Bombay High Court
Vivek Krushna Dode vs The State Of Maharashtra And Ors on 21 January, 2025
Author: A. S. Gadkari
Bench: A. S. Gadkari
2025:BHC-AS:2854-DB
apn 8-aswp-13254-2022.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.13254 OF 2022
Vivek Krushna Dode
Age: 45 years, Occupation:
Having address at Mosampul
Old Agra Road, Sangameshwar
Malegaon, District: Nashik ... Petitioner.
V/s.
1. The State of Maharashtra.
2. Malegaon Municipal Corporation
Malegaon, Taluka Malegaon,
District: Nashik.
3. Deputy Commissioner and Town
Planning Development Officer,
Malegaon Municipal Corporation,
Malegaon, District: Nashik.
4. Kamlakar Shankar Pawar
Age: Major, Occ: Builder /
Developer, having address at
Gagangiri Complex, Camp Road,
Taluka Malegaon, Dist: 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.
CORAM :
A. S. GADKARI AND
KAMAL KHATA, JJ.
RESERVED ON : 13th January, 2025.
PRONOUNCED ON : 21st January, 2025.
Digitally signed
by ASHWINI
ASHWINI GAJAKOSH
1/5
H Date:
GAJAKOSH 2025.01.21
18:28:31
+0530
::: Uploaded on - 21/01/2025 ::: Downloaded on - 21/01/2025 22:20:33 :::
apn 8-aswp-13254-2022.doc
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 quash and set aside the
impugned notices dated 23/10/2020 and
Corporation to the Petitioner u/s. 52 and 53 of
the Maharashtra Regional Town Planning Act,
1966;
c. That this Hon'ble Court be kindly pleased to
issue appropriate writ in the nature of writ of
prohibition thereby restraining the Respondent
No. 2 Corporation from taking any action as
against structure of the Petitioner standing on the
subject matter property pending the hearing and
apn 8-aswp-13254-2022.doc
final disposal of the present Writ Petition."
3) Mr. Kirpekar, learned counsel appearing on behalf of the Petitioner
argued that the Petitioner is a tenant of a tin shed admeasuring 5.50 x 4.00
square meters on plot number 96, situated at Malegaon, sub Division,
Malegaon, Taluka Malegaon, District Nashik. He asserts that he has been a
tenant of the subject property since several decades.
3.1) In support of his assertion, he relies upon the shop license
dated 16th September 2017 issued under the Maharashtra Shops and
Establishment Act 1948, electricity bills and rent receipts. He argued that
the structure was a valid structure, constructed pursuant to the permission
granted by the Malegaon Municipal Corporation by its Order dated 18th
March 1981. 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 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.
3.2) He submitted that without hearing the Petitioner or considering
the reply of the Petitioner dated 22 nd March 2021, the Respondent
Corporation had issued two other notices dated 1st March 2021 and 24th
February 2022.
4) Mr. Patwardhan, learned counsel for the Respondent Corporation
relied on the Affidavit of Mr. Shantaram Thukan Chaure dated 20th August
apn 8-aswp-13254-2022.doc
2024 to contend that the Petitioner was given a hearing pursuant to the
notice dated 1st March 2021. The Petitioner, however, could not justify his
claim about the authorized structure that he occupied. He argued that the
building permission dated 15th March 1981 was in respect of a structure on
survey number 238/3 which was renumbered as Final Flat No.98 in Town
Planning Scheme whereas the Petitioners structure is on Final Plot No.96.
Thus, the notice issued under Section 52 and 53 of the MRTP Act was
rightly issued. The Petitioner in fact could not produce any documents to
substantiate his claim regarding the structure. He submitted that the
Petition be dismissed.
Reasons and conclusions:
5) We heard both counsel 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.
6) 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
apn 8-aswp-13254-2022.doc
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.
7) The Petitioner has a remedy against the landlord and his rights
stand protected. Therefore, the Petitioner will be entitled to establish his
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 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).
8) In any event, we are unable to determine and protect the rights of
a tenant qua the subject property in the writ jurisdiction.
9) In view of the above, we dismiss the Petition with no order as to
costs.
(KAMAL KHATA, J.) (A.S. GADKARI, J.)
