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2017 DIGILAW 505 (BOM)

SHREE SAI SHRADDA MANDAL v. SACHIN R. RAHATE

2017-03-08

S.J.KATHAWALLA

body2017
ORDER : 1. The above Notice of Motion is taken out by the Applicant - Shree Sai Shradda Mandal for the following reliefs : "(a) This Hon'ble Court be please to hold that order dated 17.07.2014 is completely complied and hence action by the Respondent Corporation is not required. (b) Respondent be directed to hear the representation dated 26.12.2016 preferred by the Applicant and pass appropriate order on the same after following due process of law. (c) Pending the hearing of the present Notice of Motion the Respondent be restrained from taking any coercive steps with regard to the Trust suit property." 2. Suit No.254 of 2011 was filed by the Plaintiffs - Jethabhai Charitable Trust and others against the Defendants - Sachin Ravindra Rahate and another, for the reliefs prayed therein. On 2nd February, 2012, this Court recorded certain statements/undertakings made/given by the Defendants through their Advocate. One such undertaking given by the Defendants and accepted by the Court was that the Defendants shall "not deal with the temple or any part of the property of the Plaintiffs' trust in any manner including by placing any of their articles or belongings in the property of the trust". 3. Since, according to the Plaintiffs, there was a breach of the undertaking given by the Defendants to this Court as recorded in the order dated 2nd February, 2012, the Plaintiffs filed Contempt Petition No. 72 of 2012 in Suit No. 254 of 2011. On 17th July, 2014, K.R. Shriram, J. recorded the statement of the Defendants that they will "remove all articles, belongings and things from the passages and other areas of the building premises, remove lock from the toilet block and water tank room on the first floor and also remove their belongings and articles therefrom within one week". 4. On 24th June, 2016, K.R. Shriram, J., inter alia, passed the following order in Contempt Petition No. 72 of 2012: "2........If there is no permission for the temple to be constructed or erected or maintained in the premises from the Municipal Authorities, the Municipal Authorities shall also demolish the temple within two weeks of receiving a copy of this order. 3. If the Municipal Authorities need any Police assistance, the concerned Police Station to provide the necessary Police assistance for complying with the order of this Court." 5. 3. If the Municipal Authorities need any Police assistance, the concerned Police Station to provide the necessary Police assistance for complying with the order of this Court." 5. On 28th September,2016, in Chamber Summons No. 694 of 2014, which was taken out by the present Applicants - Shree Sai Shradda Mandal and three others, K.R. Shriram, J. passed the following order : "Shri Sakhare, Counsel appearing for MCGM states that the concerned Officer was on leave and hence MCGM could not take action earlier. Shri Sakhare, on instructions from Shri Pradeep Patle, Junior Engineer of MCGM, states that at least their record does not show any permission has been granted for the temple. The respondents/concerned persons, who is present in Court to submit to the Corporation with a copy to the Advocate for the petitioner, copy of the permission that they have to construct the temple. It is made clear that if such a permission is not produced, the Corporation will take action as mentioned in the order dated 24th June, 2016 without further delay. If the Corporation requires police help, the concerned Police Station shall provide with necessary police force." 6. The Applicants herein -- Shree Sai Shradda Mandal, impugned the said order dated 28th September, 2016 before the Hon'ble Supreme Court of India and submitted before the Hon'ble Supreme Court that they have "permission to put up construction of the temple". The Hon'ble Supreme Court therefore on 7th October, 2016 passed the following order: "It has been submitted by the learned senior counsel appearing for the petitioners that the petitioner has permission to put up construction of the temple. If it is correct, the Municipal Corporation shall not demolish the same. The Petitioner shall show the sanctioned plan to the concerned Authority as well as to the High Court. In view of the above clarification, the learned counsel seeks permission to withdraw this petition with liberty to approach the learned single Judge of the High Court. Permission is granted. The Petitioner shall place on record a copy of the sanctioned plan before the High Court. The Special Leave Petition stands disposed of as withdrawn." (emphasis supplied) 7. In the meantime, the Applicants herein -- Shree Sai Shradda Mandal, also filed Appeals before the Division Bench of this Court being Appeal (L) Nos. Permission is granted. The Petitioner shall place on record a copy of the sanctioned plan before the High Court. The Special Leave Petition stands disposed of as withdrawn." (emphasis supplied) 7. In the meantime, the Applicants herein -- Shree Sai Shradda Mandal, also filed Appeals before the Division Bench of this Court being Appeal (L) Nos. 390 of 2016 and 391 of 2016, impugning the order passed by K.R. Shriram, J. dated 24th June, 2016 directing the Corporation to demolish the temple within two weeks if there is no permission for the temple to be constructed/erected or maintained in the premises, from the Municipal Authorities. The said Appeals were disposed of by the Division Bench of this Court comprising of Dr. Manjula Chellur, C.J. and M.S. Sonak, J. on 19th December, 2016. The Division Bench has in its order, inter alia, recorded as under: "6...... When the Special Leave Petition came to be filed, there is a clear undertaking to produce the permission of the Municipal Corporation to construct the temple portion in the suit scheduled property......... ...... So far as the directions of the Apex Court directing them to produce the Corporation's permission to construct the temple, learned senior Counsel Mr. Chavan fairly admits that there is no such permission except one assessment order of the building where the temple is housed. We are not concerned with those orders either.... ..... 7. .... The order dated 28th September, 2016 is also with reference to construction of the temple vis-a-vis the permission of the Municipal Corporation for construction of such temple. All along, the grievance of the appellants seems to be that they were not party to the suit but there is a direction to demolish construction where the alleged temple is situated. It is brought to our notice that in Chamber Summons No. 1412 of 2016, one Mr. Ashok Dhanuka was representing the Applicant who is none other than the present appellant-trust. Therefore, it is clear that the order dated 28th September 2016 was passed in the presence of the present appellants who took responsibility of challenging the said order before the Apex Court in the special leave petition. The special leave petition came to be disposed of on 7th October 2016 directing the present appellants to approach the learned Single Judge and produce the permission for constructing the temple. 8. The special leave petition came to be disposed of on 7th October 2016 directing the present appellants to approach the learned Single Judge and produce the permission for constructing the temple. 8. Finally, the Division Bench declined to intervene in the Appeals filed by the Applicants - Shree Sai Shradda Mandal against the order of K.R. Shriram, J. daed 24th Jun, 2016 by, inter alia, holding/observing as follows : "9. ...... In that view of the matter, we decline to intervene in the present matters and the recourse open to the appellants is to approach the learned Single Judge with the permission of the Municipal Corporation, if any, as undertaken by them before the Apex Court." 9. Thereafter the Applicants - Shree Sai Shradda Mandal, have moved the above Notice of Motion seeking the aforestated reliefs. 10. As stated hereinabove, Shree Sai Shradda Mandal moved the Hon'ble Apex Court and sought a stay of the order passed by K.R. Shriram, J. dated 28th September, 2016 on a representation/submission viz. "that the Petitioner has permission to put up construction of the temple". In view thereof, the Hon'ble Supreme Court by its order dated 7th October, 2016 directed Shree Sai Shradda Mandal to show the sanctioned plan allowing such construction to the Corporation as well as to this Court. Subsequently, the Division Bench too by its order dated 19th December, 2016, directed Shree Sai Shradda Mandal to approach this Court with the permission of the Municipal Corporation, if any, as undertaken before the Apex Court. I therefore called upon the Counsel appearing for Shree Sai Shradda Mandal to produce the permission obtained by them from the Municipal Corporation 'to put up construction of the temple ' and to also produce the sanctioned plan. No such permission is admittedly applied for and obtained by Shree Sai Shradda Mandal from the Municipal Corporation. Shree Sai Shradda Mandal has therefore by making false representation before the Hon'ble Supreme Court namely that they have "permission to put up construction of the temple" sought and obtained an order of stay on the demolition of the temple as directed by K.R. Shriram, J. on 28th September, 2016. The Division Bench of this Court has also declined to interfere with the order passed by K.R. Shriram, J. dated 24th June, 2016. The Division Bench of this Court has also declined to interfere with the order passed by K.R. Shriram, J. dated 24th June, 2016. The Advocate appearing for the Applicants - Shree Sai Shradda Mandal has now only sought to rely upon some assessment orders which admittedly cannot be construed as permission obtained from the Municipal Corporation "to put up construction of the temple" as represented by Shree Sai Shradda Mandal before the Hon'ble Supreme Court. In fact, it is settled law that only an assessment bill issued by the Corporation in respect of a structure cannot be relied upon to contend that the structure is authorised. The Advocate for the Applicants - Shree Sai Shradda Mandal has also tried to rely on a plan prepared by MHADA for the proposed repairs of the road on which plan the temple is shown. This plan for proposed repairs also cannot be construed as permission obtained from the Municipal Corporation "to put up construction of the temple", or a document by which the unauthorised construction of the temple has been authorised. 11. In view thereof, it is clear beyond any doubt that the Applicants - Shree Sai Shradda Mandal have obtained orders from the Hon'ble Supreme Court by making an incorrect representation that " the Petitioner has permission to put up construction of the temple", though admittedly they have not applied for or obtained any such permission from the Corporation. When the Hon'ble Supreme Court directed the Applicants to produce the sanctioned plan before this Court, the Applicants suppressed the fact and also did not point out to the Hon'ble Supreme Court that there was no such sanctioned plan. As stated earlier, the Division Bench of this Court has also declined to interfere with the order passed by K.R. Shriram, J. dated 24th June, 2016 directing the Corporation to demolish the temple within two weeks if there is no permission for the temple to be constructed/erected or maintained in the premises, from the Municipal Authorities. It is therefore clear that Shree Sai Shradda Mandal who have been appearing before K.R. Shriram, J. since 28th September, 2016, have by taking out one proceeding after another attempted to stall the implementation of the orders passed by K.R. Shriram, J. dated 24th June, 2016 and 28th September, 2016, which cannot be allowed. It is therefore clear that Shree Sai Shradda Mandal who have been appearing before K.R. Shriram, J. since 28th September, 2016, have by taking out one proceeding after another attempted to stall the implementation of the orders passed by K.R. Shriram, J. dated 24th June, 2016 and 28th September, 2016, which cannot be allowed. In view thereof, I pass the following order : (i) The order passed by K.R. Shriram, J. dated 28th September, 2016, shall be implemented by the Municipal Corporation of Greater Mumbai by demolishing the temple situate at 385, Zaveri Bhavan, J.S.S. Road, Chira Bazaar, Mumbai-400 002, before 5.00 p.m. on 9th March, 2017. (ii) The Commissioner of Police, Greater Mumbai, as well as the Senior Inspector of the Local Police Station shall make adequate arrangements to ensure compliance of this order and to also maintain law and order in the area where the temple is situated. (iii) Notice of Motion is accordingly disposed off.