Bombay High Court
Laxmi Dattatray Dagale vs The Municipal Corporation Of ... on 3 October, 2022
Bench: R.D. Dhanuka, Kamal Khata
Digitally signed by
JAYARAJAN JAYARAJAN
ANJAKULATH ANJAKULATH NAIR
NAIR Date: 2022.10.03
18:06:36 +0530
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 23612 OF 2022
Subhash Dattatray Dagale, ]
residing at Room No.25, ]
Ground Floor, Salpha Devi ]
Pada, Chandu Suvarna Chawl, ]
P.K. Road, Mulund (West), ]
Mumbai - 400 080. ] ... Petitioner
Versus
1. Municipal Corporation for ]
Greater Mumbai, a statutory ]
body constituted under the ]
Municipal Corporation Act, ]
having Head Ofice at ]
Mahapalika Building, ]
Mahapalika Marg, Fort, ]
Mumbai - 400 001. ]
2. The Deputy Municipal ]
Commissioner, Zone 6, ]
Municipal Corporation ]
Ofice, Mulund, Mumbai. ]
3. The Assistant Municipal ]
Commissioner and the ]
Designated Oficer, T-Ward, ]
Mumbai Municipal ]
Corporation, 'T' Ward, 'T' ]
Ward Ofice, Mulund, ]
Mumbai. ] .... Respondents
ALONG WITH
WRIT PETITION (L) NO. 23607 OF 2022
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Laxmi Dattatray Dagale, ]
residing at Ground Floor, ]
Salpha Devi Pada, Chandu ]
Suvarna Chawl, P.K. Road, ]
Mulund (West), Mumbai - 400 ]
080. ] ... Petitioner
Versus
1. Municipal Corporation for ]
Greater Mumbai, a statutory ]
body constituted under the ]
Municipal Corporation Act, ]
having Head Ofice at ]
Mahapalika Building, ]
Mahapalika Marg, Fort, ]
Mumbai - 400 001. ]
2. The Deputy Municipal ]
Commissioner, Zone 6, ]
Municipal Corporation ]
Ofice, Mulund, Mumbai. ]
3. The Assistant Municipal ]
Commissioner and the ]
Designated Oficer, T-Ward, ]
Mumbai Municipal ]
Corporation, 'T' Ward, 'T' ]
Ward Ofice, Mulund, ]
Mumbai. ] .... Respondents
ALONG WITH
WRIT PETITION (L) NO. 23613 OF 2022
Sainath Subhash Dagale, ]
residing at Room No.24, ]
Ground Floor, Salpha Devi ]
Pada, Chandu Suvarna Chawl, ]
P.K. Road, Mulund (West), ]
Mumbai - 400 080. ] ... Petitioner
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Versus
1. Municipal Corporation for ]
Greater Mumbai, a statutory ]
body constituted under the ]
Municipal Corporation Act, ]
having Head Ofice at ]
Mahapalika Building, ]
Mahapalika Marg, Fort, ]
Mumbai - 400 001. ]
2. The Deputy Municipal ]
Commissioner, Zone 6, ]
Municipal Corporation ]
Ofice, Mulund, Mumbai. ]
3. The Assistant Municipal ]
Commissioner and the ]
Designated Oficer, T-Ward, ]
Mumbai Municipal ]
Corporation, 'T' Ward, 'T' ]
Ward Ofice, Mulund, ]
Mumbai. ] .... Respondents
ALONG WITH
WRIT PETITION (L) NO.23620 OF 2022
Suchita Subhash Dagale, ]
residing at Room No.21, ]
Ground Floor, Salpha Devi ]
Pada, Chandu Suvarna Chawl, ]
P.K. Road, Mulund (West), ]
Mumbai - 400 080. ] ... Petitioner
Versus
1. Municipal Corporation for ]
Greater Mumbai, a statutory ]
body constituted under the ]
Municipal Corporation Act, ]
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having Head Ofice at ]
Mahapalika Building, ]
Mahapalika Marg, Fort, ]
Mumbai - 400 001. ]
2. The Deputy Municipal ]
Commissioner, Zone 6, ]
Municipal Corporation ]
Ofice, Mulund, Mumbai. ]
3. The Assistant Municipal ]
Commissioner and the ]
Designated Oficer, T-Ward, ]
Mumbai Municipal ]
Corporation, 'T' Ward, 'T' ]
Ward Ofice, Mulund, ]
Mumbai. ] .... Respondents
ALONG WITH
WRIT PETITION (L) NO. 23623 OF 2022
Shraddha Subhash Dagale, ]
residing at Room No.25, ]
Ground Floor, Salpha Devi ]
Pada, Chandu Suvarna Chawl, ]
P.K. Road, Mulund (West), ]
Mumbai - 400 080. ] ... Petitioner
Versus
1. Municipal Corporation for ]
Greater Mumbai, a statutory ]
body constituted under the ]
Municipal Corporation Act, ]
having Head Ofice at ]
Mahapalika Building, ]
Mahapalika Marg, Fort, ]
Mumbai - 400 001. ]
2. The Deputy Municipal ]
Commissioner, Zone 6, ]
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Municipal Corporation ]
Ofice, Mulund, Mumbai. ]
3. The Assistant Municipal ]
Commissioner and the ]
Designated Oficer, T-Ward, ]
Mumbai Municipal ]
Corporation, 'T' Ward, 'T' ]
Ward Ofice, Mulund, ]
Mumbai. ] .... Respondents
...
Mr. Vivek Salunke along with Mr. Vaibhav Jagdale for
the petitioners in all writ petitions.
Ms. Sheetal Metakari i/b Mr. Sunil Sonawane for the
respondents in all writ petitions - MCGM.
...
CORAM : R.D. DHANUKA &
KAMAL KHATA, JJ.
RESERVED ON : 02ND AUGUST, 2022.
PRONOUNCED ON : 03RD OCTOBER, 2022.
JUDGMENT: - [Per Kamal Khata, J.]
1. These petitions are fled under Article 226 of the
Constitution of India for quashing and setting aside
the impugned order passed by the respondents on 8 th/
9th July 2022 pursuant to the notice dated 14th June
2022 issued under Section 351 of the Mumbai
Municipal Corporation Act (for short, "the MMC
Act") on the ground that the petitioners' structures
are protected under the policy of the State of
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Maharashtra which protects all the slum structures in
existence prior to 1st January 1995.
2. Learned counsel for the parties jointly state that
since the facts and issues raised in all these petitions
are identical, all these petitions can be heard together
and disposed of fnally by this common judgment. For
the sake of convenience, facts pleaded in Writ Petition
(L) No.23612 of 2022 are referred to herein:
3. The petitioner is the owner of Room No.25,
situated on the Ground foor in Chandu Suvarna
Chawl, Salfa Devi Pada, Chandu Suvarna Chawl, P.K.
Road, Mulund - 400 080. According to the petitioners,
the structure, which is made of BM wall and GI sheet
above, is in existence much prior to 1960 and is
censused. He has been paying assessment charges
since 1960 upto 2010 to the Corporation and he also
has electricity bills and water connection to the
structure.
4. The petitioner possesses the proof of his
residence prior to 1995 and his name is included in
the list of Maharashtra State Assembly Mumbai
Suburban Constituency No.52 - Mulund, at Sr. No.882,
which list was published on 1 st January 1995. He also
has, a receipt of Slum Dwellers Identity Card Survey
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2000, done in the year 2000, for issuing photo passes
to the protected slum dwellers in Mumbai and
Mumbai Suburban area.
5. According to the petitioner, the entire area has
been declared as a slum area by the Maharashtra
Government. According to him, the adjoining hutment
dwellers have executed an agreement with a
developer for the purpose of SRA Scheme. His
structure is afected under the road widening scheme,
proposed for 18.30 meter road to be constructed from
Raja Industrial Estate to Lal Bahadur Shashtri Marg
under the Development Plan of the year 2034.
6. On 22nd July 2013, the respondents issued a
notice dated 14th June 2022 under Section 351 of the
MMC Act, to which the petitioner replied by his letter
dated 21st June 2022 and thereby contended that the
same was bad in law, illegal and not binding whilst
relying upon the documents that were eventually
submitted to the Corporation. After considering the
reply of the petitioner, the respondents passed the
order dated 8th/9th July 2022 (hereinafter referred to as
"impugned order"). Aggrieved by the said impugned
order, the petitioner fled this petition on 22nd July
2022.
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7. The learned counsel for the petitioners submits
that the Government of Maharashtra as well as the
respondents have decided not to demolish the
structures constructed and came to be in existence
prior to 1995 as a policy decision and accordingly, the
petitioners are entitled to a permanent injunction. The
learned counsel submits that the impugned order is
contrary to the Slum Act, 1971 by which protection is
granted to the structures in existence prior to 1 st
January 1995.
8. The learned counsel submitted that the
petitioners' structures are within the protected slum
area, for which a G.R. is issued by the State of
Maharashtra and an SRA scheme is being
implemented for the said area.
9. The learned counsel submitted that by issuance
of notice under Section 351 of the MMC Act, the
respondent showed high handedness by taking action
contrary to the policy of the State of Maharashtra and
G.R.s issued from time to time thereunder.
10. The learned counsel submitted that the
respondents ought to have granted personal hearing
to the petitioners before passing impugned order. He
submitted that the respondents have apparently failed
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to consider the documents submitted by the
petitioners in support of their claim.
11. The learned counsel submitted that the
respondents failed to consider the receipt issued to
the petitioners during the slum census conducted
during the year 2000 which clearly evinced that the
writ structure was in existence at least prior to the
year 2000 and hence could not be termed as an illegal
structure.
12. It is submitted that the petitioners have fled a
representation before the Deputy Municipal
Commissioner on 20th July 2022 for reconsideration of
the impugned order.
13. The learned counsel relies on the judgments of
this Court in the case of G.J. Kanga, Adm. Of
MunicipalCorporation, Greater Bombay & Anr. v.
S.S. Basha1, and in the case of Narayan Megha
Gohil v. Municipal Corporation of Greater
Bombay2 in support of his submissions that the
petitioners deserve a personal hearing from the
respondents for adhering to the principles of natural
justice.
1 1992 Mh.L.J. 1573
2 1994 Mh.L.J. 587
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14. The learned counsel for the respondent drew our
attention to the notice dated 10 th December 2018
under Section 485, whereby the petitioners were
called upon to produce documentary evidence in
respect of the writ structures within seven days, which
the petitioners failed to submit.
15. Subsequently, the respondents issued a notice
dated 17th June 2022 under Section 351, whereby the
petitioners were called upon to produce documentary
evidence in respect of the writ structures within 7
days. The petitioners' documents alongwith letter
dated 21st June 2022 were scrutinized before arriving
to the conclusion that the documents did not prove the
authenticity of the structures. A speaking order was
consequently passed on 8th July 2022. The learned
counsel submitted that the structures do not form a
part of the slum as contended by the petitioners.
REASONS & CONCLUSION:
16. We have heard both the parties and have perused
the documents referred to by them.
17. In our view, the judgment in G.J. Kanga (supra),
where this Court held that a decision under Section
351 of the MMC Act leads to civil consequences and
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since there is a large area of discretion in the matter
of passing orders under Section 351, it is on this
ground that the concerned Municipal Authorities are
required to follow the principles of natural justice in
cases of Section 351 of the MMC Act.
18. We also confrm the view taken in the case of
Naryan Megha Gohil (supra), where this court has
held that no decision should be taken in a Section 351
proceeding without frst giving the person adversely
afected, an opportunity of putting forward his case
referring to the following observations of Lord
Diplock in O'Reilly v Mackman3:
"the right of a man to be given a fair
opportunity of hearing what is alleged
against him and of presenting his own case
is so fundamental to any civilised legal
system that it is to be presumed that the
Parliament intended that a failure to
observe it shall render null and void any
decision reached in breach of this
requirement".
19. The judgment also held that the right of hearing
is a valuable right. It is not an empty formality whilst
referring to the following observation by Lord Denning
in the case of Konda vs. Govt. of Malaya4.
3 (1983) 2 AC 237 at 276
4 1962 AC 322
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"If the right to be heard is to be a real
right which is worth anything, it must
carry with it a right in the accused man to
know the case which is made against him.
He must know what evidence has been
given and what statements have been
made afecting him and then he must be
given a fair opportunity to correct or
contradict them."
20. This court in the case of Sopan Maruti Thopte
and Anr. Vs Pune Municipal Corporation 5 has laid
down the procedure for the Municipal Corporation
before taking action under Section 351 of the MMC
Act or under Section 260 of the Bombay Provisional
Municipal Corporation Act. We are in agreement with
the said procedure laid down and as such are bound
by the said judgment.
21. In the present case, the respondents have failed
to adhere to the procedure laid down in the said
judgment and no opportunity of hearing was given to
the petitioners. Hence, we pass the following order:
: ORDER :
(a) The impugned order dated 8th/9th July
2022, as the case may be, passed under
the M.M.C. Act 1888 and impugned
notice dated 14th June 2022 issued
5 1996 (1) Mh. L.J. 963
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under 351 of the M.M.C Act are
quashed and set aside.
(b) Respondent No. 3 shall hear the
petitioners and scrutinize the
documents of the petitioners and then
pass appropriate orders after giving a
fresh notice within a period of 4 weeks
from today.
(c) The petitioners are directed to remain
present before the Authority on
10/10/2022 at 11.00 a.m. for hearing.
22. The petitions are disposed of in the aforesaid
terms. No order as to costs.
23. Learned counsel for the Municipal Corporation
shall communicate this order to the Authority for
information and compliance.
24. The parties to act on the authenticated copy of
this order.
[KAMAL KHATA, J.] [R.D. DHANUKA, J.]
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