Fehmida Abubakar Varakaya Vs State of Maharashtra and 2 Ors.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

¶3

WRIT PETITION NO.51 OF 2008

¶4

Fehmida Abubakar Varakaya

¶5

..Petitioner

¶6

V/s.

¶7

The State of Maharashtra & Ors.

¶8

..Respondents

¶9

Mr. K.D. Jha for the Petitioner
Mr. R.M. Kadam, AG with Ms. S.M. Dandekar, AGP for
Respondent-State
Ms. P.A. Purandare for Respondent-BMC

¶10

CORAM : SHRI J.N.PATEL &
SHRI K.K.TATED, JJ.

¶11

DATE : 4TH SEPTEMBER, 2008

¶12

P.C.:

¶13

.Heard.

¶14

2.The Petitioner has challenged the validity of
the Section 55 of the MRTP Act and seeks a Writ of this
Court to quash and strike down Section 55 of the MRTP
Act, as ultra vires of fundamental rights guaranteed
under the Constitution of India.

¶15

3.It is the case of the Petitioner that she is
having a temporary structure adjacent to Room No.404,

¶16

: 2 :

¶17

Building No.17, Tata Colony, Bandra Kurla Complex,
Bandra(E), Mumbai-51 which is made of B.M. wall having
corroborated asbestos sheet admeasuring 16x10 i.e. 160
Sq.Ft. Inspite of the said temporary structure being
regularized by MHADA i.e. Respondent No.2, the
Respondent No.3 has issued Notice under Section 55 of
the MRTP Act. The Petitioner specifically relied on a
document which is annexed to the Petition as Exhibit-E
to show that Respondent No.2 has regularized the
structure by imposing penalty of Rs.2,700/-, to the
Petition.

¶18

4.It is not in dispute that the temporary
structure has been erected without seeking any

¶19

permission from local planning authority and, therefore,
proceedings were initiated against the Petitioner. On
the receipt of the Notice under Section 55 of the MRTP
Act, the Chairman / Secretary of the Tata Colony
Co-operative Society Ltd. has approached the City Civil
Court by filing Civil Suit bearing Suit No.2423 of 2007
and took out Notice of Motion No.2607 of 2007 seeking
parties to maintain status quo in respect of the subject
matter governed under Section 55 of the MRTP Act. The
City Civil Court did not grant any interim relief.
Aggrieved by the same, the Society preferred the Appeal

¶20

: 3 :

¶21

from Order No.637 of 2007 in this Court, which also came
be to dismissed. The Petitioner’s tenement is one of
such tenements out of which Tata Colony which is
consisting of 7 Housing Societies having 21 buildings
comprising of tenements allotted by MHADA under LIG /
NPS scheme. The learned counsel for the Petitioner has
read out various provisions of the MRTP Act, 1966 and
the procedure which is required to be followed by the
Statutory bodies in respect of the removal or
continuance of unauthorized temporary structure. It is
submitted that Section 55 does not provide for any
notice to the parties before initiating action for
removal or discontinuance of unauthorized temporary
structure i.e. contrary to fundamental right of a
citizen. As such, an action which does not contemplate
a notice to be given is inconsistant with the settled
law that the authorities cannot remove the unauthorized
construction without following due process of law.

¶22

5.The learned Advocate General pointed out to this
Court a decision of the Supreme Court rendered in the
case of Ahmedabad Municipal Corporation V/s. Nawab Khan
Gulab Khan & Ors. reported in SCC-121 (1997) 11, and
particularly in para 10 of the reported judgment that
the Supreme Court has laid down the procedure to be

¶23

: 4 :

¶24

adopted for removing encroachment and held in the said
case that the action taken by the appellant-Corporation
was not violative of the principle of natural justice.

¶25

6.On bare reading of Section 55, it is quite clear
that the party is given 15 days notice to meet the case
of the local planning authority on being served with the
Notice under Section 55 as it specifically provided that
if such a notice is served, the party should remove his
unauthorized construction within 15 days of the receipt
of notice and if thereafter the parties does not comply
with the notice within the said period, the planning
authority may request the District Magistrate or the
Commissioner of Police, as the case may be, to summarily
remove or discontinue, as the case may be, without any
notice as directed in the notice. Therefore, we do not
find that Section 55 of the MRTP Act when read in
isolation or in conjuction with other provisions can be
held to be ultravirus as within 15 days period the
person who is served with such notice can always
approach the competent authority (planning authority)
and establish that the said construction is authorised.

¶26

7.In the present case, the Petitioner, except for
placing reliance on document annexed at Exhibit-E, has

¶27

: 5 :

¶28

not placed anything on record to show that the said
construction is sanctioned by the planning authority.
Therefore, in our view challenge to Section 55 of the
MRTP act is without any foundation.

¶29

8.The learned counsel for the Petitioner submitted
that this Court may stay the effect and operation of the
order or grant some type of protection. We fail to
understand when the challenge to Section 55, which has
been turned down by this Court, what type of stay can be
given or protection can be extended to the Petitioner.

¶30

Therefore, prayer is rejected.

¶31

9.The Petition is dismissed accordingly.

Fehmida Abubakar Varakaya v. State of Maharashtra and 2 Ors.

Case brief

What is this about?

What did the court decide?

Fehmida Abubakar Varakaya v. State of Maharashtra and 2 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Dr. Shahnawaz Ahmed Siddiqui Vs State of Maharashtra through Its Dept. of Medical Education and 3 Ors.

Ashish Vishwanath Kanikbhat Vs Bank of India Thru Its Zonal Manager and 3 Ors.

4ANAVATI Speciality Chemicals Pvt.Ltd.and Anr. Vs Union of India and Ors.

Ratnabai Hari Kamble and Ors. Vs M/S. Tata Mills and 2 Ors.

Bombay Environmental Action Group and Anr. Vs State of Mah. and Ors. and Charkop Shri Shivsamarth Chsl.

Bombay Environmental Action Group and Anr. Vs State of Maharashtra and Ors. and Charkop Jeevan Chsl.