Bombay High Court
Arjundas Sumomal Dhanwani And ... vs State Of Maharashtra, Thr. Its ... on 30 November, 2022
Bench: A.S. Chandurkar, Anil Laxman Pansare
WP.7376.22
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
WRIT PETITION NO.7376/2022
1) Arjundas Sumomal Dhawanni and others .. Petitioners
versus
1) State of Maharashtra and others ..Respondents
............................................................................................................
Mr.J.B.Gandhi, Advocate for the Petitioners
Mr. A.A.Madiwale, AGP for Respondents 1 and 2
Mr. S.S.Sohoni, Advocate for Respondent no.3
.............................................................................................................
CORAM: A.S.CHANDURKAR & ANIL L.PANSARE,JJ.
DATED : 30th November, 2022.
P.C. :
The Petitioners seek a direction to be issued against the
Municipal Corporation, Akola to grant lease in their favour in the light of
the directions issued by the State Government on 26.08.2014. The
Petitioners submit that they are in occupation of shop premises and have
been paying occupation charges to the Municipal Corporation. However,
treating them as encroachers they are sought to be displaced without
issuing any notice. By the communication dated 24.11.2022, the
Collector has directed the Commissioner, Municipal Corporation Akola
to take necessary steps with regard to such encroachment. Pursuant
thereto, the Petitioners are being displaced.
2. Notice was issued on 29.11.2022 and the matter was kept
today since the demolition activities were underway. Since it was the
grievance of the Petitioners that they were not noticed before
undertaking such demolition, the learned counsel appearing for the
Municipal Corporation sought instructions from the Municipal
WP.7376.22
Commissioner as regards the provisions invoked for undertaking the
removal of encroachment. On instructions, it is submitted that recourse
to provisions of Section 230 and 231 of the Maharashtra Municipal
Corporations Act, 1949 ('Act of 1949' in short) had been taken. It is
further submitted that Section 231 of the Act of 1949 does not
contemplate issuance of any prior notice to be issued to the concerned
parties.
3. The learned counsel for the Petitioners has invited our
attention to the judgment of the Division Bench in the case of Mohd.
Sayed Mohd.Salim vs. Municipal Corporation , reported in 2018 SCC
Online 2695 wherein it has been held that without following the
principles of natural justice, such encroachment cannot be removed.
4. Prima facie, it is seen that present encroachment is not
preceded by any notice to the Petitioners. The contention, as raised on
behalf of the Municipal Corporation, that it was not necessary to issue
any prior notice has been considered in the aforesaid decision. In
Paragraph 13 it has been observed as under :
"13. The decision of this Court in Javid Khalid ( supra)
has gone on to hold that for the demolition of illegal
structures, the law laid down by the Division Bench of this
Court in the case of Sopan Maruti Thopte vs. Pune Municipal
Corporation has to be followed. This Court negated the
submission of the Corporation that in lieu of Section 231 of
the Act of 1949, it was not necessary to serve a notice to the
Petitioners. The Division Bench of this Court held that the
WP.7376.22
principles of natural justice are required to be followed and
has relied upon its earlier decision dated 31st July 2015, where
the rule of audi alteram partem has to be complied with
before removal of encroachments on streets or footpaths
following the judgment of the Supreme Court in Olda Tellis
(supra)."
5. In that view of the matter, while granting time to the
Respondents to file their reply, it is directed that unless the notice as
contemplated by the aforesaid decision is given for invoking power u/s
231 of the Act of 1949, the Respondents shall not undertake the
demolition in question. It would be open for the Respondents to give
notice as contemplated and take further action in accordance with law.
Stand over in three weeks.
[ANIL L. PANSARE, J.] [A.S.CHANDURKAR, J.]
sahare
Digitally Signed ByNARENDRA
BHAGWANTRAO SAHARE
Location:
Signing Date:30.11.2022 18:35
