Bombay High Court
Nandkumar Ganpat Patankar & Ors vs Municipal Corporation Of Gr. ... on 9 December, 2013
Bench: Anoop V. Mohta
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE CIVIL JURISDICTION
APPEAL FROM ORDER NO. 1274 OF 2013
WITH
CIVIL APPLICATION NO. 1520 OF 2013
IN
APPEAL FROM ORDER NO. 1274 OF 2013
Nandkumar Ganpat Patankar & Ors. ....Appellants.
Vs.
Municipal Corporation of Gr. Mumbai & Anr. ....Respondents.
Mr. V.A. Sugdare for the Appellants.
Mr. S.K. Sonawane for the Respondent -BMC.
CORAM : ANOOP V. MOHTA, J.
DATE : 9 DECEMBER 2013.
ORAL JUDGMENT:-
Heard finally, by consent.
2 The Appellants-original Plaintiffs have challenged order
dated 19 November 2013 passed by the learned Judge, City Civil
Court Bombay, whereby in a Suit filed by them the declaration is
sought that notices dated 28 August 2013 and 25 October 2013, are
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bad in law, null and void and arbitrary, whereby the Respondent-
Corporation offered them alternate accommodation on ground floor of
Municipal Market on plot bearing C.T.S. No. 1293, 1293/1 to 5,
1294/3 to 7 and 657/A part of village Kanjur at Kanjur Marg.
However, that was subject to deposit of 6 months stallage charges to
be deposited within 15 days. It is specifically provided that "you shall
provide internal brick masonry walls, electric wiring etc. at your own
cost if necessary, only after issuance of final Letter of allotment".
3 The Appellants objected the same by filing reply dated 8
October 2013. However by order dated 25 October 2013, in view of
their alleged policy of MCGM, directed to pay the necessary charges as
per the demand made, failing which threatened to demolish the
structures. The Appellants have been in possession of the premises on
the land of Corporation since long. By the notice/action, the
Respondents-Corporation have recognized their rights and therefore,
offered to provide them alternate accommodation, though not in the
same location, but in an area which is about 3 Km. away from the
existing structures.
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4 The matter was adjourned, for the Appellants to consider
the policy, as well as, their offer so made. However, it appears that the
Appellants are not willing to accept the offer/alternate
accommodation so offered to these 23 commercial structures which
are going to be affected in a beautification of Shivaji Talao, Bhandup
(West) in 'S" Ward. The basic terms and conditions are as under:-
"1) That the PAPs shall pay Standing Deposit equivalent
to 6 months stallage charges.
2) That the PAPs shall pay monthly stallage charges at
the prevailing rate, which is presently Rs.12.50/- per
sq. ft. per month.
3) That allotment shall be purely as a licensee of Market
Dept and not on tenancy or ownership basis.
4) That the PAPs shall construct their stall/shop
including internal brick masonary wall, provide
shutter, electric fittings etc. entirely at their own cost.
5) That the PAPs shall abide with all the terms and
conditions in force. The PAPs shall give an
undertaking on Rs.200/- stamp paper towards
faithful compliance of the terms & conditions, rules &
regulations of the Market Deptt.
6) That the eligibility and area to be allotted has been
confirmed by Asstt. Commissioner 'S' ward, Market
Deptt. Accept it as correct and shall not be held
responsible for any lapse therein."
5 The submission is made first of all that the alleged policy is
prepared on 28 August 2013 by modifying the earlier PAP (Project
Affected Person) policies dated 25 March 2013 and 28 March 2013.
Here they are not taken even 25% cost of construction from PAP. In
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any way, the offer so made is not acceptable to the Appellants. The
validity of such policy, just cannot be gone into at this stage of the
proceedings specially when the scope and power of Court to interfere
with such policy is quite limited. The remedy is elsewhere.
6 The Court needs to consider, in this background, the
submission so raised by the learned counsel appearing for the
Appellants that the impugned order/action so initiated by the
Corporation is totally against the basic principles of law without giving
fair and equal opportunity. The reliance is accordingly placed upon
the Judgments of this Court in Sopan Maruti Thopte Vs. Pune
Municipal Corporation & Anr. 1 and Abdul Hasan Shaikh Mansuri
Vs. Municipal Corporation of Mumbai & Ors. 2 . All these judgments
are in the matters where the Corporation had issued the notice of
demolition/eviction by treating the structure unauthorized as
contemplated under Sections 351(1) of the Bombay Municipal
Corporation Act, 1888 and Section 260, 260(1) of Bombay Provincial
Municipal Corporation Act and related provisions.
1 1996(1) Mh. L. J. 963
2 2007(2) Bom. C.R. 804
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7 From the plain reading of the Notices, as well as, the
submissions so made and going through the policy and the order so
passed, it is clear that the Corporation is not invoking this provision to
demolish and vacate the unauthorized premises. On the contrary, they
are offering alternate accommodations to all these commercial
structures, which are admittedly on the Corporation land but owned
by them, since more than 20 years. The question of development
and/or modification, if within the scope and power, subject to
providing alternate accommodation and/or accommodating them at
the appropriate place, the Corporation is entitled to proceed in
accordance with law.
8 Having once recognized the existence of commercial
structures and offered them to provide alternate accommodations, I
see there is no reason to overlook the stand and the steps taken by the
Corporation. It is difficult to accept the case that they have not
following the due procedure of law. The notices were given and
directed them to deposit certain amount so that the letter of allotment
of alternate accommodation can be provided immediately. Inspite of
offer given, the Appellants failed to take steps and/or deposit money.
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The directions to demolish the structure, in my view, cannot be stated
to be without due notice and/or not following the procedure of law.
9 The concept of PAP, in my view, is wide enough to include
such cases where the Corporation in this process providing alternate
accommodate to the Appellants/owners of the commercial structures
on the Corporation land. It is difficult to restrict the Corporation from
taking possession of their own land when the question is about a
beautification and/or development of the area. The balance needs to
be struck by the occupants on the Corporation land and the
Corporation to provide them alternate commercial structures.
10 The submission is also made by referring to the map of
market where the Corporation have taken decision to provide the
alternate accommodation. There is nothing in the policy and/or even
the submission made that they will not be in a position to retain the
area and the construction which they proposed to make on the
structures. Though it is not the case of grant of tenancy and/or
ownership and the allotment on the basis of licensor/licensee
relationship of the market/area, in the present scenario, where the
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accommodation and/or area even not available in the city of Mumbai,
the suggestion and/or demand, even if any, other than the offer so
made, is just cannot be considered in such fashion. The Court even
otherwise not competent to suggest the Corporation with regard to
their policy. The Plaintiffs and/or persons are always at liberty to
challenge those policies. But that in no way, sufficient at this stage, to
deal with the beautification of Shivaji Talao and the proposed
alternative accommodation. To accept and/or not to accept, is the
Appellants choice, but no case is made out for any protection, as
prayed in the Notice of Motion, basically which will effect the
beautification in question.
11 The submission that the policy is at the instance of some
politician and builder and/or based upon the extra consideration than
law, is also not acceptable when the Corporation is showing their
bonafide to provide them the commercial structures before taking
possession of their land.
12 The certain documents like the policy is placed on record
for the first time in Appeal from Order as the settlement was also
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discussed earlier. But it could not be finalized. These documents
were not placed before the Trial Court. But considering the
submission and in the background so referred above, I am inclined to
make above observations to dispose of the present Appeal, as there is
no case is made out to grant any ad-interim relief, as prayed. This in
no way prevent the Appellants from taking appropriate steps for
challenging the alleged policy, if any. No case is made out for ad-
interim relief.
13 The liberty is granted, as a last chance, to the Appellants to
deposit the money within 7 days from today, failing which the action
so contemplated in the impugned notice/action, the Respondent-
Corporation is free to take, in accordance with law.
14 Appeal from order is accordingly disposed of, so also the
Civil Application. There shall be no order as to costs.
(ANOOP V. MOHTA, J.)
