Dismissed

Dr. Razia Bano v. Brihanmumbai Mahnagar Palika and Anr.

Bombay HC4 Aug 2008WP/1421/2008

Case brief

AI extract

What is this about?

The Bombay High Court dismissed four writ petitions challenging notices issued under Section 55 of the Maharashtra Regional and Town Planning Act, 1966, for removal of unauthorized structures. The Court held that no personal hearing was legally required under Section 55 for temporary unauthorized development.

What did the court decide?

Status quo granted for two weeks from the date of the order.

Dr. Razia Bano Vs Brihanmumbai Mahnagar Palika and Anr. — Property and Title | Bombay HC (2008)

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 -: 1 :-

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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 ORDINARY ORIGINAL CIVIL JURISDICTION

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 WRIT PETITION NO.1421 OF 2008

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 Dr.Razia Bano : Petitioner

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 V/s.

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 Brihanmumbai Mahanagar Palika & Ors. : Respondents

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 WITH

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 WRIT PETITION NO.1422 OF 2008

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 Abdul Rashid Khan : Petitioner
 V/s.

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 Brihanmumbai Mahanagar Palika & Ors. : Respondents

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 WRIT PETITION NO.1423 OF 2008

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 Shameem Shah : Petitioner

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 V/s.

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 Brihanmumbai Mahanagar Palika & Ors. : Respondents

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AND

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 WRIT PETITION NO.1424 OF 2008

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 Abdul Rehman Khan : Petitioner

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 V/s.

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 Brihanmumbai Mahanagar Palika & Ors. : Respondents

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 Mr.Aditya Chitale for the petitioners.

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 Mr.N.V.Walawalkar with Mrs.A.R.Joshi for respondent nos.1

¶23

 -: 2 :-

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 & 2.

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 Mr.Ravi Kadam, Advocate General, with Mr.G.W.Mattos for
 respondent no.3.

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CORAM : S.A.BOBDE, J.

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 DATE : AUGUST 04, 2008.

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P.C.

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 1. By these four petitions, the petitioners have
 challenged the notices issued to them under section 55 of
 the Maharashtra Regional and Town Planning Act, 1966,
 hereinafter referred to as "the Act", for removal of
 unauthorised structures. The structures in question are
 four shops allegedly owned by the four petitioners around
 building no.1 which is apparent from the location sketch
 map annexed to the notices.

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 2. Mr.Chitale, the learned counsel for the petitioners,
 submitted that the structures cannot be treated as
 temporary or unauthorised since the respondent-Mumbai
 Municipal Corporation had issued permission for repair of
 the structures as far back as 1991 and has also directed
 removal of unauthorised area of the structures. According
 to the learned counsel, this implies that a portion of the
 structures was authorised and that the structures are not
 temporary. According to the petitioners, the structures
 were originally owned by Bajirao Shripad Thorat who then

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 -: 3 :-

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 sold to another person from whom the petitioners had

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 purchased. The petitioners have relied on certain
 documents purporting to transfer the shops in their
 possession initially by Bajirao Thorat to an intermediary
 and, thereafter, to the petitioners. However, it is clear
 from the impugned notices that the respondents have not
 issued those notices in respect of shop no.1 which was
 owned by Bajirao Thorat. The notices are in respect of
 the structures surrounding shop no.1 which appears to have
 been transferred by Bajirao Thorat through some
 intermediary to the petitioners. In any case, no
 authorisation has been shown in respect of the structures
 in question. Moreover, the question whether such
 structures can be said to be temporary has already been
 gone into by this Court, per Sathe, J., by judgement and
 order of this Court dated 22.8.2007 in Appeal from Order
 no.630 of 2007 (Babar Sher Khan & Ors. v. The Municipal
 Corporation of Brihanmumbai & Anr.). By that judgement,
 the contention that similar structures cannot be said to
 be temporary was rejected.

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 3. It was next contended by the learned counsel for the
 petitioners that the notices under section 55 are illegal
 since no opportunity to show cause and hearing was
 afforded to the petitioners. Section 55 of the Act reads
 as under:-

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 -: 4 :-

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 "55. Removal or discontinuance of
unauthorised temporary development

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summarily.--(1) Notwithstanding anything
 hereinbefore contained in this Chapter,
 where any person has carried out any
 development of a temporary nature
 unauthorised as indicated in sub-section
 (1) of section 52, the Planning Authority
 may by an order in writing direct that
 person to remove any structure or work
 erected, or discontinue the use of land
 made unauthorisedly as aforesaid, within
 fifteen days of the receipt of the order;
 and if thereafter, the person does not
 comply with the order within the said
 period, the Planning Authority may request
 the District Magistrate or the Commissioner
 of Police, as the case may be, or authorise
 any of its officers or servants, to have
 such work summarily removed or such use
 summarily discontinued without any notice
 as directed in the order; and any
 development unauthorisedly made again,
 shall be similarly removed or discontinued
 summarily without making any order as

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 -: 5 :-

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 aforesaid.

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 (2) The decision of the Planning Authority

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 on the question of what is development of a
 temporary nature shall be final."

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 The section in terms does not contemplate any opportunity
 of showing cause and hearing. The Supreme Court has
 observed in Ahmedabad Municipal Corporation v. Nawab
 Khan Gulab Khan & Ors., reported in (1997 (11) SCC 121)
 that if the encroachment is of recent origin, the need to
 follow the procedure of principle of natural justice
 could be obviated. On the other hand, if the Corporation
 allows settlement of encroaches for a long time, then
 necessarily a modicum of reasonable notice for removal,
 say two weeks or ten days, and personal service on the
 encroachers or substituted service by fixing notice on
 the property is necessary. In the present case, the
 notices prescribe a period of 15 days.

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 4. It must be noted that all the present petitioners
 were parties to an appeal which was decided by this Court
 arising out of a suit filed by them in respect of the
 same premises. It appears from the judgement dated
 18.2.2008, Per Bhatia,J., in Appeal from Order No.147 of
 2008 (Mrs.Shameem Shah v. Brihanmumbai Mahanagarpalika)

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 -: 6 :-

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 and other companion appeals, that the petitioners did not
 claim any right of being heard, but had simply contended
 that they were entitled to a notice under section 55.
 This Court had, therefore, directed the respondents to

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 issue such notice before taking any such action.

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 5. In this view of the matter, there is no merit in the
 petitions which are hereby dismissed.

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 6. At the request of the learned counsel for the
 petitioners, status quo granted by this Court shall
 continue to operate for a period of two weeks from today.

¶49

 S.A. BOBDE, J.

Dr. Razia Bano v. Brihanmumbai Mahnagar Palika and Anr.

Case brief

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What did the court decide?

Dr. Razia Bano v. Brihanmumbai Mahnagar Palika and Anr.

Case brief

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What the court decided

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