1 wp-9407, 9409 to 9412 -11 mmj IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.9407 of 2011 Ramanand Chandrikaprasad Pandey .. Petitioner Versus Vasai Virar City Corporation & Anr .. Respondents WITH WRIT PETITION NO.9409 of 2011 Rohitbhai s/o Mafatlal Patel ..Petitioner Versus Vasai Virar City Corporation & Anr. ..Respondents WITH WRIT PETITION NO.9410 of 2011 Madhusudan Kantilal Raval ..Petitioner Versus Vasai Virar City Corporation & Anr. ..Respondents WITH WRIT PETITION NO.9411 of 2011 Vishankumar s/o Shrichand Agarwal ..Petitioner Versus Vasai Virar City Corporation & Anr. ..Respondents WITH WRIT PETITION NO.9412 of 2011 Radheshyam Devtadin Sharma ..Petitioner 2 wp-9407, 9409 to 9412 -11 Versus Vasai Virar City Corporation & Anr. ..Respondents Mr. A.M.Sarogi for the Petitioners in all the Writ Petitions Mr. Atul Damle for the Respondents in all the Writ Petitions CORAM : R.M.SAVANT, J. DATE : 23rd NOVEMBER, 2011 P.C. : 1 The above Petitions take exception to the identical orders all dated 20-9-2011 passed by the Learned District Judge-1, Vasai, by which orders, the Appeals filed by the Respondent No.1-Municipal Corporation came to be allowed and resultantly the temporary injunction granted by the Trial Court to the petitioners herein who are the original plaintiffs in the suits filed by them came to be set aside. 2 The Petitioners are the original Plaintiffs who have filed suits on the basis of apprehension that the structures / buildings constructed by them would be demolished. The main substantive relief sought in the suits filed by the Petitioners in all the above Petitions, was that, the Municipal corporation should not demolish the structures / buildings without following the due process of law. It is required to be noted that apart from relying upon the purported development agreement in their favour, there was not a tittle of averment as regards how the petitioners have derived title to the property in question. It is further pertinent to note that there is also no averment as to whether the construction put up by the 3 wp-9407, 9409 to 9412 -11 Petitioners was after obtaining the necessary permissions of the Municipal Corporation. 3 At this stage, it would be relevant to note that on account of the problem of unauthorized construction in Thane District and especially within the jurisdiction of the Respondent No.1 Corporation three Public Interest Litigation Writ Petitions were filed being PIL Writ Petition No.1 of 2007, PIL Writ Petition No.35 of 2007 and PIL Writ Petition No.36 of 2007. The grievance in the said PILs was that the Corporation was not effectively dealing with the menace of unauthorized construction within the area of its jurisdiction. The stand of the Municipal Corporation in the said PILs’ was that on account of the injunctions granted by the Civil Courts that no effective steps could be taken as regards the unauthorized constructions, put up both on government and private lands. In the said PILS an order came to be passed by the Division Bench headed by the Hon’ble The Chief Justice and Justice G.S.Godbole on 14-7-2011. Paragraphs 2 to 6 of the said Order can be gainfully reproduced herein under: 2. An affidavit has been filed by the Deputy Municipal Commissioner of the Vasai Virar Municipal Corporation (page 489 of PIL 1 of 2007) indicating that the Corporation has made the survey of the unauthorised construction within the limits of the Municipal Corporation. It is stated that some of the constructions are on the government land and the land belonging to the Corporation, but the State Government has granted protection that if the unauthorised 4 wp-9407, 9409 to 9412 -11 construction is prior to the year 1995, they are to be protected and that the issue about granting protection to the unauthorised structures upto the year 2000 is pending before the Supreme Court. It is also stated in the said affidavit that the Corporation has issued notices under the B.P.M.C. Act, 1949 as well as M.R.T.P. Act, 1966 to the persons having unauthorised constructions on private lands also. It is stated that a number of persons, who, according to the Municipal Corporation, have put up unauthorised constructions, have filed Civil Suits and obtained interim orders against the implementation of the demolition notices issued by the Municipal Corporation. It is also submitted that on account of the ad-interim orders being passed by the Court of Civil Judge, Junior Division, requiring the Municipal Corporation to maintain status quo, the Municipal Corporation is not in a position to take action. 3. Having gone through some of the orders which are annexed to the above affidavit, we find find that the trial Court in Vasai has passed ad- interim orders requiring the parties to maintain status quo in respect of the suit properties. Hence it is open to the Municipal Corporation to move the concerned Court seized of such Civil Suits and request the Court to vacate the ad-interim injunction. 4. However, in respect of the construction, which is alleged by the Corporation to be unauthorised, which is put up on a private land; it is obvious that the trial Court may consider not only the question of ownership of the land, but also the question as to whether the construction in question is put up after obtaining sanction or permission of the Competent Authority under the relevant laws and the plaintiff would obviously be required to place on record of the suit the necessary material in support of the plaintiff’s case that the construction is authorised. 5 wp-9407, 9409 to 9412 -11 5. In case the plaintiffs who are alleged to have put up unauthorised construction bring it to the notice of the trial Court that the applications have been made for regularisation to the Competent Authority, the trial Court shall take such plea also into account before passing any final orders on the interim injunction applications. 6. In case the trial Court passes any interim order after hearing or at least after giving an opportunity of hearing to the parties, the aggrieved party will be at liberty to challenge such orders before the higher Courts. 3 In the context of the said directions of the Division Bench that the Respondents-Municipal Corporation sought to proceed against the unauthorized construction within its jurisdiction. It appears that notices were issued under Section 53(1) of the Maharashtra Regional Town Planning Act (hereinafter referred to as the aid Act for brevity sake) to the Petitioners. Hence, when the application Exhibit 5 for temporary injunction came to be filed by the Petitioners in the suits filed by them, the same was opposed inter alia on the ground that the corporation in fact is following the due process of law as it has already issued notices under Section 53(1) of the said Act. The Application for temporary injunction came to be allowed by the learned Joint Civil Judge, J.D.Vasai, by Order dated 30-7-2011 and the injunction to the effect that the Corporation will not take action without following due process of law came to be passed. The trial court reached the conclusion that a prima facie case was made out for grant of the said discretionary relief on the ground that the notices 6 wp-9407, 9409 to 9412 -11 under Section 53(1) which were issued by the Municipal Corporation were found to be suspicious for the reasons mentioned by the Trial Court, in the impugned order, one of the reasons being that the said notices were stereo type. 4 Aggrieved by the said Order dated 30-7-2011 passed by the Trial Court, the Respondents-Municipal Corporation filed Appeals in the District Court against the Orders of temporary injunction passed in all the suits filed by all the above Petitioners. The First Appellate Court went threadbare into the aspect of the issuance and service of notices. On such consideration, the First Appellate Court came to a conclusion that the notices to the petitioners can be said to have been served having regard to Sub Section(1)(c) of Section 136 of the said Act. The First Appellate Court also observed that the action taken by the Municipal Corporation has originated in view of the directions issued by this Court in the three PIL Writ Petitions mentioned above. The First Appellate Court further observed that since the Petitioners, inspite of the stand of the Respondent Corporation of having issued notices under Section 53(1) had not challenged the said notices, it was not open for the Trial Court to doubt the genuineness of the said notices without there being any challenge to the same by the Petitioners. The First Appellate Court further observed that in terms of the scheme envisaged under Section 53 of the said Act, the Petitioners who were the proponents of the unauthorized construction 7 wp-9407, 9409 to 9412 -11 were given an adequate opportunity. On such consideration, the First Appellate Court was of the view that the Trial Court had erred in exercising discretion in favour of the Petitioners. The First Appellate Court, therefore, allowed the Appeals filed against the injunction order passed in each of the Suits and set them aside there by vacating the said temporary injunction granted by the Trial Court. As indicated above, it is the said Orders which are challenged in the above petitions by the original Plaintiffs. 5 The Learned Counsel Shri Sarogi appearing for the Petitioners sought to contend that it is nobodies case that the notices were sought to be served on the Petitioners and after such attempt that the notices was thereafter affixed on the conspicuous part of the buildings in question. The Learned Counsel would contend that since it is obligatory on the part of the Respondents-Corporation to serve the notice prior to taking any action for demolition and since no notices have been served on the Petitioners, the said action is vitiated. The Learned Counsel sought to rely upon the Order of the Division Bench of this Court dated 27-6-2011 in Writ Petition No.302 of 2011 in the case of Dindayal Khairatiram Vs. MGM. In the facts of the said case the Division Bench observed that the demolition was carried out without serving a notice on the Petitioner therein. The next Judgment relied upon by the Learned Counsel is the Judgment of a Learned Single Judge of this Court reported in 2008 BCR 8 wp-9407, 9409 to 9412 -11 (4) 396 in the case of Abdul Rashid Khan Vs. BMC, wherein it was held that the mere fixation of the notice on the building cannot be said to be a service on the Plaintiff, as in the said case it was not addressed to the Plaintiff. 6 Per contra, it is submitted by Shri Damle the Learned Counsel appearing for the Municipal Corporation that Section 136 of the said Act postulates different modes of service in respect of different categories. In so far as, an individual person is concerned, the same is covered by Section 136(1)(c) of the said Act. The Learned Counsel would contend that the First Appellate Court has specifically recorded a finding as regards service on the basis of the said legal provision that if the person is not found then the same can be affixed on some conspicuous part of his known place of residence or business. The Learned Counsel further made submissions in support of the Order of the First Appellate Court. 7 Having heard the Learned Counsel for the parties, in my view, there is no merit in any of the above Petitions. It is trite that for the grant of discretionary relief of injunction the party has to come to the Court with clean hands and with honest disclosure of facts which are put on record. In the instant case, it is pertinent to note that there is no averment in the plaint as regards any permission for construction obtained by the Petitioners in respect of the constructions that they have put up on the plots of land in question. The plaint only discloses that the said 9 wp-9407, 9409 to 9412 -11 constructions have been put up pursuant to some development agreements which the Petitioners abovenamed have entered into with some persons who claimed to be in position to enter into such development agreements. There is no tittle of evidence or statement in the plaint as regards the title of the persons with whom the Petitioners have entered into a development agreement. It is in the context of the said facts that the said case of the Petitioners would have to be considered. The First Appellate Court has rightly taken the said aspects as one of the considerations for arriving at a conclusion whether the Petitioners are entitled to the discretionary relief by way of injunction. 8 Much hue and cry was sought to be made as regards the service of the notice issued under Section 53(1) of the said Act, on the Petitioners. It is not unknown that in urban areas, persons put up unauthorised construction, sell the flats in question to gullible buyers or make a pretence of having sold the flats and thereafter make themselves scarce. It is in the context of the said fact that the issue of service of the notices on the Petitioners would have to be considered. It appears that some of the structures / buildings in question with which the Petitioners are concerned as developers have already been completed. It is in the said context that the notices were affixed at a conspicuous place in the building after having found that the same could not be personally served on the Petitioners. The said mode is an accepted mode in so far as the 10 wp-9407, 9409 to 9412 -11 service of the notices on an individual under the MRTP Act is concerned. The First Appellate court, therefore, in my view, has rightly recorded a finding that the notices in each of the above Petition were served on the Petitioners. Though, the Petitioners are crying hoarse about the service of the notices, it is significant to note that the Petitioners inspite of the categorical stand of the Respondent Corporation that the notices have been issued and served upon them, have not chosen to challenge the said notices. The reason is not for too seek as the Petitioners probably wanted to draw mileage out of the said fact. 9 In my view, therefore, the finding of the First Appellate Court as regards the service of the notice on the touchstone of Section 136 of the said Act cannot be faulted with. Since the said aspect is the defining aspect in so far as action of demolition of the structures of the Petitioners are concerned, in my view, it cannot be said that the action initiated by the Respondents Corporation is vitiated in any manner. 10 In so far as, the Judgments sought to be relied upon by the Petitioners are concerned, the Judgment of the Division Bench concerns, Section 351 of the Mumbai Municipal Corporation Act and in the facts of the said case, the Division Bench has observed that the demolition was carried out without notice to the Plaintiffs. In so far as, the Judgment of the Learned Single Judge of this Court is concerned, it seems from a reading of the said Judgment that the said notice was not addressed to the 11 wp-9407, 9409 to 9412 -11 Plaintiffs and in that eventuality the Learned Judge has observed that the notice pasted on the conspicuous place of the building without it being addressed to the Plaintiffs cannot be said to be served on him. In my view, the fact situation of the present cases stand apart from the fact situation in the said Judgments, the said Judgments therefore would have no application. 11 Having considered the impugned Orders passed by the Learned District Judge, in my view there is no error of jurisdiction committed by the First Appellate Court in upsetting the Order passed by the Trial Court in all the suits filed by the petitioners. In that view of the matter, no case for interdiction in the writ jurisdiction under Article 227 of the Constitution of India is made out. All the above Writ petitions are accordingly dismissed. 12 At this stage, the Learned Counsel for the Petitioners prays for continuation of the status quo order which is operating in the above Petitions. In the light of the fact that the said status-quo order is operating till today, the same is continued for a period of two weeks from date. (R.M.SAVANT, J.)