Mrs. Mohini Vijay Kalantri (through Poa Holder Mr.Mahendra Laxminarayan Kalantri) Vs the Municipal Corporation of Greater Bombay (through 'H' West Ward)

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903-CPST35679-16.DOC

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Atul

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CONTEMPT PETITION (ST) NO. 35679 OF 2016

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Mohini Vijay Kalantri (through POA Holder Mr
Mahendra Laxminarayan Kalantri)…Petitioner
Versus
Municipal Corporation of Greater Bombay
(Through the West Yard)…Respondent

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Mr Deepak Pandey, for the Petitioner.
Mr NV Walawalkar, Senior Advocate, a/w Mrs Madhuri More, for
the Respondent No. 1- BMC.

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CORAM:G.S. PATEL, J
DATED:4th August 2017

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PC:-

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1.The matter was substantially heard yesterday. The contempt
Petitioner alleges that the Municipal Corporation of Greater
Mumbai (“MCGM”) has wilfully and deliberately disobeyed the
order dated 5th December 2016 of Mr Justice GS Kulkarni passed in
Appeal from Order St No. 31037 of 2016. It is best perhaps to set
out that order in full. It is not a long order:

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“1.Heard Mr.Nargolkar, learned Counsel for the
Appellant, Mr.Walawalkar, learned Counsel for Respondent
No.1Corporation and Respondent No. 2 in person.

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Page 1 of 8

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4th August 2017

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903-CPST35679-16.DOC

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2. After this appeal was heard for some time,
Mr.Nargolkar submits that by an order dated 2 September
2016 passed by the Hon’ble Minister (Urban Development)
the Appellate Authority, the regularization application as
submitted on behalf of the Appellant has been restored to
the Municipal Corporation for re-examination and for fresh
orders. Mr. Walawalkar, learned Senior Counsel for the
Municipal Corporation has also drawn my attention to a
communication dated 22 September 2016 addressed by
the Executive Engineer, Building Proposal, H Ward,
informing the Appellant and some other parties that
though the earlier regularization proposal as filed by the
society and also by some of the private parties were
decided, however in pursuance of the directions of the
Hon’ble Minister (Urban Development) if a fresh
application/proposal is submitted, the same would be
examined by the Municipal Corporation and further
appropriate decision would be taken.

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3.The dispute in the present appeal pertains only in
respect of Garage No.2. The contention as urged on
behalf of the Appellant is that same was part of the
original plans as also there are documents available
with the Appellant to show that the garage structure is
in existence since 1982. It is also the Appellant’s
contention that the Appellant was authorised to
construct the said garage structure. Thus Mr.Nargolkar
would submit that in pursuance of the said order
passed by the Hon’ble Minister and the further
communication as being placed on record on behalf of
the Municipal Corporation (dated 22 September 2016),
the Appellant shall approach the Competent Authority
of the Municipal Corporation by filing a fresh proposal
for regularization as would be permissible under
Section 53(3) read with Section 44 of the Maharashtra
Regional and Town Planning Act,1966. Mr.Nargolkar

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Page 2 of 8

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4th August 2017

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903-CPST35679-16.DOC

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states that a comprehensive application as per rules
would be made for regularization of garage No.2 only.
The submission of Mr.Nargolkar in the facts and
circumstances deserves to be accepted. Accordingly the
Appellants are permitted to make an application for
regularization to the Competent Authority of the
Municipal Corporation namely the Executive Engineer,
(Building Proposal Department), Western Suburb, ‘H’
Ward. The application be made within a period of two
weeks from today. The Competent Authority namely the
Executive Engineer, (Building Proposal Department),
Western Suburb, ‘H’ Ward shall consider the
application/proposal for regularization as made by the
Appellant within a period of four weeks from the
submission of the application/proposal.Respondent
No.2 would be permitted to appear at the hearing of the
said application. Mr.Nargolkar states that as the
Appellant has decided to approach the Municipal
Corporation by a regularization application, no plea of a
separate notice being issued under the provisions of
the M.R.T.P. Act would be taken on behalf of the
Appellant.

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4.The Competent Authority of the Municipal
Corporation shall consider and decide the regularization
proposal of the Appellants in accordance with law without
being influenced by any orders passed earlier. The
Corporation is at liberty to seek any clarification or
documents from the Appellant if the Competent Authority
feels necessary.

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5.As the Appellant intends to make a regularization
proposal as per the provisions of M.R.T.P. Act, the
Respondent Corporation shall not take any coercive action
till the communication of decision on the said
regularisation application/proposal, to the Appellant.

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Page 3 of 8
4th August 2017

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903-CPST35679-16.DOC

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6.In the circumstances the Appeal from order
accordingly would not require any further adjudication. It is
accordingly disposed of in the above terms. No costs.

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7.In view of the above position, Mr.Nargolkar on
instruction of the Appellant prays for withdrawal of L.C.Suit
No.2336 of 2014 before before the City Civil Court, Bombay.
The suit is accordingly permitted to be withdrawn and
disposed of as such.

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8.Civil Application would not survive and is
accordingly disposed of.

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9.Office to forward this order to the Registrar, City
Civil & Sessions Court at Mumbai for recording the
disposal of L. C. Suit No.2336 of 2014.”

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(Emphasis added)

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2.As noted above, the dispute is in relation to the contempt
Petitioner’s claim to garage No. 2 in a building known as Wahedna
CHS on CTS No. B/12 to 15, 75, Hill Road, Bandra (West),
Mumbai 400 050. The contempt Petitioner claims to be occupying
Flat No. 501 in that building.

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3.Before GS Kulkarni J, as the foregoing extract shows, the
contempt Petitioner’s contentions were two-fold. First, that the suit
garage was authorized; and second, that the contempt Petitioner
would apply for realization in accordance with law. In this context,
paragraph 3 of the order is of vital importance, for it was here said
on behalf of the contempt Petitioner that a “comprehensive
application as per rules would be made for regularisation of garage No.
2.” This is of signal importance to this case because as we shall see

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Page 4 of 8

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4th August 2017

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not only was the application not comprehensive, but it was also not
in accordance with the Rules.

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4.The contempt Petitioner was, therefore, permitted to make
such an application for regularisation. The Court specifically
directed that the application be made to the Executive Engineer,
Building Proposal, Western Suburbs, “H” ward within two weeks.
It further directed that it was he, the Executive Engineer, Building
Proposal, Westerb Suburbs, “H” Ward, who would consider the
application within four weeks. It was next submitted that since the
contempt Petitioner was filing a regularisation application the
contempt Petitioner would not raise the plea of want of notice
should the MCGM take further action.

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5.We come now to what actually transpired. The order is of 5th
December 2016. The two-week period expired on 19th December
2016. On that day, the contempt Petitioner made an application, a
copy of which is to be found at Exhibit “D”, page 21. On the face of
it, this application is most emphatically not comprehensive. Exhibit
“D” itself says so because there is a mention of “other necessary
documents and drawings, being submitted later”. This was not what
was intended. Second, the application was not made to the
Executive Engineer at all but to the Assistant Engineer. It is only in
the Rejoinder that it is alleged that some clerk at the MCGM forced
the contempt Petitioner’s architect to delete the name of the
Executive Engineer and put in the name of the Assistant Engineer.
There is nothing whatever to establish this. Even assuming this was
so, the architect could have pointed out from the copy of 5th
December 2016 order – which was part of the enclosures to this so-

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called application – that the Court itself had required the
submission to be made to the Executive Engineer and no one else,
and the decision was to be taken by the Executive Engineer and no
one else. Third, as Mr Walawalkar points out, the application itself
does not conform to the necessary rules and procedures. The
Maharashtra Development Plan Rules 1970 specify the manner in
which the application is to be made and the documents that are to be
submitted. None of this was done.

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6.The contempt petition proceeds on the footing that without
notice the MCGM demolished the garage. It alleges that no hearing
was given and no order was passed.

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7.There are very many problems with this submission. First,
the contempt Petitioner had agreed not to take plea of want of
notice. Next, it was for the contempt Petitioner to make an
application as required by law and to the authority named in the
order, and not to make an incomplete or half-hearted attempt in
some wrong name. That seems, prima facie, nothing but an attempt
to buy time. If there was no compliance with the 5th December 2016
order by the Petitioner, she cannot be heard to complain of a
violation of it by the Respondent, the MCGM. It is inconceivable
that the Petitioner should say in contempt proceedings that it is
open to her to claim ‘substantial compliance’ while demanding the
strictest compliance from the MCGM. There is absolutely no
reason given anywhere as to why the contempt Petitioner’s architect
did not submit a complete and comprehensive proposal in the
manner required by law and as mentioned in the order of 5th

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4th August 2017

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903-CPST35679-16.DOC

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December 2016. The explanation about wrongly addressing the
application cannot be accepted.

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8.There is an even more fundamental problem with the
contempt Petitioner’s approach. It seems that she has two
inconsistent and mutually destructive stands. Either the structure is
authorised or it is not. If authorised, there is no question of
regularisation and what needs to be shown are sanctioned plans and
building permissions. No attempt was made in this direction. If the
structure is not authorised, then it is either completely illegal and
incapable of regularisation, or it is irregular and falls within the
MCGM regularisation policy. It is not for the Court to dilate on
what is or is not permissible within that policy. That policy will be
applied uniformly by the MCGM. It was always for the contempt
Petitioner alone to show that her structure was capable of being
regularised and fell within the ambit and parameters of the
regularisation policy. This had to be shown at two levels. First, it had
to be demonstrated to the MCGM, and that required a complete
and comprehensive regularisation proposal (which the Petitioner
herself had undertaken to make but did not). Second, it must now be
demonstrated to this Court that this proposal was complete in all
respects and was made in the form required by law to the authority
mentioned in the order of 5th December 2016, despite which the
MCGM proceeded with the demoliton. The contempt Petitioner
satisfies none of these requirements.

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9.In all this, the contempt Petitioner overlooks one fundamental
facet: that we are within the narrow confines of the contempt
jurisdiction of this Court. What is being assessed is whether there is

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Page 7 of 8

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4th August 2017

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903-CPST35679-16.DOC

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wilful and deliberate disobedience of the order of the Court, and
material to show contumacious conduct by the answering
Respondent. In my view, given the circumstances narrated above,
there is nothing whatever to show this.

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10.There is no merit in the contempt petition. It is dismissed.
There will be no order as to costs.

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(G. S. PATEL, J)

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4th August 2017

Mrs. Mohini Vijay Kalantri (through Poa Holder Mr.Mahendra Laxminarayan Kalantri) v. the Municipal Corporation of Greater Bombay (through 'H' West Ward)

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Mrs. Mohini Vijay Kalantri (through Poa Holder Mr.Mahendra Laxminarayan Kalantri) v. the Municipal Corporation of Greater Bombay (through 'H' West Ward)

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