((-1-)) mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.589 OF 2008 His Holiness Shri Mandar Anirudhalalji Maharajshri @ Shri Goswami Gokulnath, Mumbai Petitioner versus The State of Maharashtra and others Respondents Mr.Janak Dwarkadas, Sr.Counsel with Mr. V. T. Lulia for petitioner. Mr.Niranjan Pandit, AGP for respondents 1 to 4. Mr.A.K.Savla for respondents 2 and 3. Mr.D.R.Kanojiya for respondents 14 to 16. Mr.R.D.Soni i/by Dharam & Co. for R-13. Mr.C.M.Lokesh i/by A.R.Bhosale & Co. for R-12. Mr.S.Varadarajan i/by Rajesh Shah & Co. for R-7 to 11. CORAM : F.I.REBELLO AND A.A.KUMBHAKONI, JJ. DATE : 03rd October 2008 ORAL JUDGEMENT : (PER : F.I.REBELLO, J.) 1. Rule. By consent of the parties heard forthwith. 2. The petitioner has approached this Court to contend that the action of respondents 13 to 16 in carrying out alterations and/or changes to a heritage structure known as "Annakut Kotha" and ((-2-)) also known as "Haribaba Ki Bangli", which is an integral part of Mota Mandir, the oldest and most important temple of Pushti Margiya, Vallabha Sampradaya and governed by the principles of Vallabha Sampradaya established by Jagatguru Shrimad Vallabhacharya, is illegal and no action has been taken by respondents 1 to 5. That structure has been notified as "heritage structure" bearing No.288 of the Heritage List under the provisions of Development Control Regulations for Greater Mumbai, 1991 as also the provisions of Maharashtra Regional and Town Planning Act, 1971 (hereinafter referred to as "D.C.Rules" and "MRTP Act" for the sake of brevity respectively) and is situate in the property of Mota Mandir bearing CTS No.2794 of Bhuleshwar Division, Mumbai. 3. At the outset it may be mentioned that both, the petitioner and respondent no.13, are related to the original trustees. 4. Factually we may point out that respondent nos.2 and 3 have issued notice under the provisions of MRTP Act to respondent no.13. Respondent no.13, however, has filed a suit ((-3-)) being Suit No.5176 of 2006 in the City Civil Court, Mumbai where the Court has directed the parties to maintain status-quo. It may also be mentioned that the trustee respondents 8 to 11 had also earlier filed two suits in the City Civil Court, Mumbai being L.C.Suit No.5221 of 1991 and S.C.Suit No.3069 of 1991. 5. It is the case of the petitioner that the premises which are subject matter of this petition, are about 200 years old and were previously used for the purposes of observing special temple festivals. Respondent no.7 is the trust of Mota Mandir and is duly registered with the Charity Commissioner as a public trust in the year 1946. The present scheme of the Mota Mandir was sanctioned by the City Civil Court, Mumbai in the year 1978. Respondent no.13 is the daughter of one of the decedents of Shri Gokulnathji Maharaj, late H.H.Shri Mathureshji Maharajshri who was also a former trustee of the said trust. Respondent no.14, it is pointed out, is a private limited company incorporated under the Indian Companies Act. Respondents 15 and 16 are its Directors. Respondent no.13 is responsible for allowing and/or making illegal change of user and ((-4-)) additions and alterations to the heritage structure along with respondents 14 to 16. The premises, it is set out, have distinct architectural design and represent the historic period or way of life having sociological interest and/or community value. In the petition premises there was special carvings with artistical antiquities depicting the Gopikas and celestials with various type of old carvings and also a huge mirror. Respondent no.13 has illegally, unauthorizedly and high handedly removed the old stone carvings and antiquities from the Annakut Kotha and initially they were dumped at an isolated location in the temple complex. The grievance of the petitioner is that respondent no.13 by removing the artistic and old stone carvings from the petition premises as also the huge mirror which was in existence in the petition premises, has destroyed the "heritage structure". 6. The petitioner, as it is pointed out, has been making complaints of these acts and commission of respondents 7 to 17. The first of this complaint was lodged in March 2005 and then in May 2005. The heritage antiquities ((-5-)) which were removed from the original place, have been illegally fixed by drilling them and by inserting screws and thereby causing irreversible damage to the antiquities. The petitioner has, therefore, also prayed for a direction for stopping the change of user in respect of the heritage structure declared at serial no.288 in the heritage list and to restore the same to the original position by fixing the stone carvings and mirror in the said structure and to further direct the respondents to further stop the change of user of the petition property and to direct the respondents to cancel all the licenses in respect of the business allowed to be done in the petition property and to disconnect the supply of electricity to the petition property till the original position of Annakut Kotha is restored. 7. Reply has been filed by respondent no.13. In reply the respondent no.13 has pointed out that the issued raised in the petition are under adjudication in suit bearing No.5176 of 2006 instituted against respondents 3 to 7 in the City Civil Court at Mumbai. In the suit, an order of status-quo has been granted on 29th ((-6-)) November 2006, which has been extended from time to time and is operating as of today. It is the contention of respondent no.13 that the premises described in paragraph 5 of the petition has never been a "heritage structure" as the list of heritage/monument buildings does not name the petition premises called "Annakut Kotha". The premises "Annakut Kotha" which is set out, is different from the premises "Haribaba ki Bangli" and what is declared as heritage/monument under the Notification dated 24th April 1995 is "Haribaba ki Bangli". The petition premises, it is set out, is being used for commercial activities since 1962, whereas, the Notification has been issued on 29th April 1995. Since 1960 the user of the library above the petition premises was discontinued and said library was converted into residence of respondent no.13’s uncle Hariraiji Goswami and consequently the user of the premises for preparation of Prasad and on occasion of festivals was discontinued. 8. It is further contended by respondent no.13 that her father after his duties as one of the priests of the said temple also used to do Gems and Jewellary business under the name and style ((-7-)) of "Bharti Gems" from a room allotted to him within the temple complex i.e. in a building called "Govind Bhuvan". In 1962-1963 the room where her father used to carry out the business of Gems and Jewellery collapsed. Her grandfather and the then Managing Trustee of the trust, allotted her father the tenancy in the petition premises and since then the said "Annakut Kotha" is being used by her father for such jewellery business. Some time in 1966 her father started export of silver ornaments and gems for which he obtained due license. The trust had filed a suit against her father being S.C.Suit No.1096 of 1980 on the ground that one Giriraj Kishansaroop was inducted in the premises by her father. After reply was filed, the said S.C.Suit No.1096 of 1980 was withdrawn for want of prosecution. Her father died in the year 1988 leaving behind her, her mother and her married sister. On her father’s death, her mother started business of stainless steel utensils, electric items and imitation jewellery from the petition premises by dividing the same by wooden partition into three parts known as Shop Nos.1, 2 and 3. The business is being carried out till today. ((-8-)) 9. Reply has been filed also on behalf of respondent nos.1 and 2. It is pointed out that the respondents have issued notice under section 53(1) of the MRTP Act against the change of user in respect of heritage structure declared at serial no.288 in the heritage list situate on land bearing Survey No.2794 of Bhuleshwar Division of Greater Mumbai. Respondent no.13, as pointed out, has filed a suit being Suit No.5176 of 2006 wherein an order of status-quo has been ordered. . Reply has also been filed by respondents 7 to 11 who are trustees. 10. From these averments it is clear that insofar as respondents 1 and 2 are concerned, notice has been issued u/s 53 of the MRTP Act on respondent no..13. The grievance of the petitioner, however, is that no notice, as required under MRTP Act, has been served on respondents 14 to 16. It maybe pointed out that under Regulation 68 of the D.C.Regulations, respondents 1 and 3, if the monument satisfies the requirements, can notify the said monument as a "heritage structure". On issuance of such a notification, no ((-9-)) development can be done in respect of the heritage structure except to the extent provided under the D.C.Regulations. 11. Based on the contention that the said structure has been notified as heritage structure, petitioner contends that the State respondents should act under the provisions of The Maharashtra Ancient Monuments and Archaeological Sites and Remains Act, 1960 (hereinafter referred to as "the Maharashtra Act"). 12. As we have noted earlier, the dispute is between the petitioner on one hand and respondents 13 to 16 on the other hand on the issue of change of user of premises. Considering the contrary stand, we do not propose to go into the aspect as to which is the structure which is notified as heritage structure. Suffice it to say that we proceed on the footing that the heritage structure is structure no.288 and the objection is in respect of said heritage structure. On the heritage structure being notified under the provisions of D.C.Regulations which have framed under the provisions of MRTP Act, the only ((-10-)) consequence is that the said property cannot be developed or redeveloped except to the extent which is permitted. That is the only limitation on the structure being notified as heritage structure. 13. The Maharashtra Act defines what is an "Ancient and historical Monument" as also a "protected monument". A perusal of the scheme of the Act would clearly indicate that to be a protected monument, it has to be notified under the provisions of the Maharashtra Act. If the monument belongs to a private party, then there is procedure by which the same can be notified as a protected monument. In the absence of the property being notified as a protected monument, the authorities under the Maharashtra Act have neither jurisdiction nor any power by which they can direct the private respondents or the State authorities to carry out any activities including repairs, renovations and/or replacement of the antiquities which may have been removed. 14. There is also The Ancient Monuments and Archaeological Sites and Remains Act, 1958 (hereinafter referred to as "the Central Act"). ((-11-)) Under the said Act the term "Ancient Monument" is also defined therein. Again under this Act, it is the protected monuments only in respect of which there is a procedure for renovation or restoration. It is not the case of the petitioner that the petition premises have been declared as protected monument under the Central Act. The exercise of jurisdiction by respondent nos.3,5 and 6 would only arise if a statutory duty has been cast upon them. In the absence of any such statutory duty, no Mandamus or direction can be issued to the said respondents to act in terms of prayer clause (b) i.e. to remove the illegal additions and alterations made to the said heritage structure and restore the same to the original position by fixing the stone carvings and mirror in the said structure. 15. We are, therefore, clearly of the opinion that there being no statutory duty cast either on respondent nos.5 and 6 insofar as heritage structure is concerned. The duty to act would only arise if under a statute or administrative direction a duty has been cast on those respondents. The Court only in case of such failure to exercise power vested, would ((-12-)) interfere and not otherwise. In the instant case, there is neither a power conferred nor a duty imposed. The relief as prayed for by the petitioner against them cannot be granted. 16. Insofar as change of user and other acts complained of are concerned, the respondent nos.2 and 3 have already served a notice on respondent no.13. Respondent no.13 has filed a suit wherein an order of status-quo has been ordered. In these circumstances, it will not be possible for this Court, when a Civil Suit is pending in respect of the subject matter, to issue any directions, as respondents 2 and 3 have already acted in terms of the statutory duty cast on them. That relief also cannot be granted. 17. Considering the above, the present petition is disposed off. 18. Rule discharged. However, considering the contentions raised by the petitioner that no notice has been issued to respondents 14 to 16, in the event petitioner applies to respondent no.3, the respondent no.3 to consider the same and pass appropriate orders accordingly. We ((-13-)) make it clear that disposal of this petition will not stand in the way of the petitioner seeking any other relief against whosoever they are entitled to before any other forum or Civil Court. (F.I.REBELLO, J.) (A.A.KUMBHAKONI, J.)