Bombay High Court
Macchindra Dhondiba Kadam vs Pune Municipal Corporation Thr Its ... on 23 January, 2024
Author: G.S. Patel
Bench: G.S. Patel
911-ASWP-12610-2023.DOC
Amol
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 12610 OF 2023
Macchindra Dhondiba Kadam ...Petitioner
Versus
Pune Municipal Corporation through its ...Respondents
Commissioner & Anr
Dr Uday Warunjikar, i/b SS Bedekar, for the Petitioner.
Ms Manisha Jagtap, for the Respondent-PMC.
Mr Sugandh Deshmukh, for Respondent No 2.
Mr Ishwar Dhamale, Junior Engineer-PMC, Present in Court.
CORAM G.S. Patel &
Kamal Khata, JJ.
DATED: 23rd January 2024
PC:-
1. Rule. Respondents waive service.
AMOL
PREMNATH
JADHAV
2. The Petitioner assails the demolition carried out by the Pune
Municipal Corporation ("PMC"), the 1st Respondent, on 31st
August 2023 of a 10 ft x 12 ft structure at the entrance of the
industrial estate of Gandhi Bhavan at CTS No 36 Hissa Nos 1-B and
36/2, Kothrud, Pune. According to the Petitioner, the action of
demolition was entirely without notice, without a hearing and was at
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the instance of the 2nd Respondent, the Maharashtra Gandhi
Smarak Nidhi.
3. Mr Deshmukh appears for the 2nd Respondent. In issuing
Rule and in considering the interim relief, we have had no regard
whatsoever for the allegations that have been made by the Petitioner
against the 2nd Respondent. The reason is self-evident. That is an
allegation that does not fall within the remit of the writ Court. It is
purely a civil dispute. What we are concerned with here is judicial
review of administrative action and that is the complaint about the
municipal action.
4. The municipal action is about the demolition of the
Petitioner's structure. According to Dr Warunjikar for the
Petitioners, structure was in the Gandhi Bhavan industrial estate
towards the entrance, i.e., at the gateway and it admeasured no more
than 10 ft x 12 ft, i.e., 120 sq ft.
5. The question before us is whether the municipal action was,
firstly, after a notice to the Petitioner; secondly, whether the
Petitioner was afforded an opportunity of hearing; and thirdly and
perhaps most importantly, what the available municipal records
show about notice to the affected structures.
6. Ms Jagtap has limited instructions. There is no dispute about
the demolition itself. She points to a communication dated 24th
January 2023 at page 53 at Exhibit 'E'. Her instructions are that item
21 of this notice is about the subject structure. Now the notice
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mentions several structures. The copy given to us is in very fine
print and almost unreadable but as far we can discern, item 21 refers
to a 'pucca construction', used for commercial purposes but
admeasuring 20 ft x 20 ft., i.e., 400 sq ft. Another copy of this notice
is at page 59. This is the first discrepancy.
7. Dr Warunjikar points out that page 64 is a later document of
7th September 2023 obtained by the Petitioner under the Right to
Information Act. It lists 19 structures in this compound and in the
third column various names are mentioned, and against each, in the
fourth column the square foot area. . We do not find the name of the
Petitioner in this list. Ms Jagtap's instructions are to say that the
Petitioner's structure is at serial no 18 of this list. That shows the
name of Maharashtra Gandhi Smarak. It mentions a tea canteen but
it describes this as the 'magil chaha canteen', i.e., one at the rear. The
Petitioner's canteen was said to be at the front of the compound.
Even more puzzling is that this list now gives the canteen area as
300 sq ft.
8. We are unable to see how item 21 of 24th January 2023 which
shows 400 sq ft and is said to be the Petitioner's structure can be the
same as item 18 of 7th September 2023 which shows 300 sq ft.
9. Even more intriguing is the fact that the Petitioner does not
claim any entitlement to either 300 or 400 sq ft but 120 sq ft.
10. Indeed, as Dr Warunjikar puts it, if this is the approach of the
municipal corporation then leaving aside the Petitioner's claim for
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120 sq ft, if it is found that the municipal is unwarranted in law then
the Petitioner would be quite happy to accept an area of 400 sq ft.
That surely cannot be the intention of this municipal exercise.
11. But this is not the only background to this dispute. It seems
that the Petitioner's son complained about various illicit
constructions in the Gandhi Industrial compound. The demolition
included, we are told, those structures but also swept into its drive
the Petitioner's structure as well.
12. What is the Petitioner's case? This is the subject matter of
civil proceedings in the Small Causes Court in Pune. It began with
Civil Suit No 130 of 2011. There was a judgment and decree of 17th
August 2013. There was a Civil Appeal No 578 of 2013. The appeal
resulted in judgment and decree of 11th April 2022. The Petitioner
challenged this in civil Writ Petition No 15124 of 2022 before a
learned Single Judge of this Court. Some of the respondents to that
writ petition were the original plaintiffs in the Small Causes Court at
Pune. The Petitioner's case in the Writ Petition was that he was a
tenant of a room of 10 x 12 sq ft on the ground floor near the main
entrance gate of the Gandhi Industrial Estate. He claimed no larger
property and no other location. He said that he was put in
possession pursuant to an agreement of 3rd June 1990 and this was
on a rental basis. The rest of the disputes need not concern us. It is
enough to note that the Petitioner was threatened with eviction on
the grounds of nuisance, which he questioned and disputed.
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13. What is important for our purposes is that 31st August 2023,
the very day of demolition, a learned Single Judge of this Court
held, prima facie, that the findings in the impugned orders in regard
to comparative hardship did not appear to be corrected. For this
reason, Rule was issued. Pending disposal of the Petition, the
learned Single Judge granted interim reliefs in terms of prayer clause
(b). That prayer clause is set out at page 39 of the present Petition
and it seeks a stay on the execution of the appellate judgment and
decree, i.e., a stay on the eviction of the Petitioner.
14. The municipal demolition happened on the same date. We are
not suggesting, and this is meant to allay any apprehension that Ms
Jagtap may have, that the municipal action was in disobedience of
the order of the learned Single Judge. She is undoubtedly correct in
saying that the PMC was not even a party to that writ petition. The
order of stay though passed on 31st August 2023 was not uploaded
till much later after the demolition was already carried out. This is
not a reason to find fault with the PMC.
15. But we must question the manner in which the PMC has gone
about this and also understand the implications of allowing this to
continue. It is clear that there is no notice addressed to the
Petitioner by name at any point. This is surprising, since there is a
complaint from the Petitioner's son and the address and location of
the structure occupied by the Petitioner is not in dispute. No
hearing was afforded to him. There is the facial inconsistency in the
PMC's records regarding the area of the premises that we have
already noted. At the cost of repetition, the Petitioners lays claim
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only to an area of 120 sq ft. One notice mentions 400 sq ft. A later
communication is said to identify the structure as 300 sq ft and that
too at the rear of the property. This is why we say that there is an
unacceptable level of ambiguity and ambivalence in the PMC's
exercise of demolition.
16. The other consequence is possibly more serious. Although
inadvertently, the demolition has altered the status quo in regard to
the learned Single Judge's order. Effectively, the interim relief that
was granted in term of prayer clause (b) has been rendered all but
otiose. That relief granted protection from eviction. Obviously,
protection from eviction meant continuance of the structure. By
removing the structure, that status quo and that interim relief has
been rendered entirely inoperative. That is not a position that we are
prepared to accept.
17. Since we are not holding that the PMC action was in
deliberate defiance of the learned Single Judge's order, we are not
requiring the PMC to reconstruct the Petitioner's premises. But we
are equally clear that while the Petition before the learned Single
Judge is pending, the status quo ante must be restored with all
contentions being expressly kept open both in that writ petition and
in the present Writ Petition. If it is otherwise, the pending petition
before the learned Single Judge is totally infructuous. That is not a
position that we are prepared to accept.
18. For this reason, we are inclined to grant the alternative part of
prayer clause (e), i.e., to permit the Petitioner to restore the
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demolished 10 foot x 12 foot room near the main entrance gate of
the Gandhi Industrial Estate or Bhavan if the Petitioner so desires. If
the Petitioner does so, it is subject to certain conditions, viz.,
(i) the Petition will under no circumstances extend beyond
10 ft. x 12 ft;
(ii) this will be only a ground floor structure of the same
height as earlier existed. There will be no vertical
extension.
(iii) The Petitioner will do the reconstruction at the
Petitioner's cost and a statement of that cost is to be
filed in this proceeding on Affidavit.
(iv) If this Petition ultimately fails, the Petitioner will be
required to remove the structure at the Petitioner's own
cost and will not be entitled to recover the costs of
reconstruction or removal thereafter.
19. Ms Jagtap expresses an apprehension that this order should
not open the flood gates for all other persons whose structures were
demolished to come to Court and seek a reversal of their fortunes.
20. There is no basis for this apprehension for a simple reason. It
is in the peculiar facts of this case, finding that there was no notice
to the Petitioner, and finding that there was discrepancy in the areas
and in the location, and since there was a specific order of 31st
August 2023 in favour of the Petitioner that we have been inclined
to both issue Rule and grant interim relief. There is not the slightest
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possibility of these facts being applied without being clearly
distinguished to any other case whatsoever.
21. In all this, we note that Mr Sugandh has wisely kept his own
counsel. That is as it should be.
22. Both Respondents waive service. It is for Mr Sugandh to
decide whether he at all wants to enter a formal Affidavit in Reply to
Petition after issuance of Rule. Ms Jagtap has instructions to state
that the PMC will file a comprehensive reply to the Petition
attaching all necessary documents that are available on municipal
records. We permit that. The Reply is to be filed is to be filed within
four weeks from today. A Rejoinder is permitted within two weeks
thereafter.
23. List the Petition peremptorily for hearing and final disposal
thereafter on 30th April 2024.
(Kamal Khata, J) (G. S. Patel, J)
23rd January 2024
