Bombay High Court
Jay Mati And 4 Others vs Municipal Corporation Of Greater ... on 24 July, 2017
Bench: A.S. Oka
IN THE COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 2166 OF 2014
Jay Mati and others ).... Petitioners
v/s.
Municipal Corporation of )
Greater Mumbai and Anr. ).... Respondents
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Mr. Altaf Khan i/b Anjali R. Awasthi for the petitioner.
Ms. Vandana Mahadik for the Respondent Nos. 1 and 2.
CORAM : A. S. OKA &
SMT. VIBHA KANKANWADI, JJ.
DATE ON WHICH THE JUDGMENT IS RESERVED: 04/07/2017.
DATE ON WHICH THE JUDGMENT IS PRONOUNCED: 24/07/2017
JUDGMENT: (PER SMT. VIBHA KANKANWADI, J);
. Heard the learned Counsel appearing for the petitioners
and the learned Counsel for the first and second Respondents. Taken
up for final disposal at admission stage.
2. The Petitioners seek to challenge the notice dated 28-05-
2014 issued by the first Respondent u/s. 349 of Mumbai Municipal
Corporation Act, 1888 (for short 'MMC Act') with direction to
reconstruct the demolished structure as well as decide the eligibility of
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the petitioners for the alternate accommodation.
3. The Petitioners have come with a case that the Petitioner
Nos. 1 and 2 are husband and wife and Petitioner Nos. 3 and 4 are
their children. The Petitioners were residing in hutment at Shivaji
Nagar (Geeta Nagar), Kapaswadi, Versova Link Road, Mumbai since
1994. There are documents show their residence since 1994. The
second respondent had issued notice u/s. 349 of MMC Act on 28 th May
2014 stating that the "the external walls and covering of the roof of the
shed in open space causes nuisance". It is also alleged that
inflammable material has been used for the same. The Petitioners were
called upon to remove the said shed within 7 days. The first petitioner
had given a reply to the said notice on 4 th June 2014. He also informed
that the suit structure is a protected structure and therefore, he is
entitled for alternate permanent accommodation. The said notice
issued by the first respondent is illegal. It has been further contended
that Maharashtra Act No. 9 of 2104 has been amended on 2 nd May
2014, thereby making a provision for extending the protection and
eligibility cut-off date from 1-1-1995 to 1-1-2000. The Respondents
have ignored all these aspects. The Respondents have demolished the
structure high handedly on 5th June 2014. Therefore, the petitioners
have challenged the said act on the part of the respondents and the
impugned notice.
4. The Respondents have filed a reply in the form of affidavit
of one Tarakant Pawar, A. E. (B. & F) K/West Ward. He has stated that
a complaint was received from Geeta Nagar Zopadpatti Rahavashi
Sangh on 27-1-2014 regarding unauthorized construction of hutment
by encroaching upon the land in their society and therefore notice u/s.
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349 of MMC Act was issued. The occupiers had failed to remove the
unauthorized structure and therefore, it was demolished on 5 th June
2014. The said structure was not protected under the notification by
Government and therefore petitioners are not entitled to alternate
accommodation.
5. It has been argued on behalf of the petitioners that the
notice issued by the respondents was illegal as particulars of alleged
inflammable articles and nuisance have not been stated. The work of
demolition carried out by the respondents is therefore, illegal. The
Respondents have not considered the eligibility of the petitioners for
the alternate permanent accommodation in view of the government
notification. On the other hand, the learned Counsel appearing for the
respondents submitted that the documents produced by petitioners are
not sufficient to stated whether they pertain to the address given and
the structure that has been demolished.
6. Perusal of the notice dated 28 th May 2014 will show that
respondents had purported to invoke Section 349 (1) of MMC Act. It
has been stated that "the external walls and covering of the roof of the
shed in open spaces causes nuisance situated at Geeta Nagar, New
Kapaswadi, Juhu Versova Link Road, Andheri (West), Mumbai of
which you are the owner/ occupier have/ has, since the MMC Act,
came into force been constructed of inflammable material." No
description of inflammable material has been given in the notice.
Further the dimensions of the structure have not been given, which
respondents wanted to be removed. The most important point is that
in the said notice it has not been mentioned that the said structure is
unauthorized. Therefore, the reply given on behalf of respondents is
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not in consonance with notice issued by them on 28 th May 2014. It also
not disclosed as to how the said shed is causing nuisance. The notice is
vague and without requisite particulars, hence, illegal. It can not be
allowed to be sustained. However, on the basis of said illegal notice,
the respondents have carried out demolition work. The Petitioner had
given reply to the said notice on 5 th June 2014. In his reply, the
petitioner has conveyed that the said structure is in existence since
1990 and had sought protection in view of the Government
notification. He had also prayed for alternate permanent
accommodation. The Respondents have not considered the said reply
and it appears that without fallowing due process of law, went ahead
with demolition work. Hence, the demolition work also will be have to
be held as illegally carried out.
7 Therefore, the petition deserves to be allowed. We
therefore, proceed to pass following order:
ORDER
1. The notice issued by respondent Corporation bearing No.
KW/BF/DO-III/349/369/JE-15 dated 28th May 2014 is illegal
and set aside.
2. The Respondent Corporation shall reconstruct the demolished
premises as it was existing prior to its demolition on 05-06-2014
within a period of two months from the date of uploading of this
order. In case of the failure on the part of 1 st respondent to
reconstruct the same within the said stipulated period,
petitioners are at liberty to get it reconstructed as aforesaid. We
make it clear that we are not holding that the original structure
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was lawful. Therefore, the reconstruction will be subject to the
right of the Municipal Corporation of demolishing it after
following due process of law.
3. Writ Petition is disposed of on above terms.
(SMT. VIBHA KANKANWADI, J) (A. S. OKA, J)
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