Ranbir Singh Chhabra, ... vs Municipal Corporation And Anr.
2001 Latest Caselaw 450 Bom

JUDGMENT

D.Y. Chandrachud, J.

1. The Petitioner has been carrying on the business of the sale of milk in an establishment conducted in the name and style of "National Dairy". The premises of the Petitioner consist of three shops bearing Nos. 7, 7-A and 8 situated at Navalkar Wadi, Caves Road, Jogeshwari (East), Bombay-400060. The Petitioner applied for a licence and one was issued to him by the Municipal Corporation under Section 412A of the Bombay Municipal Corporation Act, 1888 some time in the year 1988. The licence which was issued to the Petitioner is stated to have been renewed by the Municipal Corporation from time to time until 31st December, 1994. By letters dated 24th December, 1994 and 15th May, 1995 the Petitioner applied for a renewal of the licence. By a communication dated 28th June, 1995 the Petitioner was informed by the Medical Officer of Health in the K (East) Ward that the licence had been cancelled in accordance with the order dated 2nd March, 1995 passed by the Municipal Commissioner. The Petitioner was accordingly informed that the licence could not be renewed. In paragraph 4 of the writ petition the Petitioner has averred that in the year 1994 the structure which was in his occupation had been demolished partly and it has been stated that the Petitioner "is filing a separate suit for restoration of the structure in its original condition". The Petitioner did not disclose in the writ petition (W.P. No. 1656 of 1995) that he had already instituted a suit in the City Civil Court bearing L.C. Suit No. 5663/1995 in which the legality of the demolition had been called into question. Be that as it may, the action of the Municipal Corporation in cancelling the licence which was granted to the Petitioner was sought to be impugned in the first of the two petitions. The ground on which the cancellation was sought to be challenged is that the licence which had been granted under Section 412-A of the Bombay Municipal Corporation Act, 1888 had been cancelled without observing the principles of natural justice; without offering to the Petitioner a reasonable opportunity of being heard. The Petitioner contended that the cancellation of the licence was mala fide and affected his fundamental right to carry on business.

2. An affidavit-in-reply was filed on behalf of the Municipal Corporation by the Sanitary Inspector working in the K-East Ward of the Corporation. In the affidavit dated 18th September, 1995 it was stated that the Corporation had received a complaint on 13th May, 1994 which was addressed to the Municipal Commissioner by one Shri M.C. Singhavi and certain other persons seeking an investigation in the matter of the licence issued to the occupants of certain unauthorised structures, including the National Dairy which was being conducted by the Petitioner. In the affidavit it was stated that the Chief Engineer (Vigilance) placed the papers before the Municipal Commissioner, who by his order dated 21st March, 1995 directed that the licence be cancelled. It has also been stated that the premises which are in the occupation of the Petitioner had been partially demolished. A further affidavit was filed on behalf of the Municipal Corporation on 26th September, 1995 in which it was stated that one Shri K.S. Navalkar and certain others were the owners of the property known as Navalkar Wadi in which the disputed structure is situated. Navalkar allegedly had let out a plot of land admeasuring 75ft. by 35ft. and another plot admeasuring 22ft. by 15ft. to one Mohammed Jais, who had constructed a temporary structure made of iron sheet walls thereon. The original landlord, it was stated, had filed a suit for eviction in the Small Causes Court being R.A.E. Suit No. 368/1480 of 1975, which was decreed ex parte on 18th December, 1979. A Miscellaneous Notice taken out for setting aside the decree was discharged on 2nd September, 1987 upon which the decree for eviction in respect of the two plots of the land which formed the subject matter of the suit attained finality. It was further averred in the affidavit that after the ex parte decree was passed Mohamed Jais had illegally put up a permanent structure consisting of brick masonry walls on the remaining open space with three partitions without sanctioned plan or the permission of the Municipal Corporation. According to the Municipal Corporation a notice under Section 351 of the Act was issued in the year 1994 by the Deputy Municipal Commissioner, Zone-IV to Mohamed Jais which was duly replied to on 6th August, 1994. The case of the Corporation is that after the Miscellaneous Notice for setting aside the ex parte decree was discharged by the Small Causes Court Mohamed Jais inducted various persons including the Petitioner into the unauthorisedly constructed premises. The petitioner, according to the Municipal Corporation was inducted as an occupant of Shop No. 7 after the notice under Section 351 was issued. The Municipal Corporation stated that on 28th April, 1994 (almost ten years after the notice under Section 351 was issued), the Corporation undertook a demolition of the unauthorised structures and the three shops. Between 1984 and 1994 Mohamed Jais is alleged to have illegally added a first floor to the existing unauthorised structure. The Corporation stated in its affidavit that though a material part of the structure was demolished on 28th April, 1994, the rest of the structure could not be demolished in view of certain electric connections which, it was feared may possibly explode if demolition was carried out. It has been stated that Mohamed Jais had filed a suit in the City Civil Court being L.C. Suit No. 3057 of 1994 which was pending. In sum and substance, the Municipal Corporation contended that it had demolished the structure of the Petitioner by following due process of law.

Writ Petition No. 1656 of 1995 came up for hearing before a learned Single Judge on 19th September, 1995. The learned Judge directed the Municipal Corporation to file an affidavit-in-reply setting out whether the notice under Section 351 of the Bombay Municipal Corporation Act, 1888 had been duly served on the Petitioner. The Petitioner was also granted the liberty to file another petition for the restoration of the structure. In pursuance of the said Order, the Municipal Corporation filed an affidavit, dated 28th September, 1995, which has already been adverted to above. In pursuance of the liberty granted by the learned Single Judge, the Petitioner instituted the second writ petition W. P. No. 1888 of 1995. In Writ Petition No. 1888 of 1995 the relief sought was to the effect that the Respondents be ordered and directed to reconstruct Shop No. 7 or in the alternative the Petitioner may be permitted to carry out the reconstruction of the said shop. By an order dated 6th October, 1995 the learned Single Judge granted rule in the petitions and was of the view, prima facie, that the cancellation of the licence was in breach of the principles of natural justice since no opportunity to show cause was granted to the Petitioner. The learned Judge was also of the view that the enforcement of the notice under Section 351 in 1994 without serving the Petitioner was also, prima facie, in breach of the provisions of the law. In these circumstances, as and by way of interim relief, the Petitioner was permitted to restore the status quo ante by repairing or reconstructing Shop Nos. 7, 7-A and 8 at his own cost. The Municipal Corporation was also directed to renew the licence granted to the Petitioner for carrying on the milk business during the pendency of the petition. The interim order dated 6th October, 1995 was a composite order passed in the two petitions.

Now, it is common ground that as a result of the interim order which was passed by the learned Single Judge, the licence under Section 412-A has been renewed during the pendency of these proceedings. There can be no doubt about the proposition that the earlier cancellation of the licence in the facts and circumstances of the present case, was illegal and a nullity. The Petitioner had already been granted a licence initially in 1988. The licence was renewed and was valid until 31st December, 1994. The Petitioner was carrying on the business of the sale of milk in pursuance of the licence which was granted to him. The cancellation of the licence without furnishing an opportunity to show cause to the Petitioner was a nullity. The cancellation of the licence has serious civil consequences to the Petitioner. The order of cancellation without giving the Petitioner an opportunity of showing cause was clearly contrary to law. The Municipal authorities have acted on a complaint which was not divulged to the Petitioner. No opportunity was given to the Petitioner to deal with the contents of that complaint or to show cause against the ground on which the licence was cancelled. The cancellation was contrary to the law. During the pendency of the writ petition the licence has been renewed in pursuance of the interim order.

In so far as the question of reconstruction of the Shop is concerned, the learned Counsel appearing on behalf of the Petitioner has stated that in pursuance of the interim order the Petitioner has reconstructed the shop premises. Nothing further remains, therefore, in the second writ petition which has been filed by the Petitioner since the relief which has been prayed for has been granted to the Petitioner in the form of an order for reconstruction at the interim stage. Nevertheless, having regard to the affidavit-in-reply filed by the Municipal Corporation it is clear that the case of the Municipal Corporation is that the premises had been demolished in 1994 at least in part since they were found to be unauthorised. However, the fact remains that no notice under Section 351 was served on the Petitioner and, therefore, the petitioner did not have an opportunity of testing the merits of the notice under Section 351. The learned Counsel appearing on behalf of the Municipal Corporation has stated that the notice was issued to the occupiers. However, it is not necessary to go into this question any further since I am of the view that the Petitioner may be given an opportunity of placing all the relevant facts before the Appropriate Authority of the Municipal Corporation. The question as to whether the premises in the occupation of the Petitioner were in the first instance constructed unauthorisedly will have to be determined by the Competent Municipal Authority. The question will involve an appreciation of facts and hence it would not be appropriate to adjudicate thereon in writ proceedings. In the circumstances, while disposing of these petitions, it would be necessary to grant liberty to the Municipal Corporation, if it is so advised, to issue any fresh show cause notice to the Petitioner in respect of any further action which the Municipal Corporation may consider it fit to adopt in respect of the structure of the Petitioner. Here again, it is clarified that no opinion is expressed by this Court on the question as to whether the structure which was initially constructed and was in the occupation of the Petitioner was or was not authorised and it would be open to the Petitioner to raise all appropriate contentions in that regard. The Petitioner should he granted an opportunity of representation before any final decision is taken. The Municipal Corporation shall also grant a similar opportunity to all other affected parties who are parties to the present proceedings.

During the pendency of these petitions, having regard to the fact that the licence was cancelled by the Municipal Corporation without the authority of law, the learned Single Judge passed an interim order by which the Municipal Corporation was directed to renew the licence. In this regard it is clarified that the Municipal Corporation will renew the licence until, the Appropriate Authority passes an order after due compliance with the principles of natural justice. It is clarified that the Municipal Corporation would in the meantime be at liberty to exercise such powers as are open to it under the law if there is any breach of the terms and conditions of the licence. In the event of any final order of demolition being passed in respect of the premises of the Petitioner, the Municipal Corporation shall not act on the basis of the order for a period of six weeks from the date of the communication of the order to the Petitioner so as to enable the Petitioner to have recourse to his remedies under the law. It is also clarified that the pending sight (L.C. Suit No. 3057 of 1994) which has been filed by the landlord-Respondent No. 4 before the City Civil Court shall not be affected by the present order and the hearing of the said suit shall proceed unhindered by the present order. Both the writ petitions are accordingly disposed of. In the circumstances of the case there shall be no order as to costs.