wrest Beare NMelkGe [awe] 2022-23 [207 BALLON HIP. R.GOA5/2022.. ‘Name & Designation Particulars of officer Law Department Date : 30.05.2092 (Shri, SP. Parochey | Please be submitted that, Asst, Law Officer Kindly peruse the draft of reply affidavit to be filed at High Court in Writ Petition No. 2609/2022 M/s. Hotel Kernal Biryani Centre Vs. NMC and others, duly drafted by standing Counsel Adv. J. B. Kasat, submitted herewith for information, approval and signature please. or —— (Shri. Ashok Patil) Hon. Dy. Comm. Aps (Ent) Low of Pic Y Scanned with CamScanner-49- IN THE HIGH COURT OF JUDICATURE AT BOMBAY; BENCH AT NAGPUR WRIT PETITION NO 2609/2022 PETITIONER: M/s Hotel Karnal Biryani Centre, Mominpura, Nagpur. VERSUS RESPONDENTS: 1. Nagpur Municipal Corporation through its Commissioner, Civil Lines, Nagpur 2. Assistant Commissioner, Zone No. 6 Nagpur Municipal Corporation, Nagpur REPLY AFFIDAVIT ON BEHALF OF THE RESPONDENT NOS, 1 &2-NAGPUR MUNICIPAL CORPORATION The respondent nos. | and 2 hereinafter referred to as the answering respondents, most humbly and respectfully submit their reply to the petition as under: 1. That, by way of the present petition the petitioner is seeking, to quash and set aside the impugned notice dated 17/5/2022 _ emer Scanned with CamScanner-50- (Annexure-I) issued by the respondents and stay the effect and operation of the impugned notice dated 17/5/2022 at Annexure-I issued by the respondent and other ancillary reliefs. 2. That, the present reply affidavit is being filed solely to oppose the admission of the present petition. The answering respondent craves leave to file a detailed paragraph-wise reply in case the petition is admitted. At the outset, all adverse allegations made in the petition are denied. All allegations which are not specifically traversed to the answering respondents are denied as though they are specifically traversed. All allegations which are not denied specifically may not be taken to be admitted. 3. At the outset answering respondent raises the preliminary objection to the maintainability of the petition as the petition involves the disputed question of facts that may not be adjudicated under Articles 226 and 227 of the Constitution of India. 4, It is submitted that, during the period from 1928 - 1938 area admeasuring 13400.625 Sq. Ft. of land situated at Mominpura Circle No. 19/2 was granted on a lease of 30 years to the Muslim Library Scanned with CamScanneraSte Trust by the answering respondent Nagpur Municipal Corporation. The petitioner claims to be the tenant of the said trust and is running commercial activity of the hotel under the name “M/s Hotel Karnal Biryani Centre”. 5. It is submitted that as the period of lease has come to an end on 06.02.1968 and there is no further renewal or grant in favor of the trust and thus the occupation by the trust as well as its tenants is unauthorized and therefore in relation to the land granted to the trust on lease as aforestated for eviction of the trust from the Corporation premises, the answering respondent Corporation has already initiated the proceeding under Section 81-B of the Maharashtra Municipal Corporation Act (MMC Act). 6. It is submitted that during the inspection undertaken by the answering respondent being the planning authority on 17/5/2022 it was noticed that there is unauthorized and illegal construction over the leased land to the trust and accordingly impugned notice under Section 53 (1) of the MRTP Act dated 17/5/2022 at Annexure-I to the petition was served upon the petitioner as the development on Scanned with CamScanner —— ———-52- land has been carried out by the petitioner without permission which is mandatory to obtain under the MRTP Act. 7. It is submitted that, as per the inspection unauthorized development carried out by the petitioner to the extent of 95.20 Square meters was noticed, and accordingly, as the said development is without permission required under the MRTP Act and therefore the Nagpur Municipal Corporation being the Planning authority has served a prior notice of 24 hours requiring the petitioner/occupier to restore the land to conditions existing before the said unauthorized development took place and accordingly the impugned notice under Section 53(1) of the MRTP Act is just, legal and proper. 8. It is submitted that, in the similar facts the unauthorized development by the petitioner in Writ Petition No. 2609/2022 M/s M.L. Canteen on the land of the Muslim Library Trust on the failure of the said petitioner to restore the land to conditions existing before the unauthorized development carried out by him, the answering respondent Planning Authority had taken the steps to demolish such unauthorized development and demolished the unauthorized Scanned with CamScanner-53- development carried out by M/s M. L. Canteen in the exercise of powers under Section 53 of the MRTP Act. 9. It is submitted that the petitioner under the apprehension that the answering respondent Planning Authority may take action of demolition without following the process of law had preferred Writ Petition No. 2655/2022 but the said writ petition was in absence of cause of action accrued to the petitioner and therefore same was disposed of as withdrawn with liberty to approach the Court in case of cause of action for filing the petition accrued in his favour, however as per the inspection undertaken on 17/5/2022 it was found that the development carried out by the petitioner is without permission required under the MRTP Act and therefore the impugned notice dated 17/5/2022 at Annexure-I to the petition in the exercise of power under section 53 of the MRTP Act for removal of unauthorized development by the answering respondent is in accordance with the law in the facts and circumstances of the case. 10. It is submitted that it is wholly misconceived on the part of the petitioner to plead in the petition that there is absolute disregard to the statement made by the answering respondent in Writ Petition Scanned with CamScanner-54- No. 2609/2022 the impugned notice dated 17/5/2022 at Annexure-I to the petition is served upon the petitioner and same is malafide and in violation of Articles 14, 19 and 21 of the Constitution of India particularly when by the impugned notice dated 17/5/2022 the petitioner is served with prior notice of 24 hours requiring him to restore the land to the conditions existing before the carrying out of unauthorized development by him and not for taking possession of the property i.e. M/s Hotel Karnal Biryani Centre and therefore the petitioner is not approaching with clean hands and has made misleading and false statements in the petition particularly when the petitioner carried out unauthorized development and is praying reliefs on equity which are liable to be rejected. 11. _ It is denied that no prior notice as per law has been issued to the petitioner. It is denied that the answering respondents are attempting to take forcible possession rather than demolishing the entire structure of the petitioner without following due procedure of law and by violating the fundamental rights guaranteed to the petitioner under Articles 14, 19, and 21 of the Constitution of India. Scanned with CamScanner-55- 12. In view of the submissions hereinabove made the Present writ Petition filed by the Petitioner is devoid of any merit and liable to be dismissed in limine. Hence submitted. Nagpur J.B. Kasat Adv. Dated: 30/05/2022 COUNSEL FOR RESPONDENTS SOLEMN AFFIRMATION I, Ashok S/o. Bhimraoji Patil, aged about 56 years, Occ, — Service, working as Assistant Commissioner, Mahal Zone No. 6 and the Dy. Municipal Commissioner (Enforcement) with the respondent Nagpur Municipal Corporation, do hereby solemnly declare as under: 1, That, I am competent and authorized to swear the present affidavit on behalf of the respondent nos. | and 2. 2. That, I am well conversant with the facts of the case. Scanned with CamScanner-56- 3. That, the contents of the above reply from paragraphs 1 to 12 are true and correct to the information received from the available office record. 4. I say that the above reply has been drafted by the panel counsel as per my instructions. Hence sworn, signed, and verified at Nagpur on this 30" day of May 2022. IT know the deponent Dy, igsioner Nagpur: ibn, Nagpur. . KASAT ADVOCATE Scanned with CamScanner