Bombay High Court
Jaysingh Revaji Patil vs The Municipal Corporation Malegaon And ... on 21 January, 2025
Author: A. S. Gadkari
Bench: A. S. Gadkari
2025:BHC-AS:2855-DB
apn 8-aswp-13770-2024.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.13770 OF 2024
Jaysingh Revaji Patil
Age: 70 years, Occ: Business,
Having address at Hotel Pritam,
Mosam Bridge, Old Mumbai Agra Road,
Sangmeshwar, Malegaon,
District: Nashik ... Petitioner.
V/s.
1. The Municipal Corporation,
Malegaon through its
Commissioner.
2. Kamlakar Shankar Pawar
Age : 57 years, Occ: Builder/
Developer
R/o. Gagangiri Complex,
Ekatmata Chowk, Camp Road,
Tal. Malegaon,
Dist. Nashik.
3. Deputy Commissioner and Town
Planning Development Officer,
Malegaon Municipal Corporation,
Malegaon, District: Nashik.
4. Sambhaji Fula Ahire
Age: 48 years, Occ: Agriculturist,
Jay Matadi Automobile, Mosam
Pool, Old Agra road,
Sangmeshwar, Tal. Malegaon,
District : Nashik ...Respondents.
Mr. Alankar Kirpekar a/w. Adv. Ayush Tiwari, Adv. Sanjay Shinde for the
Petitioner.
Mr. A.A. Alaspurkar, AGP, for the Respondent-State.
Mr. Shrinivas S. Patwardhan a/w. Adv. Akshay Hardas for the Corporation.
Digitally
signed by
ASHWINI
1/5
ASHWINI GAJAKOSH
H Date:
GAJAKOSH 2025.01.21
18:29:14
+0530
::: Uploaded on - 21/01/2025 ::: Downloaded on - 21/01/2025 22:20:34 :::
apn 8-aswp-13770-2024.doc
CORAM :
A. S. GADKARI AND
KAMAL KHATA, JJ.
RESERVED ON : 13th January, 2025.
PRONOUNCED ON : 21st January, 2025.
JUDGMENT (Per Kamal Khata, J.):
-
1) The short question that arises for our consideration in this Writ
Petition filed under Article 226 and 227 of the Constitution of India is that:
"Whether a tenant of a structure can challenge the issuance of notice by the
Corporation under Section 52 and 53 of the Maharashtra Regional Town
Planning Act, 1966 ("MRTP Act")".
2) The Petitioner seeks the following prayers.
"a. That Rule be issued and record be called for;
b. That on perusal of the same and on further
hearing to the Petitioner, this Hon'ble High Court be
kindly pleased to issue appropriate writ or order
thereby quashing and setting aside the impugned notice
dated 23/10/2020 issued by the Respondent No.1
Corporation in respect of the subject matter property
which is in possession and occupation of the Petitioner;
c. That the appropriate enquiry be kindly
directed into the conduct of the then Dy. Commissioner
of the Respondent No.1 who got the notice dated
23/10/2020 issued to the Petitioner at the instance of
apn 8-aswp-13770-2024.doc
the Respondent No.1 and 3 despite there is a valid
permission in favour of the Petitioner in respect of the
structure occupied by the Petitioner and after receipt of
the report thereof the appropriate legal action be kindly
taken against the said officer of the Respondent No.1;"
3) Mr. Kirpekar, learned counsel appearing on behalf of the Petitioner
argued that the Petitioner is a tenant of a structure known as Hotel Pritam
admeasuring 42 x 46 sq. feet on plot number 96A, situated at Sangmeshwar
Mosampool Malegaon, sub Division, Malegaon, Taluka Malegaon, District
Nashik. He asserts that he has been a tenant of the subject property.
3.1) In support of his assertion, he relies upon the rent agreement
dated 1st August, 1983 Foods and Safety license dated 15 th December, 2016
issued under the Food Safety and Standard Act, 2006 and electricity bills.
He argued that the structure was a valid structure, constructed pursuant to
the permission granted by the Malegaon Municipal Corporation by its Order
dated 28th July, 1980. He also relied upon the approved plan attached to the
Petition at page 19. He submitted that the notice issued by the Respondent
Corporation dated 23rd October 2020 was issued as per the Order passed in
Writ Petition No.3544 of 2018 as well as Order passed in Contempt Petition
bearing Stamp No.93965 of 2020. This was at the instance of the landlord
who desired to evict him and therefore the same were not issued in good
faith and therefore malafide and arbitrary.
apn 8-aswp-13770-2024.doc
3.2) He submitted that the Petitioner's reply dated 7 th November,
2020 to notice dated 23rd October, 2020 has till date not been considered.
He asserts that the Petitioner cannot be evicted save and except by due
process of law as per the Order dated 25 th March, 2014 passed by Civil
Judge, Junior Division, Malegaon in R.C.S. No.86 of 2014
Reasons and conclusions:
4) We heard Mr. Kirpekar and perused the documents. We are unable
to accept the contentions of Mr. Kirpekar for the following reasons:
(i) a tenant of a structure cannot challenge the notice under
Section 52 and 53 of the MRTP Act, only the landlord can
challenge the same.
(ii) The Petitioner's right if any is only against his landlord.
(iii) The tenant's rights are protected by the Statute.
5) We are supported by the Judgment of our coordinate Bench in the
case of Anandrao G. Pawar V/s. Municipal Corporation of Greater Mumbai
and Others reported in 2023 SCC OnLine Bom 2534 that reiterated the
decision of the Supreme Court in the case of Shaha Ratansi Khimji and Sons
V/s. Kumbhar Sons Hotel Private Limited and Others reported in (2014) 14
SCC page 1, which held that, the fact that tenanted building is brought
down does not mean that a tenancy is extinguished or comes to an end.
6) The Petitioner has a remedy against the landlord and his rights
stand protected. Therefore, the Petitioner will be entitled to establish his
apn 8-aswp-13770-2024.doc
tenancy rights in the jurisdictional Civil Court and if succeeds, then will be
entitled to such premises as he occupied or would be entitled to reconstruct
the premises as was occupied previously on the landlords land, if the
landlord fails to reconstruct the premises within the stipulated time under
the statute as held in Anandrao G. Pawar (supra).
7) In any event, we are unable to determine and protect the rights
of a tenant qua the subject property in the writ jurisdiction.
8) In view of the above, we dismiss the Petition with no order as
to costs.
(KAMAL KHATA, J.) (A.S. GADKARI, J.)
