Bombay High Court
Jai Tuljabhawani Shikshan Prasarak … vs The State Of Maharashtra And Others on 13 August, 2025
2025:BHC-AUG:21971-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.2059 OF 2025
WITH
CIVIL APPLICATION NO.6219 OF 2025
WITH
CIVIL APPLICATION NO.1940 OF 2025
1] Jai Vishwa Bharati Sahakari
Gruhnirman Sanstha Limited,
Having its office At-Near Mahadev Temple,
Garkheda, Chhatrapati Sambhajinagar
Through its Authorized Director,
Sandeep Bhagwanrao Deshpande
Age: 45 years, Occ: Advocate
R/o- As above ..Petitioner
VERSUS
1] The State of Maharashtra,
Through its Principal Secretary,
Urban Development Department,
Mantralaya Mumbai,
2] The Municipal Corporation
Chatrapati Sambhajinagar,
Through its, Commissioner,
3] Shri Sainath Education Society,
The Society Registered under
The Societies, Registration Act,
having its office at:-Aurangabad,
through its secretary Shashtri Nagar,
Near Dr. Hegdewar Hospital,
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Smt. Anamika Pruthviraj Supekar ...Respondents
*****
*Advocate for the Petitioner : Mr.R.N.Dhorde, Senior Advocate
a/w. Mr.P.S.Dighe i/by. Mr. Vikram R.Dhorde
*AGP for Respondent No.1 : Mr. D.B.Bhange
*Advocate for the Respondent No.2 : Mr.S.B.Deshpande, Senior Advocate
i/by Mr.S.P.Urgunde a/w. Mr. Amit Vaidya and Ms. Priyanka A.Deshpande
*Advocate for Respondent No.3 : Mr. Harish S.Adwant h/f. Mr. S.V.Adwant
*Advocate for the Applicant in C.A. No.1940 of 2025 : Mr. V.S.Sapkal, Senior Advocate
i/by Mr. S.R.Sapkal and Mr.A.D.Khedkar
*Advocate for the Applicant in C.A No. 6219 of 2025 : Mr A.C.Darandale
******
CORAM : SHAILESH P. BRAHME AND
NEERAJ P.DHOTE JJ.
RESERVED ON : 23rd JULY 2025
PRONOUNCED ON : 13th AUGUST 2025
JUDGMENT :
(Per : Shailesh P.Brahme,J.)
1. Rule.
2. Rule is made returnable forthwith with the consent of the
parties. Heard litigating sides as well as both the intervenors.
3. By invoking jurisdiction under Article 226 of the Constitution of
India, petitioner is assailing the order of the co-ordinate bench dated
23.01.2025 passed in Writ Petition No.8517 of 2024 of which one of us
(Hon’ble Shri Justice Shailesh P.Brahme) was a party. Petitioner has
also solicited direction to restrain the Respondent No.2/ corporation
from constructing 9 meter’s width road from the disputed land and to
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provide approach road to the Respondent No.3/education society
from adjoining open space.
4. At the outset, it needs to be clarified that the scope of the
present petition is mainly to examine validity of the order dated
23.01.2025 passed in Writ Petition No.8517 of 2024, as it has been
recorded in order dated 19.06.2025 while deciding Civil Application
No.5913 of 2025 in the present matter. We do not propose to expand
the scope of our enquiry by going into validity of resolution dated
28.02.2024 passed by the Respondent/ corporation allotting piece of
land to the Respondent No.3/Education society and lease deed
executed on 22.06.2024 by the respondent/corporation in pursuance
of it. By recording reasons in our order dated 19.06.2025, we refused
permission to petitioner to incorporate the pleadings in respect of the
action of the corporation of allotting the suit plot to the respondent
No.3. In that view of the matter, the rival submissions of the parties
need to be assessed.
5. Petitioner is a co-operative society and owner of Sy.No.62
located at village Garkheda, Dist.Aurangabad of which Site No.149
was part and parcel. For securing sanctioned lay-out from the
planning authority, open space of about 1 acre and 32 gunthas
comprising of Site No.149 was transferred to the Respondent
4 WRIT PETITION NO.2059-2025.doc
No.2/corporation by registered gift deed dated 28.10.1970. The
adjoining site No.148 was reserved for school. The respondent
No.2/corporation allotted 3600 sq.mt. area bearing C.T.S
No.15735/1/P to the respondent No.3/education society by passing
resolution on 28.02.2024. In pursuance of that, a lease deed was
executed by the respondent No.2 in favour of the respondent
No.3/education society on 27.06.2024 for period of 30 years. A clause
No.5 is incorporated in the lease deed mandating the corporation to
provide road to the respondent No.3. The Respondent No.3 requested
to provide road. The corporation did not respond. Hence, Respondent
No.3 filed Writ Petition No.8517 of 2024 on 06.08.2024 in High Court
against corporation.
6. Petitioner noticed in June 2024 that respondent/corporation
started felling the trees to provide approach road from site No.149 for
the school. Feeling aggrieved by the action and apprehending invasion
on the peace, tranquility on it’s members and public at large, it filed
R.C.S No.37 of 2024 before Civil Judge Senior Division, Aurangabad on
05.08.2024 which was registered on 05.09.2024 for the relief of
perpetual injunction. The Respondent/corporation caused it’s
appearance and filed written statement-cum-say. Petitioner learnt
about order dated 28.05.2025 passed in Writ Petition No.8517 of 2024.
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In this backdrop, present petition is filed contending that order dated
23.01.2025 passed in earlier writ petition is obtained by fraud and
suppression of material facts. The respondents were in collusion and
did not disclose pendency of R.C.S No.37 of 2024. It is further
contended that it is impermissible for the corporation to provide road
from site No.149. The action of the corporation is arbitrary and high
handed.
7. Respondent Nos.2 and 3 have filed affidavit in reply contesting
the claim of the petitioner. They have raised preliminary objections on
maintainability of the petition and various pleas to demonstrate that
order dated 23.01.2025 is in accordance with law and inter alia
contending that it’s a obligation of the respondent/corporation to
provide road. Two civil applications are filed by intervenors who are
the adjoining residents.
8. Learned Senior Counsel Mr.Dhorde appearing for the petitioner
submits that impugned order dated 23.01.2025 passed in Writ Petition
No.8517 of 2024 has been obtained by suppression of material facts
and fraud. Hence present writ petition is maintainable. He would
submit that open space of site No.149 wherein garden is developed
can not be used for the approach road. It is impermissible to the
corporation to provide any road to the Respondent No.3. It is further
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submitted that petitioner has already approached civil court vide
R.C.S No.37 of 2024 in which respondent/corporation appeared.
These facts are suppressed while securing impugned orders from the
Division Bench. It is submitted that respondent/corporation acted in
collusion with the Respondent No.3 in consenting before the division
bench for providing road and this has been done behind the back of
the petitioner. The petitioner was necessary party. It is further
submitted that the corporation even did not disclose various
representations and the complaints made by representatives against
felling of the trees. Lastly, it is submitted that open space is meant
for common utilization and part of it can not be converted into road.
9. Per contra, learned senior counsel Mr.Deshpande appearing for
the Respondent No.2/corporation has canvassed that petitioner has
no right, title or interest either in site No.149 or the road in question. It
has no locus standi to claim any relief against the respondents. . The
maintainability of the petition is strongly challenged by him. It is
further submitted that gift deed, allotment of the land and lease deed
were not challenged and therefore petitioner is estopped from
claiming any relief. It is submitted that all relevant facts were
disclosed before division bench in Writ Petition No.8517 of 2024. The
allegations of suppression of facts, fraud and collusion are refuted. It
is further contended that by filing written statement, the corporation
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had brought to the notice of the Civil Court as well as to present
petitioner that Writ Petition No.8517 of 2024 had been filed but the
petitioner did not intervene in the petition. Learned counsel would
submit that the corporation is under statutory obligation to provide
road to the landlocked land. It has secured permissions from the
competent authority for the felling of trees and it is developing the
garden to safeguard the interest of the local residents and no
prejudice would be caused to them as well as environment.
10. Learned counsel Mr.Adwant for the Respondent No.3 would
support the submissions of the Respondent No.2/coporation.
Additionally, it is submitted that by spending huge money, the land of
3600 Sq.mt. of plot of C.T.S No.15735/1/P is being allotted to the
Respondent No.3 for running a school. It’s a landlocked plot and it is
not possible to start construction unless there is approach road. He
would point out various provisions from Development, Control and
Promotional regulations, M.R.T.P Act and The Maharashtra Municipal
Corporations Act,1949 to buttress that to provide approach road is a
legal duty. It is further submitted that after following due procedure of
law it has been allotted a plot with which the petitioner is not
concerned. It is further submitted that conduct of the petitioner is
objectionable because for self-same relief it has chosen two forums.
It failed to prosecute suit diligently.
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11. Learned Senior Counsel Mr.Sapkal appearing for the intervenors
discloses his client’s interest by adverting our attention to the prayer
clause ‘D’ of the petition. His client is adjoining society and it’s
members are entitled to receive the benefits of open space and
garden. He also questions the conduct of the corporation in providing
road. The corporation should have disclosed the dispute raised by the
petitioner and pendency of civil suit before the bench which passed
impugned order. He would further submit that lease deed executed in
favour of Respondent No.3 is bad in law.
12. Learned counsel Mr.Darandale appearing for the intervenor
adopts the submissions of petitioner. He also would question
impugned order on grounds of suppression of facts and collusion.
13. We have considered rival submissions of the parties. We have
already clarified that this Court can not go into the allotment of plot in
question to the Respondent No.3, the procedure followed by the
corporation and the lease deed. Till this date the petitioner and the
intervenors have not challenged the allotment of land to the
Respondent No.3.
14. The respondents have raised preliminary objections regarding
maintainability of the writ petition. Petitioner is seeking quashment of
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order dated 28.01.2025 passed in Writ Petition No.8517 of 2024 and
direction against respondent/corporation. Petitioner was not party to
the petition. It is claiming locus being adjoining society and it’s
members are the beneficiaries of the open space of site No.149
through which 9 mt. road is proposed to be carved out. The grounds
of objection in the petition and the submissions of learned senior
counsel Mr.Dhorde indicate that suppression of material fact, fraud
and collusion are the grounds on which order passed in earlier writ
petition is sought to be challenged. The challenge is not merely on the
basis of illegality or propriety.
15. To sustain objection for maintainability of the petition, learned
senior counsel Mr. Deshpande relied on the judgment of the
Constitution Bench of the Apex Court in the matter of Naresh
Shridhar Mirajkar and others Vs. State of Maharashtra and others
reported in (1966) 3 SCR 744. Our attention is adverted to para Nos.
37, 38 and 59. In that case oral orders of the learned Judge on the
original side of the Bombay High Court prohibiting publication of
evidence of Mr. Guda was the subject matter. The question was that
whether impugned order affects fundamental rights of the petitioner
under Article 19(1) of the Constitution of India. In that context
observations are made in above referred paragraphs. The law laid
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down by the Constitution Bench cannot be made applicable to the
case at hand because in the present matter writ petition is filed on
the allegations of fraud, collusion and suppression of material facts.
16. Further reliance is placed on the judgment in the matter of
Triveniben Vs. State of Gujrat reported in (1989) 1 SCC 678. We have
gone through para No. 22 of the judgment. The facts are
distinguishable and this judgment also will not help the respondents.
Lastly reliance is placed on the judgment in the matter of Maninder
Kaur Vs. Delhi High Court and others reported in 1995(1) SLR 320. We
have gone through paragraph No. 21 of the judgment. In that case the
decision of the Division Bench was sought to be reviewed. Cited
judgment is in the context of altogether different facts. In the present
matter fraud and suppression of material facts besides violation of
principles of natural justice are pressed into service. Hence this
judgment also will not help the respondents.
17. Learned senior counsel Mr. R. N. Dhorde relied on the judgment
in the matter of Ramchandra Ganpat Shinde and another Vs. The
State of Maharashtra and others reported in AIR 1994 SC 1673. In
that case two members of the co-operative society had filed writ
petition for mandamus to the Collector and Election Officer to
conduct election. Division Bench passed order. Second Writ Petition
11 WRIT PETITION NO.2059-2025.doc
was filed and earlier order got modified to enable 2000 newly enrolled
voters to participate in election. Third writ petition was filed pointing
out collusion and fraud. It’s maintainability was questioned.
Interestingly, judgment of Constitution Bench in case of Naresh
Shridhar Mirajkar and Ors. vs. State of Maharashtra and Ors.
reported in AIR 1967 SC 1 which is sited by respondents in present
case was referred to and it is held that such writ petition is tenable.
Following are the relevant extracts :
“11. Obviously finding the piquant situation in which Patil, More and
Mule have been placed themselves, Sri Ashok Desai the learned Senior counsel
appearing for Society, sought to salvage their problem placing reliance on the
ratio of this Court in Naresh Shridhar Mirajkar and Ors. v. State of
Maharashtra and Anr. [1966]3SCR744. Therein the facts were that the High
Court of Bombay, while trying a suit for defamation against the editor of a
weekly newspaper, exercised its inherent power under Section 151 C.P.C.,
conducted the trial of the suit in camera and prohibited publication of the
evidence and the proceeding so as to prevent business of the editor of the
newspaper being affected. A writ petition was filed under Article 32 in this
Court challenging the validity of the order of the High Court contending inter
alia that the High Court had no jurisdiction to prohibit publication of the news;
it affected their rights under Article 19(1)(a) and it was resisted on the ground
that the writ petition under Article 32 was not maintainable to review judicial
order of the court. This Court by seven Judges per majority held that the
petitioners had no fundamental right under Article 19(1)(a). The Court had
inherent power and jurisdiction under Section 151 CPC to conduct in camera
trial and to prohibit publication of its proceeding of evidence and that writ
petition under Article 32 is not maintainable to quash the judicial order. It is
seen that the court, in order to protect the interest of one of the parties to the
suit, exercised inherent power and jurisdiction under Section 151 CPC, passed
a judicial order prohibiting publication of the proceeding in the suit or the
evidence of the witness. It being a judicial order no third party has a right to
intervene and challenge the same in the proceedings under Article 32 of the
Constitution. The ratio therein has no application to the facts of this case.
Undoubtedly, the order passed by the High Court under Article 226 is a judicial
order exercising its constituent power but when its process is abused and an
order of minutes obtained by consent hedged with collusion and fraud on the
Court and obviously, though not pleaded, on general body of the members of the
12 WRIT PETITION NO.2059-2025.docsociety, when the facts were brought to the notice of the High Court, it is the
High Court alone or on appeal this Court which is to correct such and order.
12. Mr. Justice Arthur T. Venderbilt in his “The Change of Law Reform 1955”
at pages 4 and 5, stated that:
…it is in the Courts and not in the legislature that our citizens primarily feel
the keen, the cutting edge of the law. If they have respect for the work of their
courts, their respect for law will survive the short comings of every other
branch of the Government; but if they lost their respect for the work of the
Courts, their respect for the law and order will vanish with it to the great
detriment of society.
(vide the Judicial Process by H.J. Abraham, p.3)
13. Respect for law is one of the cardinal principles for an effective operation of
the constitution, law and the popular Government. The faith of the people is
the source and succour to invigorate justice intertwined with the efficacy of law.
The principle of justice is ingrained in our conscience and though ours is a
nascent democracy which has now taken deep roots in our ethos of adjudication
– be it judicial, quasi-judicial or administrative as hallmark, the faith of the
people in the efficacy of judicial process would be disillusioned, if the parties
are permitted to abuse its process and allowed to go scot free. It is but the
primary duty and highest responsibility of the court to correct such orders at
the earliest and restore the confidence of the litigant public, in the purity of
fountain of justice; remove stains on the efficacy of judicial adjudication and
respect for rule of law, lest people would lose faith in the courts and take
recourse to extra-constitutional remedies which is a death-knell to the rule of
law.”
18. Reliance is placed by the petitioner on the judgment of Pohla
Singh alias Pohla Ram (D) By LRS. Vs And Others vs. State of Punjab
and Others reported in (2004) SC 126. It is pointed out that the
second writ petition seeking to recall the decision passed in earlier
writ petition in which they were not parties and the decision was
adversely affecting the interest, is maintainable. In the present
petition we have already held that petition is maintainable. However,
we have our reservations for the claim of the petitioner that it is a
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necessary party. Therefore, to the limited extent the ratio can be
made applicable. Further reliance is placed on the judgment of A.V.
Papayya Sastry and Ors. Vs. Government of A.P and Ors. reported in
AIR 2007 SC 1546 for the proposition that if the order is obtained by
playing fraud then it is a non est and can not be allowed to stand. It’s
a nullity. As in the case at hand, the petitioner has come up with a plea
of fraud and suppression of material facts, we have to entertain the
petition on merits. The ratio is applicable to the present case.
19. A trite law is that fraud vitiates everything and order obtained
by suppression of facts and fraud is Non est. Petitioner claims to be
necessary party in earlier petition. Obviously adherence to the
principles of natural justice needs to be gone into. In our considered
view, we find that present petition is maintainable. The objection of
the respondents for maintainability of the petition is overruled.
20. Petitioner has a layout at the adjoining area of the plot bearing
C.T.S No.15735/1/P allotted to the Respondent No.3. By gift deed
dated 28.10.1970, 1 acre 32 gunthas comprising of site No.149 was
transferred to the Respondent No.2/corporation and it is in
possession of the same. Being local body as well as planning
authority, it is a prerogative of the Respondent No.2/corporation to
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utilise the land vested in it. Petitioner or any other stakeholder can not
object the action of the corporation unless that is in violation of any
statute, rules or the public policy.
21. Earlier Writ Petition No.8517 of 2024 was filed by the
Respondent No.3/education society against state and municipal
corporation on 06.08.2024 praying for following reliefs :
“(a) Rule nisi be issued
(b) By issuing an appropriate writ or order, in the nature of mandamus,
the respondent be directed to provide 9 meter wide access road to the
leasehold property of the petitioner, given on a 30 year lease on
27.6.2024, under registered lease deed No.4499/2024.
(c) By issuing an appropriate writ or order, in the nature of mandamus,
the respondent be directed to honour its commitment under clause 10(f)
of the registered lease deed dated 27.6.2024.
(d) Pending hearing and disposal of the petition, the respondent be
directed to provide an approach road for ingress and egress to the
leasehold property specified in the lease deed dated 27.6.2024, to
enable the petitioner to undertake and commence development activity
on the leasehold property.
(e) Any other equitable relief, to which the petitioner is found to be
entitled in the circumstances of the case, be granted in the interest of
justice.”
22. In order to appreciate the submissions of learned senior
counsel Mr.Dhorde and the intervenors, we have gone through
pleadings and affidavits in reply of the corporation therein and
pleadings of R.C.S No.37 of 2024. Respondent No.3 was allotted a
piece of land for running a school. As per terms of lease deed, it was
requesting for providing approach road. Respondent No.3 could not
15 WRIT PETITION NO.2059-2025.doc
have asked any relief against the petitioner which was adjoining
society. It was upto the corporation being local body and the planning
authority to provide approach road. Pertinently, the Respondent No.3
was not demanding road from any of the plots of lay out of the
petitioner’s society or any piece of land which was exclusively in its
possession. It can not be said that for execution of any of the relief
the petitioner’s participation was required. In the earlier writ petition,
present petitioner can not be said to be a necessary party.
23. The petitioner has filed R.C.S No.37 of 2024 on 04.09.2024, for
perpetual injunction. Just because suit is filed, would not make it a
necessary party in the petition filed by the Respondent No.3. The
petitioner was not granted interim injunction in suit.The reliefs claimed
in the petition before High Court and in suit before civil court were
distinct. The non-disclosure of pendency of suit is inconsequential.
Therefore, we do not find any substance in the allegations of
suppression of material facts.
24. Respondent No.3 filed Writ Petition No.8517 of 2024 on
06.03.2024. Petitioner filed R.C.S No.37 of 2024 on 05.08.2024 before
Civil Court at Aurangabad but it was registered on 05.09.2024.
Roznama produced on record indicates that in pursuance of the
summons, Respondent No.2/corporation appeared on 15.10.2024 and
16 WRIT PETITION NO.2059-2025.doc
time was sought for filing say or written statement. On 30.11.2024
say-cum-written statement was filed. Following paragraph of the say
is relevant :
22] The defendant submits that, the allottee Shri Sainath Education Society
has filed Writ Petition no 8517/2024 before the Hon’ble High Curt Chh.
Sambhaji Nagar for the relief of providing Access road to the land given to It
on lease i.e. portion marked “C” in the above map. In the said Writ Petition
this defendant has filed Its detailed Affidavit In Reply. The defendant
reserves its right to produce the copy thereof, on record before this Hon’ble
Court.
25. The matter was adjourned on 30.11.2024 for arguments of
Exhibit-5 and was posted on 09.12.2024. The advocates of both the
sides were absent and no arguments were advanced on application
Exhibit-5. Matter was adjourned to 13.01.2025 when application D-14
was filed by the petitioner praying to defer the hearing of Exhibit-5.
Thereafter, on the next date i.e on 13.01.2025 pursis was submitted by
the petitioner not pressing application Exhibit-5. Petitioner did not
prosecute application Exhibit-5 before the civil court and has given up
claim for temporary injunction. This conduct creates doubt for the
bona-fides of the petitioner, if it was concerned with trees and
garden.
26. In the say filed by the corporation before civil court on
30.11.2024, it was candidly disclosed in paragraph No.22 referred
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above that Respondent No.3 had filed writ petition No.8517 of 2024.
The writ petition was pending from 30.11.2024 to 23.01.2025 in the High
Court. The petitioner had every opportunity to approach High Court
either by intervening in the petition or for filling independent petition
against the respondents but no timely steps were taken. Therefore,
hue and cry made by the petitioner that order sought to be recalled is
passed behind it’s back has no substance. We find that petitioner is
to be blamed for the lapses and can not be heard to say that
impugned order is obtained by suppression of facts in civil
proceedings.
27. We have recorded that petitioner was not a necessary party in
Writ Petition No.8517 of 2024. The allotment of the plot and the lease
deed have not been challenged by the petitioner. Being a local body
and the planning authority, Respondent No.2/corporation was bound
to provide the approach road. A specific term No.(f) is incorporated in
the lease deed to that effect. Therefore, there was nothing wrong on
the part of Respondent No.3 to demand approach road. Learned
counsel for the Respondent No.3 has referred to various provisions of
Municipal Corporations Rules, 2023 for transferring the plot. Section
205(a) of The Maharashtra Municipal Corporations Act, 1949
empowers the corporation to make a new street. Regulation No.3.2.1,
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3.2.2 and 3.3.14 stipulate obligation on the corporation to provide road.
Prima facie there is reason to believe that it was a statutory
obligation upon the corporation and therefore there was nothing
wrong in giving consent before the division bench for providing road.
28. It is the look out of the corporation to provide road to landlocked
plots. The manner in which and the site from which the it is to be
provided is its discretion. If the intervenor or adjoining owners or
stakeholders are offended by action of the corporation then they can
resort to the remedy available in law. The recalling of order passed in
Writ Petition No.8517 of 2024 can not be the recourse. No rights and
liabilities of the parties are decided as such by the order in question.
29. Impugned order shows the readiness of respondent/
corporation to provide road as per the lease agreement. The consent
given by the corporation can not be said to be extraneous or besides
their statutory obligation. The corporation filed affidavit in reply before
the division bench disclosing relevant facts. Reply was filed on
28.08.2024 i.e before registration of suit filed by the petitioner. It is not
recorded in the impugned order to provide road from a particular land
or plot. It is left to the discretion of the corporation. No case is made
out for bordering fraud or collusion .
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30. It is forcefully contended by the intervenor that the corporation
should have disclosed to the Division Bench that civil suit was sub-
judice. Even if it was disclosed, we do not think that it would have
affected or changed the order in question. The affected party chose
not to appear before High court. The learned counsel for the
corporation was in agreement with the request for providing approach
road, principally. We find no element of collusion or the fraud.
31. Learned Senior Counsel Mr. Dhorde relied on the judgment of
Pt.Chet Ram Vashist (Dead) by LRS. vs. Municipal Corporation of
Delhi reported in (1995) 1 SCC 47 and Vrajlal Jinabhai Patel, Since
deceased through his L.R.s Smt. Jagrati Vrajlal Patel and another vs.
State of Maharashtra and others reported in 2003 (3) Mh.L.J. Both
the judgments are on the same lines. Therefore, they are dealt with
commonly. By referring the ratio it is tried to be impressed that
corporation has right to examine the lay out plan submitted by the
colonizer but while exercising such power it can not impose
restrictions and conditions which are unreasonable and against law.
The issue germane the matter at hand is totally different and
therefore the ratio can not be made applicable.
32. Learned counsel Mr.Adwant for Respondent No.3 relied on
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following judgments :
A) Pt.Chet Ram Vashist (Dead) by LRS. vs. Municipal Corporation of
Delhi reported in (1995) 1 SCC 47.
. Our attention is adverted to paragraph Nos.4,6 and 7 of the
judgment. It is held that once the open space is transferred to the
corporation it is the custodian of the public interest and has to
manage the land in the interest of society in general. The effect of
transfer of the property is that the transferor ceased to be owner of it
and ownership stands transferred to the person in whose favour it is
transferred. As we are not deciding the issue in respect of the vesting
of the open space of site No.149, we refrain ourselves from
commenting anything on the basis of the cited judgment.
B) P.R.Narhari Rao vs. State of Kerala and Others reported in
(2012) 12 SCC 451.
. The facts are distinguishable and therefore the ratio laid
down is not applicable to the facts involved in the present case.
C) Budhia Swain and Others vs. Gopinath Deb and Others
reported in (1999) 4 SCC 396.
. In this case the power to recall is explained by Hon’ble Apex
Court in paragraph Nos.6 to 8 of the judgment. In the present case
we are not purely exercising the powers under Article 215 of the
21 WRIT PETITION NO.2059-2025.doc
Constitution of India because the petitioner was not a party to
earlier writ petition. The allegations of fraud and collusions are
levelled in the case at hand and therefore we have held that writ
petition is maintainable.
D) Ramchandra Tukaram Mohite (Since deceased) through LRs.
vs. Ramchandra Tukaram Mohite, Since deceased through heirs
and L.R.’s and Others vs. State of Maharashtra, Through its
Department of Urban Development and Others reported in 2023
SCC Online Bom.2640.
. We have gone through paragraph No.32 of the judgment. The
facts are different and the ratio is not applicable.
E) Vijay Nanikram Bhatia and Others vs. State of Maharashtra,
Through Department of Urban Development and Others reported in
2023 SCC Online Bom.2707.
. The judgment can not be made applicable because that is
distinguishable on facts.
F) Shridhar and Another vs. Revanna and Others reported in
(2020) 11 SCC 221.
. We have gone through paragraph No.25 of the judgment which
explains what is the ‘public duty’ of the municipal corporation. We have
22 WRIT PETITION NO.2059-2025.doc
already observed that corporation is duty bound to provide approach
road for the landlocked properties. We derive support from the ratio
laid down in paragraph Nos.25, 26 and 27 of the judgment in observing
that in the present case also, Respondent/corporation is obliged to
provide road to the Respondent No.3.
33. For the reasons assigned above, we find no merit in the writ
petition. Hence,we pass following order :
ORDER
A) Writ Petition is dismissed.
B) Rule is discharged.
C) Civil Applications are disposed of.
[ NEERAJ P.DHOTE J. ] [ SHAILESH P. BRAHME, J.]
34. After pronouncement of the judgment, learned counsel for the
petitioner prays for the continuation of the statement made by
learned senior counsel Mr. Deshpande which is in operation till
today.
35. Learned counsel Mr. Advant appearing for respondent No.3
vehemently opposes the request. He would submit that his plot is
23 WRIT PETITION NO.2059-2025.doclandlocked and he is unable to utilize the same for the purpose for
which it is allotted to.
36. There was statement made by learned senior counsel Mr.
Deshpande which is in operation till today. It is in the form of status
quo. Today, there is nobody to either continue the statement or
make the statement. As the status quo is in operation till this date,
we continue the status quo for the period of three (3) weeks from
today.
37. It is clarified that the order shall stand vacated without
reference to Court after expiration of three (3) weeks.
[ NEERAJ P.DHOTE J. ] [ SHAILESH P. BRAHME, J.] vsj