High Court
Legal Reasoning
cwp-929.241 IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO.929 OF 20241) Kavita d/o Narayanrao Solunke, Age-45 years, Occu:Legal Practitioner, R/o-Municipal House No.4-40-101, Plot No.55-A, Main Road, N-4, CIDCO, Jaibhawani Nagar, Chhatrapati Sambhajinagar (M.S.),2) Sarita d/o Narayanrao Solunke, Age-43 years, Occu:Legal Practitioner, R/o-Municipal House No.4-40-101, Plot No.55-A, Main Road, N-4, CIDCO, Jaibhawani Nagar, Chhatrapati Sambhajinagar (M.S.),3) Narayanrao s/o Rangnath Solunke, Age-83 years, Occu:Legal Practitioner, R/o-Municipal House No.4-40-101, Plot No.55-A, Main Road, N-4, CIDCO, Jaibhawani Nagar, Chhatrapati Sambhajinagar (M.S.),4) Chandrakala w/o Narayanrao Solunke, Age-73 years, Occu:Household, R/o-Municipal House No.4-40-101, Plot No.55-A, Main Road, N-4, CIDCO, Jaibhawani Nagar, Chhatrapati Sambhajinagar (M.S.),5) Seema w/o Santosh Rai, Age-32 years, Occu:Service, R/o-Flat No.10, Kawi Paras Building, Gajanan Maharaj Mandir Road, Chhatrapati Sambhajinagar (M.S.), cwp-929.2426) Santosh s/o Gyanilal Rai, Age-35 years, Occu:Service, R/o-Flat No.10, Kawi Paras Building, Gajanan Maharaj Mandir Road, Chhatrapati Sambhajinagar (M.S.),7) Hema d/o Narayanrao Salunke, Age-45 years, Occu:Legal Practitioner, R/o-Municipal House No.4-40-101, Plot No.55-A, Main Road, N-4, CIDCO, Jaibhawani Nagar, Chhatrapati Sambhajinagar (M.S.). ...PETITIONERS (Orig. Complainant Nos.1 to 7) VERSUS 1) Deepak s/o Purushottam Kulkarni, Age-Major, Occu:Retired, Ex-Assistant Director of Town Planning, Municipal Corporation, Chh. Sambhajinagar, R/o-Manisha Colony, Behind District & Sessions Court, Chh. Sambhajinagar (MS).,2) Ravindra s/o Prabhakarrao Nikam, Age-59 years, Occu:Retired, Ex-Deputy Commissioner, Municipal Corporation, Chh. Sambhajinagar, R/o- Paro Beer Bar, N-6, CIDCO, Chh. Sambhajinagar (MS).,3) Avinash s/o Bhaskarrao Deshmukh, Age-Major, Occu:Service, Deputy Engineer, Municipal Corporation, Chh. Sambhajinagar, Chh. Sambhajinagar,4) Mr. Bhagwat s/o Dinkar Phad, Age-Major, Occu:Deputy Engineer, Gunthewari Section, Municipal Corporation, Chh. Sambhajinagar, R/o-Gunthewari Section, Chh. Sambhajinagar Municipal Corporation, Chh. Sambhajinagar,
Legal Reasoning
cwp-929.2435) Mr. Ayyub Khan Noorkhan Pathan, Age-Major, Occu:Retired, Ex-Head of Encroachment Section, Municipal Corporation, Chh. Sambhajinagar, R/o- Near Madani Chowk, Roshangate, Chh. Sambhajinagar (MS).,6) Mr. Mahavir s/o Manikchand Patani, Age-Major, Occu:Ex-Administrative Officer, Ex-Assistant Director of Town Planning, Municipal Corporation, Chh. Sambhajinagar, R/o- Near Tap Grocery Super Market, Arihant Nagar, Sindhi Colony, Near Jain Mandir Road, Chh. Sambhajinagar,7) Mr. Vinod s/o Ganesh Pawar, Age-Major, Occu:Service, Ex-Building Inspector, E-Ward, Municipal Corporation, Chh. Sambhajinagar, R/o-Building Inspector, E-Ward, Municipal Corporation, Chh. Sambhajinagar,8) Mr. Gangadhar s/o Vitthalrao Bhange, Age-Major, Occu:Service, Ex-Junior Engineer, Gunthewari Section, Municipal Corporation, Chh. Sambhajinagar, R/o-Ex-Junior Engineer, Gunthewari Section, Municipal Corporation, Chh. Sambhajinagar,9) Mr. Natha Y. Jadhav (deceased), Former Police Inspector, PSO, Mukundwadi, Aurangabad,10) The State of Maharashtra, Through its Secretary, Urban Development Department, Mantralaya, Mumbai-32,11) The State of Maharashtra, Through its Secretary, Home Department, Mantralaya, Mumbai-32, cwp-929.24412) The Chair Person, Human Rights Commission, Maharashtra State, 9, Hazarimal Somni Marg, Opp. Chhatrapati Shivaji Maharaj Terminus, Mumbai-400001. ...RESPONDENTS (Orig. Respondents) ... Mr. Chandrakant S. Tembhurnikar Advocate for Petitioners. Mr. A.M. Phule, A.P.P. for Respondent Nos. 10 and 11. ... CORAM: SMT. VIBHA KANKANWADI AND ABHAY S. WAGHWASE, JJ. DATE : 12th AUGUST, 2024 ORDER [PER SMT. VIBHA KANKANWADI, J.] :1.Present Petition has been filed to quash and set aside theorder and Judgment dated 4th September 2023 passed byHon’ble Maharashtra State Human Rights Commission in CaseNo.1828 of 2016 and to direct the Government to conduct theinquiry and take action against respondent Nos. 1 to 8 forillegally demolishing the three storied building erected on PlotNo.55-A, Municipal House No.4-40-101, Jaibhavani Nagar,Aurangabad, on 1st October 2015. The petitioners have alsoprayed for initiating action and inquiry under section 340 and195 of the Code of Criminal Procedure against respondent Nos. 1 cwp-929.245to 8 for filing false affidavit. Other consequential reliefs are alsoprayed. 2.Heard learned Advocate for the petitioners and learned APPfor respondent Nos.10 and 11. Respondent No.9 has expired. Itis not even necessary to issue notice to respondent Nos.1 to 8and 12. 3.It has been vehemently submitted on behalf of thepetitioners that petitioner No.1 is the owner and possessor of thesaid plot. She was allotted the said plot by the concernedhousing society in 1994. She had constructed a three storiedR.C.C. building. Concerned housing society has given her noobjection certificate. Petitioner No.1 was residing in the saidbuilding along with her family members, who are petitionerNos.2 to 7. It is contended that respondent Nos. 1 to 8, for noreason and without giving any legal notice under Section 478 ofthe Maharashtra Municipal Corporation Act, 1949 and withoutfollowing due procedure, demolished the entire building on 1stOctober 2015. The said action was carried out between10.00 a.m. to 6.00 p.m. Valuable articles, ornaments, cashamount from the building have been stolen. Petitioner No.3 cwp-929.246lodged the First Information Report with Mukundwadi PoliceStation. Due to the demolition of entire structure, the petitionershave been rendered homeless. Their constitutional rights havebeen breached. It is also contended that one Motilal Verma hadfiled Writ Petition No.1493 of 2011 before this Court seekingdirection for removal of encroachment and widening of the roadfrom Shivaji Chowk to Mukundwadi Railway Station, Aurangabad.The construction of the petitioners was not affecting in anymanner the D.P. Road. The construction by the petitioners wasnot at all illegal and therefore, the petitioners knocked the doorsof the Maharashtra State Human Rights Commission. However,by the said order their complaint has been rejected. It has beenwrongly held that the decision taken by the Corporation that thecomplainant i.e. petitioner No.1 encroached on the public roadwas correct. As wrong decision has been given, it is challengedby way of this Writ Petition. 4.The first and foremost point to be noted is that disputedfacts appear to be involved in the matter in view of the fact thatrespondent Nos.1 to 8 were contending that the constructionmade by the petitioners was byway of encroachment on thepublic road. Further, it can be seen that present petitioner No.1 cwp-929.247and others had preferred Writ Petition No.8995 of 2015 beforethis Court challenging the action taken by the Corporation,wherein this Court, by order dated 3rd September 2015,observed as under:-“Heard. We do not propose to go into the factualcontroversy raised before us. However, we deem itappropriate to relegate the petitioners to AssistantDirector of Town Planning, who is present before theCourt. The Memorandum of petition shall be consideredas a representation of the petitioners and the concernedauthority, after extending an opportunity of hearing tothe petitioners, may take appropriate steps inaccordance with the provisions of law.”5.It was also observed in the said order dated 3rd September2015 that, it was informed by the Advocate, who wasrepresenting the Municipal Corporation that the hearing would beextended to the petitioners on 8th September 2015. It appearsthat the Deputy Director of Town Planning, passed an order on16th September 2015 holding that petitioner No.1 hasencroached on the road itself. The Corporation demolished theunauthorized construction on 1st October 2015. 6.Now, the question is, when already Deputy Director ofTown Planning had passed an order on 16th September 2015, thepetitioners ought to have contemplated the action that would cwp-929.248have been taken and would have agitated their rights before theappropriate forum. They have not knocked the doors of the CivilCourt, which would be the appropriate authority to consider thestatus of the building. It appears, instead of that theyapproached this Court by filing Writ Petition No. 9670 of 2015.The Division Bench of this Court passed an order on 30thSeptember 2015 that, on instructions of the petitioner, thepetition is withdrawn. Leave was granted, while withdrawing thepetition, to keep the option of alternate legal remedies open forthe petitioner. 7.Now, it has been submitted that when the Division Benchof this Court had passed said order on 30th September 2015, onthe next day itself the demolition work has been undertaken.Again we reiterate that since beginning this Court has taken aview that it will not go into the disputed facts. Therefore, it wasfor the petitioners to approach the appropriate Court. Now also,without resorting to any appropriate remedy and in thebackground that now already the demolition has taken place, thepetitioners have approached this Court to challenge the orderpassed by the Maharashtra State Human Rights Commission. cwp-929.2498.Taking into consideration the facts of the case, we are ofthe opinion even at the initial stage that the case is not madeout for taking any action by exercising the writ jurisdiction of thisCourt under Article 226 of the Constitution of India. The Petitionsuffers from delay and laches. 9.The Writ Petition stands dismissed. [ABHAY S. WAGHWASE] [SMT. VIBHA KANKANWADI] JUDGE JUDGEasb/AUG24