1 W.P. NO.10797/2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.10797 OF 2010 Deelip s/o Amrutrao Gondkar ... PETITIONER VERSUS The State of Maharashtra & ors. ... RESPONDENTS ..... Shri S.S. Chapalgaonkar, Advocate for the petitioner Shri V.G. Shelke, A.G.P. for respondents No.1 and 2 Shri V.D. Hon, Advocate for respondent No.3. ..... CORAM : A.A. SAYED, J. DATE : 8th December, 2010 PER COURT : 1. The order dated 16.9.2010, passed by the District Judge-1, Kopargaon in Misc. Civil Appeal No.32/2010 is subjected to challenge in this writ petition. By that order, the appeal of this petitioner/ original plaintiff came to be dismissed, thereby confirming the order of the trial Court, rejecting the application of the petitioner/ original plaintiff interalia for temporary injunction against demolition of suit properties. 2. The plaintiff had filed the suit being Regular Civil Suit 2 W.P. NO.10797/2010 No.197/2010 challenging the notice dated 11.6.2010 of the respondent No.3 Municipal Council for removal of the unauthorised construction owned by the plaintiff and for perpetual injunction not to disturb his possession of the suit premises. The petitioner had also filed an application for an injunction, not to demolish the suit premises. 3. The learned counsel for the petitioner submitted that the petitioner is carrying on hotel business in the suit premises as an owner thereof, and without following the due process of law the respondent Council has demolished a portion of the suit premises. However, in so far as rest of the premises which is not demolished, the learned counsel submits that, the same ought to be protected to the extent that unless the respondent Council follows due process of law, the same ought not to be demolished. The learned counsel for the petitioner submitted that the petitioner is in possession of all relevant documents including a certificate from the erstwhile Grampanchayat for running his hotel and that the petitioner had submitted all the relevant documents in the trial Court as well as the appeal Court which the Courts have not given due weightage to. It is contended that the respondent No.3 Council, without following due 3 W.P. NO.10797/2010 procedure of law as provided under the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965, demolished portion of the suit premises. The learned counsel submitted that, the petitioner was required to be given an opportunity of hearing before the action of demolition is taken against the petitioner. However, in the present case, it is stated that no opportunity was granted to the petitioner. The learned counsel for the petitioner has relied upon the decision of the Division Bench of this Court in the case of Sopan Maruti Thopte & another Vs. Pune Municipal Corporation & anr. (1996 (1) Mh.L.J. 963), wherein detailed procedure was set out which is required to be followed before taking action under Section 351 of the Bombay Municipal Corporation Act, 1881. 4. The learned counsel also relied upon the decision of the Single Judge of this Court in the case of Mangesh Amar Ghorpade Vs. Kalyan Dombivali Municipal Corporation (2005(3) Bom.C.R. 483), wherein the Corporation, under the Bombay Provincial Municipal Corporations Act, 1949 was directed to maintain status quo till due process of law was followed. 4 W.P. NO.10797/2010 5. The learned counsel for the respondent No.3 Council on the other hand submitted that the petitioner was issued notices time and again and ultimately demolition was carried out in respect of the part of the suit premises. The learned counsel submitted that, the suit premises in question is a tin shed and comes within the control line and causes interference in the development activities of Daund-Manmad Highway. He submitted that, there were several demolitions carried out in respect of such unauthorised premises in the area where the suit premises is located and the action of the Municipal Council was resisted by the occupants by filing proceedings in this Court. The learned counsel has produced copies of the order dated 20.10.2010 and 15.11.2010 of this Court. The order dated 20.10.2010 is a common order passed by the learned Single Judge of this Court in Writ Petition No.8435/2010 along with a bunch of other writ petitions and the said writ petitions came to be rejected, which order was carried in appeals by filing Letters Patent Appeals and the Division Bench of this Court, by common order dated 15.11.2010, dismissed the Letters Patent Appeals. 6. I have heard the learned counsel for the parties and 5 W.P. NO.10797/2010 perused the material on record. I am informed that the area in which the suit premises is located is now again under Grampanchayat and not Council. Inasmuch as part of the suit premises has already been demolished, in my view, there is no question of granting any relief in so far as that portion is concerned. In so far as other portion is concerned, since there are concurrent orders of the trial Court as well as lower appellate Court, I am not inclined to disturb the findings and interfere in the discretion exercised by the trial Court which was confirmed by appellate Court. It is, however, noticed that, in paragraph No.42 of the order of the appeal Court, it is mentioned as follows : “42. However, the sub part of the prayer in the temporary injunction application cannot be left unattended. I have specifically made a query to Shri R.S. Jape the learned Advocate appearing for the Panchayat whether Panchayat intends to proceed against the suit property in so far as it relates to undemolished portion and the answer of the learned Advocate is in the negative.” 7. The aforesaid statement made by the learned Advocate on behalf of the Panchayat/ Council, in my view, that will not prevent the Council/ Panchayat from proceeding to take appropriate action. However, it is made clear that, in view of the principles laid down in 6 W.P. NO.10797/2010 the aforementioned cases of Sopan Maruti Thopte (supra) and Mangesh Amar Ghorpade (supra), it is expected of the respondent No.3 Council/ Panchayat to act in accordance with law insofar as the undemolished portion of the suit premises is concerned. 8. With the aforesaid observations, Writ Petition to stand disposed of. A.A. SAYED JUDGE