Ashik Ali Abdul Shaikh S/O. Abdul ... vs State Of Maharashtra And 3 Ors
2017 Latest Caselaw 6550 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    ORDINARY ORIGINAL CIVIL JURISDICTION


                            WRIT PETITION No. 2228 of 2013


Ashik Ali Abdul Shaikh s/o Abdul Rehman Shaikh           ]
through the power of attorney holder                     ]
Shahid Ali Sheikh                                        ]
aged about 29 years, residing at Sun Sagar               ]
Darshan, Ground Floor, Room No.1,                        ]
Shamshuddin Nagar, Jari-Mari, Kurla,                     ]
Andheri (East), Mumbai - 400 072.                        ]         ... Petitioner


              Versus
1.            State of Maharashtra                       ]
              through the office of the Government       ]
              Pleader, High Court, Original Side,        ]
              Mumbai.                                    ]

2.            Assistant Engineer (Building and Industry) ]
              Municipal Corporation of Greater Mumbai ]
              "L" Ward, Kurla (West), Mumbai.            ]

3.            Municipal Corporation of Greater Mumbai ]
              through its Commissioner,               ]
              Mahapalika Marg, Mumbai - 400 001.      ]

4.            The Deputy Collector,                      ]
              through the office of 10th Floor New       ]
              Administrative Building                    ]
              Mumbai Suburban District Opp. Chetna       ]
              College Bandra (E) Mumbai - 400 051.       ]         ... Respondents

                                             ...

Mr. D. G. Bagwe i/b. S. R. Page for the Petitioner.
Mr. Hemant Haryan, AGP for the Respondent Nos. 1 and 4.
Ms. Pallavi Thakar for the Respondent Nos. 2 and 3 BMC.




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                          CORAM   :   A. S. OKA &
                                      SMT. VIBHA KANKANWADI, J. J.

DATE ON WHICH THE JUDGMENT IS RESERVED: 01/08/2017
DATE ON WHICH THE JUDGMENT IS PRONOUNCED: 28/08/2017

JUDGMENT (PER: SMT. VIBHA KANKANWADI, J)

1] Heard the learned counsel appearing for the Petitioner, the learned AGP for the 1st and 4th Respondents and the learned counsel appearing for the 2nd and 3rd Respondent. The Petitioner, by invoking the Writ Jurisdiction of this Court under Article 226 of the Constitution of India has prayed for quashing and setting aside a notice dated 24 th May 2013 issued by 2nd Respondent as well as the impugned list dated 12 th September 2013 to the extent of name of the Petitioner at serial No. 48 on page No. 6 of the said list. In the alternative, it has been prayed that the Respondents be directed to provide suitable alternate premises of the same area to the Petitioner.

2] The factual matrix leading to the petition are that the Petitioner is a proprietor of M/s. Naimiya Oil Company situated at C-25, Kismat Nagar, CST Road, Mumbai - 70. He acts as reseller of petroleum products, empty barrels, grease and all kinds of lubricant oil since 1975. He has obtained certificate of registration, authorization, recognition and permit under Section 22A of the Bombay Sales Tax Act, 1959. He is paying Municipal Taxes and Electricity Bills. These documents are sufficient to show that he is occupying the said gala. He has been held to be eligible to occupy the said premises by 3 rd Respondent and accordingly, a list was published. His name has been shown at serial No.

30. A public notice was given by the 3rd Respondent in the said locality stating that the occupants in the said locality should provide evidence to the 2nd Respondent which would show that they are occupants of the

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area since prior to 1st January 2000. It was also stated that the 2 nd Respondent decided to take up the work of widening of the area. Thereafter, it has been notified by the 2 nd Respondent that the Petitioner is ineligible for alternate premises, in lieu of the present premises which will be demolished. A notice was issued to the Petitioner on 24 th May 2013 by the 2nd Respondent pertaining to widening of the area surrounding the Mithi River specifically at Kismat Nagar, Kurla (West). The Petitioner's gala lies in the Mithi River precincts. It was also stated that office of the Deputy Collector, Mulund has issued a notice to the Petitioner. The Deputy Collector had examined the reply submitted by the Petitioner and all relevant documents and had come to the conclusion that the Petitioner was not occupying the gala since prior to 1st January 2000. Therefore, he has been held to be ineligible for the alternate accommodation. It was stated that the present construction of the Petitioner is unauthorized and called upon the Petitioner to demolish it within 48 hours; failing which it would be demolished without prior intimation on 1st June 2013.

3] In order to show that his structure was in existence since prior to 2000, the Petitioner has stated that one Abdul Jabbar Mohammed Issak had filed a suit before the City Civil Court, Mumbai bearing Suit No. 8523 of 1974 for dissolution of partnership. On a Notice of Motion filed by the BMC, an order came to be passed on 31 st August 1977 wherein it was observed that affidavit filed by the BMC stated that survey Nos. 198, 198 (part), 311 and other lands were acquired after following due procedure by the Special Land Acquisition Officer VIII under the Land Acquisition Act. The property was then developed by 4th defendant therein by constructing structures. The 4 th Defendant therein had then entered into partnership with other

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defendants. The notice of Motion came to be resisted on the ground that the tenants of the premises had no idea about the acquisition. There was a list of 345 persons who were the occupants of the land. Award in respect of area admeasuring 38036.6 sq. meters was made. The Receiver was directed to ascertain as to which portion of the land and which structures are covered under the plan prepared by DILR and the Court Receiver was discharged to that extent. Thereafter, Court Receiver filed a report on 20th March 1979 stating that the land was covered under the plan prepared by DILR. The Court Receiver had addressed a letter to Abdul Rehman on 16th February 1989 at the address of the gala which is now in possession of the Petitioner which shows that he was the tenant. It was stated that the said addressee is in arrears of compensation. Tenancy was then terminated which shows that the structure was in existence since prior to 2000. Even a notice addressed to the Petitioner by the Tahsildar Kurla on 21 st January 1992 would disclose the existence of the premises prior to 2000. The Petitioner has given a list of documents and has stated as to how they are relevant to show the existence of the structure prior to 2000. Therefore, the Petitioner contends that he is entitled to get alternate accommodation. By way of amendment, he has challenged the list that has been prepared on 12th September 2013, wherein, he has been showed to be ineligible to the extent of 60%.

4] The learned counsel appearing for the Petitioner while substantiating the contents of the petition submitted that the documents showing the existence of the structure prior to 1 st January 2000, were submitted before the concerned authority and in the list that was prepared earlier the name of the Applicant appeared at serial No. 30. It was stated in the list that area of 30% of the total area of the Petitioner's

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structure is affected. He was held to be eligible for the allotment of alternate premises. However, that has not been given to the Petitioner. The subsequent list has been prepared without giving an opportunity of being heard to the Petitioner.

5] The learned counsel appearing for the 2 nd and 3rd Respondents relied upon an advance possession receipt and also the list which was ultimately finalized in respect of Phase No. 2 of Mithi River. She submitted that in the first phase, 30% area of the premises of the petitioner was affected. Therefore, he was held to be eligible to get alternate premises. However, in the second phase, the rest of the area i.e.; 195/14=2730 sq.meters is affected and therefore, as per Regulation 33 (10) of the Development Control Regulations, he would be entitled to get 225 sq. feet area without payment of any consideration. However, since more area will be getting affected, if the Petitioner is willing to purchase the additional premises at commercial rate, he will be entitled to it. She submitted that in lieu of remaining 70% area of the structure, the petitioner is not entitled to any accommodation. 6] It has been submitted on behalf of the Petitioner relying upon the decision of this Court in Sayyed Ataullah Qadri Vs. Government of Maharashtra in Writ Petition No. 2396 of 2013 dated 15th January 2016 that the Collector has to decide the issue of the eligibility or ineligibility of a person to get alternate accommodation or the compensation by passing a speaking order.

7] The documents which have been produced on record by the Petitioner would show that his premises were in existence since prior to 1st January 2000. After considering the said fact, he was earlier held to be eligible to get alternate premises when the affected part of his structure to the extent of 30% was required for Phase-I of the project.

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The said eligibility of the Applicant was upheld by the Deputy Collector Encroachments on the basis of the show cause notice issued to the Applicant on 2nd January 2006. Opportunity of being heard was given to the Applicant at that time. However, the Respondents have not produced on record any such communication showing that for the second phase of Mithi River project, any opportunity of being heard was given to the Petitioner. In other words, when the Government intended to implement the second phase, an opportunity of being heard ought to have been given to the Petitioner, if more area was to be affected. The second phase final list appears to have been finalized on 18 th March 2008 and at that time, he has been totally held to be ineligible as the area which would be affected in the second phase was more than the said entitlement as per the Section 5.3 Regulation 33 (10) of Development Control Regulations. It is not in dispute that the premises was used by the Petitioner for commercial purpose. Therefore, an opportunity ought to have been given by the Respondents, before taking the said decision of declaring him ineligible. In the said case of Sayyed Ataullah Qadri, this Court has given certain directions to the appropriate authority while dealing with the Government Resolution in respect of encroachments made on the riverbed of Mithi River and for the similarly situated persons. Thus, those directions are equally applicable to the Petitioner's claim. In the light of the same, the eligibility for the compensation and/or rehabilitation should be considered and therefore, we are of the opinion that the matter should be referred to the Collector for determination of the compensation and/or rehabilitation of the Petitioner on account of loss suffered by him. Hence, we pass the following order:-

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                                         ORDER


(a)        The impugned notice dated 24th  May 2013 issued by the 
           2nd  Respondent   and   the   impugned   list   dated   12 th 
           September   2013   to   the   extent   of   the   name   of   the 

Petitioner at serial No. 48 is hereby quashed and set aside;

(b) We direct the Petitioner to appear before the Collector of Mumbai Suburban District, on 1st September 2017 at 11.00 am;

(c) The Petitioner shall produce the relevant documents in relation to his premises which are affected by the project of the Development of the Mithi River before the said authority. It will be open for the Petitioner to make a representation in writing containing all the particulars of his claim along with necessary documents. The Collector of Mumbai Suburban District shall issue a notice to the Authority established for the Mithi River Project, BMC and MMRDA;

(d) After hearing all the concerned parties and after allowing them to produce the documents, the Collector or the officer to whom his powers are delegated shall pass appropriate speaking order in accordance with law;

(e) The Collector shall determine to what extent, the Petitioner's property has been affected and determine the compensation payable to the Petitioner. In the event, the State Government is not in a position to pay the compensation, the Collector shall also determine the

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manner in which the Petitioner can be rehabilitated/ compensated on account of loss suffered by him;

(f) We make it clear that we have not made any adjudication on the rights claimed by the Petitioner in respect of the property subject matter of the petition;

(g) The Collector shall pass the said order within a period of three months from 1st September 2017;

(h) Writ Petition is disposed of on above terms with no orders as to costs.

(SMT. VIBHA KANKANWADI, J)                                          (A. S. OKA, J)