to grant application for temporary injunction. It is also discussed by the learned Judge in paragraph 5 that the property purchased by the petitioners is 464.5 Sq. Meters and the case is pleaded for the possession of 5406.00 Sq. Fts. And, therefore, in such set of facts, it is difficult to consider how excess area is in possession of the plaintiffs. 4 6. I have also carefully perused the reasons recorded by the lower appellate Court and I am of the view that when both the Courts below concurrently held that the petitioner is not entitled for temporary injunction, no case is made out for interference. The lower appellate Court has observed in paragraph 6 that the plaintiffs have failed to prove prima facie case and endorsed the findings recorded by the trial Court. The lower appellate Court has also recorded the submission of the counsel for the defendants that defendant no. 1 has already constructed drainage during the pendency of the Appeal. 7. Taking over-all view of the matter and concurrent findings recorded by the Courts below that the petitioners have failed to make out prima facie case, that they are in possession of the suit property, no interference is called for in Writ Petition. After-all, granting injunction is a discretionary relief and it is for the concerned Court to pass the order on the basis of facts brought before him. This Court under Article 227 of Constitution of India have limited powers to entertain this Writ Petition. I do not find any perversity in the findings recorded by the Courts below. The Writ Petition is dismissed. [ S.S. SHINDE ] JUDGE knp/WP7680.08