The court upheld the principle that unauthorized construction cannot be considered authorized, even if property taxes are paid, and rejected claims of discrimination and invalid notice under Section 260(1) of the Maharashtra Municipal Corporation Act.

JUDGMENT :

R. D. DHANUKA, J.

1. 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.

2. The petitioner claims to be owner of the land underlying between petitioner and Sharadchandra Madhav Oak admeasuring 2000 sq. yards by an agreement dated 23rd February 1984. It is the case of the petitioner that upon demise of Sharadchandra Madhav Oak, his legal heir Sunita Arvind Vaidya entered into an agreement with respondent No.3 on 13th October 2014. The petitioner filed a Civil Suit bearing R.C.S. No.626/2015 before the learned Civil Judge, Junior Division, Kalyan. Petitioner and obtained interim order against respondent No.3 from dispossessing the petitioner from the said structure.

3. Insofar as the order which is the subject matter of this petition is concerned, 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. It is also common ground that neither respondent No.3 who claims to be owner of the entire property nor anybody else impugned the said order except the petitioner.

4. By an order dated 4th October 2022, this Court in Writ Petition filed by petitioners bearing Writ Petition No.11629 of 2022, recorded the statement made by the Municipal Corporation that Corporation had no objection to issue fresh notice upon the petitioner under Section 260(1) of the Maharashtra Municipal Corporation Act and to pass a fresh order after granting personal hearing to the petitioner as well as respondent Nos.3 and 4. As per the said order, the Municipal Corporation issued a fresh notice to the petitioner and respondent Nos.3 and 4 under Section 260 and 267(1) of the Maharashtra Municipal Corporation Act on 10th October 2022 relating to four structures of the petitioner. The said notice was responded by the petitioner by giving reply on 14th October 2022.

5. The Municipal Corporation passed an order on the said notice on 21st October 2022 holding that the structures which was the subject matter of notice were unauthorized. Before passing the said order dated 21st October 2022, the Municipal Corporation corrected the said notice dated on 14th October 2022 by pointing out that the said notice was restricted to under Section 260(1) of the Maharashtra Municipal Corporation Act.

6. Mr. Sakhare, learned senior counsel for the petitioner invited our attention to some of the documents annexed to the petition and submitted that the Civil Suit filed by his clients against respondent No.2 is still pending. Injunction order is passed by the Civil Court in favour of the petitioner. It is submitted that though by the order dated 26th February 2016, the Municipal Corporation had declared the larger properties area as unauthorized under Section 260 read with Section 267(1) of the Maharashtra Municipal Corporation Act, till date no action has been taken by the Municipal Corporation against other structures not claimed by the petitioner but claimed by respondent No.3. He submits that there is thus discrimination and arbitrariness on the part of the Municipal Corporation selecting petitioner only for an action under Section 260(1) of the Maharashtra Municipal Corporation Act and not the respondent No.3.

7. The next submission of the learned senior counsel for the petitioner is that, the notice was admittedly issued under Section 260(1) of the Maharashtra Municipal Corporation Act which empowers the commissioner only to designate an officer who shall have jurisdiction over local area and as specified in the notification. He submitted that Section 260(1) does not empower the designated offi