Bombay High Court
Aakar Infraprojects Pvt Ltd And ... vs Municipal Corporation For ... on 13 December, 2021
Bench: S.J. Kathawalla, B.P. Colabawalla
Digitally signed by
SWAROOP SWAROOP
SHARAD SHARAD PHADKE
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Date: 2021.12.13
PHADKE 21:39:23 +0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 2364 OF 2015
Aakar Infra Projects Pvt. Ltd. & Anr. ... Petitioners
Versus
MCGM & Ors. ... Respondents
ALONG WITH
CHAMBER SUMMONS (L) NO. 442 OF 2015
WITH
CHAMBER SUMMONS (L) NO. 528 OF 2018
WITH
NOTICE OF MOTION NO. 385 OF 2018
WITH
INTERIM APPLICATION (L) NO. 3783 OF 2021
IN
WRIT PETITION NO. 2364 OF 2015
WITH
INTERIM APPLICATION (L) NO. 9171 OF 2020
IN
WRIT PETITION NO. 2364 OF 2015
WITH
INTERIM APPLICATION NO. 9239 OF 2020
IN
WRIT PETITION NO. 2364 OF 2015
WITH
INTERIM APPLICATION (L) NO. 3158 OF 2021
IN
WRIT PETITION NO. 2364 OF 2015
WITH
INTERIM APPLICATION (L) NO. 3164 OF 2021
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IN
WRIT PETITION NO. 2364 OF 2015
WITH
INTERIM APPLICATION NO. 2415 OF 2020
IN
WRIT PETITION NO. 2364 OF 2015
WITH
INTERIM APPLICATION NO. 1613 OF 2020
IN
WRIT PETITION NO. 2364 OF 2015
WITH
INTERIM APPLICATION (L) NO. 3200 OF 2021
IN
WRIT PETITION NO. 2364 OF 2015
WITH
INTERIM APPLICATION NO. 2416 OF 2020
IN
WRIT PETITION NO. 2364 OF 2015
WITH
CONTEMPT PETITION (L) NO. 4027 OF 2020
WITH
INTERIM APPLICATION NO. 2019 OF 2019
IN
CHAMBER SUMMONS (L) NO. 442 OF 2015
Mr.Sharan Jagtiani, Sr. Adv. a/w. Mr. Rashmin Khandekar, Mr.Anuj Desai,
Ms.Surabhi Agrawal i/b. D.M.Legal and Associates for the Petitioners and Applicant
in NMW No. 385 of 2018.
Ms.Viloma Shah i/b. Lexicon Law Partners for the Applicant in CHSWL No. 442 of
2015.
Mr.Samkit Shah for Respondent No. 7.
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Mr.Vijay Kurle for Respondent No. 14 and for the Applicant in IA No. 1613 of 2020,
2415 of 2020 and 2416 of 2020 and for the Petitioner in CONPWL No. 4027 of 2020.
Mr.Sukanta Karmakar, AGP for the State for Respondent Nos. 4 and 5.
Mr.Sanjay R. Chhabria - Respondent No. 12A present in person inWrit Petition and
Applicant in Person in IAL Nos. 3783 of 2021, 9171 of 2020 and 9239 of 2020.
Mr.Ranjeet Ramchand Bathija, Respondent No. 9A, present in person.
CORAM : S.J.KATHAWALLA, &
B.P.COLABAWALLA, JJ.
DATE : 13TH DECEMBER, 2021
P.C. :
1. On 21st September, 2021, we recorded the conduct of the Advocate
appearing for the Respondents and adjourned the matter to 9 th October, 2021. The
Order dated 21st September, 2020 is reproduced hereunder :
"1.On 19th December, 2019, the above Writ Petition alongwith
the above Notice of Motion and Chamber Summons were heard
finally. On 19th December, 2019, the same was reserved for
orders. Though the Order was ready by March 2020, the same
remained to be pronounced due to the prevailing pandemic.
Since the preceipe was received from the Advocate for the
Petitioners by the Court Office in September, 2020 that the
Judgment/Order has remained to be pronounced, the matters
were today placed for directions to enquire from the Advocates as
to whether they wish to reiterate their submissions.
2. Earlier i.e. on 19th December, 2019, Advocate M.V. Raut had
represented Respondent No.14 before us. Ms. Kruti Bhavsar has
today informed us that in February 2020, she had filed
Vakalatnama for Respondent No.14 after obtaining 'No
Objection' from the Advocate who was earlier representing
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Respondent No.14. She has informed the Court that in July 2020
she has filed an Interim Application seeking declaration that the
above Writ Petition is not maintainable. She admits that she has
not served the Interim Application on the Advocate for the
Petitioners till date. She further states that she has very recently
filed another Interim Application under Section 340 Cr.P.C. and
that Advocate Vijay Kurle is appearing as her Counsel in the said
Interim Application. She states that the said Application is also
not served on the Advocate for the Petitioners.
3. Advocate Ms. Rama Subramaniam stated that she is
representing Respondent No.6 - Mr. Rajkumar Radheshyam
Hinduja in the above Writ Petition. She further stated that
Respondent No.6 has taken out Notice of Motion (L) No.586 of
2018 which is not disposed off till date and is pending. When
this Court inquired as to what were the reliefs sought by
Respondent No.6 in the said Notice of Motion, she stated that
Respondent No.6 has prayed for being joined as party
Respondent to the above Writ Petition since the Petitioners have
played a fraud on the Respondent No.6. We pointed out to
Advocate Ms. Subramaniam that as an Advocate of this Court
she ought to know that if her client is already joined as party
Respondent No.6 to the Writ Petition, the question of her client
taking out Notice of Motion for being joined as party Respondent
to the Writ Petition does not arise. We further informed the
Advocate Ms. Subramaniam that she is making incorrect and
irresponsible statements in the matter without going through the
papers, since Notice of Motion (L) No.586 of 2018 which is later
numbered as Notice of Motion No.385 of 2018 is the Notice of
Motion taken out by the Petitioners in the above Writ Petition
and not by Respondent No.6, which was heard alongwith the
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above Writ Petition and reserved for Judgment on 19 th December,
2019.
4. Advocate Ms. Subramaniam now informs us that she is not
appearing for Respondent No.6 but is appearing for the
Applicant in Chamber Summons (L) No.528 of 2018, and not in
Notice of Motion (L) No.528 of 2018.
5. After going through the papers we find that Chamber
Summons (L) No.528 of 2018 was taken out by an Advocate by
the name of Sandeep Deshmukh. Advocate Ms. Subramaniam
now states that she is appearing as a Counsel in Chamber
Summons (L) No.528 of 2018. We thereupon informed Ms.
Subramaniam that the said Chamber Summons is already
dismissed for non-removal of office objections pursuant to an
Order dated 22nd February, 2019 passed by the Learned
Prothonotary and Senior Master of this Court, and questioned
her as to how Advocate Deshmukh has instructed her to appear
before us today in the said Chamber Summons which was
dismissed more than a year back, she states that she has not
received any instructions from Advocate Deshmukh since she is
not in contact with him since the last several months.
6. Practicing Advocates cannot have such a callous and casual
approach towards their clients, the Court and the matters
handled by them. The conduct of Advocate Ms. Subramaniam,
who has wasted about half an hour of the Court, is unpardonable
and is strongly deprecated. Since the Chamber Summons (L)
No.528 of 2018 is already dismissed pursuant to the Order dated
22nd February, 2019 passed by the Learned Prothonotary and
Senior Master of this Court, we have nothing more to add qua
the said Chamber Summons.
7. In the circumstances, we pass the following Order :-
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(i) We defer the pronouncement of the final Judgment/Order in
the above Writ Petition.
(ii) Advocate Ms. Kruti Bhavsar is directed to forthwith
forward copies of two Interim Applications filed by her on behalf
of Respondent No.14 to the Advocate for the Petitioners, as well
as to the Advocate for the other Respondents.
(iii) The Petitioners and/or any other parties desirous of
filing response to the Interim Applications taken out on behalf of
the Respondent No.14 may do so by 5th October, 2020.
(iv) Stand over to 9th October, 2020 for further hearing.
8. This Order will be digitally signed by the PA/PS of this Court.
All concerned will act on production by fax or email of a digitally
signed copy of this Order."
2. On 28th October, 2021, the matter was adjourned to 27 th November,
2020. On 27th November, 2020, the matter was further adjourned to 14 th January,
2021 for physical hearing.
3. On 14th January, 2021, this Court after recording the Order dated 21 st
September, 2020, further recorded in its order dated 14 th January, 2021 what
transpired before the Court. Paragraph 3 of the said Order dated 14 th January, 2021, is
reproduced hereunder :
"3. Today, the learned Advocate appearing for Respondent No.
14 who had on 6th September, 2020 submitted that we should not
pronounce the final order / judgment in the Writ Petition since
certain interim applications are subsequently taken out and we
should first hear the same finally, now states that this Court
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should not hear the above matters at all since the Writ Petition
itself, as per the current assignment should be before the bench
headed by the learned Chief Justice. In view thereof, office to
place a copy of this Order before the learned Chief Justice and
obtain necessary directions in the above matter.
4. Stand over to 22nd January, 2021."
4. On 18th January, 2021, the learned Chief Justice considered the
representation filed before him by the Prothonotary and Senior Master of this Court
and directed that the above Writ Petition along with Interlocutory Applications to be
placed before the Division Bench, comprising of Shri Justice S.J. Kathawalla and Shri
Justice B.P.Colabawalla.
5. On 22nd January, 2021, the matter was adjourned to 5 th February, 2021 at
05.00 p.m.
6. On 5th February, 2021, this Court passed the following Order :
"1. Ms.Kruti Bhavsar, Advocate states that she has instructed
Advocate Kurle to make submissions in Interim Application No.
2415 of 2020 i.e. questioning the maintainability of the above
Writ Petition. She states that Advocate Kurle had to leave for
Ratnagiri and therefore the matter be adjourned.
2. Mr.Ranjeet Ramchand Bathija is present before the Court. He
states that though he is the legal heir of deceased Respondent
No.9 - Sheela Bhatija, the Petitioners are not bringing him on
record. In view thereof, the learned Advocate appearing for the
Petitioners is directed to join Mr.Ranjeet Ramchand Bathija, the
legal heir of deceased Respondent No. 9 as Respondent to the
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Writ Petition.
3. Respondent No. 8 - Lila Drawkadas has passed away. Her son
i.e. Respondent No. 7 claims to be in possession of an NOC of
the legal heirs of Respondent No. 8 in his favour. He has filed
Vakalatnama of his Advocate S.P. shah. The Vakalatnama is
taken on record.
4. Mr.Ranjeet Ramchand Bathija states that Ms.Maya Hargondas
Hasrajani is the legal heir of Respondent No. 11 - Shusila
Daulatram Wadhwa. He states that Ms.Maya is a senior citizen
and is unable to come to Court. He further states that though
Ms.Maya Hargondas Hasrajani has another sister, she has given
an NOC in favour of Ms.Maya. He states that therefore Ms.
Maya be brought on record as the legal heir of Respondent No.
11. Ms. Maya be joined as Respondent to the above Writ Petition.
5. Mr.Sanjay R. Chhabria is present in Court. He states that
Respondent No. 12 - Isha Devi alias Iswari Devi Chhabaria had
renounced the worldly life and has become a Sanyaasee (hermit).
He is the nephew of Respondent No. 12 who has no other legal
heirs. In view thereof, for the purposes of the present Petition,
Mr.Sanjay R. Chhabria shall represent Respondent No. 12.
6. Respondent No. 13 - Rani Dharra has passed away. However,
her brother Mr. Vasudev Dharra is the legal heir and is already
joined as Respondent No. 6 to the above Writ Petition. In view
thereof, Mr.Vasudev Dharra shall be party Respondent No. 6 in
his independent capacity as well as in his capacity as the legal
heir of Respondent No. 13.
7. Amendments to be carried out on or before 10 th February,
2021.
8. Mr.Kurle has later appeared before the Court.
9. Stand over to 10th February, 2021 at 05.00 p.m."
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7. On 10th February, 2021, Advocate Bhavsar and Advocate Kurle were not
present before the Court. Instead, Advocate Vilas Pawar, who is the Junior / Colleague
of Advocate Kurle was present and he tendered a copy of the Application (Second
Application) filed by Advocate Kurle before the Learned Chief Justice, wherein it is
interalia stated that "we have retained this matter arbitrarily and abusing standard
operating procedure of this Hon'ble Court and also by way of misleading your Honour's
Authority at administrative side." In our Order dated 10th February, 2021 we further
recorded that "Since we are of the view that Advocate Kurle and Advocate Kruti Bhavsar
are attempting to delay the hearing interalia of the Applications filed by them on behalf of
their clients, we are now placing the matters on 16 th February, 2021". By the said Order
dated 10th February, 2021, we further made it clear that "if Advocate Kruti Bhavsar
and/or Advocate Kurle fails to appear before this Court on the adjourned date or fails to
produce any directions from the Learned Chief Justice assigning the matter to some other
Bench, the Court shall be constrained to proceed with the matter in their absence and pass
necessary orders on merits". Advocate Vilas Pawar thereafter informed us that "Advocate
Kruti Bhavsar is getting married on 16 th February, 2021 and the matter be adjourned after
16th February, 2021. In view thereof, stand over to 22 nd February, 2021." Advocate Vilas
Pawar thereupon stated that "the matter be kept after 22nd February, 2021. In view
thereof, stand over to 23rd February, 2021 at 05.00 p.m."
8. On 23rd February, 2021, the matter was adjourned to 11 th March, 2021 at
05.00 p.m.
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9. In the meantime, by an Order dated 24 th February, 2021, the learned
Chief Justice passed an Order, once again rejecting the Application dated 10 th
February, 2021 filed by the Advocate for Respondent No. 14.
10. On that day, Advocate Kurle appeared for Respondent No. 14 and
informed the Court that he has filed Writ Petition (L) No. 7934 of 2021 on behalf of
Respondent No. 14 and some other parties, challenging the said Order of rejection
passed by the Learned Chief Justice. The matter was therefore adjourned to 30 th
March, 2021 at 05.00 p.m. Again, the Court made it clear that if the parties to Writ
Petition (L) No. 7934 of 2021 do not obtain any order/s from the appropriate Bench,
this Court shall proceed with the hearing of the matter and no further time shall be
granted.
11. On 30th March, 2021, Advocate Kurle informed the Court that when
Writ Petition (L) No. 7934 of 2021 was called out before the Division Bench of the
Court ( Coram : A.A.Sayed & Surendra P. Tavade, JJ.), an adjournment was sought
only because he was unwell. On asking for an early date, the Division Bench was
pleased to place the Writ Petition (L) No. 7934 of 2021 on 5 th April, 2021. Advocate
Shri Kurle informed us that he will proceed with the hearing of Writ Petition (L)
No.7934 of 2021 on 5th April, 2021, which statement was accepted by this Court.
12. The matter was thereafter not taken up in view of the second wave of the
pandemic. The matter was, therefore adjourned to 24th September, 2021. On that day,
we were informed that Writ Petition (L) No. 7934 of 2021, filed by Respondent No. 14
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was placed before the Bench headed by Justice K.R.Shriram. Respondent No. 14
appeared and was allowed to withdraw the said Writ Petition (L) No. 7934 of 2021
with liberty to file a fresh Writ Petition. A fresh Writ Petition bearing the number Writ
Petition (L) No. 20397 of 2021 was thereafter filed by Respondent No. 14 and the
same was circulated before the Bench headed by Justice Sayed. It was submitted that
Respondent No. 14 shall move the said Writ Petition (L) No. 20397 of 2021 and obtain
orders within a period of two weeks from 24th September, 2021. The matter was,
therefore, adjourned to 11th October, 2021 at 4.30 p.m.
13. On 22nd October, 2021, when the matter was called out, we were
informed that Writ Petition (L) No. 20397 of 2021 had not appeared before the Bench
headed by Justice A.A.Sayed and Justice S.G. Dige. In view thereof, direction was
given the Prothonotary and Senior Master recording that "............ In view thereof,
the Prothonotary and Senior Master of this Court shall with the permission of the bench
headed by Justice A.A.Sayed, place the matter before the bench. This Order is passed since
Petitioners in Writ Petition (ST) No. 20397 of 2021 are seeking adjournments in the above
matters on the ground that Writ Petition (ST) No. 20397 of 2021 is yet to be disposed off."
The matter was adjourned to 25th November, 2021.
14. Thereafter, the Writ Petition (L) No. 20397 of 2021, filed by
Respondent No. 14 was dismissed by a detailed Speaking Order dated 2nd December,
2021 by the Bench comprising of G.S.Patel and Madhav J. Jamdar, JJ.
15. Today, when the matter is called out, the Respondents are not willing to
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proceed with the matter and Advocate Kurle states that an Application for recall of the
Order dated 2nd December, 2021 has been filed today before the Bench comprising of
G.S.Patel and Madhav J. Jamdar, JJ.
16. From the above facts, it is established beyond any doubt that the
Respondents, on one pretext or the other, are not wanting to proceed with the above
matters before this Court. Whilst strongly deprecating the conduct of the
Respondents and their Advocates, we direct the Prothonotary and Senior Master of
this Court to place the Application filed by Respondent No. 14 to recall the Order
dated 2nd December, 2021 before the Justice G.S.Patel and Justice Madhav J. Jamdar
on 14th December, 2021 at 2.30 p.m. and obtain necessary directions from the Division
Bench of this Court.
17. It is pertinent to record that we questioned Advocate Kurle that if his
clients are aggrieved by the Order dated 2 nd December, 2021, passed by Justice
G.S.Patel and Justice Madhav J. Jamdar, why is an SLP not filed before the Supreme
Court and instead, an attempt is made to take further time by filing an Application
seeking recall of the Order dated 2nd December, 2021. He has made several
submissions which we find difficult to comprehend. We are placing the above matter
before us on 20th December, 2021 and we make it clear that if the Order is passed
against the Respondents and / or if there is no order restraining this Court from
proceeding with the matter, we will not grant further time to the Respondents on the
ground that the Respondents now want to move the Supreme Court impugning the
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order passed by the Justice G.S.Patel and Justice Madhav J. Jamdar.
Stand over to 20th December, 2021 at 04.30 p.m.
( B.P.COLABAWALLA, J. ) ( S.J.KATHAWALLA, J. )
