1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6678 OF 2008 M/s.Yogi Suppliers. ..Petitioner. V/s. Silvassa Municipal Council of Dadra and Nagar Haveli, Silvassa & Anr. ..Respondents. Mr.G.S.Godbole with Mr.Rajeev and Brigitta Maria i/b.Wadia Gandhy & Co. for Petitioner. Mr.R.S.Desai for Respondent Nos. 1 and 2. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : FEBRUARY 2, 2009. DATE : FEBRUARY 2, 2009. DATE : FEBRUARY 2, 2009. P.C. : P.C. : P.C. : 1. Heard Counsel for the parties. 2. The principal issue that needs to be addressed in the present Petition is about the legality and validity of notice dated 1st April, 2008 issued by the Municipal Authority on the assertion that the structure referred to therein was unauthorised and illegal and to immediately remove the same. On receipt of the said notice, the Petitioner rushed to the Civil Court and filed suit for declaration that the notice is null and void, bad in law and not enforceable in law. In addition, the Petitioner asked for alternative mandatory order 2 directing the Respondents to regularise the alleged unauthorised construction of the suit property as per the prevailing D.C. Rule of Dadra & Nagar Haveli Municipal Council Regulations, 2004. The Petitioner has also asked for order of injunction restraining the Respondents to act upon the suit notice dated 1st April, 2008. In the said suit the petitioner took out application for interim injunction, which both the Courts below have rejected. 3. Counsel for the Petitioner on instruction states that the Petitioner for the time being will be content with the arrangement, which will be referred to hereinafter. The Petitioner is willing to seal the unauthorised area referred to in the suit notice in the presence of the officials, to be deputed by the Respondent Counsel. The said area will remain sealed till the regularisation application of the Petitioner is finally decided one way or the other. If the Municipal Council were to accept the request for the regularisation of the entire area, only then, the Petitioner will start using the disputed unauthorised area, so sealed. On the other hand, if the Municipal Council were to only partly regularise the disputed unauthorised area, only such portion, which is regularised, will be put to use and the 3 remaining portion will be removed at the cost of the Petitioner within such time, as may be permitted by the Municipal Council. 4. Besides, the Petitioner assures to file formal application for regularisation before the appropriate officer of the Municipal Council within four weeks from today. The said regularisation application shall be disposed of by the appropriate officer of the Municipal Council within six weeks from the date of its presentation. All question in relation to the issue of regularisation are left open. 5. Indeed, if the decision on the regularisation application is adverse to the Petitioner, the Petitioner would be free to question the correctness thereof before the appropriate forum and till the said decision attains finality, the Petitioner will continue to keep disputed unauthorised structure, identified in the said notice, in sealed condition. Counsel for the Respondents has no difficulty in accepting this arrangement. 6. In any case, it is well established position that if regularisation application is pending for 4 consideration, till such application is taken to its logical end, Corporation cannot precipitate the matter on the assumption that the structure in question is unauthorised. 7. Petitioner shall notify the date and time to the appropriate officer of the Municipal Council, on which the Petitioner intends to carry on with the sealing procedure so that the officer can remain present and the sealing procedure can be done jointly. 8. There is one aspect, which needs to be clarified, namely, in relation to the ground floor stilt portion, which is open. Insofar as that portion is concerned, it is agreed by the Petitioner that arrangement will be made to cordon the unauthorised area specified in the suit notice. That will be done either by putting up barricade or wiremesh or such other material, so that even the said area can be sealed and would be rendered non-usuable till regularisation application is finally decided. 9. It is once again made clear that regularisation application shall be decided strictly 5 in accordance with the extant regulation on its own merit, uninfluenced by any observation in the impugned decision or for that matter the arrangement conceded by the Petitioner, as recorded in this order or the stand taken by the Municipal Council before the Trial Court or otherwise. 10. As a matter of fact, with this arrangement nothing would survive for consideration in the suit, which is filed by the Petitioner before the lower Court. In the event, if the Municipal Council were to regularise the entire disputed structure, no action under the notice dated 1st April, 2008 can be proceeded further, whereas if the regularisation application is to be rejected either in whole or in part, the stated disputed structure or area referred to in the notice dated 11th April, 2008 held to be unauthorised, the Petitioner would be obliged to remove such structure or the make the open area non-usable by taking such measures, as may be advised and acceptable to the Municipal Council. 11. The other relief claimed in the suit is to issue direction to the Respondents to regularise the unauthorised structure. That relief will be worked out with the arrangement ordered in the earlier part 6 of this order. In any case, there can be no mandatory order or direction issued to the Respondents to regularise unauthorised construction, but the only direction which can be given is to ask them to consider application for regularisation, which is bound to happen in terms of the arrangement already ordered. Accordingly, even Regular Civil Suit filed before the CJJD, Dadra and Nagar Haveli at Silvassa being R.C.Suit No.5 of 2008 shall stand disposed of in terms of this order. The trial Court may record formal order in that behalf, so that the papers in the said suit can be consigned to the record. 12. It was argued on behalf of the Petitioner that the above arrangement be made subject to the outcome of the Writ Petition pending in this Court, which challenges validity of land acquisition of part of the suit land on the ground that the acquisition has lapsed. However, that issue has no bearing on the controversy on hand. As aforesaid, the real dispute in the present Petition is regarding the validity of notice dated 1st April, 2008 issued by the Municipal Authority which asserts that the specified structure/area referred to in the said notice was unauthorised and illegal. Even if the 7 Petitioner were to succeed in the challenge to the acquisition of the relevant portion of the same land, the question which still needs to be addressed is whether the structure is legal and valid, in confirmity with the requirements of the extant Municipal regulations. That issue is in no way dependant on the outcome of the acquisition proceedings in relation to the property in question. 13. It is once again clarified that the Petitioner has agreed for the above arrangement without prejudice to his right to question the correctness of the view taken by the appropriate authority on the regularisation application. 14. The Petitioner takes responsibility about the stability of the structure. In other words, the Petitioner undertakes that the Petitioner alone may be proceeded in case the structure collapses due to any technical flaws or instability. In other words, the arrangement is entirely at the risk of the Petitioner and that the Respondents and their officers shall stand absolved of any liability arising on account of untoward situation in respect of the said structure irrespective of the pendency of the regularisation application. 8 15. In the circumstances, this Petition is disposed of on accepting assurance given by the Petitioner on each of the above terms. Petition disposed of accordingly. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)