Shashikant B. Vashi and Anr. Vs B. M. C. and Anr.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J.

WRIT PETITION NO. 2547 OF 2004

Shashikant B. Vashi and anr. ... Petitioners Vs. B.M.C. and Ors. ... Respondents Mr. S. Vasudeo i/by M.P. Vashi for Petitioner. Mr. O.J. Menezes with Mr. K.R. Parekh for Respondent Nos. 4 and 5.

¶4

Mrs. A.R. Joshi for Respondent Nos. 1 to 3/B.M.C.

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CORAM : F.I. REBELLO,J. DATED : OCTOBER 18, 2004

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P.C.

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Rule. By consent heard forthwith.

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2.	Subsequent	to	the	order	of	this	court	dated
24.10.2002	in	Writ	Petition	No.		1983	of 2002	, the
Respondent	No.	3	has	passed	the	order.	By	that
order,	objections		raised	by	the	P	etitioner	that
there	was a	change	of	user of	Flat	No.	3	and
garage	from	residen	tial	to r	eligious	pur	poses	has
been	rejected.		A f	inding	has	been	recorded	that
Flat	No.	3 on	grou	nd floor	is	predo	minantly	used
for	residentia	l pu	rposes	and	int	ernal	changes	like
removal	of	partition	wall	have	been	made	by	the
Trust	and it	does	not	amoun	t to	F.S	.I.	violation.
So	far as	garage	is c	oncerned,	it	is se	t out	that

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the matter is subjudice before the City Civil

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Court.

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3.	At the hearing of this petiti	on, on	behal	f	of
the	Petitioner, their learned co	unsel	points		out
that	in the earlier affidavit file	d	before		this
court	by Shri. Anand B.	Bha	ndawdekar		dated
23.10.2002,	the affiant therein had	set	out	that	at
the	inspection carried out on	16.10.2002	, it		had
been	observed and detected that in	Flat	No.		3
meant	for residential purpose was	being	used		for
religious	purpose and so also a	garage	was		being
used	for religious purpose. It	is su	bmitted		that
in	the impugned order no reference	is	made	to	that
inspection	report neither is there	any	mat	erial	to
show	that on the subsequent	inspection	car	ried	out
the	change of user no longer	subsists	.		Various
other	contentions have been raised	incl	uding	as	to
whether	the contesting responde	nts	could		have
applied	under the provisions of the	M.R.T	.P.		Act
on	the notice being issued under	Section	42	as	the

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only remedy to the parties was to move under

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Section 44 of the said Act.

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4.	On the other	hand	on be	half	of the	Resp	ondents,
it is	contended that	the	order	does	not	suffer	from
any	error apparent	on the	face	of	record.	It	is
pointed	out that	the	Respon	dent	No.	3	has
proceeded	on the	footing	that	the	premises	are	not
used	for religious	purposes	and	are	being	used	for
residential	purposes.	It	is	the	refore,	s	ubmitted
that	there is	no	question		of the		private

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respondents applying under Section 44 for

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regularisation.

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5.	After		hearing the learned	counsel,	in	my
opinion	ends	of	justice will be met	if the	i	mpugned
order	is	set	aside and the matter	is rem	anded	back
for	re-hea	ring.	The reason being	that the		order
does	not	dis	close whether subse	quent to		the
affidavit		filed	in this court on	23.10.200	2	any
fresh	in	spection	was carried out an	d based	on	that
inspection,		the	impugned order came	to be		passed.
That	wo	uld	be necessary considering	the		earlier
inspection		report.	It is only in	the eve	nt	that
the	use		has subsequently been	discontinue	d,	the
order	in	the	nature of impugned	order c	ould	be
passed.		The	issue as to whether	the pend	ency	of
the	suit	woul	d restrain the Respondent	No.	3	from
exercising		jurisd	iction in respect	of the		garage
need	not	be	gone into at this stage.	There	is	no
injunction		gran	ted by the court	restraining	any	of
the	parties	.	It will be therefore,	open	to	the
Respondent		No.	3 in exercise its	powers	under	the
M.R.T.P. A	ct and	to pass	appropriate order

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according to Law.

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6.	On	behalf	of	the	privat	e Respo	ndent,	their
learned	counsel		points	out	that	the		allegations
have	been	against	the	parties	who	have	not	been
joined	to	the	Petition.		The	contention	by	the
learned	counsel	will	have	to	be	accepted.	If	the
allegations	in	the	nature		as m	ade out	in	the

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petition	are	to	be	accept	ed,	then	the	parties
against	whom	such	alleg	ations	have	been	made	have
to	be heard	consi	dering	the	office	that	they	hold

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in the B.M.C. Considering the order t	o be passed
that issue need not be gone into for the	present.
7. In the light of the above, the follow :	ing order
. The impugned	order	dated	6.7.2004 is	quashed and
set aside. The	matter	is	remanded to	the concerned
Authority to hear appropriate orders according to law w	both ithin sixty	the	parties and	to pass
days from today.
. Rule made partly absolute in aforesa	id terms.
. P.A. to	issue	authen	ticated copy	of this order
and all parties to act on the same.	C.C.
expedited.

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(F.I. REBELLO,J.)

Shashikant B. Vashi and Anr. v. B. M. C. and Anr.

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Shashikant B. Vashi and Anr. v. B. M. C. and Anr.

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