1 Lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2078 OF 2010 Purushottam Naraindas Khemchandani and others : Petitioners versus Ulhasnagar Municipal Corporation and ors. : Respondents Ms.Anita Bhaktwani with Mr. Shridhar Desai for the Petitioners. Mr. Vijay Patil for the Respondent Nos.1, 2 and 4. Mr. G S Godbole with Mrs. Jai Kanade and Mr. Sidharth Ronghe for Respondent Nos.6 and 7. CORAM : A. M. KHANWILKAR, R. M. SAVANT, JJ. DATED : 16th April 2010 P.C. : 1. Heard counsel for the Parties. 2. Considering the grievance made in this Petition, we think it appropriate to dispose of this Petition on the basis of assurance given by the Corporation, through counsel that the Corporation shall take necessary steps, as may be required, keeping in mind the grievance in the present petition as well as other complaints received, if any with regard to the disputed structure. That will be done expeditiously and in time bound frame. 2 3. Initially, the Corporation will give an opportunity to the Respondent Nos.6 and 7 to offer explanation in the context of show cause notice to be issued by the Corporation. The show cause notice will be issued within one month from today and the same will be taken to its logical end not later than four months from today. 4. Needless to observe that the Corporation shall take steps in accordance with law and follow due procedure by offering opportunity to the Respondent Nos.6 and 7 and all concerned parties before taking any final decision. 5. In the event, it is noticed that the structure in question is unauthorised and illegal, either as a whole or portion thereof, we hope and trust that the competent authority of the Corporation shall act upon the said decision with promptitude and take the same to its logical end. 6. Our attention was invited to the Regular Civil Suit No.237 of 1988. Copy of the amended plaint in the said Suit is at page 362. On comparing the reliefs claimed in the said suit, we are in agreement with the submission made by the Respondent Nos.6 and 7 that the 3 reliefs claimed in the Petition or for that matter, the proposed action to be taken by the Corporation would address all the issues in the said suit as a whole. 7. Realising this position, the counsel for the Petitioner, on instructions, stated that the said suit which was filed in the year 1988 can be disposed of as withdrawn by the Petitioners (Plaintiffs in that case). The Petitioner No.3, who is personally present in the Court today, states that he has authority to make that statement on behalf of all the Plaintiffs, including the ones who are not the Petitioners in the present petition. Those persons are his family members. On the basis of said statement, we withdraw the said suit in terms of this order at the request of the Petitioner/Plaintiffs and dispose of the same along with the present petition as having been withdrawn by the Petitioner/Plaintiffs. However, all contentions on merits regarding the factum of alleged unauthorised structure are kept open to be considered by the appropriate Authority of the Corporation in the first instance. 4 8. Copy of this order be placed on record of the trial Court where the Regular Civil Suit No.237 of 1988 was instituted and pending till passing of this order, so as to treat the said suit as disposed of. 9. Counsel for the Petitioner submits that the Petitioner apprehends that the Respondent Nos.6 and 7 may create third party rights in the disputed structure and thereafter claim equity. The apprehension is totally misplaced. Even if the said Respondents were to create third party rights, that cannot convert alleged unauthorised or illegal structure into permissible or regular structure. The said Respondents will have to take the responsibility arising out of the proposed action of the Corporation. For, the only question to be considered by the Corporation is as to whether the disputed structure, as a whole or portion thereof, is unauthorised or illegal. If that finding is reached by the Corporation, the Corporation will have no option but to proceed against the identified unauthorised and illegal structure in accordance with law. 5 10. Accordingly, this Petition as well as Regular Civil Suit No. 237 of 1988 stand disposed of in terms of this order. (R.M.SAVANT, J.) (A. M. KHANWILKAR, J.)