Dismissed

Shantilal Misrilal Kankaria v. the Municipal Commissioner - Pimpri Chinchwad Municipal Corporation and Ors.

Bombay HC28 Jul 2009WP/1998/2009

Case brief

AI extract

What is this about?

The court dismissed a writ petition seeking quashing of a commencement certificate for a cinema theatre. The petition faced gross latches due to an eight-year delay and involved issues already pending in a civil suit between the same parties concerning ownership and powers of attorney.

What did the court decide?

The petition was dismissed and the interim order of status quo was vacated.

Shantilal Misrilal Kankaria Vs the Municipal Commissioner… — Property and Title | Bombay HC (2009)

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mss

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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APPELLATE SIDE

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WRIT PETITION NO. 1998 OF 2009

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SHANTILAL MISRILAL KANKARIA

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.. .. PETITIONER

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Vs.

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THE MUNICIPAL COMMISSIONER, PIMPRI CHINCHWAD MUNICIPAL CORPN. & ORS. .. RESPONDENTS

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Mr. V. Z. Kankaria for the petitioner

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Mr. S. P. Thorat for R-1

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Mr. G. S. Godbole i/b Rutuja Ambekar for R-2 to 9.

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CORAM: SMT. RANJANA DESAI &

A. A. SAYED, JJ.

DATED: 28/7/2009

P.C.

The petitioner has challenged the permission and commencement

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certificate issued in favour of respondents 2 to 9 by the 1^st respondent i.e.

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the Municipal Commissioner, Pimpri Chinchwad Municipal Corporation. The case of the petitioner is that the land in question belongs to him. He is the owner thereof. According to the petitioner the land in question is exempted under Section 4 of the Urban Land Ceiling Act. The petitioner was having a Cinema licence. He wanted to put up a new cinema theatre on the said plot of land in place of old cinema theatre.

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By letter dated 30/8/88 the City Engineer of Pimpri Chinchwad Municipal Corporation, granted permission to the petitioner to construct a new cinema theatre, however the petitioner could not construct the same. According to the petitioner he had borrowed about Rs. 8 lacs for the purpose of the construction of said theatre but he could not construct the same. The land was kept only for construction of theatre and for no other purpose.

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The case of the petitioner further is that he had given power of attorney dated 15/9/89 in favour of the 2^nd respondent Mr. Vijay Shewale, for development of his land. However, the 2^nd respondent sold the land to respondents 3 to 9 and executed sale deed in their favour. The petitioner has filed Special Civil Suit No. 660 of 2001 Civil Judge, Senior Division, Pune, challenging the sale deed in respect of the said land which is pending. It is the petitioner’s case that on 27/3/01 commencement certificate has been

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illegally given to respondents 2 to 9. From the certificate it is seen that application was given by one Shri Udane, who is power of attorney holder of respondent 2 and respondent 2 was power of attorney of the petitioner. According to the petitioner there cannot be power of attorney holder of a power of attorney holder. In the circumstances, the petitioner has prayed that the said commencement certificate be declared as illegal and action be taken by issuing order to demolish the construction put up by respondent Nos. 2 to 9 on the said plot of land.

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We have heard at some length Mr. Kankaria, learned counsel for the petitioner. Mr. Kankaria submitted that permission to construct cinema theatre cannot be granted to anyone else except the existing user. Mr. Kankaria further submitted that the petitioner was running his theatre when the impugned permission was granted. He pointed out that new permission was granted to the petitioner in 1988. He further submitted that the commencement certificate cannot be granted to Ashok Pandurang Kadam for constructing a cinema theatre inasmuch as the application was given by the 2^nd respondent and permission cannot be granted to a power of attorney holder of Shri Udane who was power of attorney holder of Ashok Kadam and others. He submitted that a power of attorney holder cannot delegate his power to anyone else. He pointed out that the power of attorney given

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by the petitioner was only to Vijay Baburao Shewale, 2^nd respondent. Mr. Kankaria further submitted that permission of the Police Commissioner is absolutely necessary before granting commencement certificate and inasmuch as the said permission is not granted, the commencement certificate could not have been issued and hence it must be quashed and set aside.

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We have also heard Mr. Godbole, learned counsel appearing for respondents 2 to 9. The 1^st respondent is served and Mr. Thorat, learned counsel is appearing for them.

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Firstly it must be stated that the present petition suffers from gross latches. The petitioner is seeking setting aside of the commencement certificate dated 27/3/2001 in the year 2009. There is absolutely no explanation given in the petition for this atrocious delay in filing the petition. Such a belated petition cannot be entertained.

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Besides the petitioner has stated that he has filed a special civil suit in respect of the said land. The said suit is pending in the court of Civil Judge, Senior Division, Pune. That suit is filed against Vijay Shewale, Sau. Laxmi Shewale, Rajan Udane, Mohan Udane, Satish Hule, Savita Tilekar, Ashok

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Kadam and Sheela Pacharne. It is pertinent to note that the said persons are respondents 2 to 9 respectively in this petition. The case of the petitioner in that suit in short is that he is the owner of the land in question, that he had taken loan from Shewale and for that purpose he had mortgaged the said land. However, instead of executing mortgage deed the 2^nd respondent got executed from him illegal sale deed and power of attorney. The 2^nd respondent executed illegal sale deed in respect of the suit property in favour of respondent Nos. 3 to 9. The petitioner has challenged in the suit the said sale deeds registered by the respondents. In the plaint it is specifically urged that power of attorney and sale deed are illegal and bogus. The issues raised in this petition are undoubtedly interlinked with the issues which are raised in the civil suit. Parties are the same. Pendency of the civil suit is, therefore, another reason why we are not inclined to entertain the present petition.

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We have carefully perused the affidavit-in-reply filed by Rajan Udane, respondent 4 herein. It is stated in the affidavit-in-reply that the petitioner has executed a registered power of attorney in favour of Vijay Shewale, 2^nd respondent herein. It is a registered power of attorney. It is registered on 15^th September, 1989. Copy of the said power of attorney is annexed to the petition. We may quote clauses 10 and 12 thereof;

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“(10). To execute sale deed/conveyance of the above mentioned property in favour of the cooperative housing society of the tentative purchasers or association of the apartment. And generally to do all things that is required for completion of the above said matter.

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(12). To divide the property into plots and for the said purpose to obtain demarcation or to make the application for the demarcation of the property and to obtain the certified demarcation map.”

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Therefore, by this power of attorney the petitioner has authorized Vijay Shewale to divide the property into plots and to obtain demarcation, execute sale deed/conveyance of the said property in favour of the cooperative housing society of tentative purchasers. It appears that pursuant to this power of attorney Vijay Shewale has executed 7 sale deeds as constituted attorney of the petitioner. We may also note that the petitioner’s submissions that the land is exempted has been denied by Mr. Godbole.

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Since the basic issues raised in this petition are also raised by the petitioner in the pending civil suit and since parties are the same, the present petition challenging the commencement certificate eight years after the grant of the certificate without explaining the delay, the petition cannot be entertained. The disputed questions of fact and mixed question of law and fact raised herein can be decided in the pending suit.

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In view of the above, the petition cannot be entertained. The petition is dismissed.

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Needless to say that the order of status quo is vacated.

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(Smt. Ranjana Desai, J.)

Shantilal Misrilal Kankaria v. the Municipal Commissioner - Pimpri Chinchwad Municipal Corporation and Ors.

Case brief

What is this about?

What did the court decide?

Shantilal Misrilal Kankaria v. the Municipal Commissioner - Pimpri Chinchwad Municipal Corporation and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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