Subhash v. The State of Maharashtra & Anr.

Shri S.B. Gastgar, Advocate for the petitioner. Mrs. R.K. Ladda, A.G.P. for respondent No.1. Shri S.N. Pagare, Advocate for respondent No.2. P.C. :- CORAM : P.R. BORKAR,J. DATED :

30.09.2009

Heard Shri S.B. Gastgar, Advocate for the petitioner, Mrs. R.K. Ladda, A.G.P. for respondent No.1 and Shri S.N. Pagare, Advocate for respondent No.2. Adv. Shri Gastgar has taken me through the order passed by this Court in Writ Petition No. 1200 of 2008 on 29.07.2008. The Division Bench observed that the grievance of the petitioner was that the land which was allotted for the purpose of housing has been misused for commercial purposes. The ( 2 ) petitioner also stated that he had made representations to respondent No.3 which is the Municipal Corporation. In para 2 of the said order this Court has given following directions :-

2. Respondent No.3 to enquire into representation dated 05.01.2007 after following due procedure and if respondent No.3 comes to a conclusion that the constructions are illegal, then to take steps according to the provisions of the Maharashtra Regional & Town Planning Act, 1966. The entire exercise to be completed within 10 weeks from today.

In para 4 of the reply affidavit, present respondent No.2 has stated that the Corporation has scrutinized the representation dated 05.01.2007 made by the petitioner and found that the original respondent No.4 i.e. Hemantsingh Mohansingh Rajput has carried out an unauthorized construction and therefore notice dated 19.11.2008 under Section 260 and 478 of the Bombay Provincial Municipal Corporation Act, 1949 intimated Hemantsingh Rajput to submit explanation within fifteen days as regards unauthorized construction or else the said construction would be demolished by the Corporation at the expenses of Hemantsingh. Thereafter, Hemantsingh filed writ petition No. 3433 of 2009 ( 3 ) in this Court and copy of order dated 18.06.2009 passed by this Court is produced on record at Exh. R-IV. In para 3,4 and 5, following observations are made :- “3. Further it appears that the respondent- Corporation has issued notices of demolishing to the petitioner on the undisputed ground that the petitioner had not sought building permission. The petitioner, it appears, pursuant to the notices of demolition has also submitted an application to the respondent – Corporation seeking regularization of the construction. Pursuant to the receipt of the said representation for regularization, the Corporation has intimated to the petitioner certain deficiencies in his application. At the Bar, a statement is made by Shri P.M.Shah, learned Counsel Counsel that whatever deficiencies which have been noticed in the representation/application of the petitioner for regularisation of the constructions would stand fulfilled and cured by the petitioner within two weeks from today. Learned Counsel for the Corporation states on instructions from the authorities who are present in the Court that upon the petitioner removing the deficiencies noticed in the application the respondent would decide said application/representation of the petitioner for regularization of the construction within two weeks from the removal of the said deficiencies. We accept the aforesaid statements made on behalf of the learned Counsel for the parties as an undertaking to the Court.

4. According to us, the interest of the petitioner would be sub served if an interim protection is granted to the petitioner till the application/representation made by the petitioner for regularization of construction is decided by the authorities.

5. Accordingly, this petition is allowed to the ( 4 ) extent the authorities shall maintain status-quo in respect of the petitioner for demolition till the application/representation made by the petitioner for regularization of construction is decided by the authorities. In the event, if any adverse order is passed on the application/representation of the petitioner, then the status-quo shall continue for a period of fifteen days from the date of the said order to enable the petitioner to avail alternate remedy available to the petitioner in law. ”

The learned advocate for the petitioner pointed out that thereafter respondent No.1 Corporation issued letter dated 04.09.2008 to Hemantsingh Rajput, thereby carried out correction that the allotment was not for residential but for commercial purposes and also observed that necessary correction in the agreement would be carried. The learned advocate for the petitioner further pointed out that he has now filed Writ Petition No. 5138 of 2009 for recalling earlier order passed in Writ Petition No. 3433 of 2009 dated

18.06.2009 and also for issuing writ of mandamus directing respondent Nos. 1 to 3 therein to take action in respect of illegal commercial construction carried out by respondent No. 4 Hemantsingh. Said writ petition is pending. The learned advocate for the petitioner was kind enough to provide papers for perusal of this Court. ( 5 )

In my opinion, present Contempt Petition does not survive. The earlier order of considering representation and taking decision thereon is complied with. The Corporation has come to a conclusion that it was illegal construction. It has given notice to Hemantsingh and appropriate action was taken. In view of subsequent developments and subsequent writ petition filed by present writ petitioner for recalling said order and giving further directions, this Contempt Petition does not survive any more.

This Contempt Petition is dismissed. snk/2009/SEP09/cp328.08

[P.R. BORKAR,J.]