Bombay High Court
Residing At Seva Sangh Chawl vs Municipal Corporation Of Greater on 19 November, 2013
Bench: Anoop V. Mohta
1 aost.31205-2013
Dond
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER (ST) NO.31205 OF 2013
WITH
CIVIL APPLICATION (ST) NO.31207 OF 2013
Mushtaq A. Shah
Aged about 32 years
Occupation: Business
Indian Inhabitant of Mumbai
Residing at Seva Sangh Chawl,
Anand Nagar, New Link Road,
Jogeshwari (West), Mumbai-400102. ..Appellant.
Vs.
Municipal Corporation of Greater
Mumbai, having its office at
Mahapalika Bhavan, Mahapalika Marg,
Fort, Mumbai-400001. ..Respondent
---
Mr. Prashant Surve, for Appellant.
Mr. S.K. Sonawane, for Respondent-Corporation.
----
CORAM : ANOOP V. MOHTA, J.
DATE : 19 NOVEMBER 2013.
ORAL JUDGMENT:
Rule made returnable forthwith. Heard finally by consent of
learned Counsel appearing for the parties.
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2 The Appellant-original Plaintiff by this Appeal from Order
challenged the order dated 30.10.2013 passed by the learned Judge of City Civil
Court, Dindoshi, Mumbai, whereby not granted any ad-interim relief pending the
motion as well as the suit.
3 By invoking Section 3Z-1(4) of Maharashtra Slum Areas
(Improvement, Clearance and Redevelopment) Act, 1971 (for short "the Act"),
the Respondent-competent authority issued notice by treating the structure in
question to be an unauthorised. Twenty four hours notice was given and called
for explanation that the structure is in existence prior to 1.1.1995 or not. The
Appellant replied on 17.10.2013. The reference is also made to the
submission/earlier documents to justify the existence of the structure prior to
1.1.1995.
4 The Respondent-Authority/officer on 24.10.2013 without assigning
any reason to the reply filed and/or without giving hearing to the Appellant,
decided the issue against the Appellant saying that the explanation/reply so given
is unsatisfactory and therefore, no reliance can be placed upon the same. In view
of delegated power, invoked Section 3Z 2(6) of the Act and threatened to take
steps with the assistance of Police.
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5 The Appellant-Plaintiff filed the suit on 25.10.2013 along with the
Notice of Motion for declaration that the notice so issued is illegal and bad in
law and also sought the injunction. The learned Judge refused to grant ad-interim
relief by observing that not only the structure but the person who seek protection
must be in occupation prior to the datum line and his name must appear in the
voter's list prior to 1.1.1995. The Court further observed that "none of these
requirements prima facie appear in this matter" and denied the protection so
sought for.
6 Admittedly, the Respondent did not file reply to the motion. The
reliance was placed on the documents filed by the Appellant. The averments
made in the plaint and in supporting affidavit just cannot be overlooked merely
because the Respondent issued notices/notice by treating the premises as
unauthorised and so also his occupation. In my view, it is obligatory on the part
of the Respondent-Corporation to collect the information and/or material to give
opportunity to the concerned before declaring the structure/premises as
unauthorised. Their record should be clear with this regard. The Respondent,
however, by giving such notices called upon the person/party/occupier to give
the explanation within 24 hours. Even if the explanations are given, without
assigning any reasons and/or giving any hearing, confirmed their action of
eviction by giving another demolition notice including a threat of Police
assistance.
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7 By this, " the competent authority" to whom the Act/statute
nowhere empower/provide authority and/or jurisdiction to decide the rights
and/or their claim, by single liner, concludes the rights and maintained their
action of eviction/demolition. The policy of the Government and the Corporation
is to provide alternative accommodation and/or to protect such occupiers who are
in possession of the premises/huts even in slum areas and/or even on the
Corporation land, one who are in possession prior to 1.1.1995, unless it is
adjudicated and/or decided by giving a full opportunity to the parties, in
accordance with law, the authority/competent authority, in my view, should not
be permitted to take such drastic decision in such fashion, which ultimately
results into eviction and/or demolition of the structure which occupants and/or
persons like Plaintiff-Appellant are in possession for more than 25 years.
8 Twenty four hours notice, as contemplated under Section 3Z-1 of
the Act, in my view just cannot be invoked merely because the Respondent
and/or their officer decide to do so. The reasonable opportunity contemplates
various facets including the power of "competent authority, to decide the rights
and/or disputed question of fact and/or in a given case of law". Section 3Z-1 of
the Act is nothing but a summary power/jurisdiction provided to the competent
authority, therefore, they give only in most of the matters 24 hours notice for
demolition and/or removal of the unauthorised structure and/or occupation. For
want of authority/jurisdiction if the competent authority is not in a position to
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adjudicate and/or decide the rights based upon the Section itself, apart from
protective policy declared by the State Government and followed by the
Respondent from time to time, the final eviction notice and/or threats of
demolition, in my view is just a formality. The unilateral conclusion and/or
decision which they have already taken to demolish the structure (alleged
unauthorised structure) is absolutely misuse of the provisions of the Act as well
as the power. The structure, if unauthorised, the course of law should be
followed. But whether it is authorise or unauthorise must be adjudicated and/or
decided by giving full opportunity to the parties.
9 The occupier when challenges such notice, the Respondent-
Corporation, without filing any reply, based upon such decision decisions/notices
make their submission and the Court also accepting the same and refuse to grant
any ad-interim relief, basically on a foundation that the Plaintiff failed to prove
that the structure is in existence prior to 1.1.1995, at the prima facie stage itself,
where the Corporation/Respondent not even filed their reply to the averments so
made in the plaint/supporting affidavit to the Notice of Motion. The Court also,
in my view, just cannot give and/or supports the orders/notices so issued by the
Corporation without giving opportunity to the Plaintiff and/or party to justify
their case/claim of existence of the structure prior to 1.1.1995. Section itself
contemplates to give protection if the structures are even unauthorised and/or
illegal if constructed prior to 1.1.1995.
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10 The opportunity, in my view, is required to be given to the parties
to justify their claim. Once the structure if proved to be constructed prior to
1.1.1995, the benefits and/or entitlement as per the policy required to be given to
the concerned occupier and/or his legal heirs. The present occupier's entitlement
even if any need to be decided, in accordance with law. The impermissible
transaction, if any, also required to be tested in accordance with law. But to say
and deny the protection as sought for and to permit the Respondent to demolish
such structure, would cause great injustice and hardship to all the concerned.
11 In above background in every matter because the Respondent-
Corporation has invoked the provisions of the Act by treating the structure
"unauthorised" and "illegal", whole and/or any part, that itself should not waive
and/or influence the Court to deny the ad-interim protection at least pending the
decision of the motion and/or of the rights flowing from the policy of the
Government itself. The structure, if unauthorised and or also occupier's
occupation, strict course of law should be followed.
12 In view of above, as admittedly no reason whatsoever given by the
competent authority before passing the eviction order even to the reply as well as
the documents so submitted and as no reply filed by the Respondent-Corporation
denying the averments so made in the plaint and the affidavit supported by the
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documents, the rights cannot be concluded of the Appellant-Plaintiff to have
protection of the structure, pending at least the Notice of Motion. Once the
structure is demolished the occupier will be helpless, apart from no structure to
live in or occupy.
13 The prima facie case is made out. The balance of convenience and
equity lies in favour of the Appellant-Plaintiff, basically in the facts and
circumstances of the case. Therefore, pending the motion, the Respondent-
Corporation not to take any coercive steps and/or action based upon the
impugned notice.
14 In view of above I pass the following order:
(a) Appeal from Order is allowed. Impugned order dated 30.10.2013 is
quashed and set aside.
(b) The Respondent-Corporation not to take coercive steps based upon
the notices.
(c) The interim order to continue till the disposal of the Notice of
motion and two weeks thereafter.
(d) The Respondent-Corporation to file reply within four weeks.
(e) Notice of Motion is expedited.
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15 The Appellant is permitted to communicate this Order to the
Respondent-Corporation that no coercive steps to demolish the structure to be
taken till the disposal of the Notice of Motion and two weeks thereafter.
16 Appeal from Order as well as Civil Application are allowed
accordingly. No costs.
ig (ANOOP V. MOHTA, J.)
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