Bombay High Court
Madarsa Arabia Huseni Masjid Jamate ... vs The Assistant Engineer N-Ward And 3 Ors on 11 October, 2022
Author: R.D. Dhanuka
Bench: R.D. Dhanuka
Digitally signed by
SUMEDH SUMEDH NAMDEO
NAMDEO SONAWANE
SONAWANE Date: 2022.10.13
17:40:58 +0530
1/5 911 WP(L)-32264.22.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO.32264 OF 2022
Madarsa Arabia Huseni Masjid Jamate ]
Mulimin ] ... Petitioner
Vs.
The Assistant Engineer N-Ward & Ors. ] ... Respondents
...
Mr. Vishal Kanade a/w Mr. Jamshed Ansari, for the petitioner.
Mr. N. V. Walawalkar, Senior Advocate a/w. Ms. Oorja Dhond i/
by Mr. S. K. Sonawane, for respondents - MCGM.
Ms. P. H. Katharia, Govt. Pleader - State a/w. Mr. Amit Shastri,
AGP - State, for respondent Nos.3 and 4.
Mr. Sachin Beldar, Assistant Engineer (Maintenance) 'N' Ward -
BMC, present in the Court.
Mr. Vasant Chaudhari, Naib Tahasildar, Addl. Collector (ENC)
Eastern Suburban Office, present in the Court.
Mr. Ameerullah Khan, Secretary of the petitioner present in the
Court.
...
CORAM : R.D. DHANUKA &
KAMAL KHATA, JJ.
DATED : 11TH OCTOBER, 2022.
P.C.:-
SNS
2/5 911 WP(L)-32264.22.doc
1. We have heard learned counsel for the parties. The petitioner has prayed for a writ of certiorari directing the respondent No.1 not to execute and/or demolish the notice structure under the order dated 19th September 2022 passed under Section 488 of the Mumbai Municipal Corporation Act, 1888.
2. It is the case of the petitioner that the petitioner - Trust is occupying three tenements Nos.32, 33 and 34 and being used for different purposes. The Municipal Corporation requires the petitioner to vacate the structure bearing structure No.34 and also structure bearing Nos. 32 and 33.
3. Insofar as structure bearing No.34 is concerned, it is the common ground that the petitioner - Trust has been declared eligible to get permanent alternate accommodation in lieu of the said tenement. The appeal filed by the petitioner is still pending before respondent No.3.
4. Insofar as tenement No.32 and 33 are concerned, the Municipal Corporation passed an order dated 7th October, 2022 declaring the petitioner ineligible to get any alternate accommodation in lieu of those tenements. The petitioner proposes to challenge the said order by seeking amendment to the appeal already filed by the petitioner, which is pending SNS 3/5 911 WP(L)-32264.22.doc before respondent No.3.
5. Mr. Walawalkar, learned senior counsel for the Municipal Corporation, on instructions from Shri. Sachin Beldar, Assistant Engineer (Maintenance) 'N' Ward - BMC states that, the petitioner would be offered permanent alternate accommodation insofar tenement No.34 is concerned. He further states that since the petitioner proposes to challenge the order passed by Municipal Corporation declaring the petitioner ineligible in respect of the tenement Nos.32 and 33, the Municipal Corporation is ready and willing to earmark two separate tenements adjoining to the alternate accommodation offered to the petitioner in lieu of the tenement No.34, during the pendency of the appeal preferred by the petitioner before respondent No.3, provided, the petitioner vacates all the three tenements within such time as this Court may direct. He further submitted that if the petitioner is not found eligible in the said appeal preferred by the petitioner insofar as tenement No.32 and 33 are concerned, the Municipal Corporation shall be at liberty to deal with their two tenements.
6. Mr. Kanade, learned counsel for the petitioner on instruction from one of their trustees, who is present in the Court states that, there should not be any difficulty in accepting these working arrangement subject to the approval of the other trustees. He seeks sometime to take instructions from other SNS 4/5 911 WP(L)-32264.22.doc trustees whether the solution suggested by this Court and the statement made by Mr. Walawalkar, learned senior counsel for the Municipal Corporation can be accepted.
7. The Municipal Corporation has agreed to identify those three tenements in lieu of tenement Nos.32, 33 and 34 which would not be dealt with by the Municipal Corporation till the disposal of the appeal filed by the petitioner and for a period of three weeks, if the order that would be passed by respondent No.3 is adverse to the petitioner, the petitioner would be at liberty to file proceedings in accordance with law.
8. The petitioner is directed to remain present on the site on the day that would be communicated by the Municipal Corporation through their authorized representative. The Municipal Corporation has agreed to show those three tenements to the petitioner on or before 14th October 2022 after giving 24 hours advance notice to the learned advocate appearing for the petitioner.
9. At this stage Mr. Kanade, learned counsel for the petitioner on instructions states that his clients would file fresh appeal against the order dated 7th October, 2022 passed by the Municipal Corporation before respondent No.3 within two days from today alongwith documents. Respondent No.3 is directed to hear the fresh appeal that would be filed by the petitioner on the SNS 5/5 911 WP(L)-32264.22.doc date already assigned by the respondent No.3 for the earlier appeal filed by the petitioner. Statement is accepted.
10. The appellate authority is not required to issue any fresh notice to give personal hearing in respect of the proposed appeal to be filed.
11. Place the matter High on Board on 17th October 2022.
[KAMAL KHATA, J.] [R. D. DHANUKA, J.] SNS