Shankar Hanumant Dhaware v. Pune Municipal Corporation, Through Municipal Commissioner And ANR

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4234 OF 2014 Shankar Hanumant Dhaware

...Petitioner

vs.

Pune Municipal Corporation and another

...Respondents

Mr.Sandeep M. Phatak for the Petitioner Mr.Rajdeep Khadapkar for the respondent Nos.1 and 2. CORAM : A.S.OKA, & SMT.VIBHA KANKANWADI, JJ.

DATE : AUGUST 1, 2017 P.C.:

Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents. By this petition under Article 226 of the Constitution of India, there is a challenge to the two notices issued by the first respondent-Pune Municipal Corporation on 30th December 2013 and 12th August 2013.

The notices concern the property bearing survey No.209 Hissa No.6/7/1 at Hadapsar, Pune which is described in paragraph 4 of the petition. The petitioner claims to have acquired the said property on 17th November 2008. The petitioner has annexed to the petition a certificate issued in the name of the petitioner's predecessor in title. The certificate is of regularization under the provisions of the Maharashtra Gunthewari Regulation

Developments (Regularisation, Upgradation and Control) Act,2001 (for short `Gunthewari Act'). The regularization has been granted subject to the condition of removing of illegal construction of two upper floors within a period of 15 days. The certificate has been issued on 22nd August 2007. The said certificate is an enclosure to sale deed dated 17th November 2008 under which the petitioner purchased the said property from the persons who have granted a certificate of regularization. 2A The first impugned notice dated 12th August 2013 was issued under section 478 of the Maharashtra Municipal Corporation Act,1949 (for short `the said Act of 1949') by the first respondent in respect of the illegal construction on the subject property. The petitioner filed a civil suit for declaration that the said notice is illegal.

In the said civil suit, by order dated 29th March 2014, the learned Civil Civil Judge rejected the plaint in view of the bar of suit created under section 433A of the said Act of 1949. Thereafter, the second impugned notice was issued by the first respondent under sub-section 3 of section 53 of the Maharashtra Regional and Town Planning Act, 1966 (for short "the MRTP Act"). The said notice is in respect of the construction of the illegal structure of the subject property consisting of ground plus two upper floors.

The RCC construction was made of ground plus two floors. We may note here that dimensions of the structure noted in the impugned notice dated 30th December 2013 are 50' X 25'. On 7th April 2014, the petitioner made

an application to the Deputy Engineer, Building Department of the first respondent invoking subsection 3 of section 53 of the said Act of 1966. Regularization was prayed for in respect of the said structure in respect of the second impugned notice. In the said application for regularization, reliance was placed on the regularization certificate issued under the Gunthewari Act. The learned counsel for the petitioner submitted that under sub-section 3 of section 53 of the said Act of 1966, the petitioner is entitled to apply for regularization as a matter of right once a notice under sub-section 3 of section 53 is issued. He submitted that the said application for regularization has not been decided and therefore, a direction be issued to the first respondent to decide the said application. The learned counsel for the respondents invited our attention to the conduct of the petitioner of not complying with the condition imposed in the certificate of regularization issued under the Gunthewari Act.

We have considered the submissions. The petitioner acquired the subject property under a registered sale deed dated 17th November 2008 from one Shivaji Awate and another. To the registered sale deed, as stated above, certificate issued on 22nd August 2007 for regularization under the Gunthewari Act has been annexed. The plan submitted for regularization under the Gunthewari Act is also annexed to the petition. The plan shows that what was regularized was only the structure shown on the

plan which is a ground floor structure. A specific condition was imposed under the Gunthewari Regularization certificate dated 22nd August 2007 of the predecessors-in-title of the petitioner removing two upper floors within a period of 15 days. The contention of the respondents is that in fact two floors were removed and were again illegally constructed. Even if the said contention is rejected, the fact remains that the petitioner is bound by the terms and conditions incorporated in the certificate dated 22nd August 2007 and therefore, the petitioner was under an obligation to remove two upper floors as the same were not removed by his predecessor in title.

Neither the predecessor of the petitioner nor the petitioner challenged the condition imposed in the Gunthewari Certificate dated 22nd August 2007. As the petitioner is under a legal obligation to abide by the condition of removing two upper floors, the first respondent cannot exercise power of regularization of the offending structure.

In the letter dated 7th April 2017 seeking regularization it is stated that the notice under sub-section (1) of section 53 of the MRTP Act was served on 30th December 2013.

However, the petitioner has not applied for regularization within the time provided under sub-section 3 of section 53. Moreover, the application made by the petitioner is not in terms of section 44 of the said Act of 1966. Writ jurisdiction is always discretionary and

equitable. Apart from the fact that the first respondent is not entitled to regularize the structure of the petitioner, considering the conduct of the petitioner, he cannot be allowed to invoke writ jurisdiction under Article 226 of the Constitution of India. Writ petition is rejected. On the prayer made by the learned counsel for the petitioner, ad-interim relief granted on 16th April 2017 shall continue to operate till the expiry period of eight weeks from the date on which (VIBHA KANKANWADI,J.) (A.S.OKA,J.)