Muni Suvrat-Swami Jain S.M.P. Sangh vs Arun Nathuram Gaikwad & Ors

The developer in an attempt to pressurize the appellants into not prosecuting the said suit had setup respondent no.1 herein (a tenant of the Trust property) to initiate proceedings against the appellants. According to the appellants, the fact that the respondent no.1 was setup is clear from the following-

a) though the construction of the temple was completed in the year 2001, the respondent no.1 who was a tenant of the premises did not complain about the unauthorized construction till the appellants herein filed a suit against the developer; b) that the respondent no.1 had participated in the celebration of idol installation; c) the advocates of the developer as well as the Respondent no.1 were same; d) that the respondent no.1 and the developer belong to the same Nationalist Congress Party.

The aforesaid order was modified and it was added that "By consent order dated 3.5.2005 is without prejudice to the rights and contentions of both parties."

In reply, the Municipal Corporation informed the petitioner that as per order of Asst. Joint Municipal Commissioner dated 6.8.2005, the occupation certificate to the building constructed by the developer and named Saiba Palace shall be issued after the proceedings in court are finally disposed off and the provisions of access to the subject temple will also be taken into account.

Respondent no.1 filed a writ petition before the High Court at Bombay alleging that appellants were in the process of constructing a temple in the extremely crowded area without obtaining permission from Municipal Corporation and that on account of this construction the atmosphere in the locality has been disturbed and disputes have arisen. In view of this he sought the following reliefs:

7) The High Court erred in granting prayer of the appellant which seeks direction to demolish entire illegal and unauthorized structure standing on CTS No.206, 206 (1 to 9) in as much as there are many structures on the said plot which were constructed prior to the year 1962 and were considered to be heritage.

8) The High Court failed to appreciate the following evidence which clearly showed that the writ petition was filed by a person who was set up by the developer: (a) though the construction of the temple was completed in the year 2001, the writ petitioner who was a tenant of the premises did not complain about the unauthorized construction till the petitioners herein filed a suit against the developer;

The above order was issued on 16.09.205 whereas the first respondent filed the writ petition in October, 2005 in the Bombay High Court. On 20.01.2006, Brihanmumbai Mahanagarpalika refused the proposal for regularization of temple. Stop work notice was issued on 08.06.2005. In the counter affidavit filed by the Corporation in the writ petition NO. 2841 of 2005, the Corporation has stated that since the construction work was in progress at site without permission from the Corporation Authorities stop work notice under Section 354A of the MMC Act dated 08.06.2005 was issued to the trustees of the temple and by the said notice the addressees were called upon to stop the erection of the building/execution of the said work in the construction of RCC columns on the rear side in the above address without permission from the authorities. According to the appellant the work commenced in the year 2001 whereas the writ petition was filed after 5 years.

10-A. Apparently, therefore, the direction given and the order passed by the City Civil Court and impugned in the present appeal making the notice of motion absolute in terms of prayers (b) and (d) impedes the exercise of discretion of the commissioner or the authority delegated such power. The mandate issued to defendant no.1 in issuing notice in respect of the structures to defendant Nos. 2 to 31 is clearly impediment in the exercise of the discretionary power of the commissioner or for that matter the authority delegated such power. Such mandatory order and that too pending trail of the suit where it is yet to be tried whether the alleged construction is unauthorized or not cannot be said to be justified."

23. In the performance of this duty, if the authority in whom the discretion is vested under the statute, does not act independently and passes an order under the instructions and orders of another authority, the Court would intervene in the matter, quash the order and issue a mandamus to that authority to exercise its own discretion."