Jaikrishan T. Vathani vs Mun. Corpn. Of Gr. Bom
2017 Latest Caselaw 3586 Bom

 sng                                                   1                        wp-1336.03




               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   ORDINARY ORIGINAL CIVIL JURISDICTION
                      WRIT PETITION NO.1336 OF 2003


 Jaikrishan Thadharam Vatnani.                             ..     Petitioner
         Vs
 The Municipal Corporation of Greater Mumbai
 and Others.                                               ..     Respondents
         -

Shri Shilpan Gaonkar along with Ms. Tejal Pandya i/b M/s.Ashwin Pandya & Associates for the Petitioner.

Ms.Vandana Mahadik for the Respondents.

-

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

                                 DATED    :     23RD JUNE 2017

 ORAL JUDGMENT : ( PER A.S.OKA, J)


 1                 Heard learned counsel appearing for the Petitioner and the 

learned counsel appearing for the Respondents.

2. The Petitioner is a Surveyor to whom a license under

Section 355 of the Mumbai Municipal Corporation Act, 1888 (for short

"the said Act") was granted. The Petitioner was appointed for the

purposes of constructing a building on a plot of land held by one Shri

Suresh N. Goradia and another. The Petitioner applied for grant of

development permission which was granted by the Mumbai Municipal

Corporation. A commencement certificate was issued on 9 th February

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1993. A part occupation certificate upto the 3 rd floor was granted by

the Municipal Corporation on 15th April 2002.

3. A show cause notice dated 13th March 2003 was issued by

the Mumbai Municipal Corporation- first Respondent to the Petitioner.

Certain defaults and breaches were set out by the first Respondent in

the said notice. The Petitioner was called upon to show cause in writing

within a period of 7 days as to why disciplinary action against him

should not be taken. The defaults and breaches set out in the notice

read thus:

"1. though, the developer Shri Suresh Goradia is a Lessee, you have shown to the MCGM as a owner.

2. you have not carried out the work as per approved plans.

3. though, work is carried out beyond approved plan on site, you have not bothered to get the amended plan approved as per the site conditions.

4. you have submitted incorrect plans which do not tally with the work actually carried out on site.

5. you have not disclosed the fact that the Stop Work Notice had been issued in 1996."

4. The Petitioner replied to the show cause notice by his reply

dated 15th March 2003. The first Respondent Corporation responded to

the said reply by addressing a letter dated 17 th April 2003 to the

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Petitioner. By the impugned order/communication dated 30 th April

2003, the licence granted to the Petitioner under Section 355 of the said

Act was suspended for the reasons cited in the aforesaid show cause

notice. However, the period of suspension was not mentioned in the

impugned order. It is this order which is the subject matter of challenge

in this Petition.

5. On 17th June 2003, this Court granted interim relief of stay

to the impugned order while issuing Rule. Learned counsel appearing

for the Petitioner states that in view of the grant of stay, the license

granted to the Petitioner was renewed during the pendency of the

Petition and now it was renewed upto 2021. The said license was

renewed specifically subject to the outcome of the present Petition.

6. The submission of the learned counsel appearing for the

Petitioner is that firstly the impugned order is illegal as the same shows

that the reply filed to the show cause notice by the Petitioner is not at

all taken into consideration. Secondly, the submission is that the order

of suspension cannot be made operative for an indefinitely long time

and the impugned order does not mention the period for which the

license granted to the first Petitioner will remain in suspension. The

learned counsel appearing for the Petitioner, however, pointed out that

the statement made in paragraph 8 of the reply filed by Shri Vijayanand

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Bhavanishankar Mudur, the Assistant Engineer, B.P. (WS) which is dated

11th June 2003. In Paragraph 8, he has stated that the tenure of

suspension was of two years from the date of suspension order.

7. The learned counsel appearing for the Respondents

supported the impugned order. Her submission is that though grounds

may not have been specifically stated in the impugned order of the

Deputy Chief Engineer, Building Proposal (Western Suburbs), the same

have been stated in the show cause notice. She, therefore, submitted

that no interference is called for.

8. We have given careful consideration to the submissions.

We have already quoted the five grounds on the basis of which, a show

cause notice was issued. In the reply to the show cause notice, as

regards the first ground, the Petitioner stated that Shri Suresh Goradia

is a Lessee of the land, but he is the owner of the building. He has

stated that necessary correction has been made in the amended plan

already submitted and a separate clarification has been submitted by

Shri Suresh Goradia. As regards the second ground, the Petitioner

denied that the work is not carried out as per the approved plan. It is

further stated that the commencement certificate and occupation

certificate have been issued by the Mumbai Municipal Corporation after

due verification of the site. As regards the third ground, he has stated

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that for the work which is carried out beyond the approved plan and

the commencement certificate, amended plans were submitted on 9 th

December 2002. The fourth ground in the show cause notice is that the

incorrect plans were submitted by the Petitioner which do not tally with

the work actually carried out on the site. This ground is vague and no

particulars have been set out. It is not stated as to how the plans

submitted by the Petitioner were incorrect. In response to the said

ground, the Petitioner stated that the building is constructed as per the

approved plan and there is no violation of FSI. As regards the fifth

ground regarding the suppression of stop work notice issued in the year

1996, the response of the Petitioner is that he does not remember now

whether any notice was issued in the year 1996. He pointed out that

after the year 1996, further commencement certificate has been issued

and the work was carried out as per the plans which was certified by

the officers of the Municipal Corporation. The Petitioner also relied

upon his letter dated 9th December 2012.

9. The Deputy Chief Engineer of the Municipal Corporation

has responded by his letter dated 17 th April 2003. It is reiterated

therein that the work carried out on the site was deviating from the

approved plans. Though it is stated in the letter that as per the office

record, the notice under Section 354A of the said Act was issued on 1 st

July 1996, it is not stated whether the stop work notice was served to

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the Petitioner or the Petitioner's client or that the Petitioner had

knowledge about the said stop work notice. Further, it is stated that the

owner of the building cannot relieve himself from the responsibility of

carrying out the work.

10. Though a detailed reply was submitted by the Petitioner on

15th March 2003, which was replied by the Municipal Corporation, all

that the impugned order records is that the licence of the Petitioner was

suspended for the reasons cited in the show cause notice dated 13 th

March 2003 and the aforesaid letter dated 17 th April 2003. There is not

even a reference to the reply submitted by the Petitioner though the

letter dated 17th April 2013 refers to the said reply. The impugned

order does not reflect that the contents of the reply were considered by

the Deputy Chief Engineer of the Municipal Corporation. The impugned

order is a drastic order by which the license granted to the Petitioner to

act as a Licensed Surveyor was suspended and that also without

mentioning the outer limit. Even assuming that the period of the order

is of two years from the date of the order, such a drastic order affecting

the rights of the Petitioner could not have been passed without

recording any reasons. Moreover, the impugned order shows a complete

non-consideration of the reply filed by the Petitioner to the show cause

notice. Thus, there is a non-application of mind which vitiates the

impugned order.

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11. Therefore, we have no option but to set aside the impugned

order/notice dated 30th April 2003. Accordingly, we pass the following

order:

ORDER :

(a) The impugned order/notice dated 30th April 2003 is

hereby set aside;

(b) This order will not prevent the Respondent Municipal

Corporation from passing a fresh order on the basis

of the show cause notice dated 13th March 2003.

However, before passing any order on the said show

cause notice, the concerned officer of the Municipal

Corporation shall grant permission to the Petitioner

to file additional documents and shall give an

opportunity of being heard to the Petitioner;

(c) Rule is made partly absolute on the above terms.

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