Shri Nitesh Rajendra Dalvi v. State Of Maharashtra And ORS

VPH

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION CONTEMPT PETITION No. 321 OF 2016 IN PUBLIC INTEREST LITIGATION No. 61 OF 2015 Shri Nitesh Rajendra Dalvi ...

Petitioner Vs.

State of Maharashtra & Ors.

...

Respondents *** Mr. A. V. Anturkar, Sr. Counsel a/w Mr. Sandeep M. Phatak, for the Petitioner.

Mr. N. C. Walimbe, AGP for the Respondent - State. Mr. S. V. Marne, for Respondent Nos. 2 to 5.

*** CORAM : V. M. KANADE, & Mrs. SWAPNA S. JOSHI, JJ.

DATE : OCTOBER 10, 2016 PC.

1.

Heard the learned senior counsel appearing on behalf of the Petitioner. It is alleged that despite an order passed by the Division Bench of this Court dated 29.1.2916 directing the Respondent - Corporation to take an action, in accordance with law, within a period of four weeks, in respect of an unauthorised construction made by the MLA's son, no action, deliberately, has been taken by the Corporation. It is submitted that for the first time in July, 1 / 4

2016, a notice under Section 253 of the MRTP Act was issued. He then submitted that by the said notice, the Corporation has asked the Respondent's son to give reply within 4 weeks. He submitted that even no reply was given to the show-cause notice, nor further order was obtained from this Court seeking extension of time for the purpose of making a regularisation application. He submitted that even an application for regularisation was not made within the time granted by this Court, and thereafter an order of stay till hearing was obtained from the Hon'ble Minister for the State. He submitted that office of the Corporation, therefore, is responsible for not obeying the orders passed by this Court.

2.

On the other hand, Mr. S. V. Marne, learned counsel appearing for the Respondent Corporation submitted that the Corporation promptly swung into an action after the petition / PIL was filed by the Petitioner, and an inspection of the private bungalow of MLA's son was taken. Secondly, after the order was passed by the Division Bench on 16.11.2015, the site inspection was taken and the concerned owner was asked to demolish the said unauthorised construction.

2 / 4

3.

It is submitted that the orders passed by this Court have been deliberately flouted by the Corporation since an unauthorised construction has been made by the MLA's son. He submitted that therefore action under the Contempt of Courts Act may be taken. 4.

After having heard both the sides, we are satisfied that there is substantial compliance of the order passed by this Court by the concerned authorities. Though the directions are given directing the authorities to act within a particular time, it is possible that directions are not fully complied by them. If the Court comes to a conclusion that there is a deliberate breach or disobedience by the contemnors, then Court can pass appropriate orders. But in the present case substantial compliance has been made by the Corporation and its officers by issuing notices. The process of law, therefore, is being followed. In this process, a party is entitled to take recourse to the remedy available in law viz. make an application for regularisation. 5.

It would have been a different matter if a direction is given by this Court to demolish the unauthorised structure. However, such a direction has not been given. If a direction had been given that an unauthorised structure should be demolished within 4 weeks, then 3 / 4

Petitioner would be justified in making allegations against the office of the Corporation. This Court had asked the Corporation to take action in accordance with law. No doubt though the order is dated 29th January, 2016, the Corporation initiated proceedings in 30th April, 2016, and there was a delay of 8 weeks. It is expected that for some reasons the orders passed by this Court are not complied within stipulated time. It is duty of the authorities to approach the Court and seek extension of time for carrying out the directions. Prima facie, we are of the view that petition / PIL was pursued by the Petitioner in an adversarial manner and not in public interest. The Petitioner should have been satisfied that the wheels of law are set in motion by him.

But it appears that he is not satisfied by the process, which is set in motion, but wants to hound and pursue the Corporation and the person, who has allegedly made unauthorised construction. Taking into consideration all these facts, we are not inclined to issue contempt notice to the Corporation. The contempt petition is, therefore, dismissed.

Sd/- Sd/- [Mrs. SWAPNA S. JOSHI, J.] [V. M. KANADE, J.] Vinayak Halemath 4 / 4