Bombay High Court
Zubeda Akhtar Shaikh vs The Assistant ... on 15 June, 2017
Bench: A.S. Oka
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.2246 OF 2014
Zubeda Akhta Shaikh. .. Petitioner
Vs
The Assistant Commissioner-G/North,
Municipal Corporation for Greater Mumbai
and Others. .. Respondents
-
Shri Altaf Khan i/b Ms. Anjali Awasthi for the Petitioner.
Ms. Vandana Mahadik for the Respondent Nos.1 and 2.
Shri Amit Shastri, AGP for the Respondent No.3.
-
CORAM : A.S. OKA &
SMT. VIBHA KANKANWADI, JJ
DATED : 15TH JUNE 2017
ORAL JUDGMENT ( PER A.S. OKA, J)
1. Heard learned counsel appearing for the Petitioner, the
learned counsel appearing for the first and second Respondents and the
learned AGP for the third Respondent.
2. Rule. The Advocate for the first and second Respondents
waives service. The learned AGP waives service for the third
Respondent. Taken up forthwith for final disposal.
3. In terms of the earlier order, an additional affidavit has
been tendered on 13th June 2017 by the Petitioner annexing thereto
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copies of certain documents. The learned counsel appearing for the
Petitioner states that some of the documents annexed thereto were
produced by the Petitioner pursuant to the Show Cause Notice dated
18th October 2013 which was served to the Petitioner along with the
impugned order dated 14th October 2013. Therefore, obviously, some
of the documents annexed to the affidavit have not been considered by
the Assistant Commissioner, G/North Ward, while passing the
impugned order dated 14th October 2013. Learned counsel appearing
for the first and second Respondents does not dispute that the copies of
the documents annexed to the additional affidavit tendered on 13th
June 2013 were produced by the Petitioner.
4. There are two questions which arise for consideration.
Firstly, whether all the documents tendered by the Petitioner along with
the said additional affidavit have been considered by the Municipal
Corporation for deciding the issue whether the Petitioner is entitled to
rehabilitation. The second question is which is the policy or Rule which
will govern the eligibility criteria for rehabilitation. Perusal of the
impugned order dated 14th October 2013 shows that it proceeds on the
footing that a person who is in possession from the year 1976 is entitled
to rehabilitation. Today, an oral submission is made by the learned
counsel appearing for the first and second Respondents that the Sub-
clause (15) of Regulation 33 of the Development Control Regulations
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for Greater Mumbai, 1991 will determine the issue of eligibility. We are
not entering into the question whether Clause (15) of Regulation 33
will apply. However, Sub-clause (c) of Clause 15 of Regulation 33 refers
to a cut off date of 1st January 1995. The impugned order proceeds on
the footing that the cut off date is of the year 1976. Therefore, it
appears to us that while passing the impugned order, one eligibility
criteria has been applied but in this Petition, it is contended that the
eligibility criteria under Sub-clause (c) of Clause 15 of Regulation 33 of
the Development Control Regulations, 1991 will be applicable.
5. Considering both the aforesaid questions, we have no
option but to send the matter back for reconsideration of the Assistant
Commissioner. We may note here that in the operative part of the
impugned order, the Assistant Commissioner has stated that the
Petitioner was not residing on the plot in question from the year 1976.
Thus, there is absolutely no clarity as regards the eligibility criteria to be
applied in the case.
6. The learned counsel appearing for the first and second
Respondents on instructions accepts that the structure subject matter of
this Petition is still in existence.
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7. Therefore, we dispose of the Petition by passing the
following order:
ORDER :
(a) The impugned order dated 14th October 2013 is
hereby set aside;
(b) We direct the Petitioner or her authorized
representative and/or her Advocate to remain
present before the Assistant Commissioner, G/North
Ward, on 30th June 2017 at 11.00 a.m.;
(c) The Assistant Commissioner, G/North Ward, shall
give an opportunity of being heard to the Petitioner
and/or her representative and/or her Advocate. We
make it clear that the Petitioner will be entitled to
rely upon only those documents which are already
produced on record of the Municipal Corporation
and which are annexed to the additional affidavit
and which are part of this Petition. The Petitioner
will be disentitled to produce any other documents;
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(d) The Assistant Commissioner, G/North Ward, shall
pass a speaking order. Firstly, he will decide as to
which policy/rule/regulation governs the issue of
eligibility for rehabilitation. Secondly, he will decide
whether the Petitioner satisfies the eligibility criteria;
(e) Appropriate order shall be passed by the Assistant
Commissioner, G/North Ward, as expeditiously as
possible and in any event on or before the 11th
August 2017;
(f) A copy of the order shall be served to the Petitioner
and/or her representative and/or her Advocate;
(g) Till the date of communication of the order to the
Petitioner or her representative or her Advocate,
whichever is earlier, the structure subject matter of
this Petition shall not be demolished;
(h) If the order be adverse to the Petitioner, the
protection granted under this order will continue to
apply for a period of one month from the date on
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which a copy of the order is served to the Petitioner
or her representative or her Advocate, whichever is
earlier;
(i) We make it clear that we have not made any
adjudication on merits of the aforesaid questions and
the same are left to be decided by the learned
Assistant Commissioner, G/North Ward;
(j) Rule is partly made absolute on above terms;
(k) All concerned to act upon an authenticated copy of
this order.
(SMT.VIBHA KANKANWADI, J) ( A.S. OKA, J )
