1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CONTEMPT PETITION NO. 35 OF 2011 IN WRIT PETITION NO.311 OF 2010 Noor Mohammed Khatri ... Petitioner vs. Mr. Subodh Kumar & Anr. ... Defendants. Mr. Sachin Punde for petitioner. Mr. Ram Apte, Senior Counsel a/w Ms. T. Puranik for respondent Nos. 2 and 3. Mr. Hardankar, Sub Engineer present in person. CORAM : S.J. KATHAWALLA, J. DATE : 14TH OCTOBER 2011 P.C. : 1. By this contempt petition, the petitioner has alleged that the Corporation has committed contempt of the order passed by the Hon’ble Division Bench of this Court dated 12th July 2010, more particularly, paragraph 6 thereof, which reads as under: “6. Having heard the learned counsel for the parties and without going into the merits of the controversy, we direct that the competent authority shall take decision on the representation made by the owner of Room No.2 as expeditiously as possible and in any case within two months from today and depending on the outcome of the said decision, the respondent Nos.1 and 2 shall take further necessary action in accordance with law. If it is found that the construction in question was unauthorised and that the same was put up by respondent no.3 or his spouse or his dependent, further necessary action shall be taken under Sections 16/18 of the Mumbai Municipal Corporation Act, 1888” 2 2. It is submitted by the learned Advocate appearing for the petitioner that the construction is found to have been un-authorised. However, the Corporation has not taken necessary action under Section 16 1(D) of the Mumbai Municipal Corporation Act, 1888 i.e. to disqualify the original respondent no.3, who is a Municipal Corporator. 3. The learned Senior Advocate appearing for the Corporation informs the Court that it was found that the father of the respondent no.3 had constructed the unauthorised structure. The father of the respondent No.3 thereafter filed a suit before the City Civil Court, Bombay being Suit No.1464 of 2011 against the Corporation, impugning the decision of the Corporation that the construction carried out by him is unauthorised. In the said suit, the City Civil Court has passed an order directing the parties to maintain status quo. The father of the respondent no.3 has now expired and the respondent no.3 is in carriage of proceedings. It is, therefore, submitted that the Corporation is unable to take action against the respondent no.3 under Section 16 1(D) of Mumbai Municipal Corporation Act, 1888. 4. In my view, the Corporation is correct in its aforestated submission. If the issue as to whether the construction of the structure put up by the father of respondent no.3 is unauthorised or 3 not, is itself pending before the City Civil Court, Bombay, in which an order of status-quo is also passed qua the structure, the Corporation cannot proceed against the respondent no.3 under Section 16 1(D) of the Mumbai Municipal Corporation Act, 1888 on the ground that the father of respondent no.3 had constructed an unauthorised structure and therefore the respondent no.3 is liable to be disqualified as Councilor under Section 16 1(D) of the Act. In view thereof, no case of breach of the order on the part of the Corporation much less willful or deliberate breach is made out by the petitioner. The contempt petition is therefore, dismissed. [ S.J. KATHAWALLA, J. ]