Kamlesh Jayantilal Patadia vs Sitaram Kunthe Municipal ...
2016 Latest Caselaw 4981 Bom

                                                                       (44) CP 189-15

    Amk
                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                CIVIL APPELLATE JURISDICTION




                                                                                    
                                 CONTEMPT PETITON NO. 189 OF 2015




                                                            
          Kalpana Kamlesh Patadia                              .. Petitioner
                Vs.
          Sitaram Kunthe,
          Municipal Commissioner of Gr. Mumbai & Ors.          .. Respondents




                                                           
                                              WITH
                                  CONTEMPT PETITIN NO. 190 OF 2015




                                                 
          Kamlesh Jayantilal Patadia                           .. Petitioner
                Vs.                     
          Sitaram Kunthe,
          Municipal Commissioner of Gr. Mumbai & Ors.          ..Respondents
                                       
          Mr. Rajesh Kachare a/w. Ms. Savita Sawalkar i/b M/s. Tamhane & Co. for
          the Petitioners.
          Mr. N. V. Walawalkar a/w. Mrs. Madhuri More for the Respondents.
            


                                    CORAM : DR. SHALINI PHANSALKAR-JOSHI, J.

DATE : 25th AUGUST, 2016.

ORAL JUDGMENT

1. As both these contempt petitions raise common question of

fact and law and arise out of one and same order passed in two different

suits, they are being heard and decided together by this common

Judgment.

2. The petitioner in Contempt Petition No. 189 of 2015 is the

wife of petitioner in Contempt Petition No. 190 of 2015. They are the

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owners of the flats bearing Nos. A-11 and A-6 situated on the second floor

of the New Chandraoday Co-operative Housing Society Ltd. as

specifically mentioned in the cause title of the suits. Both the flats had

180 sq. ft. terrace each, adjoining to the flats. Both the petitioners

covered their respective terraces with asbestos sheets. In respect of this

coverage of the terraces, Municipal Corporation was pleased to pass an

order dated 23.04.2013 for demolition of the unauthorized covering of the

terraces. The petitioners, hence, filed two separate suits bearing L.C. Suit

No. 2477 of 2013 and Suit No. 2476 of 2013, inter alia, praying for

permanent injunction restraining respondent-Municipal Corporation from

implementing the impugned order dated 23.04.2013. Along with suits, the

petitioners filed Notices of Motion Nos. 2303 of 2013 and 2304 of 2013

seeking relief of interim injunction. In those Notices of Motion ad interim

relief was rejected. The petitioners, therefore, preferred the appeals

against the order and in those appeals the ad interim relief was granted by

this Court on 24.05.2013 in terms of prayer clause (b). The said relief was

confirmed by this Court by order dated 19.09.2013 and directed to be

continued till the disposal of the Notices of Motion by the Trial Court.

3. The grievance of the petitioners is that despite this order of

interim injunction granted and confirmed by this Court till disposal of the

Notices of Motion and despite the fact that the Notices of Motion are yet

not disposed of and pending before the Trial Court, the respondent herein

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issued notice dated 28.11.2014 under Section 53(1) of the MRTP Act

calling upon the petitioners to restore their flats to original status, in

accordance with the plan approved by the Executive Engineer while

sanctioning the building proposal. Subsequent thereto, on 11.03.2015 the

petitioners also received notice under Section 488 of the Mumbai

Municipal Corporation Act, intimating the petitioners that the Assistant

Engineer (B & F)-I, 'N' Ward shall visit the premises of the petitioners on

13.03.2015 for the purpose of inspecting and taking measurement of

unauthorized work, if any. ig According to the petitioners, therefore, the

respondent-Municipal Corporation has committed breach of the ad interim

relief granted by this Court on 24.05.2013 and confirmed on 19.09.2013.

Hence, according to the learned counsel for the petitioners, the

respondent is liable for intentionally, willfully and consciously disobeying

the order of this Court.

4. Both these petitions are resisted by the learned counsel for

the respondent by placing reliance on the pleadings in the suit filed by the

petitioners and also on the various orders passed by this Court and by the

Commissioner of Mumbai Municipal Corporation.

5. Having heard the learned counsel for the petitioners and the

respondent herein, I find much substance in the submission advanced by

the learned counsel for the respondent that there is absolutely no question

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of respondent committing the breach or disobedience much less willful or

intentional, of the order passed by this Court. The reasons for the same

are as under :

The order of ad interim relief was passed by this Court on

24.05.2013 in terms of prayer clause (b). The prayer clause (b) of the

Notice of Motion filed by the petitioners in the Trial Court states as follows:

"(b) that pending the hearing and final disposal of this Suit, the Defendants, their servants, agents, officers and any person or persons acting under or through them

be restrained by a temporary order of injunction of this Hon'ble Court from taking any action pursuant to the

impugned order dated 23rd April 2013 to the extent of its affects the right of the Plaintiff in respect of the suit property;"

6. The Notices of Motion make it clear that by the said prayer

clause, petitioners had sought the relief of injunction restraining the

Municipal Corporation from taking any action pursuant to the impugned

order dated 23.04.2013 passed by the Municipal Commissioner in respect

of the suit property. Para No.1 of the plaint in the suit reveals that in the

said suit, the plaintiffs have described that the "180 sq. ft. terrace covered

with asbestos sheets" as the suit property. It is clear that, therefore, the

ad interim relief was sought and granted only in respect of the

"unauthorized covering of the terrace". The said ad interim relief was

continued till the disposal of the Notices of Motion by this Court vide its

order dated 19.09.2013. It is pertinent to note that the order of the

Commissioner of Municipal Corporation dated 23.04.2013, which was

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challenged by the petitioners in the said suit also, pertains to the

unauthorized covering of terraces belonging to the petitioners, calling

upon the same to be demolished after inspection.

7. Therefore, it is crystal clear that the only relief sought by the

petitioners in the said suit was in respect of restraining the Municipal

Corporation from demolition of unauthorized covering of 180 sq. ft.

terraces, pursuant to its order dated 23.04.2013.

8.

Now, the notice, which is issued by the Municipal Corporation

and which is produced in these petitions at page No.26, reveals that the

said notice is issued under Section 53(1) of the MRTP Act, calling upon

the petitioners to remove the unauthorized work and development carried

out in the said flat in respect of the 5 items, namely, (1) Amalgamation of

two flats bearing Nos.06 & 11 by removing common wall, (2) Wall between

living room and balcony is removed in flat Nos.06 & 11, (3) Wall

constructed in living room of flat No.11, (4) Bath and W.C. merged in flat

Nos.06 & 11 and (5) Kitchen merged in flat No.06. By this notice under

Section 53(1) of the MRTP Act, the petitioners were called upon to restore

the flat Nos.A-06 & 11 to its original status, in accordance with the plan

approved by the Executive Engineer on 05.07.2001, by removing the

unauthorized work, as referred in the said notice, which pertains to the

particular 5 items only. By the notice, issued under Section 488 of the

(44) CP 189-15

MMC Act on 11.03.2015, the Assistant Municipal Commissioner was

directed to inspect the suit premises and to take measurement of

unauthorized work referred in this notice.

9. Thus, it is apparent and very clear that this notice issued

under Section 53(1) of the MRTP Act and notice under Section 488 of the

MMC Act are totally in respect of different unauthorized constructions,

than the unauthorized covering of terraces, in respect of which, order

dated 23.04.2013 was passed and which order was challenged and

respondent-Corporation was restrained from taking any action in

pursuance of the said order. These two notices do not even mention and

even remotely not connected to the unauthorized coverage of terraces.

These notices issued by Municipal Corporation refer to different

unauthorized work carried out by the petitioners in their flats.

10. In view thereof, there is absolutely no question of respondent-

Corporation committing the breach of the order passed by this Court, far

remain, willfully or intentionally. The order passed by this Court refers to

unauthorized covering of terrace; whereas the notice issued by Municipal

Corporation refers to different unauthorized works carried out by the

petitioners in their flats.

11. Both the petitions, therefore, alleging contempt on the part of

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the respondent, are totally misconceived. It appears that under the garb

of filing these petitions, alleging the contempt, the petitioners have carried

out further unauthorized construction and now want to stall the process of

the demolition of the said unauthorized work. Both the petitions,

therefore, need to be dismissed and accordingly stand dismissed.

[DR. SHALINI PHANSALKAR-JOSHI, J.]