Disposed

Vinayak Ramesh Sinhasane and Anr. v. the Commissioner, Sangli Miraj Kupwd City Corporation, Sangli and Ors.

Bombay HC14 Aug 2014WP/6407/2013

Case brief

AI extract

What is this about?

In a writ petition under Article 226 challenging failure to demolish an unauthorized school structure, the Court accepted an undertaking for regularization. It directed the Corporation to postpone demolition for three weeks to assess the regularization proposal, subject to maintenance of status-quo and payment of costs to the petitioners.

What did the court decide?

Undertaking accepted; demolition stayed for three weeks contingent on regularization proposal; Court reserved direction for Corporation to decide application within three months.

Vinayak Ramesh Sinhasane and Anr. Vs the Commissioner… — Land Acquisition | Bombay HC (2014)

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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. 6407 of 2013.

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Vinayak Ramesh Sinhasane and Anr

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..Petitioners.

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The Commissioner, Sangli Miraj Kupwad City Corporation and others

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..Respondents.

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Mr Ashutosh M. Kulkarni for the petitioners. Mr Umesh Mankapure for Respondent No.1. Mr A.A.Kore for Respondent No.2. Mr Abhijit P. Kulkarni for Respondent No.3.

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CORAM : A.S. OKA AND A.S.CHANDURKAR,JJ. DATE : 14^th August, 2014.

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P.C.:-

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Heard the learned Counsel appearing for the petitioners, the learned

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Counsel appearing for the first respondent and the learned Counsel appearing for the 2^nd respondent. We have also heard the learned counsel appearing for the third respondent.

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The grievance made in this petition under Article 226 of the Constitution of India is as regards the failure of the first respondent to implement the notice issued to the second respondent under sub-section (1) of Section 53 of the Maharashtra Regional and Town Planning Act, 1966. A writ of mandamus is sought to demolish illegal structure erected by the second

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respondent on the suit plot bearing survey No.313 admeasuring 3 Hectare and 85 Are situate at Kupwad within the limits of the first respondent Municipal Corporation.

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The learned Counsel for the petitioners invited our attention to the statement of the learned Counsel appearing for the second respondent recorded in order dated 3^rd July, 2014. He pointed out that the said statement is turned out to be a false statement. He urges that but for the said false statement, by this time, the offending structure would have been completely demolished. He pointed out that admittedly the offending structure is unauthorized. He urged that even after the order dated 15^th July, 2014 was passed, the second respondent did not file affidavit explaining the conduct of making a false statement. He pointed out that even on 31^st July,2014 no such affidavit was filed. He pointed out that an affidavit was filed by the Secretary of the second respondent on 9^th August,2014. He also pointed out that till today, none of the office bearers of the second respondent have remained present before the Court. He urged that though the second respondent addressed a letter to the first respondent Municipal Corporation on 23^rd December,2011 stating that an application for regularization will be filed, for the last more than two years, no such application was filed.

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The learned counsel appearing for the first respondent Municipal Corporation stated that the roof of the offending structure had been removed and only the side walls are in existence as of today. The learned counsel for the

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third respondent supported the petitioners.

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Today on behalf of the second respondent Shri Dhondiram Jagannath Patil, the Head Master / Principal of New Maharashtra Education Society's Nav Maharashtra High School and Junior College, Laxminagar, Sangli has filed an undertaking on oath. The learned Counsel for the second respondent states that the said Shri Dhondiram Jagannath Patil is personally present in the Court and that the second respondent has duly authorized the said Shri Dhondiram Patil to give an undertaking on it's behalf. In the undertaking, an unconditional apology has been tendered to this Court. It is stated that a proposal for regularization of the structure in question will be submitted to the Municipal Corporation within a period of three weeks from today. The undertaking shows that the second respondent has given up the plea of deemed permission. Undertaking is also given to pull down the structure within a period of one month in case the proposal for regularization is not approved by the first respondent Corporation.

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It will be necessary to make a reference to the order dated 3^rd July,2014 which reads thus :

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“The learned counsel appearing for the second respondent states that the order of temporary injunction passed in the Suit filed by the second respondent was vacated. He states that the Appeal preferred by the second respondent against the said order in the Appellate Court is pending and there is an ad-interim order of injunction passed by the Appellate Court. We direct the second respondent to place on record a copy of the Appeal and the order granting adinterim relief. Stand over till 15^th July,2014.”

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The order dated 15^th July,2014 records that the statement made on

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behalf of the second respondent on the earlier date was factually incorrect and, therefore, a direction was issued to the second respondent to explain the said conduct. This Court directed the first respondent to take action of demolition. Order dated 31^st July,2014 records that there is a non-compliance with the order dated 15^th July,2014 passed by this Court by the second respondent. It records that an affidavit of the second respondent has not been filed. Even the said order directs the first respondent to proceed with the action of demolition. There is no dispute that the statement made on 3^rd July, 2014 by the second respondent is factually incorrect.

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Considering the said conduct of the second respondent, this is a fit case where this Court should not shown any indulgence. However, it is pointed out that the structure is erected for the purposes of a school for providing mid day meal facility for the students and for the educational purposes. Considering the stand taken by the second respondent and considering the undertakings given by the second respondent through Shri Dhondiram Jagannath Patil, we are showing indulgence to the second respondent. There is a merit in the submission of the learned Counsel for the petitioners that by defying the orders of this Court, none of the office bearers of the second respondent have remained present before this Court till today. In the affidavit of Shri Suresh Jyotiram Mhamane, the Secretary of the second respondent, he has made a statement that he had undergone coronary angiography on 16^th June, 2014.

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Therefore, he was unable to remain present. Any other office bearers could have remained present in the Court.

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Considering the fact that the structure is stated to be used for catering of mid day meal facility for the students, we propose to direct the first respondent to consider the application for regularization which may be made by the second respondent on merits. We, however, make it clear that till the disposal of the said application, the second respondent will have to maintain the status-quo as of today in respect of the offending structure. Hence, we pass the following order:

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ORDER:

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A) The undertaking of Shri Dhondiram Jagannath Patil tendered today which is marked “X” for identification is accepted as an undertaking of the second respondent;

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B) For a period of three weeks from today, the first respondent shall not take further action of demolition in respect of the said structure. If the second respondent fails to submit a proposal for regularization in terms of the rules within a period of three weeks from today, the first respondent shall proceed to demolish the said structure;

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C) In the event such application is made within the stipulated period of three weeks from today, the first respondent shall decide the said application in accordance with law within a period of three months from the date of receipt of such application;

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D) In the event of the application being made within three weeks, the structure shall not be demolished till the disposal of the application for regularization. The order passed on the application for regularization shall be communicated to the second respondent or its Architect. If the said order be adverse to the second respondent, the same shall not be implemented and action of demolition shall not be taken for a period of one month from the date on which order is served either to the second respondent or its Architect. We make it clear that this time of one month is granted in view of the clause (4) of the undertaking of the second respondent tendered today;

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e) If during the period of one month, the second respondent fails to remove the offending structure, the first respondent shall forthwith take action of demolition;

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F) We make it clear that the second respondent shall not be entitled to disturb the status-quo as of today in relation to the said structure. Only in the event of structure being regularized, the second respondent will be entitled to restore the same with to its original condition with due permission of the first respondent Municipal Corporation;

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G) The petition is disposed of on above terms;

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H) Considering the conduct of the second respondent, we direct the second respondent to pay costs of this petition to the petitioners quantified in the sum of Rs.15,000/- within a period of one month from today;

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H) At this stage, the learned Counsel for the petitioners states that the

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amount of costs be made payable to the Kirtikar Law Library, High Court Bombay. We accordingly direct the petitioners to pay costs to the Kirtikar Law Library within a period of one month from today.

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

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Vinayak Ramesh Sinhasane and Anr. v. the Commissioner, Sangli Miraj Kupwd City Corporation, Sangli and Ors.

Case brief

What is this about?

What did the court decide?

Vinayak Ramesh Sinhasane and Anr. v. the Commissioner, Sangli Miraj Kupwd City Corporation, Sangli and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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