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2018 Supreme(Bom) 2094
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Naresh H. Patil, G.S. Kulkarni, JJ.
Shri. Swaminath Gupta - Appellant
Vs.
Anusaya Chs - Respondent
Writ Petition No. 9168 of 2018
Decided On : 22-10-2018
For the Appellant :Mr. Vaibhav Jogalekar I/b. Mr. M.S. Lagu, Advocate,
For the Respondent:Mr. Himanshu Kode, Advocate, Mr. A.R. Pitale, Advocate, Mr. M.M. Pabale, AGP.
Headnote:
Constitution of India,1950 – Article – 226 - Maharashtra Municipal Corporation Act - Section 264(1)(2)(3) and (4) - demolition of building – Premises - Petitioners who are tenants of premises which are situated in a building belonging to Cooperative Housing Society respondent have filed this petition apprehending demolition of premises occupied by petitioners - At the outset, court may observe that this is a second round of litigation - Petitioners earlier had approached this Court by filing Writ Petition - Petition was produced for grant of urgent relief - His submission yesterday was that along with letter a structural audit report was submitted by Petitioners to Respondent - Corporation of this Petition proceed on footing that officers of Respondent - Corporation visited premises on ground floor which are in possession of Petitioners and threatened that demolition of building will be undertaken - Today, when Petition was called out, learned counsel appearing for Respondent - Corporation produced for perusal of Court, a copy of the notice which was issued to Petitioners - On instructions of Petitioners, learned counsel appearing for Petitioners states that said notice was served to the Petitioner and thus Petitioners were await of the said notice - Said notice refers to structural audit report submitted by the Petitioners - Whether principle of constructive res judicata could be invoked against writ petition filed by appellant under Article 226 of Constitution – Held, court say that court and all other members of Said Society, who have vacated their flats are directly affected by delay caused by Petitioners in not vacating and not stopping use of their respective shops in spite of the notice issued by Municipal Corporation and now in spite order has been passed by this Hon’ble Court in this regard - Court say that court and other 10 members of said society are staying on rent which is paid from their own pockets; because three shops owner i.e. Petitioners herein have not vacated their shops in spite of ruinous condition of the said Society building which resulted in issuance of eviction - Court say that building is built and is more than 45 years old - Condition of the building is beyond repairs and only solution is undertaking development for which the said society has already taken steps for - It is different if an issue which had been decided in an earlier litigation again arises for determination between same parties in a suit based on a fresh cause of action or where there is continuous cause of action - Parties then may not be bound by determination made earlier if in the meanwhile, law has changed or has been interpreted differently by a higher forum - Court accordingly see no merit in the petition - It is dismissed.
ORDER :
G.S. Kulkarni, J.
Heard the learned Counsel for the parties. We have perused the record.
2. The petitioners who are tenants of the premises which are situated in a building belonging to Anusaya Cooperative Housing Society respondent no.1 (for short 'the Society') have filed this petition apprehending demolition of the premises occupied by the petitioners. At the outset, we may observe that this is a second round of litigation. The petitioners earlier had approached this Court by filing Writ Petition No.7695 of 2018. This Court dismissed the said writ petition by order dated 20 July 2018 by imposing cost of Rs. 25,000/- by passing the following order:"
1. Not on board. Taken on board.
2. Heard the learned counsel appearing for the Petitioners. Yesterday, the Petition was produced for grant of urgent relief. Yesterday, the contention raised by the learned counsel appearing for the Petitioners was that in the year 2016, the Petitioners were served with the notices by Thane Municipal Corporation and thereafter, the only notice served by the Municipal Corporation was a notice dated 21st August, 2017 calling upon one of the Petitioners to submit a report by VJTI/ITI. His submission yesterday was that along with letter dated 24th August, 2017, a structural audit report was submitted by Petitioners to the Respondent No.1 - Corporation. Paragraph Nos. 5, 6 and 7 of this Petition proceed on the footing that on 18th July, 2018, the officers of the Respondent No.2 - Corporation visited the premises on the ground floor which are in possession of the Petitioners and threatened that the demolition of the building will be undertaken on 19th July, 2018. The specific averment made in the paragraph 5 is that no notice since after the notices of the year 2016 was ever served upon the Petitioners, much less a notice requiring Petitioners to vacate the premises. The entire Petition proceeds on the footing that after the Petitioners submitted a structural audit report on 24th August, 2017, no written notice was served to the Petitioners. The cause of action for filing the Petition as set out in paragraph 6 is the threat given by the Municipal Officers to the Petitioners on 18th July, 2018 of demolition without giving any prior notice.
3. Today, when the Petition was called out, the learned counsel appearing for the Respondent No.2 - Corporation produced for perusal of the Court, a copy of the notice dated 7th May, 2018 which was issued to the Petitioners. On instructions of the Petitioners, the learned counsel appearing for the Petitioners states that the said notice was served to the Petitioner No.1 and thus the Petitioners were await of the said notice. The said notice refers to the structural audit report submitted by the Petitioners. The said notice records that, the report of VJTI submitted by the Petitioners is not satisfactory and therefore, the structural audit report of the entire building is necessary to be obtained. The notice, therefore, calls upon Petitioners to stop the use of the building.
4. In our view, the notice dated 7th May, 2018 was very material and relevant and the Petitioners have indulged in suppression of material facts by not disclosing the service of the said notice. In fact, the averments made in paragraphs 5 and 6 are completely false as the Petitioners have stated that no notice after the notice in the year 2016 was ever served upon the Petitioners. Moreover, the Petitioners have not stopped the use of the premises in their possession as directed by the notice dated 7th May, 2018.
5. Writ jurisdiction under Article 226 of the Constitution of India is always discretionary and equitable. In view of suppression of material facts by the Petitioners, no case is made out for entertaining this Petition.
6. The Petitioners will have to be saddled with costs which is quantified at Rs. 25,000/-which shall be payable by the Petitioners to the Respondent No.2 -Corporation within a period of four weeks from today. While rejecting t
