Jitendra G. Janavale vs State Of Maharashtra & 4 Ors
2016 Latest Caselaw 2971 Bom

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                      
                ORDINARY ORIGINAL CIVIL JURISDICTION
                   WRIT PETITION NO.2516 OF 2013
                                




                                              
       Jitendra G. Janavale                            ...Petitioner
       vs.
       State of Maharashtra & Ors.                     ...Respondents




                                             
       Mr.Sagar Rane for the Petitioner
       Mr.V.S.Upadhyay for the respondent No.1
       Ms Shobha Ajitkumar for BMC




                                   
       Mr.Karan Bhosale i/b Mr.Purav Damania for the 
       respondent Nos.4 and 5. ig
       CORAM : A.S.OKA & C.V.BHADANG,JJ.

DATE ON WHICH JUDGMENT IS RESERVED:FEBRUARY 23, 2016

DATE ON WHICH JUDGMENT IS PRONOUNCED: JUNE 17, 2016

JUDGMENT : (PER A.S.OKA,J.)

(As Bhadang, J. is not available at Mumbai, signed Judgment is pronounced by A.S.Oka,J as per Rule 296

(iii) of the Bombay High Court Original Side Rules).

1 The petitioner who claims to be a social worker

has filed this petition inviting attention of the Court to the illegal constructions carried out by the respondent No.4 who is the husband of the respondent No.5. At present, the respondent No.5 is

an elected Councillor of the Mumbai Municipal Corporation from Ward No.65 covering the area of Vile Parle (West), Mumbai.

2 The alleged illegal constructions have been carried out in the property known as Kunj Vihar Bunglow situated at 1st Bajaj Road, Vile Parle (West), Bombay 400 056.

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     3        On   16th  February   2010,   a   notice   under   section 




                                                                      

354A of the Mumbai Municipal Corporation Act,1888 was issued to one Kunal Vira described as an

occupier of the structure stating that he has commenced unauthorised construction of a Mezzanine floor admeasuring 24' 6" x 20' with Ladi Koba slab

and he has commenced the work of lowering the plinth. It appears that on 1 st October 2010, a proposal for grant of permission to carry out

additions and alterations and change of user was

received by the said Municipal Corporation through an Architect. However, the proposal was rejected.

On 1st April 2011, the Assistant Engineer (Building and Factory) Department, K/W Ward passed an order directing the respondent No.4 and the said Kunal

Vira to remove unauthorised constructions set out in the notice dated 16th February 2010. It appears

that the respondent No.4 filed L.C.Suit No.757 of 2011 in the City Civil Court for challenging the

said order. On 19th April 2011, the learned Judge of the City Civil Court rejected the prayer for grant of ad-interim relief. By a letter dated 20th April 2012 (Exhibit-F to the petition) the respondent No.4

informed the Assistant Commissioner of K/W ward of the said Corporation stating that as per the aforesaid notice and the order, he has removed the illegal work and restored the original condition of the godown.

4 The petitioner is relying upon various documents obtained under the Right to Information

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Act,2005 from the said Corporation. Reliance is also placed on the application dated 24th June 2013

submitted by the Architect of the respondent No.4 for change of user of the structure.

5 There are three substantive prayers in the petition viz. Prayers (a) to (c) which read thus:

"(a) That this Hon'ble Court be pleased to direct the Respondent No.1 to consider the

application dated 28th March 2013 (Exhibit "M-

1" hereto) addressed to the Respondent No.1 calling upon the latter to initiate

appropriate action against the respondent No.5 Municipal Councillor in view of the provisions contained in Section 16 (1D) and

section 18 of the Mumbai Municipal Corporation Act,1888 and thereafter to

dispose off the said application within a period of four weeks with a speaking order

after giving the petitioner and respondent No.5 a reasonable opportunity of being heard;

(b) that, in the alternative to prayer clause

(a), this Hon'ble Court be pleased to issue

an appropriate writ, order or direction in the nature of writ of mandamus and direct the respondent No.1 to initiate proceedings against the respondent No.5 in terms of section 18 of the Mumbai Municipal Corporation Act,1888 on account of having incurred a disqualification under section 16 (1D) of the Mumbai Municipal Corporation

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Act,1888 and pass final orders in the matter within such time frame as this Hon'ble Court

may determine;

(c)that this Hon'ble Court be pleased to

issue an appropriate writ, order or direction in the nature of writ of mandamus and direct the Respondent No.3 to take all necessary

steps in accordance with law to give effect to the demolition notice date 16th February 2010 by demolishing the admittedly

unauthorised structure/construction owned by

the Respondent No.4 which has been more particularly described in Exhibit"A" to the

present writ petition."

6 The contention of the petitioner is that the

respondent No.5 being the spouse of the respondent No.4 has incurred a disqualification under sub-

section (1D) of section 16 of the said Act for continuing as an elected Councillor.

7 The contention of the learned counsel for the petitioner is that the relationship between the respondent Nos.4 and 5 is not disputed and that by

a letter dated 20th April 2012 addressed to the Assistant Commissioner of the said Municipal Corporation, the respondent No.4 admitted to have carried out the illegal construction. He submitted that notwithstanding the fact that the City Civil Court has declined to grant ad-interim injunction, only because the suit is pending, the Joint Law Officer submitted an opinion dated 3rd August 2013

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stating that the an action of demolition under section 351 of the said Act should not be initiated.

His submission is that as there is no dispute regarding incurring the disqualification, even a

reference to the Court in accordance with section 18 of the said Act is not necessary.

8 The learned counsel for the respondent Nos.4 and 5 relied upon the affidavit of the respondent No.4. He contended that no illegal construction has

been carried out by the respondent Nos.4 and 5. He

submitted that the premises in question was in possession of the said Kunal Vira. He submitted

that there was no illegal construction carried out either by the respondent No.4 or the respondent No.

5. The learned counsel for the Mumbai Municipal

Corporation stated that the affidavit in reply could not be filed and therefore, she does not have

instructions on the facts.

9 We have considered the submissions. The relationship between the respondent Nos.4 and 5 is not disputed. The respondent No.4 claims to be the owner of the property described above. In response

to the notice dated 16th February 2010 under section 354A of the said Act and the order dated 1st April 2011 of demolition passed by the Mumbai Municipal Corporation, the respondent No.4 addressed a letter to the Assistant Commissioner of the Mumbai Municipal Corporation. In the said letter dated 20 th April 2012, the respondent No.4 stated that illegal construction was carried out by the said Kunal Vira

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who was in possession. However, he stated that he has demolished the work as directed by the notice

and the order.

10 The documents obtained under the Right to Information Act,2005 which are annexed to the petition and in particular the note dated 3 rd August

2013 of the Legal Department of the Municipal Corporation show that as on 3rd August 2013, the entire illegal construction was not demolished. In

the said note, it is stated that illegal

construction has been removed but there is change of user from the outhouse to I.T.Office and there are

illegal additions and alterations carried out to the extent of 43.38 sq ft. The Joint Law Officer opined that as regularizaion proposal was pending, action

under section 351 of the said Act cannot be initiated.

11 Thus, admitted position is that in the property

of the respondent No.4, illegal construction was carried out without obtaining permission. The respondent No.4 claims to have himself demolished the illegal construction. No material is placed on

record to show that the illegal work subject matter of the notice dated 16th February 2010 and order dated 1st April 2011 was carried out by the alleged occupant. It is not the case of the respondent no. 4 that he filed any proceedings against the occupant for carrying out illegal construction.

12 Sub-section (1-D) of section 16 of the said Act

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reads thus:

"(1D) A Councillor shall be disqualified for being a Councillor, if such Councillor

has constructed or constructs by himself, his spouse or his dependent, any illegal or unauthorised structure violating the

provisions of this Act or the Maharashtra Regional and Town Planning Act, 1966 or the rules or bye-laws framed under the said Acts;

or has directly or indirectly been

responsible for, or helped in his capacity as such Councillor, in carrying out such illegal

or unauthorised construction or has by written communication or physically obstructed or tried to obstruct any Competent

Authority from discharging its official duty in demolishing any illegal or unauthorised

structure. Such disqualification shall be for the remainder of his term as a Councillor

from the date of the declaration of such structure to be illegal or unauthorised by the concerned authority under the provisions of the said Acts or, as the case may be, from

the date of commission of the act of interference or obstruction by the Councillor against the Competent Authority.]

13 In the present case, illegal construction as specified in the notice dated 16 th February 2010 has been admittedly carried out in the property of the respondent No.4 who claims to have removed the said

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work. The note dated 3rd August 2013 submitted by the Joint Law Officer of the Municipal Corporation

records that apart from illegal change of user, additions and alterations to the extent of an area

of 43.38 sq feet have been illegally made. In the affidavit in reply filed by the respondent Nos.4 and 5 they have stated that their application for

regularization of the change of user and the said work is pending. There is a specific statement to that effect in the paragraph 27 of the reply. It is

not their case that this illegal work was made by some one else.

14 We fail to understand as to why an action under section 351 of the said Act was not initiated. In any event, as the respondent No.4 has accepted that

he has removed the illegal construction subject matter of the notice dated 16 th February 2010. There

are further illegal additions and alterations for which the respondent no. 4 has applied for

regularisation. Therefore, there is great deal of merit in the submission that clause 1D of will be squarely attracted as the work was carried out in the property of the respondent no.4 admittedly

without permission of the Planning Authority.

15 Section 18 of the said Act reads thus:

"18 Questions as to disqualification to be determined by Chief Judge of the Small Cause Court.

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Whenever it is alleged that any councillor has become disqualified for office

for any reason aforesaid, and such councillor does not admit the allegation, or whenever

any councillor is himself in doubt whether or not he has become disqualified for office, such councillor or any other councillor may,

and the Commissioner, at the request of the corporation, shall apply to the Chief Judge of the Small Cause Court; and the said Chief

Judge, after making such inquiry as he deems

necessary, shall determine whether or not such councillor has become disqualified for

being a councillor, and his decision shall be conclusive."

16 According to us, it will be necessary for the petitioner to bring the act of disqualification to

the notice of the Commissioner of the said Corporation who will have to take action in

accordance with section 18 as there is a dispute raised by the respondent No.5 as regards her disqualification.

17 Hence, we pass the following order:

(I) The petitioner shall produce an authenticated copy of this Judgment and Order before the Commissioner of the Mumbai Municipal Corporation. The Commissioner shall take further action in accordance with section 18 of the said Act within six weeks from the date on

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which an authenticated copy of this Judgment and Order is produced before him;

(II) We direct the Assistant Commissioner of the Mumbai Municipal Corporation in charge of K/W

ward to visit the structure in question with a view to ascertain whether any further illegal construction has been carried out. If the

Officer finds that illegal constructions have been carried out, the Assistant Commissioner shall forthwith take steps for removal of the

same. He will also ascertain whether the work

subject matter of the order dated 1st April 2011 has been removed. If he finds that the entire

offending work in terms of the order dated 1st April 2011 has not been removed, he will forthwith take action of removal. The action of

demolition shall be take after serving a notice to the respondent no.4 in accordance with law.;

(III) On receipt of an authenticated copy of this Judgment and order, the Municipal Commissioner

shall take action in accordance with law; (IV) Writ Petition is disposed of on above terms;

(V) For reporting compliance, the petition

shall be listed on Daily Board on 9th August 2016. Compliance affidavit shall be filed by the Mumbai Municipal Corporation before the next date;

(VI) All concerned to act upon an authenticated copy of this Judgment and order.

              (C.V.BHADANG,J.)                          (A.S.OKA,J.)