Bombay High Court
Rajendra Vitthal Shete vs The State Of Maharashtra Thr Government ... on 5 March, 2024
Author: Gs Patel
Bench: G.S.Patel
2024:BHC-AS:10747-DB Rajendra Vitthal Shete v State of Maharashtra & Ors
913-aswp-6923-2021-J.doc
Ashwini
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 6923 OF 2021
Rajendra Vitthal Shete,
Age: 60 Years, Occupation: Business
Residing at 436/1 Ujwala Building,
Chavindra, Bhiwandi, Dist Thane. ...Petitioner
~ versus ~
1. State Of Maharashtra,
Through Government Pleader,
Civil Appealed Side, High Court
Building, Bombay High Court,
Mumbai.
2. Bhiwandi Nijampura City
Municipal Corporation,
Bhiwandi,
Through Commissioner, Juni Jakat
Naka, O/p. Tahsildar Office, Bhiwandi.
Digitally
Dist Thane.
signed by
ASHWINI
ASHWINI H 3. Dilip Khane,
H GAJAKOSH
GAJAKOSH Date:
2024.03.06
Assistant Commissioner, Prabhag 1,
10:33:37 2nd Floor, Old Municipal Corporation,
+0530
Juni Jakat Naka, O/p. Tahsildar Office,
Bhiwandi. Dist Thane.
4. Jaymala Ashok Patil,
Age: Adult, Occupation: Business.
5. Anmol Ashok Patil,
Age: Adult, Occupation: Business.
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Rajendra Vitthal Shete v State of Maharashtra & Ors
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6. Ujjawal Ashok Patil (Ujjwla
Raju Pawar),
Age: Adult, Occupation: Business.
7. Shusmita Ashok Patil
(Shusmita Kapil Bhoir),
All 4 to 7 Residing at Ashok Patil Nivas
B/h Shiv Mandir Chavindra, Bhiwandi,
Dist. Thane. ...Respondents
A PPEARANCES
for the petitioner Mr RR Tripathi.
for respondent no. 2 Mr Rajesh A Tekale.
for respondents Mr Ramesh Dube Patil, with Rajesh
nos. 4 to 7 Tekale & Swaraj Subhash Patil,
i/b Jay & Co.
for respondent- Ms Molina P Thakur, AGP.
state
CORAM : G.S.Patel &
Kamal Khata, JJ.
DATED : 5th March 2024
ORAL JUDGMENT (Per GS Patel J):-
1. Heard.
2. There is an ad-interim order of 29th October 2021 which says
that the building in question is not to be demolished until the next
date. This Petition has been pending like this for the last three years
and this ad interim order had unfortunately continued.
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3. The Petitioner claims to be the owner of a shop in house No.
436, Chavindra, Bhiwandi within the municipal limits of the
Bhiwandi Nizampur City Municipal Corporation ("BNCMC").
4. During arguments, the Petitioner made various conflicting
submissions. We were first told that the Petitioner was a co-owner
with Respondents Nos. 4 to 7 of part of the plot on which the
structure, whether a chawl or building or whatever name called
stand. The first submission was based on a document at Exhibit "A"
at page 39. Reading only part of this and that too the recital, the
Petitioner claimed that Petitioner had bought a portion of land
beneath a gala that was mentioned in that agreement. That
agreement is dated 27th January 1998. Page 43 is only a recital of
what the vendor owned. What was conveyed to the Petitioner was
only the shop and that is mentioned clear from pages 45 and 46.
There is no schedule to this agreement.
5. We were then told that the Petitioner had bought part of the
land under some oral understanding for unstated consideration.
Then we were told that there was an agreement for sale of the land
but that it remained to be registered. This constant evolution went
on.
6. None of this is consistent with what is averred in the Petition
itself. Paragraph 4.1 of the Petition tells its own story. It reads thus:
"4.1 The petitioner submits that he is permanent resident
of Bhiwandi. The Petitioner during 1996-97 met to the
husband of the respondent No. 4 with intention to purchase
around 250 square feet of land so that he could make a hut
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for residing as well as start up a livelihood by standing in
front of his land to sell Vada-Pav. The Petitioner submits
that the husband of the Respondent No. 4 agreed to sale his
land around 250 square feet in his own land vide survey No.
63 Hissa No. 1, 2 & 3 Chavindra, Bhiwandi. The Petitioner
paid the consideration amount and taking the land in his
possession making a hut started living and standing his vada
pav vehicle infront of it. The Petitioner submits that the
husband of the Respondent No. 4 alongwith the
Respondent No. 4 convinced the Petitioner during January
1996 informing him that were going to develop their land
and standing the building and if the Petitioner also gives his
portion of the land then they shall give Petitioner an RCC
Gala shop and will also give the right of the land. The
Petitioner submits that accordingly when the house No. 436
constructed at the joint land, the Petitioner get registered
vide Sale Deed No. is 317/1998 of The RCC Gala/shop No.
1 admeasuring area 245 square feet alongwith beneath land.
The copy of the registered Sale Deed No. 317/1998 dated
27/01/1998 of the shop No. 436/1 of Petitioner is
annexed and marked as Exhibit A."
7. Then there are allegations against 4th Respondent of the
same kind that we saw in Writ Petition No. 8277 of 2021 of using
political influence and so on.
8. The entire thrust of the Petition is also in regard to the
structural condition of the building the same issue that we have now
comprehensively decided in Writ Petition No. 8277 of 2021. The
rest of this Petition proceeds entirely on the basis of structural
stability and rival reports.
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9. Finally we find these prayers at pages 35 to 36.
"(a) The Honble court may be please to passed the order
and are direction quashing and setting aside the order dated
27/07/2021 along with order dated 24/06/2021 passed by
TAC i.e. on behalf of Respondent No. 2/3.
(b) The Honble Court may be pleased to set aside the
duo Notices dated 24.09.2020 and Noticed dated
26.09.2020 as these were issued without any power with
Respondent No 2/3 and held it be as misuse of power and
position.
(c) The Honble court may be pleased to direct the
Respondent No. 1, 2 and 3 to appoint a committee of
Structural Engineer or and Engineer of any other Municipal
Corporation to submit its report regarding the stability of
the building 436 of the Petitioner, if think necessary.
(d) The Honble court may be pleased to Stay in terms of
the a to c all the coercive action taking/to be taken by the
Respondent No. 1 to 3 against the house/ building 436 till
pending hearing of this matter for final decision of this
court.
(e) The Honble Court may be pleased to pass and order
and or direction to direct the Respondent No. 1 and or 2 to
take action against the erring officers and Respondent No. 3
who misuse his power and position and having this tactics
to harass the common people flat/shop holders in the
buildings."
10. This reference to Technical Advisory Committee's ("TAC")
order of 27th July 2021 is the same that we have examined in Writ
Petition No. 8277 of 2021.
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11. But here the case of the Petitioner is even more precarious in
one sense because of the inconsistency in what it said in the Petition
and what was argued at the Bar. At another level, if the Petitioner is
indeed an owner of any part of the structure, then the rights of the
Petitioner are adequately protected in law.
12. It is important to note this because our jurisprudence
recognizes dual ownership of property, separately for land and
separately for the structure.
13. FSI benefits attach to the land that is under development.
That which is consumed in building is always taken into account
while granting permissions. If indeed the Petitioner has an
undisputed ownership right, then that right is in no way compromise
by a redevelopment. But the question of ownership might itself be a
matter of dispute.
14. The Affidavit in Reply on behalf of Respondents Nos. 4 to 7 is
from page 229. It sets out a devolution of the property and the
question of structural assessment. As to the agreement in question,
while the agreement does not appear to be disputed, the contentions
based on that agreement are denied in paragraph 9.1 of the Affidavit
in Reply. We are further told that there are Civil Suits pending in
regard to the TAC committee report but an application for status
quo was rejected.
15. It is therefore clear that this Petitioner has attempted to move
different Courts for identical reliefs. The filing of Civil Suits is not
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mentioned in the Petition itself although a copy of an order in the
civil suit is annexed to the Affidavit in Reply at page 201. That ad
interim rejection is of 13th August 2021. The present Petition was
filed on 12th October 2021. There is no explanation why the filing of
the Civil Suit and the passing of that ad interim order was
suppressed from the Petition. This in itself is sufficient ground to
dismiss the Petition, because apart from anything else, had this
being disclosed in October 2021, then there is every likelihood that
an ad interim order would not have been passed.
16. The Petition is rejected. No costs.
(Kamal Khata, J) (G. S. Patel, J)
5th March 2024
