TILOTTAMA Vs. MUNICIPAL COMMISSIONER, NAGPUR

JUDGEMENT

(1.) Heard.

(2.) The results of the elections to the Nagpur Municipal Corporation were declared on 23rd February 2017. Mrs. Tilottama Sanjay Kinkhede (Petitioner in Writ Petition No.5075 of 2019) and Mrs. Pragati Ajay Patil (Respondent No.2 in Writ Petition No.5075 of 2019) had contested elections from Prabhag 14-D. Mrs.Pragati Ajay Patil was declared elected. On 3rd May 2017, Mrs.Tilottama submitted representation under Section 10(1D) read with Section 12 of the Maharashtra Municipal Corporations Act, 1949 (hereinafter referred to as "the Maharashtra Act No.LIX of 1949") to the Municipal Commissioner contending that Mrs.Pragati and her husband Shri.Ajay Patil had carried out illegal and unauthorized construction at Flat bearing No.3/4, Forest Housing Society, Behind Center Point School, Nagpur, that Mrs.Pragati and her husband had encroached over 1250 sq.ft. out of the property bearing Survey No.56/1, situated at Telangkhedi, Nagpur, as also encroachment and illegal/unauthorized construction was made by Mrs. Pragati and her husband in the flat situated in Gulmohar Apartments, Tilak Nagar, Nagpur and at the property situated at Survey No.70(1-B) at Tilak Nagar, Nagpur. Mrs.Tilottama prayed that inquiry regarding encroachment/illegal and unauthorized construction by Mrs. Pragati and her husband should be made and it be declared that the structures in question are illegal and unauthorized and a report be forwarded to the Civil Judge Senior Division, Nagpur as per the provisions of Section 12 of the Maharashtra Act No.LIX of 1949. The Municipal Commissioner caused an inquiry in the matter and passed an order on 2nd July 2019, prima-facie observing that some illegal/ unauthorized construction exists in the properties of Mrs.Pragati. The Municipal Commissioner referred the matter to the general body of the Municipal Corporation for appropriate decision regarding referring the matter to Civil Judge Senior Division, as per Section 12 of the Maharashtra Act No.LIX of 1949.

(3.) When both the writ petitions were heard by Division Bench (Shri.Sunil B. Shukre and Shri.Avinash G. Gharote, JJ), the Division Bench opined that there appears to be conflict between the view taken in the judgment given in the case of Edwin Francis Britto..vs..Municipal Corporation, Greater Mumbai , 2006 6 BCR 92, (2006) SCC Online 791=) and the view taken in the judgment given in the case of Mallesh Shivan Shetty..vs..Kalyan-Dombivali Municipal Corporation , 2016 3 MhLJ 901. The Division Bench, by order dated 4th January 2021, formulated 3 questions/points for reference to Larger Bench and directed the Registry to place the matter before the Hon'ble Chief Justice for considering the constitution of Larger Bench. The three points formulated by the Division Bench are as follows: