1 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.709 OF 2009 WRIT PETITION NO.709 OF 2009 WRIT PETITION NO.709 OF 2009 Shri Prakash Harishchandra Raut .. Petitioner vs. Thane Municipal Corporation & Anr. .. Respondents WITH WITH WITH WRIT PETITION NO.360 OF 2008 WRIT PETITION NO.360 OF 2008 WRIT PETITION NO.360 OF 2008 Shri Vijay Vishnu Salgaonkar .. Petitioner vs. Thane Municipal Corporation & Anr. .. Respondents WITH WITH WITH WRIT PETITION NO.1200 OF 2008 WRIT PETITION NO.1200 OF 2008 WRIT PETITION NO.1200 OF 2008 Shri Jayraj Yeshwant Chavan .. Petitioner vs. The State of Maharashtra & Ors. .. Respondents Mr.A.V.Anturkar i/b Mr.S.B.Deshmukh for the petitioner in Writ Petition No.709 of 2009 Mr.Ganesh Sovani for the petitioner in Writ Petition 2 No.360 of 2008 Mr.C.U.Singh, Sr.Advocate with Mr.S.A.Sawant, Mr.Sachin Kadam and Ms.Gunjan Shah for the petitioner in Writ Petition No.1200 of 2008 Mr.R.S.Apte, Sr.Advocate with Mr.N.R.Bubna for the Thane Municipal Corporation Mr.V.P.Malvankar, A.G.P. with Mr.V.A.Sonpal, A.G.P. for the State Mr.V.M.Thorat for the tenant CORAM: J.N. PATEL, & CORAM: J.N. PATEL, & CORAM: J.N. PATEL, & K.K. TATED, JJ. K.K. TATED, JJ. K.K. TATED, JJ. DATE: 19TH JANUARY, 2009 DATE: 19TH JANUARY, 2009 DATE: 19TH JANUARY, 2009 P.C. 1. Heard. 2. Civil Application Stamp No.1137 of 2009 is allowed subject to removing objection within two weeks. 3. This petition has been filed by the petitioner who is respondent no.2 in Writ Petition No.360 of 2008. The petitioner is a sitting Corporator of Thane Municipal Corporation who has been served with a notice under section 53 of the Maharashtra Regional Town Planning Act,1966 by the respondent Municipal Corporation on 31.11.2005 calling upon him to demolish 3 the structure of the building work done beyond approved plan within one month from the date of receipt of notice. The said notice is annexed as Annexure A-17 and it gives the particulars in Schedule A in respect of sanctioned plan together with particulars of plan and in Schedule B, the description and nature of the work of construction carried out actually on land which is contrary to the sanctioned plan. Subsequently, another notice came to be issued to the respondent under section 53(1) r/w s.52 of the Maharashtra Regional Town Planning Act, 1966 which also includes the notice to the occupier Mata Vaishnavi Hospital. The said notice is annexed as Annexure A-18 to the petition wherein also Schedule A gives the description of the sanctioned plan together with particular of land and Schedule B gives the description and nature of the unauthorised construction carried out actually on land. 4. It appears that the petitioner did not respond to the said two notices issued against him. The receipt of which is not disputed and, therefore, the Municipal Corporation passed an order on 17.03.2007 wherein it has specified the unauthorised construction and directed the petitioner to remove the same within 4 seven days. This order is passed pursuant to the notice given to the petitioner under section 53 of the Maharashtra Regional Town Planning Act, 1966. 5. It is not disputed that this order was never challenged by the petitioner before any authority. Annexure A-19 to the petition is copy of the complaint in writing lodged by respondent Thane Municipal Corporation under sections 52 and 53 of the M.R.T.P. Act, 1966 to the Senior Police Inspector, Kopri Police Station, Thane within whose Jurisdiction the subject property is situated. The complaint has been lodged by the Executive Engineer City Development Department, Thane Municipal Corporation, Thane came to be registered as F.I.R. These proceedings against the petitioner led to the filing of an appeal by one of the contestant who lost the election as Councillor which is pending before the Civil Judge, Senior Division, Thane. The same is annexed as Annexure A-1, A-2 and another election petition has been filed by Jayraj Yeshwantrao Chavan and Ors in the court of Civil Judge, Senior Division, Thane under section 16(1) of the B.P.M.C. Act, 1949. 5 6. In addition to the filing of the election petition Vijay V.Salgaonkar filed Writ Petition No.360 of 2008 in this court wherein he has sought an order/direction of this court to the Commissioner of respondent nos.1 Municipal Corporation to immediately refer the matter of disqualification of respondent no.2 i.e. the petitioner in Writ Petition No.709 of 2009 and direction to Civil Judge Senior Division, Thane to adjudicate the reference expeditiously and for other ancillary reliefs like restraining the respondent no.2 from participating in the General Body of respondent nos.1’s meetings and also from voting in the Standing Committee and Transport Committee election process and further that the Commissioner respondent no.2 and the respondent no.3 may be recommended with the State Government for aiding and abetting the continuing illegal and unauthorised construction of the respondent no.2. 7. In the said Writ Petition No.360 of 2008, this court on 8.12.2008 passed an order wherein Mr.Apte, the learned Senior Advocate appearing for the Corporation made a statement that the Corporation would take necessary steps for demolishing the unauthorised 6 structure within a period of 6 weeks which was accepted by this court as a statement made by the learned counsel for the Municipal Corporation and the matter came to be adjourned for a period of 6 weeks to enable the Corporation to demolish the unauthorised structure. In the said order, this court has also taken into consideration, the litigation initiated against the respondent Corporation and Ors by one Dr.Mrs.Bharati Mahesh Gosavi who is running a Nursing Home and to whom the notice under section 53 dated 6.6.06 was also served by the Municipal Corporation. 8. It is quite evident that the petitioner in Writ Petition No.709 of 2009 rather than challenging the order passed in Writ Petition No.360 of 2008 by this court alongwith Writ Petition No.1200 of 2008 elected to file a separate writ petition i.e. Writ Petition No.709 of 2009 wherein he joined only Thane Municipal Corporation and the Municipal Commissioner as party respondents. When this petition came before coordinate bench of this court on 14.01.2009, the Bench observed that in substance, any reliefs sought for in this petition will indirectly modify the statement which was accepted by the Division Bench dealing with Writ 7 Petition No.360 of 2008 alongwith Writ Petition No.1200 of 2008 which has been recorded in order dated 8.12.2008 and so it will be appropriate to place the matter before the same bench and this is how this petition has been placed before us as per directions of Honourable the Chief Justice. 9. We have heard Mr.Anturkar the learned counsel for the petitioner and Mr.Apte the learned counsel for the respondent Municipal Corporation and the Municipal Commissioner. As the petition was kept alongwith Writ Petition No.360 of 2008 and Writ Petition No.1200 of 2008, we have also heard the counsel appearing for the petitioners in the said matters. In our view, in the first place, such a petition will not be maintainable, as prima facie it is nothing less than abusing the process of court to avoid the implementation of the order passed by this court in Writ Petition No.360 of 2008 on 8.12.2008 without challenging the same and also contrary to good faith so as to keep the petitioners in those petitions in dark. Not only this, but the petitioner also got the petition circulated before the bench to seek interim order of the nature which would 8 have resulted in defeating the orders passed by the coordinate bench of this court in Writ Petition No.360 of 2008 and accordingly, the other bench was justified in getting the petition listed before the same bench i.e. before us which passed the said order. 10. We make it clear that we are required to make this observation, particularly when the petitioner is a responsible elected member of a Municipal Corporation and is a sitting Corporator of Thane Municipal Corporation and not an ordinary citizen. Further, the conduct of the petitioner in not complying with the notice under section 53 of the M.R.T.P. Act, served on the petitioner on 30.11.2005 and thereafter on 6.6.06 and it was ultimately disposed of by the Municipal Corporation by passing an order dated 17.03.07 which has attained finality and an F.I.R. being lodged with the police for contravention of the provisions of M.R.T.P. Act, 1966, the petitioner now cannot approach the court and seek a equitable relief of applying to the Corporation to reconsider his case for regularisation of unauthorised construction as that opportunity is already lost by the petitioner with the passage of time. This itself goes to demonstrate that 9 these proceedings were taken in bad faith and maliciously to defeat the due process of law under which action was initiated against Petitioner / Corporator by respondent Municipal Corporation of Thane. 11. The learned counsel for the petitioner was not able to show us any provision under the M.R.T.P. Act or the Corporation Act or the building bye-laws rules and regulations which enables the citizen who has been served with a notice under section 53 of the M.R.T.P. Act and against whom final order has been passed by the Municipal Corporation on 17.3.07, to reagitate the issue after lapse of time and particularly when the petitioner has been prosecuted and his eligibility to continue to hold the seat of Corporator in Thane Municipal Corporation is subjudice. We, therefore, do not find any merits in the Writ Petition Nos.709 of 2009 and the same is dismissed with costs. 12. Mr.Anturkar, the learned Senior Advocate appearing for the petitioner submits that the petitioner be granted two weeks time to approach the Supreme Court in the matter. We are inclined to grant 10 time to the petitioner to challenge our order dismissing Writ Petition No.709 of 2009 for a period of two weeks in the interest of justice. The effect and operation of our order is therefore, stayed for a period of two weeks on the condition that the petitioner shall give 48 hours notice to the respondent Municipal Corporation as well as the Intervenors before moving the Supreme Court for interim relief in the matter. As we have granted two weeks time to the petitioner the time within which the Municipal Commissioner was directed to demolish the unauthorised construction by our order dated 8.12.2008 in Writ Petition No.360 of 2008 stand extended till then. We make it clear that no further extension of time will be granted in the matter. 13. After we dictated the order, the learned Senior Advocate appearing for the Thane Municipal Corporation requested this court that on the earlier occasion, the orders of this court could not be complied by the Municipal Commissioner for want of police assistance, as the Commissioner of Police refused to give police aid for executing the order on the ground that sufficient force is not available and, therefore, it is 11 the apprehension of the Municipal Commissioner that for want of police aid, he will not be able to comply with the orders passed by this court. 14. We, therefore, direct the Commissioner of Police, Thane to make available sufficient police force to the Municipal Commissioner as and when requisition is made by requesting the State Government for additional force if required police personnel are not available and his refusal to grant assistance to the Municipal Commissioner to execute the orders of this court would be viewed seriously. The learned A.G.P. to communicate this order to the Police Commissioner, Thane. 15. Authenticated copy of the order be made available to the learned counsel for the parties. The other two petitions i.e. Writ Petition No.360 of 2008 and 1200 of 2008 be now placed before the court which is assigned with the matter after three weeks. (J.N. PATEL, J.) (J.N. PATEL, J.) (J.N. PATEL, J.) 12 (K.K. TATED, J.) (K.K. TATED, J.) (K.K. TATED, J.)