Bombay High Court
Mr. Sanjay Babu Choudhary vs Kalyan Dombivli Municipal ... on 17 January, 2018
Bench: A.S. Oka
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 12536 OF 2017
Mr. Sanjay Babu Choudhary ...Petitioner
Versus
Kalyan Dombivli Municipal
Corporation And Ors. ...Respondents
WITH
CIVIL APPLICATION NO.74 OF 2018
IN
WRIT PETITION NO.12536 OF 2017
Channur Bhavan CHS ...Applicant
In the matter between :
Mr. Sanjay Babu Choudhary ...Petitioner
Versus
Kalyan Dombivali Municipal
Corporation & Ors. ...Respondents
----
Mr.Nilesh R. Pandey a/w Mr.Sameer S. Vispute i/b Equa Juris for
the Petitioner.
Mr.Sumit S. Kothari for Applicant in CA.
Mr.A.S. Rao a/w Mr.Prashant Kamble for Respondent Nos.1 & 2.
----
CORAM : A.S.OKA &
P. N. DESHMUKH, JJ.
DATED : 17th JANUARY 2018
ORAL JUDGMENT (Per : A.S. Oka, J.)
1. This is a classic case of abuse of process of law. In fact
we must record that in fairness to the petitioner that we had granted
an opportunity to the learned counsel appearing for the petitioner to
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take instructions as to whether the petitioner wants to withdraw the
petition. On instructions he states that the petitioner wants to
prosecute the petition.
2. The subject matter of this petition is a structure which is
admittedly in possession of the third respondent. He is selling
sugarcane Juice in suit structure. The third respondent filed a suit
for declaration in respect of the subject structure against one
Shri.Mukund Bojraj Bhoir. By judgment and decree dated 05 th
March 1997, the learned II Joint Civil Judge, Junior Division, Kalyan
granted a declaration holding that the third respondent is a tenant
of the subject structure. Apart from granting a declaration, a decree
of injunction was passed against the said Mukund Bhoir.
3. On 12th November 2009 a notice was issued to the
owners of the structure by the Kalyan-Dombivli Municipal
Corporation calling upon them to submit their say with reference to
a complaint that the subject structure is illegal. There are further
notices issued by the Municipal Corporation. In fact on 15 th
February 2011 a notice was issued by the said Corporation under
Section 260 of the Maharashtra Municipal Corporations Act, 1949
(for short 'the said Act') to the third respondent calling upon him to
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remain present with the documents showing authorization for the
structure. There is a reply submitted by the third respondent to the
said notice in which it is contended that the said structure is in
existence with effect from 01 st January 1976. On 14th March 2013,
the Municipal Corporation informed the third respondent by issuing
a notice under Section 478 of the said Act that the subject structure
has been declared as illegal and should be removed by the third
respondent within 30 days. The subject structure is shown on a
sketch, which is part of the said communication dated 14th March
2013 (Exh.'O' to the Petition).
4. In Writ petition No.3219 of 2013 filed by the third
respondent, by order dated 13th June 2013 the notice/order dated
14th March 2013 was set aside and a direction was issued to the
Municipal Corporation to pass an order on the basis of the notice
dated 15th February 2011 after giving an opportunity of being heard
to the third respondent. On the basis of the said order, on 13 th
August 2013 a notice was served to the third respondent calling
upon him to remain present for hearing on 29 th August 2013 along
with documents. Accordingly, the third respondent appeared and
submitted a reply in writing. After considering the said reply, on
10th September 2013, the Designated Officer passed an order
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holding that the subject structure was illegal and therefore, it was
directed that the structure should be removed.
5. The third respondent, being aggrieved by the said order
filed Writ Petition No.9022 of 2013. Order dated 17 th April 2014
shows that the said petition was not pressed on merits on the
ground that the third respondent wanted to apply for regularization
of the structure. Accordingly, the petition was disposed of granting
liberty to the third respondent to apply for regularization.
Accordingly, an application for regularization was made by the third
respondent on 06th June 2014 which was rejected by the Municipal
Corporation by a communication dated 01 st September 2014.
Thereafter, the third respondent appears to have made a
representation in writing contending that there is a sanctioned plan
of the year 1965. One more Writ Petition was filed by the third
respondent being Writ Petition No.11437 of 2014 for challenging
the action of the rejection of the regularization application. The said
Writ Petition was disposed of by the order dated 18 th December
2014 on a statement made by the third respondent that he was
desirous of preferring an appeal under Section 47 of the
Maharashtra Regional and Town Planning Act, 1966 for challenging
the order of rejection of the application for regularization.
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Accordingly, an appeal was preferred which was dismissed by
speaking order dated 27th July 2015 by the Hon'ble Minister of State
of the Urban Development Department. Even before the said
Appellate Authority, the third respondent relied upon the sanctioned
plan dated 23rd April 1965.
6. The order of the Hon'ble Minster was again subjected to
a challenge by the third respondent by filing another Writ Petition in
this Court being Writ Petition No.8115 of 2016. By judgment and
order dated 28th June 2017 the said Writ Petition was rejected.
Even in the said Writ Petition, submissions were made on the basis
of the alleged sanctioned plan dated 23rd April 1965.
7. The averments made in the petition disclose that
against the said order dated 28 th June 2017 passed by this Court, the
third respondent preferred Special Leave Petition before the Apex
Court which was rejected by the order dated 15 th September 2017. It
is averred in Clause-aa in paragraph No.3 of the Petition that on the
basis of the discovery of the sanctioned plan, the third respondent
has filed Review Petition which is pending before the Apex Court.
By this Petition, the petitioner has purported to challenge notice
dated 13th August 2013 issued by the Municipal Corporation under
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Section 260 of the said Act. That is the first substantive prayer in
this Petition. The second substantive prayer is for directing the
respondent No.1 and 2 to follow due process of law. The entire
petition proceeds on the footing that now the petitioner has become
the owner of the subject structure.
8. The learned counsel appearing for the petitioner
submits that the sanctioned plan of 23 rd April 1965 shows that the
subject structure is authorized. He submitted that the sanctioned
plan has not been considered in proper perspective by the Appellate
Authority which decided the appeal under Section 47 of the MRTP
Act and by this Court while deciding Writ Petition No.8115 of 2016
filed by the third respondent by the order dated 28 th June 2017. His
submission is that the petitioner has become the owner of the
subject structure by agreement for sale dated 2 nd March 2012 and
therefore, all the proceedings are behind the back of the petitioner.
He invited our attention to notice dated 15 th February 2011 by
pointing out that it relates to extension to the shop where sugarcane
juice is being sold but the impugned notice/order dated 13 th August
2013 refers to the entire subject structure of the shop admeasuring
15 by 12 sq.ft. He submitted that a direction was issued under order
dated 13th June 2013 to pass an order on the basis of the show cause
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notice dated 15th June 2011. But in fact the Designated Officer has
passed an order on the basis of impugned notice dated 13 th August
2013 which refers to the entire subject structure of shop. He
submitted that as the sanctioned plan of 1965 has not been
considered in proper perspective, the Municipal Corporation may be
directed to treat this petition as a representation and pass an order
especially in the light of the recent amendment to the MRTP Act by
which illegal structures constructed upto 31st December 2015 are
permitted to be regularized.
9. We have considered the submissions. As the facts
stated above indicate that there is an order of demolition passed in
respect of the subject structure on 10 th September 2013 which has
become final.
10. Firstly, the petitioner cannot claim to be the owner of
the subject structure. The petitioner has entered into an agreement
for sale with Shri.Mukund B. Bhoir which is of 2 nd March 2012. This
is not an agreement executed under The Maharashtra Ownership of
Flats (Regulation of the Promotion, Construction, Sale, Management
and Transfer) Act, 1963. Another aspect which is to be noted is that
in the declaratory suit filed by the third respondent, the said
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Mukund Bhoir who has executed the agreement in favour of the
petitioner was the first defendant. In the same suit a declaration
was granted that the third respondent is the tenant in respect of the
subject structure. In view of Section 54 of the Transfer of Property
Act, 1882 an agreement for sale does not create any interest in the
property. There is one more aspect which will have to be noted that
right from the year 2010, notices were issued by the said Municipal
Corporation in respect of the subject structure even to the third
respondent. One such notice (Exh.K to the Petition) is issued on 09 th
August 2010. The other notice is of 15 th February 2011 (Exh.M to
the Petition) which is issued to the third respondent under Section
260 of the said Act. Therefore, the petitioner has purported to deal
with the subject structure one year after a notice under Section 260
of the said Act was served to the third respondent who is admittedly
the tenant in respect of the structure and admittedly, even today he
is in possession. A comment was made by the learned counsel for
the petitioner that the original notice is in respect of the extension to
the premises where the sugarcane juice sold. On perusal of the
reply given by the third respondent, we find that he has proceeded
by treating that the said notice is in respect of the entire subject
shop as is clear from the first paragraph of the page 124.
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11. It is true that under the order dated 13 th June 2013
passed in Writ Petition No.3219 of 2013, direction was given to
pass an order on the basis of the show cause notice dated 15 th
February 2011. What is impugned in this petition is the notice
dated 13th August 2013 at Exh-R to the Petition. This notice only
calls upon the third respondent to remain present for hearing on 29 th
August 2013. Accordingly, the third respondent remained present
and filed a reply in writing, a copy is annexed to the Petition. There
is a speaking order dated 10th September 2013 passed by the
Designated Officer which holds the subject structure to be illegal.
Though the petitioner has annexed the said order to this petition,
the petitioner has not challenged the said order and he has
challenged only the notice dated 13th August 2013 which is merely a
notice calling upon the third respondent to remain present for
hearing. The order of demolition passed on 10 th September 2013
has become final. Writ Petition No.9022 of 2013 filed by the third
respondent against the said order was not pressed and the third
respondent applied for regularization. As stated earlier, after the
application for regularization was rejected by the Municipal
Corporation, an appeal preferred against the same under Section 47
of the MRTP Act has been dismissed. In the appeal, alleged
sanctioned plan of 1965 was relied upon. Even the order in appeal
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was subjected to a challenge by third respondent in Writ Petition
No.8115 of 2016 in which the third respondent relied upon
sanctioned plan dated 23rd April 1965. As stated earlier, the Writ
Petition was dismissed by the order dated 20 th June 2015 and
Special Leave Petition filed by the third respondent against the said
order has been dismissed.
12. Firstly, the petitioner has no right, title and interest in
respect of the subject shop. Secondly, he has entered into an
agreement for sale in respect of the subject premises after a notice
under Section 260 of the said Act was served by the Municipal
Corporation on third respondent, who is admittedly a tenant in
respect of the subject premises. The notice records that the
construction of the premises is illegal.
13. Therefore, none of the contentions which are raised by
the petitioner, can be considered. The petitioner has not challenged
order passed by the Designated Officer which holds that the
structure is illegal. In any case the said order had already become
final. Filing of this petition is an abuse of process of law.
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14. Perusal of the photographs annexed to Civil Application
No.74 of 2018 shows that not only the structure is much ahead of
the shop line of the building, but the structure covers the open
space between the compound wall of the building and the building.
15. On the earlier date and even today, we had put the
learned counsel appearing for the petitioner to the notice that
according to us, filing of this petition is an abuse of process of law.
We had even granted him opportunity to withdraw this petition.
16. Therefore, this is a fit case where the petitioner should
be subjected to payment of exemplary cost which is quantified at
Rs.1 lakh.
17. Accordingly, Writ Petition is rejected. We direct the
petitioner to pay costs of Rs.1 lakh to the Municipal Corporation
within one month from the date on which this order is uploaded.
18. For reporting compliance, the petition shall be listed
under the caption of 'directions' on 19th March 2018.
19. At this stage, the learned counsel appearing for the
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petitioner seeks extension of ad-interim relief. Considering the
findings recorded in the judgment and order, the prayer is rejected.
20. The Civil Application does not survive and the same is
also disposed of.
(P.N. DESHMUKH, J) (A.S.OKA, J.)
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