1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CONTEMPT PETITION NO. 12 OF 2008 IN WRIT PETITION NO. 1898 OF 2007 Mr. Ashok K. Kuvadia .. Petitioner Vs The Municipal Corporation of Greater Mumbai and others .. Respondents Mr. Ashok K. Kuvadia, Petitioner in person Mr. C.Y. Singh, Sr Advocate i/b V.K.Khatu & Others for BMC Mr. Tejas Vora with Mr. Amit Potnis for Intervenes Ajay Patel and Bhanumati Patel CORAM : DR. D.Y. CHANDRACHUD, J DATE : 28th APRIL, 2009. P.C.: 1, The Petitioner is an occupant and owner of flat No. 6, 1st floor, Plot No. 47, Ghatkopar Vikas CHS Ltd, Garodia Nagar, Ghatkopar (E), Mumbai – 400 077. On 7th March 2007 and 20th July 2007, the Petitioner submitted a representation to the Ward Officer, N Ward and to the Executive Engineer (Building Proposals) Eastern Suburbs complaining of various illegalities committed by the other residents of the building in which the flat belonging to the Petitioner is situated. The grievance of the Petitioner was that no action was taken by the Municipal Corporation on either of the two representations. A petition under Article 226 of the Constitution came to be filed. By an order dated 31st October 2007, the Division Bench disposed of Rma CONPW908280409.sxw 2 the petition with the following observations: “ The learned counsel for the Municipal Corporation states that they will look into the complaint dated 20th July 2007 filed by the Petitioner and take appropriate action in accordance with law after hearing the concerned parties. In view of this statement,nothing survives in this petition. The Corporation shall abide by its statement. Petition is disposed of with no order as to costs.” 2. The case of the Petitioner is that the order passed by the Division Bench has not been complied with and that until the institution of the Contempt Petition, no steps have been taken by the Respondents on the complaint dated 30th July,2007. In Paragraph 8 of the Contempt petition, it has been averred that no show cause notices have been issued to the persons named in the complaint. 3. The petition was admitted by an order dated 17th April, 2008. After admission of the petition, an affidavit has been filed by Shri. Vasant R. Prabhu, Assistant Commissioner, N Ward . In the affidavit, it has been stated that after the order of the Division Bench dated 31st October 2007, a letter dated 24th December 2007 was issued to the Petitioner informing him that a hearing has been scheduled before the Assistant Commissioner, N Ward on 27th December, 2007. On 27th December, 2007, the Assistant Commissioner, after hearing the parties, directed the Building Department Rma CONPW908280409.sxw 3 to inspect the premises including those of the Petitioner after receipt of the copy of the approved plan from the Petitioner. The Petitioner was accordingly informed by a letter dated 21st January, 2008. The Municipal Corporation initiated action against Section 488 of the Mumbai Municipal Corporation Act 1888 against the owners / occupiers of all the premises on 5th February, 2008 including the premises belonging to the Petitioner and informing them that inspection shall be taken. In all eight notices were issued under Section 488. It has been stated in the affidavit that after issuance of notices, the developer on behalf of the society submitted amended building plans through an Architect to the Executive Engineer (Building Proposals), Eastern Suburbs for regularization of enclosures to the balconies and for additions and alterations to the existing building and information was furnished on 29th February, 2008 to the Architect of the society. The requisite charges are said to have been recovered and amended plans have been approved. The affidavit states that as the work has been regularized, no further action was warranted. 4. As a matter of fact, the Municipal Corporation has stated in its reply that a complaint was received against the Petitioner from the Co-operative society on 26th April, 2007 alleging that the Petitioner had also carried out unauthorised work. It has been alleged that instead of one window on the Rma CONPW908280409.sxw 4 Eastern Side of the building, the Petitioner has constructed two windows and hence, action under Section 351 was initiated with a notice dated 18th April, 2007. A final order was passed against the Petitioner on 21st August, 2007. The Petitioner instituted a suit before the City Civil Court (BCC Suit 3387 of 2007) in which an order of injunction is stated to have been passed by the City Civil Court. The case of the Municipal Corporation is that the Petitioner filed a complaint on 20th July, 2007 only after the Corporation had issued a notice under Section 351 dated 18th July, 2007. 5. In so far as the alleged unauthorized work that has been carried out by the Petitioner is concerned, it is not necessary for this Court to enter upon the merits of the rival contentions since that does not form the subject matter of the petition. The Petitioner has further stated that on 6th November, 2007, he has submitted an application for regularization followed by reminders dated 6th December, 2007 and 29th December, 2007. The learned counsel appearing on behalf of the Municipal Corporation has stated on instructions that the Municipal Corporation will deal with the application for regularization strictly in accordance with law and shall pass orders thereon. The learned counsel has submitted that this statement has been made to obviate any allegation that the Corporation has not given similar treatment to the Petitioner as to the other members of the society Rma CONPW908280409.sxw 5 and even though the application for regularization does not form the subject matter of the Contempt proceedings. In so far as the grievance in the Contempt petition is concerned, the exercise of the Contempt jurisdiction is not warranted in view of the facts which have come on record in the affidavit which has been filed in reply. From the affidavit in reply, it emerges that the Municipal Corporation had taken action after the order passed by the Division Bench on 31st October, 2007. The developer submitted amended plans which were approved. On 19th March, 2008, a communication was addressed by the Executive Engineer (Building Proposals) for regularization charges and approving amended plans. In respect of one flat owner, it has been stated that he was out of station and therefore, a decision could not be finally arrived at. If the Petitioner is aggrieved by the action that has been taken by the Municipal Corporation, his remedy would not lie in invocation of Contempt jurisdiction. The grievance in the Writ petition which culminated in the order dated 31st July,2007 was that the Corporation was not acting on the complaint dated 20th July, 2007. The Corporation has now taken a decision. The correctness of that decision would not fall for adjudication in exercise of Contempt jurisdiction. The Petitioner is at liberty to adopt such proceedings and / or remedies as are available in law. Rma CONPW908280409.sxw 6 6. The Contempt petition is accordingly disposed of. The show cause notice stands discharged. (DR. D.Y. CHANDRACHUD, J) Rma CONPW908280409.sxw