Case Note & Summary
The petitioner, Mubaraz Musafir Khan, filed a writ petition under Article 226 of the Constitution of India before the Bombay High Court challenging an order dated 21st October 2022 passed by the Kalyan Dombivli Municipal Corporation (respondent No.2) directing removal of an alleged unauthorized structure. The petitioner claimed to be the owner of land admeasuring 2000 sq. yards based on an agreement dated 23rd February 1984 with Sharadchandra Madhav Oak. After Oak's demise, his legal heir Sunita Arvind Vaidya entered into an agreement with respondent No.3 on 13th October 2014. The petitioner had filed a civil suit (R.C.S. No.626/2015) before the Civil Judge, Junior Division, Kalyan, and obtained an interim order against respondent No.3 restraining dispossession. The Municipal Corporation had earlier passed an order dated 26th February 2016 declaring the property unauthorized under Sections 260 and 267(1) of the Maharashtra Municipal Corporation Act, which was not challenged by respondent No.3 or others except the petitioner. Subsequently, in Writ Petition No.11629 of 2022, this Court recorded the Corporation's statement to issue a fresh notice and pass a fresh order after hearing the petitioner and respondent Nos.3 and 4. Accordingly, a fresh notice was issued on 10th October 2022, to which the petitioner replied on 14th October 2022. The Corporation then passed the impugned order on 21st October 2022 holding the structures unauthorized. The petitioner argued that the order was passed without considering his reply and that he had a valid title. The Court noted that the petitioner failed to produce any sanctioned plan or valid title documents and that the Corporation had followed the procedure under the Act. The Court held that the order was valid and the petitioner's remedy for title dispute lies in the civil court. The petition was dismissed.
Headnote
A) Municipal Law - Unauthorized Construction - Sections 260, 267(1) Maharashtra Municipal Corporation Act - Demolition Order - Petitioner claimed ownership of land and structure but failed to produce sanctioned plan or valid title - Municipal Corporation issued notice and passed order after hearing - Held that the order was valid and petitioner's remedy lies in civil court for title dispute (Paras 1-6).
Issue of Consideration
Whether the order dated 21st October 2022 passed by the Municipal Corporation directing removal of the petitioner's structure as unauthorized is liable to be quashed.
Final Decision
The petition was dismissed. The Court held that the Municipal Corporation's order dated 21st October 2022 was valid and the petitioner's remedy for title dispute lies in the civil court.
Law Points
- Writ of mandamus
- Unauthorized construction
- Maharashtra Municipal Corporation Act
- Section 260
- Section 267
- Natural justice
- Title dispute
- Civil suit
- Interim order
- Demolition order
Case Details
2022 LawText (BOM) (11) 58
Writ Petition No.13482 of 2022
R.D. Dhanuka, Kamal Khata
Mr. A. Y. Sakhare, Senior Advocate i/by Mr. Hemant Ghadigaonkar a/w. Mr. Kasim Yusuf Sheikh, for the petitioner. Mr. N. V. Walwalkar, Senior Advocate i/by Mr. A. S. Rao, for the respondent Nos.1 and 2. Mr. R. A. Thorat, Senior Advocate i/by Mr. Pratik Rahade, for respondent No.4. Mr. Kishor Patil i/by Ms. Rukmini Khairnar, for respondent No.3.
Kalyan Dombivli Municipal Corporation & Ors.
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Nature of Litigation
Writ petition under Article 226 of the Constitution of India challenging a demolition order passed by the Municipal Corporation.
Remedy Sought
Petitioner sought a writ of mandamus to quash and set aside the order dated 21st October 2022 directing removal of the offending structure.
Filing Reason
Petitioner claimed ownership of land and structure and alleged that the Municipal Corporation passed the demolition order without considering his reply.
Previous Decisions
The Municipal Corporation had passed an order dated 26th February 2016 declaring the property unauthorized, which was not challenged by respondent No.3. In Writ Petition No.11629 of 2022, this Court recorded the Corporation's statement to issue a fresh notice and pass a fresh order after hearing the parties.
Issues
Whether the order dated 21st October 2022 passed by the Municipal Corporation directing removal of the petitioner's structure as unauthorized is liable to be quashed.
Submissions/Arguments
Petitioner argued that the order was passed without considering his reply and that he had a valid title to the property.
Respondent Municipal Corporation contended that the structure was unauthorized and the petitioner failed to produce any sanctioned plan or valid title.
Ratio Decidendi
The Municipal Corporation acted within its powers under Sections 260 and 267(1) of the Maharashtra Municipal Corporation Act in declaring the structure unauthorized. The petitioner failed to produce any sanctioned plan or valid title, and the Corporation followed the procedure of notice and hearing. The petitioner's remedy for title dispute is in the civil court.
Judgment Excerpts
By this petition filed under Article 226 of the Constitution of India, the petitioner have prayed for a writ of mandamus for quashing and setting aside the order dated 21st October 2022 passed by the respondent No.2 thereby directing the petitioner to remove the offending structure.
It is common ground that the Municipal Corporation had passed an order dated 26th February 2016 in respect of the properties including the property claimed by the petitioner, by declaring the properties as unauthorized by initiating action under Section 260 and 267(1) of the Maharashtra Municipal Corporation Act.
Procedural History
The Municipal Corporation passed an order on 26th February 2016 declaring the property unauthorized. The petitioner filed Writ Petition No.11629 of 2022, and this Court on 4th October 2022 recorded the Corporation's statement to issue a fresh notice and pass a fresh order after hearing the parties. A fresh notice was issued on 10th October 2022, the petitioner replied on 14th October 2022, and the Corporation passed the impugned order on 21st October 2022. The petitioner then filed the present writ petition.
Acts & Sections
- Maharashtra Municipal Corporation Act: 260, 267(1)
- Constitution of India: Article 226
