Allowed

Murali Rahdomal Khubhchandani and Ors. v. the State of Maharashtra, through Secretary, Public Works Dept, Kollhapur and Ors.

Bombay HC3 Jul 2014WP/2834/2014

Case brief

AI extract

What is this about?

The High Court allowed a writ petition challenging a communication directing petitioners to remove an alleged encroachment. The court held that the action violated procedural requirements under the Bombay Highway Acts, 1956 and earlier court directions, as no specific legal provision was cited, depriving the petitioners of statutory remedies.

What did the court decide?

Impugned communication dated 6.3.2014 was quashed. Authority permitted to take steps for removal in accordance with law and previous court directions. Interim protection continued.

Murali Rahdomal Khubhchandani and Ors… — Constitutional and Fundamental Rights | Bombay HC (2014)

Deshmane PPD

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO.2834 OF 2014

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Murali Rahdomal Khubhchandani Age 50 years, occ. Business, Anita Saree Centre, Gurunanak Market, Main Road, Gandhinagar, Tal. Karveer, Dist. Kolhapur.

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Sanjay Hemandas Chugh, Age 40 years, Occ. Business, Sanjay Textile, Main Road, Gandhinagar, Tal. Karveer, Kolhapur.

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Kaushalya Hemandas Chugh, Age 57 years, Occ. Household Ashirwad Bunglow, Near Chawala Bunglow, Gadmudshingi, Tal. Karveer, Dist. Kolhapur.

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Anilkumar Kishanchand Vadhawani, Age 37 years, occ. Business, Barrack No.138, Room No.13, Gandhinagar, Tal. Karveer, Dist. Kolhapur. ..Petitioners

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Versus

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The State of Maharashtra, through the Secretary, Public Works Department, Kolhapur, Office of Government Pleader,

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High Court, Appellate Side, Mumbai.

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The Deputy Engineer, Public Works Department, Kolhapur.

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Sub Divisional Officer, Public Works Department, Kolhapur.

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Tahsildar, Karveer, Kolhapur.

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The Collector, through State of Maharashtra, Kolhapur, Dist. Kolhapur. ..Respondents

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WITH

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CIVIL APPLICATION NO.1474 OF 2014

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WRIT PETITION NO.2834 OF 2014

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Shri Ashok Hadumal Chandwani. ..Applicant IN THE MATTER BETWEEN : Murali Rahdomal Khubhchandani & Ors. ..Petitioners Versus The State of Maharashtra & Ors. ..Respondents

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Mr. A.Y. Sakhare, Senior Advocate i/b. Mr. Joel John Carlos, for the Petitioners.

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Mr. A.S. Khandeparkar, i/b. Khandeparkar & Associates, for the Applicant in CAW/1474/2014.

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Mr. V.S. Gokhale, AGP, for Respondent Nos.1 to 3.

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CORAM : A. S. OKA, AND A. S. CHANDURKAR, JJ.

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RESERVED ON : 18^th JUNE, 2014

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PRONOUNCED ON : 03^rd JULY, 2014

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ORAL JUDGMENT : [ PER A.S. CHANDURKAR,J.]

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Rule. Heard finally with the consent of the parties.

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By the present Writ Petition, the petitioners seek to

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challenge the notice dated 10.2.2014 as well as communication dated 6.3.2014 issued by the Deputy Engineer, Public Works Department, Kolhapur – respondent No.2. By notice dated 10.2.2014, the petitioners have been informed that the construction undertaken by them was situated at a distance of 10 meters from the center of the road and said distance was less than that prescribed by the Rules made in that regard. By communication dated 6.3.2014, the said Authority has directed the petitioners to remove the offending portion of the construction made by them as informed by notice dated 10.2.2014.

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The facts insofar as they are relevant for adjudication of

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the present Writ Petition are that :

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The present petitioners were the original defendant

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Nos.1 to 4 in R.C.S. No.256 of 2010 that was filed seeking a decree

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for removal of encroachment and permanent injunction not to use the construction in question for commercial use. In the aforesaid Suit, the trial Court rejected the application for grant of temporary injunction and Misc. Civil Appeal No.165 of 2010 challenging the said order also came to be dismissed. The original plaintiffs had approached this Court by filing Writ Petition No.3131 of 2011 and by order dated 4.12.2013, this Court maintained the order passed in M.C.A. No.165 of 2010 dated 25.10.2010. However, certain directions were issued to the SubDivisional Officer, P.W.D., Kolhapur in the matter of alleged illegal construction undertaken by the present petitioners. The said directions read as under :

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“ ii. The respondent no.5 is directed to inspect the suit structure as well as collect other facts and should arrive at conclusion, of course prima facie as to whether the said structure is constructed by respondent nos.1 to 4 in violation of the provisions of Bombay Highway Acts, 1956 and other Acts for the time being in force. He shall carry out this exercise on or before 31.1.2014.

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iii. Whatever decision taken by the respondent no.5 shall be communicated to the petitioners as well as to respondent nos.1 to 4. If respondent no.5 comes to the conclusion that the suit structure is in violation of the provisions of the said Act, the respondent no.5 shall proceed against respondent nos. 1 to 4 for removal of the suit structure. It is hereby ordered that the decision of the respondent no.5 which will get communicated to the petitioners as well as respondent nos.1 to 4 cannot be challenged if the respondent no.5 comes to the conclusion that the suit structure is in violation of the provisions of the said Act. Surely, if any action is initiated by respondent no.5 pursuant to the said decision, it will be open for the respondent nos.1 to 4 to challenge the action as well as the said decision. If respondent no.5 comes to a conclusion that the said structure is not in violation of the said Act, the petitioners would be able to challenge that decision by filing appropriate proceeding.”

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. In view of the aforesaid directions, R.C.S. No.256 of 2010

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was undertaken to be withdrawn.

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In terms of the directions issued in the aforesaid Writ Petition, the property in possession of the petitioners was duly inspected and on 10.2.2014 the petitioners were informed of the nature of the excess construction as well as shortfall in the distance that was required to be maintained from the road. It was further informed that in terms of the order dated 4.12.2013 passed in the

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aforesaid Writ Petition, further steps should be taken. Thereafter on 6.3.2014, the respondent No.2 issued a communication and directed the petitioners to vacate the building in question and also to remove the offending portion as stated in the earlier notice dated 10.2.2014. It is this action that is the subject matter of challenge in the present Writ Petition.

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Shri A.Y. Sakhare, the learned Senior Counsel appearing

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for the petitioners submitted that the respondent No.2 has proceeded in the manner contrary to the directions of this Court in the earlier Writ Petition. It was submitted that the concerned Authority was merely directed to inspect the structure in question to examine whether there was any violation of the provisions of the Bombay Highways Act, 1956 (hereinafter referred to as “the said Act”, for short) or other Acts in force. As per the said directions, further steps for removal of the offending portion in accordance with law were required to be taken. However, the impugned communication dated 6.3.2014 does not refer to any provision under which the action for removal of the alleged encroachment was being undertaken. It was submitted that in

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view of the clear directions issued in the earlier order, the Authority concerned ought to have taken recourse to law and should have thereafter proceeded to take further action, if so warranted. It was, therefore, submitted that the direction to demolish the alleged excess construction was without any legal basis and hence was contrary to law. It was further urged that if the action, as contemplated in any statute would have been taken, the petitioners would have got an opportunity to avail the remedies/take such steps as were permissible under such statute.

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Shri V.S. Gokhale, the learned Assistant Government Pleader appearing for respondent Nos.1 to 3 submitted that perusal of the initial report dated 10.2.2014 indicates that the petitioners had made excess construction and were also using the properties for commercial purposes when the same was not permissible. It was submitted that by notice dated 10.2.2014 the petitioners were granted an opportunity to take appropriate steps for complying with the said notice and only thereafter the direction for removal of the offending structure was issued. It was, therefore, submitted that the Authorities had acted in accordance

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with law and there was no reason for this Court to interfere with the impugned action. The learned AGP, therefore, submitted that the Writ Petition be dismissed.

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The original plaintiffs in R.C.S. No.256 of 2010 have filed Civil Application No.1474 of 2014 praying that they be impleaded as respondents in the Writ Petition or they be permitted to intervene in the matter. Shri A.S. Khandeparkar, the learned Counsel appearing for the applicants, submitted that as the entire exercise undertaken by the Authorities was in view of the Civil Suit filed by the said applicants, they were necessary parties in the present Writ Petition. It was further submitted that the action taken by the respondent No.2 was in compliance with the directions issued by this Court vide order dated 4.12.2013 and hence the said action was justifiable in law.

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. Considering the nature of order that we propose to pass,

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it is not necessary to go into the question as to whether the applicants are necessary parties to the Writ Petition. Suffice it to say that we have heard the learned Counsel for the applicants with regard to his submissions on the question of legality of the

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impugned action.

As the impugned communication dated 6.3.2014 has

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been issued pursuant to the directions issued in the Writ Petition No.3131 of 2011 on 4.12.2013, it would be necessary to consider the purport of the aforesaid order. This Court while maintaining the order passed by the lower Appellate Court in Misc. Appeal, directed the SubDivisional Officer to inspect the premises in question and to prima facie come to the conclusion as to whether the provisions of the said Act or any other Act in force were violated. While it was directed that the initial finding would not be open for challenge, it was clarified that if any action was to be initiated by the SubDivisional Officer on the basis of such conclusion, then it was open for the aggrieved party to challenge the same.

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. Thus it is clear that the SubDivisional Officer was first required to arrive a prima facie conclusion as regards violation of of either the provisions of the said Act or any other Act in force and thereafter take necessary steps in accordance with law if the structure in question was to be removed. What was, therefore,

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clearly indicated in the aforesaid order was a direction to take necessary action in accordance with law.

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A perusal of the notice dated 10.2.2014 reveals that it

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has merely been stated that by using the said premises for commercial purposes, there was breach of rules framed by the State Government with regard to open spaces. Similarly, it is stated that the distance from the center of the road was less than that prescribed by law. However, there is no reference to violation of any particular statute or rules framed thereunder. There is only a vague reference to violation of certain rules framed by the State Government. Similarly, the communication dated 6.3.2014 also does not indicate any provision of law under which a direction has been given to the petitioners to remove a portion of the alleged illegal constructed building. It is, therefore, clear that in the notice dated 10.2.2014 and the communication dated 6.3.2014, there is no reference whatsoever to any provision of law under which the action stated therein was proposed.

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Insofar as the provisions of the said Act are concerned, Section 23(1) thereof stipulates service of notice by an Authority

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authorized under Section 21(1) of the said Act, if any

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encroachment is found to have taken place on a highway. The further course of action required to be taken after service of such notice, has also been stipulated therein. Section 24 of the said Act contemplates an appeal by a person on whom notice under Section 23(1) of the said Act has been served. Thus, ChapterIV of the said Act prescribes the manner in which the encroachments on a highway are to be removed. As stated above, the impugned communication no where indicates that initial notice under the provisions of Section 23(1) of the said Act was served on the petitioners and thereafter on account of failure to comply with such notice, steps for removal of the encroachment were being taken. Further, by failing to refer to the source of power under which such an action was being taken, the petitioners were unable to take further appropriate steps as prescribed under the said Act. Therefore, it is obvious that the directions contained in the order dated 4.12.2013 in Writ Petition No.3131 of 2011 have not been carried out in their true letter and spirit. This has caused serious prejudice to the rights of the petitioners. Hence, the impugned communication dated 6.3.2014 directing removal of a portion of

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the structure cannot be sustained. In view of what has been stated in paragraph(iii) of the directions issued in Writ Petition No.3131 of 2011, the findings recorded in the communication dated 10.2.2014 are not open to challenge. The submission made on behalf of the respondents that the aforesaid action of removal of encroachment was undertaken after giving due notice to the petitioners cannot be accepted, as the directions contained in the order dated 4.12.2013 are not being complied with. The petitioners did not have an opportunity, as contemplated by the provisions of Sections 23 and 24 of the said Act, to take necessary steps against the aforesaid proposed action assuming that such action was being taken under provisions of the said Act.

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Hence, we pass the following order :

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(a) The impugned communication dated 6.3.2014 is quashed and set aside;

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(b) It is clarified that it is open for the respondents to take all necessary steps for removal of alleged encroachment in accordance with law and after taking into account the directions issued by this Court in Writ Petition No.3131 of

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2011 dated 4.12.2013;

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(c) The interim protection granted on 13.3.2014, shall continue to operate till the final orders, if any, are passed for demolition of the structure in question till such final order is communicated to the petitioner, and for a period of two weeks thereafter;

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(d) It is clarified that this Court has not examined the correctness

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of the findings as recorded in communication dated 10.2.2014. The Authorities under the said Act are free to come to their independent conclusion as regards alleged violation of any of the provisions of the said Act. The respective contentions of the rival parties, on merits of the controversy, are expressly kept open.

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(e) The Writ Petition is accordingly allowed in aforesaid terms with no order as to costs. Needless to state that the pending Civil Application stands disposed of.

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(A. S. CHANDURKAR, J.) (A. S. OKA, J.)

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Murali Rahdomal Khubhchandani and Ors. v. the State of Maharashtra, through Secretary, Public Works Dept, Kollhapur and Ors.

Case brief

What is this about?

What did the court decide?

Murali Rahdomal Khubhchandani and Ors. v. the State of Maharashtra, through Secretary, Public Works Dept, Kollhapur and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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