Kishor Babu Bhagat And ORS. v. The State Of Maharashtra And ORS.

Atul

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 12195 OF 2015 Kishor Babu Bhagat & Ors.

...Petitioners

Versus

The State of Maharashtra & Ors.

...Respondents

WITH WRIT PETITION NO. 12198 OF 2015 Anant Narayan Kachare & Ors.

...Petitioners

Versus

The State of Maharashtra & Ors.

...Respondents.

Mr. Rajaram Vaman Bansode for the Petitioners. Mr. M. P. Thakur, AGP for the Respondent No. 1. Mr. G. S. Hegde and Mr. C. M. Lokesh for the Respondent No. 2. Mr. Ankit Kulkarni i/b Little & Co., for the Respondent No. 3. Mr. Sandeep V. Marne for the Respondent No. 4. Mr. S. S. Deshpande, Court Receiver, High Court, Bombay, present.

CORAM: A. S. OKA & G.S. PATEL, JJ.

DATED:

10th December 2015 PC:- 1.

Heard the learned counsel appearing for the Petitioners, the learned counsel appearing for the 2nd Respondent, the learned

counsel appearing for the 3rd Respondent and the learned counsel appearing for the 4th Respondent. The challenge in these Petitions is to the notices issued under sub-section (1) of Section 53 of the Maharashtra Regional & Town Planning Act, 1966 by the Maharashtra Industrial Development Corporation (3rd Respondent) ("MIDC").

2.

In the first Petition (Writ Petition No. 12195 of 2015), the notice is in respect of the building, Bhagatji Apartment consisting of ground plus four floors at Digha (East), Navi Mumbai. In the second Petition (Writ Petition No. 12198 of 2015), the notice is in respect of Moreshwar Apartment consisting of ground plus three floors which is also situated at Digha (East), Navi Mumbai. In both these Petitions, the Petitioners have filed undertakings which are taken on record and marked "X1" (collectively) for identification.

3.

The learned counsel appearing for the Petitioners accepted that both the buildings subject matter of these Petitions, have been constructed without obtaining any Development Permission from the Planning Authority. Undertakings have been given by the Petitioners to vacate the premises in their respective possession on or before 31st December 2015 and to hand over the vacant and peaceful possession thereof to the MIDC. The Petitioners have stated that they have no objection if the Court Receiver, High Court, Mumbai is appointed in respect of the premises occupied by them. Undertakings are also given that the Petitioners will not transfer and/or alienate and will not part with possession of their respective premises in the aforesaid buildings.

4.

After tendering the undertakings, a submission was made across the bar that considering the difficulties faced by some of the Petitioners, the time to vacate may be extended till the end of February 2016.

5.

While dealing with the Petitions challenging the action of demolition in respect of illegal buildings constructed in Navi Mumbai, this Court has consistently granted time to vacate till 31st December 2015. Therefore, the said prayer cannot be accepted. Only in the cases where individual flat purchasers or occupants make out a case of extreme hardship, such a prayer can be considered. The Petitioners have taken premises in the buildings knowing fully well that the buildings have been constructed without obtaining any Development Permission from the Planning Authority and that also on the public property vesting in MIDC. 6.

As the Petitioners have accepted that the construction of the buildings is illegal and as they have given unconditional undertakings to vacate the premises in their respective possession, the time to vacate till 31st December 2015 deserves to be granted. 7.

In view of the acceptance of the illegality of the buildings, the challenge in these Petitions to the action under sub-section (1) of Section 53 of the Maharashtra Regional & Town Planning Act, 1966 does not survive.

8.

As the Petitioners have no objection for appointment of the Court Receiver, we propose to appoint the Court Receiver, High

Court with a direction to the Court Receiver to take symbolic possession of the said buildings and premises therein. 9.

Hence, we dispose of both the Petitions by passing the following order:

(a) Both the Petitions are rejected;

(b) The undertakings of the Petitioners, marked "X1" (collectively) are accepted. In view of the undertakings, the action of demolition shall not be taken by the MIDC on the basis of the impugned notices till 31st December 2015;

(c) We appoint the Court Receiver, High Court, Mumbai as a Receiver of the buildings subject matter of these two Petitions. The Court Receiver shall take symbolic possession of all the premises in the buildings; (d) The Petitioners are directed to deposit total amount of Rs. 15,000/- in each Petition with the Office of the Court Receiver, High Court, Mumbai within a period of one week from today. However, the Court Receiver shall proceed to take symbolic possession even before deposit of the amounts;

(e) In the event of the failure of the Petitioners to vacate the premises in their respective possession and hand over possession thereof to the MIDC on or before 31st

December 2015, the Court Receiver shall take forcible possession of the premises in possession of the Petitioners with the police assistance;

(f) On an application made by the Office of the Court Receiver, the local Police Station shall grant necessary police protection and assistance to the Office of the Court Receiver;

(g) After the Court Receiver takes physical possession of the premises in the buildings subject matter of these Petitions, he shall hand over the possession to the MIDC to enable the MIDC for taking the action of demolition;

(h) All concerned to act on an authenticated copy of this order.

(G. S. PATEL, J.) (A. S. OKA, J.)