Quashed

Atul Nathalal Patel v. the State of Maharashtra

Bombay HC1 Jul 2013APL/369/2013

Case brief

AI extract

What is this about?

The High Court set aside an interim restraining order passed under CrPC Section 146(1) by a Metropolitan Magistrate involving a dispute over possession rights of immovable property. The court found no genuine controversy regarding possession and deemed the order arbitrary.

What did the court decide?

The order dated 22nd February 2013 passed by the learned Chief Metropolitan Magistrate is set aside and stayed for four weeks.

Atul Nathalal Patel Vs the State of Maharashtra — Property and Title | Bombay HC (2013)

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apl369-13

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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rpa

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CRIMINAL APPLICATION NO.369 OF 2013

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Atul Nathalal Patel .. Applicant Vs. The State of Maharashtra & Ors. .. Respondents

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Mr. Roop M. Vasudeo and Ms. Savita Suryawanshi i/b. Ms. Ruchita Dhuru, Advocate for the Applicant. Mr. D. R. More, A.P.P. for Respondent No.1.

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Mr. H. S. Venegarkar i/b. RMG Law Associates, Advocate for Respondent Nos.2 and 3.

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CORAM : K. U. CHANDIWAL, J.

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DATED : JULY 1, 2013.

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P.C. :

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Heard finally.

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2 The learned Additional Chief Metropolitan

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Magistrate 24^th Court, Borivali, Mumbai on 22^nd February, 2013, pursuant to a report from the learned Senior Police Inspector, Charkop Police Station, issued notice to the petitioner and the

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respondent in respect of initiation of proceedings under Section

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145 of the Code of Criminal Procedure after hearing the parties

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passed the impugned order, thereby restrained the petitioner

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and respondent nos.2 and 3 from disturbing peace and the Senior Police Inspector Charkop police station was directed to seal the disputed property as it is open place and maintain public peace, said order is question before this Court.

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3 Several facets of the matter are argued by both the learned counsel. The fact remains by virtue of an agreement of sale dated 27^th December, 1993, which has not been terminated by any valid document the petitioner asserts rights in the immovable property forming part of survey No. 94 Hissa No.8, CTS 167 with two other plot nos.171 and 172. It is a matter of record buildings are constructed in CTS Nos.171 and 172. The owners have received entire sale consideration, executed documents and attorney in favour of applicants. The parties in present petition had long drawn litigation. A Civil Suit being Suit No. 2451 of 2011 was filed by respondent Nos.2 and 3, it is dismissed on 29^th June, 2013.

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4 In the said suit, the learned Judge, City Civil Court dismissed Notice of Motion on 23^rd February, 2012 which was questioned in A.O. No.335 of 2012 with civil application no.443

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of 2012 by order dated 22^nd March, 2012, this Court (Corum : R.

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G. Ketkar, J.) did not approve and agree to the contentions canvassed by the present respondent Nos.2 and 3 (who was appellant before the said Court) and the application was dismissed. Said order was questioned by respondent Nos.2 and 3 before the Hon'ble Supreme Court and vide order dated 9^th August, 2012, SLP was dismissed.

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5 The Petitioner herein has moved a suit for specific performance of contract by suit (Lodging) No.962 of 2012 for want of removing office objection, the said suit was dismissed. Mr. Vasudeo, learned counsel for the Petitioner submits, by virtue of subsequent proceedings initiated by the Petitioner, the suit has been restored to original position by order dated 15^th April, 2013. There is an endorsement to that effect. However, removal of other objections was left open consequently the mater is not taken up.

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6 Before the learned Judge, both the parties have placed their reply. This reply has been throughly read by both the learned counsel. Primarily in the two civil proceedings,

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possession over the disputed property C.T.S. No.167 is indicated to be that of the petitioner, as the petitioner has carried piling activities and an application to the municipal corporation for other legal facilities are pending. There was sub division of city survey No.167 which has been approved by the municipal corporation. The record also illustrate, a boundary was put by the petitioner which was without prior permission/approval of corporation for which the petitioner had to pay regularization charges. Setback area from CTS No.167 was also handed over to the municipal corporation in 1996, by the petitioner.

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7 Taking these aspects into consideration, the observation of the learned Metropolitan Magistrate about controversy in respect of possession, primarily did not exist. He should have not passed such restraining order in terms of Section 146 (1) of the Code of Criminal Procedure as it has squeezed rights of the petitioner to his determent. The order dated 22^nd February, 2012 of the learned Chief Metropolitan Magistrate 24^th Court, Borivali, Mumbai is beyond the scope of power vested to the learned Judge, it more leans as a arbitrary, therefore, calls for interference and it is accordingly set aside.

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8 Heard learned counsel for the respondent and

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Mr. Vasudeo, the order is stayed for a period of four weeks from

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today. 48 hours notice in the event of any emergent relief by respondent nos.2 and 3, to the petitioner.

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(K. U. CHANDIWAL, J.)

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Atul Nathalal Patel v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Atul Nathalal Patel v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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