wp15-11.sxw 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.15 OF 2011 Hanumanthrao Baburao Bhise ..Petitioner versus The Navi Mumbai Municipal Corporation & Ors ..Respondents Mr.Manoj J. Bhatt for the petitioners. Mr.A.A.Garge for respondent Nos.1 to 4. Mr.M.S.Bane, A.G.P for respondent No.5. CORAM : S.C.DHARMADHIKARI, J. 12th July 2011. P.C.: . By this petition under Articles 226 and 227 of the Constitution of India, the petitioners are challenging the legality and validity of the notice of attachment dated 5th June 2009 and 10th June 2009, in respect of immovable properties and 29th May 2009 in respect of a bank account of the petitioner No.1 with the banks whose details are set out in prayer clause (d) of the petition. wp15-11.sxw 2 2 The case of the petitioner No.1 is that he is civil contractor and has been working for Corporation. Petitioner No.2 is his wife. The petitioner No.1 being Proprietor of M/s.Bhise and Company and also a licenced contractor, he was awarded certain contracts and directed to execute some works. The disputes between the petitioners and the Corporation resulted in filing of the criminal cases against the petitioner No.1 and he was, therefore, prosecuted in criminal Court in accordance with the criminal penal law. It is alleged that immovable properties and movables in the form of bank account have been attached and freezed by Navi Mumbai Municipal Corporation. On a repeated query from the Court as to which provision of the Bombay Provincial Municipal Corporation Act, 1949 empowers the Corporation to resort to these measures and steps, all that is stated was that section 67 which which enlists the functions of certain municipal authorities, empower the said authorities to take such steps for protection of the property of the Corporation as the emergent wp15-11.sxw 3 situation in the case may require. In the instant case all that has been alleged is that on account of fraud of the petitioners and filing of a criminal case and the amount involved being more than Rs.26 lakhs that the said notices of attachment have been issued. However, perusal of the notices, copies of which are annexed to this petition from pages 36 to 38 would reveal that none of them have made any reference to any provision of law, leave alone, section 67 of the Bombay Provincial Municipal Corporation Act, 1949, surely a case where the Corporation alleges fraud and has proceeded against the petitioner No.1 equally it could have taken appropriate steps in accordance with law to protect the public property and/or also to take care of the apprehension that if the bank accounts of the petitioners are not frozen it would be impossible to recover the amounts that are due and payable by them. However, the Corporation does not resort to any of these measures and straightaway issues the notices which it is now finding it difficult to support. For these reasons, while setting aside each of these notices and releasing properties from attachment, it is directed wp15-11.sxw 4 that for a period of four weeks from today, the petitioners shall not alienate, transfer the immovable properties which are subject matter of the notices dated 5th and 10th June 2009. Equally, while releasing the bank account of the petitioners it is directed that the same is released without prejudice to the rights and contentions of the Corporation to proceed against the petitioners in accordance with law and attach, both, immovable and movable properties if permissible therein. All contentions of both sides in that behalf are kept open. Petition disposed off in these terms. No costs. (S.C.DHARMADHIKARI, J)