The High Court of Bombay rejected a writ petition filed by an encroacher seeking reconstruction of a demolished structure. The court held that the petitioner's assignment of the premises in breach of the pitch holder's card conditions disentitled him to relief under Article 226.
Petition rejected with no order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.2820 OF 2008
Raman Bala Panikar ...Petitioner
v/s
The State of Maharashtra and anr. ...Respondents
Mr Vijay Thorat, Sr. Counsel with Mr Pradeep Thorat
for Petitioner.
Mr Milind More, AGP for Respondent Nos.1 to 3.
CORAM : D.K. DESHMUKH AND R.G. KETKAR JJ.
DATE : 20TH JULY 2009.
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P.C. :-
1]The petitioner obviously is an encroacher.
It appears that he encroached upon the land
adjoining a nala before 1stJanuary 1995.
Therefore, a pitch holder�s card was given to him.
One of the conditions of that card was that he will
not assign or transfer it. He executed a deed of
assignment dated 7th August 1997 in favour of one
Salaria. The demolition notice under the
Maharashtra Slum Areas (Improvement, Clearance and
Redevelopment) Act 1971 was given to Salaria. He
contested that notice right upto the level of the
State Government. It is the petitioner�s case that
as the demolition notice is required by law to be
served on the owner and he is the owner of the
structure, notice should have been given to him and
as the demolition is carried out without giving
notice to him, he is entitled to writ from the High
Court for reconstruction of the structure which has
been demolished for expanding the nala. In our
opinion, admitted fact that the petitioner has
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executed deed of assignment dated 7th August 1997
disentitles the petitioner to any relief at the
hands of this Court in its extraordinary
jurisdiction under Article 226 of the Constitution
of India. The defence of the petitioner is that
though the deed of assignment dated 7th August 1997
was executed by him, it was not acted upon. That
defence is merely to be mentioned to be rejected
because admittedly Salaria in whose favour document
was made was found in possession. It is Salaria who
contested notice of demolition. In our opinion, as
the petitioner, after receiving huge amount and
assigning the premises to Salaria is in breach of
the conditions of the pitch holder�s card and
considering that the petitioner basically is an
encroacher, if we exercise our extraordinary
jurisdiction under Article 226 of the Constitution
of India, it will defeat the interest of justice.
Petition is rejected with no order as to costs.
Parties to act on the copy of this order
duly authenticated by the Associate / Private
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Secretary of this Court.
Certified copy expedited.
( JUSTICE D.K. DESHMUKH )
( JUSTICE R.G. KETKAR )
2 issues framed by the court
Whether the petitioner is entitled to relief under Article 226 of the Constitution of India for reconstruction of a demolished structure given his assignment of the premises in breach of pitch holder
Whether the High Court should exercise its extraordinary jurisdiction in a case where the petitioner is an encroacher who assigned the premises after receiving consideration.
2 provisions across 2 enactments
Raman Bala Panikar
The State of Maharashtra
D.K. DESHMUKH
R.G. KETKAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court