1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 3613 OF 2009 Sangamner Municipal Council Sangamner .. PETITIONER VERSUS Sharda Shikshan Sanstha Sangamner .. RESPONDENT Mr. V.S. Bedre, Advocate for the petitioner. Mr. A.S. Bajaj, Advocate for the respondent. ===== CORAM : R. M. BORDE, J. DATE : 20 th November, 2009 PER COURT : 1 Petitioner / Municipal Council is raising exception to the concurrent orders passed by the courts below. 2 Respondent / original plaintiff instituted suit claiming decree of perpetual injunction restraining the Municipal Council from constructing public toilets in the garden which is situate adjacent to the school belonging to the plaintiff institution. According to the plaintiff, the proposed construction of public toilet in the garden is violative of provisions of section 37 of MRTP Act. There is reservation provided in D.P. in respect of garden on 2 the proposed site where the proposed toilets are being constructed. According to the plaintiff, unless requisite sanction in accordance with provisions of MRTP Act is accorded and unless reservation is suitably changed, the Municipal Council is not entitled to raise construction and change the user of the public property in contravention of the development plan. Another contention raised by the plaintiff is in respect of causing nuisance to the students. As the school is situate adjacent to the garden the health and hygiene of the students would be affected if the proposed construction is permitted. An application was tendered in the pending suit seeking order of injunction against the respondent from proceeding with the proposed construction. Trial court after considering the rival contentions granted interim relief operative until disposal of the suit. Order passed by the trial court was subjected to challenge at the instance of petitioner in Misc. Civil Appeal no. 11/2009. However, appeal also came to be dismissed after considering the contentions raised by both the parties by virtue of order dt. 9-4-2009. 3 I have perused the orders passed by the courts below. I have also heard contentions canvassed by learned counsel for the petitioner. It is contended that there is sufficient distance maintained between the public 3 utility and the school and as such the contention raised in respect of adverse effect on health and hygiene of the students has no force. According to the petitioner, Municipal Council is entitled to provide public amenities and raise construction in the garden and for doing so no permission for change in reservation is required to be accorded. However, in my opinion, the questions raised in the matter are required to be gone into at the stage of trial by the trial court. Prima facie, both the courts below found that the parties shall maintain the status as prevailing on the date of issuance of the interim order. In exercise of writ jurisdiction under Article 227 of the Constitution of India, no interference is called for in the discretion exercised by the courts below in granting interim orders in favour of the plaintiff. However, considering the nature of litigation and as the question of providing public utility is raised in the matter, it would be desirable to direct the trial court to decide the suit as expeditiously as possible. Writ petition therefore stands rejected. However, trial court is directed to decide the pending suit as expeditiously as possible preferably within six weeks from the date of receipt of writ of this court. ( R. M. BORDE, J.) dyb/office/wp3613.09.odt