Shital Devshi Khunti vs The Chief Officer Diu Municipal ...
2023 Latest Caselaw 740 Bom

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                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              CIVIL APPELLATE JURISDICTION

VASANT      Digitally signed by
            VASANT ANANDRAO
ANANDRAO    IDHOL
            Date: 2023.01.23
                                  WRIT PETITION NO.893 OF 2023
IDHOL       17:35:44 +0530



       Shital D. Khunti                                                ...Petitioner
                  V/s.
       The Chief Officer,
       Diu Municipal Council, Diu & Ors.                               ...Respondents


       Ms.Samiksha Kanani for the Petitioner.

       Mr.Hiten Venegavkar for the Respondent.

                                        CORAM : R.D. DHANUKA &
                                                M.M. SATHAYE , JJ.

DATE : 20TH JANUARY, 2023.

P.C. :-

1. By this Petition filed under Article 226 of the Constitution of

India, the Petitioner has impugned the order dated 16th January, 2023

passed by the Respondent No.1 to demolish illegal construction

situated at New CTS Plot No.PTS 61/35, Bunder Chowk, Diu as per

Section 180, Clause 8(iv) of The Dadra & Nagar Haveli & Daman &

Diu Municipal Council, Regulation 2004 as amended by, The Dadra &

Nagar Haveli & Daman & Diu Municipal Council (Amendment)

Regulation, 2018.

2. It is the case of the Petitioner that she is running a

restaurant in the writ property. The Petitioner claims to be a tenant of

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the Respondent No.2 and has entered into a lease agreement on 5 th

January, 2021 for carrying out business of the Respondent No.2 for

the period of 30 years.

3. The Respondent No.1 initiated an action for demolition of

the offending structure on 1st November, 2022 and called upon the

Petitioner to demolish the offending structure. The said notice was

subject matter of Writ Petition No.13179 of 2022 filed by the

Petitioner in this Court. By an order dated 14th November, 2022, the

Division Bench of this Court disposed of the said Writ Petition and

directed the Respondent No.1 - Council to give an opportunity to the

Petitioner and further directed that the said order dated 1 st November,

2022 shall be treated as show cause notice to the Petitioner. By

virtue of said order, the Petitioner was granted an opportunity to put

forth her say in respect of the said notice and also permitted the

Municipal Council to take necessary action as per law after giving an

opportunity to the Petitioner and the Respondent Nos.2 and 3.

4. In pursuance of the said order, the Petitioner filed her say

before the Chief Officer on 17th October, 2022 and 28th November,

2022. The Petitioner applied for certified copies of the documents.

5. The Respondent Nos.2 and 3 as well as the Petitioner

appeared before the Chief Officer. The matter was heard. There was

hearing rendered by the Chief Officer on the said notice. The Chief

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Officer passed an order on 16th January, 2023 after hearing the

parties and after considering the documents and held that no

permission was granted on the site at New CTS Plot No.PTS 61/35,

Bunder Chowk, Diu for construction of offending structure.

6. Learned counsel for the Petitioner vehemently urged that

the Chief Officer relied upon the site report however, no copy of the

said site report was furnished to the Petitioner. She submitted that the

Petitioner is only the lessee in respect the offending structure. The

Petitioner has not carried out any construction. The entire action is

initiated on the basis of the false complaint filed by the Respondent

Nos.2 and 3. She submitted that the impugned order is in violation of

principles of natural justice. In support of this submission, learned

counsel placed reliance on the judgment of the Hon'ble Supreme

Court in case of Deepak Ananda Patil vs. State of Maharashtra &

Ors., 2023 SCC OnLine SC 34 and in particular paragraph 20.

7. Mr.Venegaonkar, learned counsel for the Respondent, on

the other hand supported the findings rendered by the Chief Officer in

the impugned order and submitted that though various opportunities

were granted by the Chief Officer to the Petitioner, to produce the

permission obtained, if any, for carrying out any construction of the

offending structure, no such documents / permissions were produced.

8. We have perused the documents annexed to the Petition

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and also the copy of the lease agreement entered into between the

Respondent No.2 and the Petitioner. A perusal of the lease

agreement read with the show cause notice and the impugned order

would clearly indicate that, the construction which is put up, which is

the subject matter of the show cause notice and the impugned order

are not reflected in the lease agreement entered into between the

Petitioner and the Respondent No.2. On the contrary, the

Respondent No.2 appeared before the Chief Officer and made his

position clear that they have not carried out any such construction,

which was the subject matter of the show cause notice.

9. Though repeatedly we have called upon the learned

counsel for the Petitioner to produce the permission if any, obtained

by her client for carrying out such construction from the Respondent

No.1, learned counsel for the Petitioner was unable to produce any

documents. Though this Court granted an opportunity to the

Petitioner to produce the documents while disposing of the Writ

Petition No.13179 of 2022 on 14th November, 2022, no permission

could be produced by the Petitioner before the Respondent No.1 for

carrying out construction of the offending structure.

10. Insofar as the judgment of the Supreme Court in case of

Deepak Ananda Patil (supra) relied upon by the Petitioner is

concerned, in our view the said judgment would not advance the case

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of the Petitioner on the ground that in this case, sufficient opportunity

was given to the Petitioner by the Chief Officer to produce the

permission granted by the Chief Officer, if any, before carrying out the

construction of the offending structure, however, the Petitioner failed

to produce any such permission. The said judgment is clearly

distinguishable on facts.

11. The Chief Officer in the impugned order has clearly

referred to the opportunities granted to the Petitioner to produce the

copy of the permission for carrying out the construction of the

offending structure, but copy of such permission was not produced by

the Petitioner. In the impugned order, the Chief Officer recorded that

all the concerned parties were informed to remain present with the

approved plan, completion certificate, ownership documents etc. on

10th January, 2023 at 11:00 a.m. for hearing regarding removal of the

illegal construction at the site, however no concrete proof for legal

construction was found during the hearing as per their written

representation. The Petitioner did not produce any documents to

prove the legality of the construction as per the documents submitted

by them. While rendering such findings, the Chief Officer also placed

reliance on the report of the Junior Engineer and Municipal Engineer

of Diu Municipal Council dated 31st October, 2022. The order is

passed not on the basis of the report submitted by the Junior

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Engineer and Municipal Engineer of Diu Municipal Council only. The

Petitioner failed to satisfy this Court by producing any permission for

carrying out such construction even at this stage. We do not find any

infirmity with the impugned order passed by the Chief Officer. The

Writ Petition is devoid of any merits and is accordingly dismissed. No

order as to costs.

(M.M. SATHAYE , J.)                              (R.D. DHANUKA, J.)