1 HVN IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1318 OF 2007 WRIT PETITION NO. 1318 OF 2007 WRIT PETITION NO. 1318 OF 2007 Kiran Mangilal Shah and Ors. ... Petitioners Versus The Municipal Corporation of Thane and Ors. ... Respondents Mr.A.Y. Sakhare, Sr. Counsel with Mr.P.R. Kadam for Petitioners. Mr. R.S. Apte for R. Nos. 1 and 2. Mr. Aasifi I. Patel for R. No. 4. Mr. Manoj Bhatt for R. No. 5. CORAM: F.I. CORAM: F.I. CORAM: F.I. REBELLO REBELLO REBELLO & K.U.CHANDIWAL,JJ. K.U.CHANDIWAL,JJ. K.U.CHANDIWAL,JJ. DATED: JUNE 13, 2008 DATED: JUNE 13, 2008 DATED: JUNE 13, 2008 P.C. P.C. P.C. . The Petitioners have approached this court to quash the impugned notice dated 12.2.2007 issued by Respondent Nos. 1 and 2 under Section 268(5) of the B.P.M.C. Act. There are altogether 19 Petitioners who contend that they are occupying premises in the said building. Some of them have also given numbers of the flats which they are occupying. . A Petition had been filed before this court by Respondent No. 5 being W.P. No. 4684 of 2006 which came to be disposed of by order dated 9.1.2007. The case of Respondent No. 5 was that an illegal construction had been put up by one Shivaji Mahadeo Adak on the land of which one Phoolabai Narayan Sarkale was interested. The case of 2 Phoolabai was that there is development agreement between themselves and one M/s. Sadhana Constructions through the proprietor Shri.Pandit Bhoir. The Respondent No. 4 therein Shivaji, proprietor of M/s. Krishnai Developers had contended that they are sub developers through said Sadhana Constructions. This court noted that neither Phoolabai nor Shivaji had produced before this court the licence issued by the Commissioner. This court also noted the affidavit filed by the Assistant Commissioner. At the hearing further opportunity was given to Respondent Nos. 3 and 4 therein to produce any documentary evidence issued by Respondent No. 1. No development permission was produced and in the light of that this court disposed the petition by issuing the following directions : (1) The respondent No. 1 is directed to take steps against unauthorised construction in terms of the law within eight weeks from today. (2) The Police Officer in charge of the Police Station in the jurisdiction of which the construction has been situated with further police protection to Respondent No. 1 on the Respondent No. 1 calls upon the police station to give police protection. . Subsequent to this order of the court, the Corporation issued notice dated 12.2.2007 calling on 3 the occupants therein to vacate the premises and to comply with the order of this court. The present petition has been filed by 19 of the occupants on 16.4.2008. The Petitioners in this petition contend that they have registered sale document in their favour from the Builder who is one Altaf Hussein, proprietor of M/s. Kohinoor Developers, Respondent No. 3 to this petition. We have also perused the letter dated 28.2.2007 which sets out the names of the occupants who were found in occupation at the time of inspection by the corporation. None of the present petitioners names figure in the list. In other words, they were not in occupation of the premises at that point of time. The Petitioners appear to have been inducted subsequently. We had also noted the contentions of the Petitioners that they are unable to serve Respondent No. 3. We had directed the Petitioners who had contended that they had purchased flats through Respondent No. 3 to serve Respondent No. 3. At the hearing, it is submitted that they are unable to trace Respondent No. 3. . At the hearing of this petition, on behalf of the Petitioners, their learned counsel submits that this court had not directed demolition of the structure but had issued direction to proceed against the unauthorised construction in terms of law. Even otherwise, it is submitted that there is no power in this court to order demolition. It is submitted that the notice issued does not tantamount to 4 proceeding according to law as necessary procedure of notice and hearing has not been given to the Petitioners herein. The learned counsel placed reliance on the judgment of the Supreme Court in the case of Muni Suvrat Jain Vs. Arun Nathuram Gaikwad and Ors. AIR 2007 SC 38. On considering the provisions of the Bombay Municipal Corporation Act, the learned Supreme Court was pleased to hold that the High Court cannot direct issue of mandamus for demolition and that that power is in the discretion of the commissioner. As we have noted this court had not directed demolition of the structure in its order but had only directed Respondent No. 1 to take steps according to law. . From the record we find that as early as on 10.7.2006, Respondent No. 1 had issued notice. In the earlier Petition, Respondent No. 1 had filed an affidavit of Mr. Krishna, Assistant Commissioner. In Para 3, it was set out that notice under Section 260 and 267 of the B.P.M.C. Act, 1949 dated 12.7.2005 were issued to Pappu Gulab. Various other facts are also set out. In Para 6 it was set out that after obtaining police protection, demolition of unauthorised structures of Vikrant Towers was commenced on 29.10.2005 at 4.35 p.m. when one Shivaji along with two others obstructed and objected demolition and threatened the police authorities. It is then set out that the demolished part of the structure was reconstructed and police help was sought on 12.1.2006 and on 25.1.2006 again 5 in terms of Section 268 of the B.P.M.C. Act 1949. It is further set out that notice under Section 268 were served on the occupants on the building with police help on 25.1.2006. The affidavit discloses that the Officer of the Corporation was threatened and even some officers were injured while taking action. Though opportunity was given, the same has not been availed off. It is only thereafter that the decision was taken by Respondent No. 1 to proceed against unauthorised construction in accordance with law. . It is therefore, clear that the earlier petition was disposed as the Corporation had followed the procedure under B.P.M.C. Act. When this court passed order, it was not a direction to respondent No. 1 to re-comply with the procedure which had already been complied with but only to take such other steps which may be required before proceeding to demolish the construction. . Considering what we have discussed above and the record before this court, it is clear that there has been compliance by Respondent No. 1 with the procedure required under the B.P.M.C Act. What the Petitioners submit is that they are bona fide purchasers and they have applied for regularisation. Prima facie, we fail to understand how in the absence of the persons who have title in the lands, the purchasers could have applied for regularization. We however, do not propose to go 6 into that issue considering that issue is not before us. The other aspect of the matter is that the present petitioners admittedly were not occupants when earlier notices were issued and the orders were passed by the Commissioner and the writ petition was disposed of by this court with direction. It is therefore, too late for the present petitioners to contend that the procedure under B.P.M.C. must one again be followed. . The Petitioners herein have entered the premises may be based on sale agreement but clearly that would not confer any title upon them or right to continue to occupy the premises. In the face of this, in our opinion, this will not be a fit case where this court should exercise its extra ordinary jurisdiction. The earlier order of the court will have to be complied with. . On behalf of the Petitioners, the learned counsel submits that they should be given some time to approach the Supreme Court considering that some of the purchasers had purchased the flats even by taking loans from the banks. Ordinarily, we would have refused such relief considering that this is a further attempt to frustrate the due process of law and the order of the court. However, considering that this is the monsoon season, if the Petitioners comply with the following directions, Respondent No. 1 is directed not to proceed for a further period of twelve weeks from today. 7 (1) That each of the Petitioners individually to file an usual undertaking before this court within two weeks setting out the names of both adult members and minor members of the family who are occupying the premises presently. (2) The undertaking to contain a clause that they will not create any third party rights or induct any other person in the premises other than persons whose names are set out in the affidavit. (3) They will comply with the orders of this court and Respondent No. 1 in the event adverse orders are passed against them by the Supreme Court. . Petition stands disposed of accordingly. (K.U.CHANDIWAL, J.) (K.U.CHANDIWAL, J.) (K.U.CHANDIWAL, J.) (F.I.REBELLO, J.) (F.I.REBELLO, J.) (F.I.REBELLO, J.)