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2014 Supreme(Bom) 790
High Court of Judicature at Bombay
R.D. DHANUKA, J.
M/s. Lok Holdings and Constructions Ltd. & Others
Versus
Municipal Corporation of Gr. Mumbai & Others
Chamber Summons (L) No. 1487 of 2013 In Execution Application (L) No. 1501 of 2013 In Writ Petition No. 840 of 2011
Decided on: 28-03-2014
For the Applicants:Jai Chinai, Senior Advocate, a/w. Sanjay Jain, Kalpesh Mehta, i/b. Pravin Mehta & Mithi, Advocates.
For the Respondents:R1 to R4, Anil Singh, Senior Advocate, a/w. Yamuna Parekh, BMC, R6, S.R. Rajguru, Advocates.
Headnote:Bombay Government Premises (Eviction) Act, 1955 - Rules 313 and 643. - See Civil Procedure Code, 1908, Order XXI, Rule 22.
Bombay Government Premises (Eviction) Act, 1955 - Rule 647. - See Constitution of India, Article 226.
Civil Procedure Code, 1908 - Order XXI, Rule 22 Bombay High Court (O.S.) Rules, 1980, Rules 313 and 643 Constitution of India, Article 226 Order of Writ Court under Article 226. - An application under Order XXI of CPC to execute order passed by High Court under Article 226 of Constitution is maintainable. The Executive Engineer, Building Proposal issued a notice to the applicants to stop the erection of building which was carried out on a property The applicants filed a writ petition in the Court (840 of 2011) and applied for setting aside and/or for withdrawal of the stop work notice, for revalidation of all the plans sanctioned in IOD and commencement certificate. The Division Bench disposed of the said writ petition directing the Executive Engineer of the Corporation to take his decision pursuant to this order only after expiry of the period which was granted to the competent authority for deciding the question of issuing Notification under the Works of Defence Act, 1903. By letter addressed to the architect of the applicant No. 1 he informed that in the absence of NOC from the Defence Authority, they could not process/record development permission. In the said letter he also referred to the letter from Defence authority informing that no objection certificate had not been issued by local military authorities.
The Executive Engineer also placed reliance on the circular of Maharashtra Urban Development Department which provides that the same shall be strictly adhered to before granting process of any development permission near defence vicinity. It was stated in the said letter that on the basis of the documents received from the defence authorities as well as the documents submitted by the applicants to the office of Executive Engineer, after scrutiny of the available documents correspondence till date, the applicants were informed that the office of Executive Engineer could not process account development permission in respect of the subject site which was close/adjacent to defence premises in absence of defence authorities NOC at this stage. In the said letter, the Executive Engineer referred to the order passed by the Court in writ petition. The applicants filed application under Order XXI, Rule 11(2) of Code of Civil Procedure and under Rule 313 of the Bombay High Court (Original Side) Rules to comply with the Orders passed by the Court. Held, on plain reading of the said letter, it is clear that the said letter refers to the order passed in writ petition. Also refers to the letter from defence authorities wherein the Lf. Col.Adm. has raised concern for national security and security of defence installation because of right of way required was the defence land.
It also records that no objection certificate has not been issued by local military authorities and refers to a circular issued by Government of Maharashtra required to be followed before granting any permission/no objection by the authority. In letter it was stated that on the basis of documents received from defence authorities as well as submissions made by the architect of the applicants to the office of Executive Engineer and after scrutiny of available documents, the executive engineer could not process development permission in respect of the subject site which was close/adjacent to defence premises, in absence of defence authorities NOC at this stage.
The executive engineer conveyed its decision to the applicants through their architect that the application for development permission could not be processed for the reasons stated therein. It cannot be said that no order/decision is rendered by the executive engineer pursuant to the order passed by the Court. The grievance of applicants that the respondent Nos. 1 to 4 have not bothered to obey the orders and directions issued by the Court and had deliberately and wilfully re-insisted to obtain NOC from the defence authority. The applicants have sought to impugn the order passed by the executive engineer on merits which cannot be decided by an executing Court.
Constitution of India - Article 226 Bombay High Court (O.S.) Rules, 1980, Rule 647 Order of Writ Court. - Order of Writ Court under Article 226 of Constitution can be executed as decree made in exercise of ordinary original jurisdiction of High Court. That execution application for enforcement/execution of the orders of the Writ Court under Article 226 of Constitution of India is maintainable in view of Rule 647 of the Bombay High Court Rules as if it were a decree made in exercise of the ordinary original civil jurisdiction of the Court. The judgment of Division Bench in case of Rashtriya Mill Mazdoor Sangh, 1997 (4) All MR 684, also has after interpreting Rule 647 has held that order passed by writ Court under Article 226 can be executed as if a decree made in the exercise of ordinary original civil jurisdiction of the Court. Therefore not inclined to accept the submissions made by senior counsel appearing for Municipal Corporation and counsel appearing on behalf of Union of India that execution application for execution of the order passed by the Division Bench in writ petition under Article 226 of the Constitution of India is not maintainable. Original Side Rules framed by High Court regarding the regulations of their own procedure would prevail and take precedence over Code of Civil Procedure, 1908.
1. By this Chamber Summons in execution application the applicants seek dispensation with notice under order 21 rule 22 of Code of Civil Procedure, 1908 with High Court (O.S.) Rules 316 and 317 of High Court (Original Side) Rules and seeks an order and directions against the Municipal Corporation and its officers (respondent nos.1 to 4) to decide the application dated 29th February, 2012 made by the applicant no.1 or in the alternative to appoint a fit and proper person/officer with all powers duties and functions of the Executive Engineer and Ward Officer as per Rules and as per Development Control Regulations Greater Mumbai, 1991 to decide in accordance with the order dated 10th August, 2011 passed by the Division Bench the application dated 29th February, 2012 made by the applicant no.1. Some of the relevant facts for the purpose of deciding this execution application and the chamber summons are as under:-
2. On 11th June, 2010, the Executive Engineer, Building Proposal issued a notice to the applicants to stop the erection of building which was carried out on the property bearing CTS No.153, 153/1 to 3 of Village Malad East. It is case of the applicants that the applicants replied to the said notice and furnished all the documents and called upon the Executive Engineer to withdraw the stop work notice which he failed to withdraw. The Municipal Corporation thereafter by letter dated 16th March, 2011 cancelled the IOD and directed the applicants to handover the original of the said IOD and CC and demolish the work carried out on the said property on the ground that applicants had not submitted NOC from the Ministry of Defence. The applicants filed a writ petition in this court (840 of 2011) and applied for setting aside and/or for withdrawal of the stop work notice, for revalidation of all the plans sanctioned in IOD and commencement certificate. By an order dated 10th August, 2011 the Division Bench of this court disposed of the said writ petition.
3. Paragraphs 4 to 6 of the said order of the Division Bench reads thus:-
“4. We have heard learned counsel appearing for both the sides. Perusal of the order impugned in the petition shows that the IOD and CC have been cancelled by the Corporation principally for two reasons, firstly access to the plot of the petitioners is not available and secondly an objection is raised by the defence authority for raising construction on the plot on the ground that the structure if raised will cause danger to the defence establishment. So far as the first aspect of the matter is concerned, the learned counsel appearing for petitioners has pointed out to us that there is a decree passed in favour of the petitioners by the City Civil Court, Bombay granting access to the petitioners plot where construction is proposed to be made. It was urged on behalf of the respondent Union of India that the access that is provided by the decree of the City Civil Court, Bombay is not enough according to the D.C. Regulations and other allied enactments for grant of permission to the proposed building on the plot in question. So far as the proposed construction being raised near the defence establishment is concerned, the learned counsel appearing for petitioners pointed out to us that unless there is a Notification issued under section 3 of the Works of Defence Act 1903, building permission cannot be refused in favour of the petitioners on the ground that there is defence establishment in the vicinity. It was pointed out to us that a Notification in relation to the defence establishment in question was actually issued by the Collector but subsequently that Notification was cancelled. Thus, it is common ground before us that there is no Notification presently in force issued under section 3 of the Works of Defence Act 1903. On behalf of the respondents, reliance was also placed on a letter dated 4th November 2010 issued by the Government of Maharashtra to the Commissioner of Bombay Municipal Corporation
