WRIT PETITION NO. 8211 2008 v. THE COMMISSIONER, BHIWANDI NIZAMPUR

Mr. Ganesh Gole for the petitioner Mr. N. R. Bubna for R-1 Mr. V. S. Talkute for R-3 Mrs. M. P. Thakur, AGP CORAM: SMT. RANJANA DESAI & A. A. SAYED, JJ. DATED: 6/10/2009 P.C. The petitioner is the Corporator of Bhiwandi Nizampur City Municipal Corporation. In this petition filed under Article 226 of the Constitution of India, the petitioner has inter alia prayed that respondents 1 and 4 i.e. the Commissioner, Bhiwandi Nizampur City Municipal 2 Corporation, Bhiwandi and the State of Maharashtra respectively be directed to take action against the unauthorized construction carried out by respondents 2 and 3 on plot of land situated at village Naigaon bearing City Survey No. 2922, 2923 and 2924 at Garbibi Nagar Road, Opposite Anand Talkies.

On 15/6/09 this petition was heard by the Division Bench (J. N. Patel & Smt. Mridula Bhatkar, JJ.) of this court. The Division Bench recorded the statement made by counsel for the 1st respondent that the 1st respondent has carried out enquiry and it is held that impugned structure is partially unauthorized. He pointed out that aggrieved by this decision of the 1st respondent, respondents 2 and 3 have filed Regular Civil Suit No. 217 of 2009 in the court of Civil Judge, Junior Division, Bhiwandi and in the said suit they have obtained ex-parte injunction against the 1st respondent in respect of the same structure which is the subject matter of th is writ petition. In view of this the Division Bench directed that record and proceedings of Regular Civil Suit No. 217 of 2009 be produced before this court. Accordingly the record and proceedings were produced. This court observed that prima face this is nothing but abuse of process of the court by the respondents while the matter is pending. 3

This writ petition again appeared on our board on 28/8/09. We perused the record, we found that the plaint was filed on 21/4/09 i.e. after filing of the present writ petition. We also found that on 21/4/09 learned Civil Judge, Junior Division, Bhiwandi, issued show cause notice to the defendants and directed the parties to maintain status quo of the suit property till 28/4/09 to the extent of its legal and authorized part.

The present writ petition is filed on 20/11/08. When this court was seized of the matter it was highly improper for the 2nd and 3rd respondents to file a suit on 21/4/09 and obtain an ex parte injunction order without disclosing to the trial court the fact that writ petition is pending in this court, if they knew about the filing of the writ petition. Affidavit of service is filed by one Anil Chavan, authorized clerk of learned counsel for the petitioner. In the affidavit it is stated that as per order passed by this court on 17/12/08 notice has been sent to the 1st respondent through courier and to respondents 2 and 3 by hand delivery. To the affidavit are annexed copies of letters sent by advocate for the petitioner to respondents 2 and 3. The said letters bear the signatures of respondents 2 and 3. Learned counsel for the petitioner states that notice was also sent by courier. We must state that learned counsel for the 2nd and 3rd respondents has denied that any notice was served on respondents 2 and 3. 4

We must further note that on 24/4/09 when first speaking order was passed counsel for the Corporation was present. Written Statement is filed in the suit on 8/6/09 by the Corporation. However, in the written statement the Corporation has not said a word about the pending suit. It is highly improper for the Corporation not to apprise learned Civil Judge, Junior Division, Bhiwandi that the High Court is seized of the matter. Had the trial court been informed about the pending suit it would have awaited orders of this court.

We record our extreme displeasure about the conduct of the Corporation in this matter. Coming to the facts of this case learned counsel for the Corporation has made a statement that the impugned structure is partially unauthorized. If any structure is unauthorized the Corporation is duty bound to take action in accordance with law. We expect the Corporation to do its duty in accordance with law. It was urged by learned counsel for 2nd and 3rd respondent that the petitioner has no locus to file this petition because he is not personally affected. In our opinion, once the Corporation makes a statement that some part of the structure in question is unauthorized, we cannot close our eyes to it.

We also direct the trial court to dispose of the pending application at 5 the earliest and in any case within a period of one month from the date of receipt of this order by it. The application may be disposed of independently and in accordance with law.