1wp-5960-09 Lrs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION No.5960/2009 Gopichand Nathuram Aswani ..Petitioner. vs. Commissioner, Pimpari Chinchwad Municipal Corporation and others. ..Respondents. Mr A.A.Kumbhakoni, Sr.Counsel, for the Petitioner. Mr P.K. Dhakefalkar, Sr.Counsel (with Mr S.R.Nargolkar and S.R.Ganbavle,Advocates) for Respondent Nos.1 and 2. Mr Ravi Kadam, Advocate General, with Mr S.R.Nargolkar, A.G.P., for Respondent No.3. CORAM: D.K. DESHMUKH AND A.R.JOSHI,JJ DATED: 4TH FEBRUARY,2010 P.C.:- 1. In the present petition,the petitioner s grievance is that the Corporation respondents Nos. 1 and 2 are taking steps 2wp-5960-09 to demolish the structure of the petitioner, where the petitioner is running the shop, without adopting due process of law. According to the Corporation, they have issued a notice under Section 53 of the Maharashtra Regional and Town Planning Act,1966 ( the Town Planning Act for short) dated 5.4.2008. Though, initially, there was some dispute as to whether this notice has been received by the petitioner or not, it appears that the petitioner has made an application for regularization of the structure which shows that such a notice was received. For the purpose of the present petition sub Sections (3),(4) and (5) of Section 53 of the Town Planning Act are relevant which read as under:- 53. Power to require removal of unauthorized development. (1)... (a)... (b)... Provided... (2)... (3) Any person aggrieved by such notice may, within the period specified in the notice and in the manner prescribed, apply for permission under section 44 for retention on the land of any building or works or for the continuance of any use of the land, to which the notice relates, and pending the final determination or withdrawal of the application, the mere notice 3wp-5960-09 itself shall not affect the retention of buildings or works or the continuance of such use. (4) The foregoing provisions of this Chapter shall, so far as may be applicable apply to an application made under sub-section (2). (5) If the permission applied for is granted, the notice shall stand withdrawn; but if the permission applied for is not granted, the notice shall stand; or if such permission is granted for the retention only of some buildings, or works, or for the continuance of use of only a part of the land, the notice shall stand withdrawn as respects such buildings or works or such part of the land, but shall stand as respects other buildings or works or other part of the land, as the case may be and thereupon, the owner shall be required to take steps specified in the notice under sub-section (1) as respects such other buildings, works or part of the land. 2. Thus, the Scheme of the provisions is that if a notice is issued in relation to any structure, which according to the Corporation is unauthorized, for its demolition, the person to whom such a notice is issued can make an application for regularization. That application is, then, to be decided by the Planning Authority in accordance with law and if that 4wp-5960-09 application is rejected the notice stands. Admittedly, in this case because of the notice an application was made before the Corporation for regularization of the structure. That application was rejected by the Corporation. The petitioner did not challenge that order before any Authority. On the contrary, he filed an application before the Corporation for permission to raise a structure on the same land. That application was also rejected. Against that order also there was no challenge raised. Again an application was made for permission to raise construction. According to the petitioner, that application is pending before the Corporation. It is, thus, clear that even according to the Petitioner, the structure to which the notice relates and this petition relates is not entirely an authorized structure. Therefore, in this situation we put it to the petitioner that we can direct the Corporation to decide his fresh application within a stipulated time. But, if that application is rejected the petitioner will have to undertake to the Court to demolish his structure voluntarily subject to his right to challenge that order. The learned counsel appearing for the petitioner stated before us that the petitioner is not willing to give any such undertaking. In our opinion, therefore, it is clear that though the structure is unauthorized and the Corporation has declined to regularize that structure and that though the petitioner has accepted 5wp-5960-09 that order, the petitioner is not willing to comply with the notice. In our opinion, the extra-ordinary jurisdiction of this Court cannot be used to assist such a litigation. 3. The submission of the petitioner was that action for demolition of his structure is politically motivated and that there are several structures similarly standing on both sides of the same road belonging to the Corporators of the Council against which the action is not being taken. The learned counsel for the Corporation stated before us that action in relation to similar structures is being taken by the Corporation and that the Corporation will continue to pursue that action. In our opinion, the statement made by the Corporation and the assurance given by the Corporation that action will be pursued, is enough for us not to proceed further in the matter. Taking over all view of the matter, therefore, in our opinion, it will not be in the interest of justice to keep this petition pending. Petition is hereby rejected. 4. At this stage, the learned counsel appearing for the petitioner requests that operation of the interim order be continued for a period of two weeks. He undertakes that from tomorrow that the petitioner will stop from doing any business in the shop and if within a period of two weeks the petitioner fails to get an order either staying or setting aside the order 6wp-5960-09 above he will voluntarily demolish his shop within a period of three days from expiry of period of two weeks. Statement is accepted. In our opinion, in view of the clear statement made by the petitioner, it will be appropriate to continue operation of the interim order for a period of two weeks from today. It is accordingly so ordered. (JUSTICE D.K. DESHMUKH,J) (JUSTICE A.R.JOSHI,J)