Allowed

Lahu Ramchandra Pilena v. Assistant Commissioner Municipal Corporation of Gr. Mumbai and Anr.

Bombay HC20 Sept 2013WP/30/2013

Case brief

AI extract

What is this about?

In this writ petition, the petitioner challenged a demolition notice and subsequent order issued by the Municipal Corporation. The Court held that while the notice was styled under Section 55 (temporary structures), the authority scrutinized the existence of the entire structure against the 1964 cut-off date. Since Section 55 did not cover this exercise, the order was overstretched and quashed.

What did the court decide?

The impugned order dated 23rd February 2013 and the notice on which it was based were quashed and set aside.

Lahu Ramchandra Pilena Vs Assistant Commissioner… — Writ and Judicial Review | Bombay HC (2013)

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906.wp.30.13.doc

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Shephali

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

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WRIT PETITION NO. 30 OF 2013

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Lahu Ramchandra Pilena. ....Petitioner Versus Assistant Commissioner, Mumbai Municipal Corporation of Greater Mumbai and another. ....Respondents

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Mr. Sanjiv A. Sawant a/w Mr. J. S. Chandnani for the Petitioner. Mr. A. Y. Sakhare, Senior counsel a/w Smt. K. R. Punjabi for the Respondents.

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CORAM: S. C. DHARMADHIKARI & G. S. PATEL, J.J.

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DATED : SEPTEMBER 20, 2013.

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P.C.:

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Rule. Rule is made returnable forthwith. Respondents waive

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service. By consent, taken up for final hearing.

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By this Writ Petition, the Petitioner has prayed for two

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reliefs vide prayer clauses (a) and (a-1), which read thus:

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“(a) That this Honourable Court be pleased to issue appropriate writ calling for the records and proceedings of the present case and after examining the legality, validity and propriety of the impugned notice bearing No. No.ACPN/BF/34/55MRTP/503 of 12-13 dt.9/6/2012 being Ex.E hereto and the impugned threats to demolish the structure of the petitioner, be pleased to hold the same to be illegal, bad in law and unconstitutional;

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(a-1) That this Hon'ble Corut be pleased to issue an

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appropriate Writ calling for records and proceedings of the impugned order bearing number ACPN/69058/A&B dated 23/2/2013 being EXHITIB P hereto and after examining the legality, validity and propriety of the impugned order, be pleased to quash and set aside.”

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The Petitioner states that he is an Adivasi. He relies upon a certificate issued by the Scheduled Tribes/Caste Scrutiny Committee, a copy of which is at Annexure-A to this Writ Petition. He claims that he along with his wife and son are in possession of the land bearing City Survey No. 219 (part) ad-measuring 2 Acres, 20 Ares corresponding to CTS No. 97, 97/1 to 5 situate at Ramchandra Devu Pilena Chawl, Tanaji Nagar, Dhobighat, Kurar Gaon, Malad East, Mumbai 400 097.

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It is stated that the name of the father of the Petitioner has been recorded as the owner of the structure / Imla Malik. The structure was constructed and the Petitioner and their predecessors are in possession thereof since 1959 or even prior thereto. The Petitioner relies upon certain receipts of payment of revenue / non-agricultural assessment tax. The argument is that the Petitioner's father expired on 23rd January, 2001 and the mother of the Petitioner expired on 12th August 2010.

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The Petitioner relies upon certain documents and claims

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that in such circumstances there could not have been any notice issued much less of the nature alleging unauthorised construction of M. S. Patra wall and A. C. roof at the Chawls' east side. The notice, copy of which is at Anenxure-E of the Writ Petition refers to such construction and the Petition proceeds to allege that the reply in detail with documents referred was given. The Petitioner went to the office of the Respondent No. 1 and enquired as to whether a personal hearing would be given and on what date.

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Initially, it appears that as notice under Section 351 of the Mumbai Municipal Corporation Act, 1888 was issued but, which provision was, prima facie , not found to be the relevant provision and which could have been invoked in the given facts and circumstances. Therefore, that notice and proceedings in furtherance thereof were not pursued.

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Now, the Petitioner claims that a notice has been issued and under Section 55 of the Maharashtra Regional and Town Planning Act, 1966. The Petitioner points out that an order has been made during the pendency of this Writ Petition and, copy of which is at page 68-10.

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The order recites that xerox copies of various municipal assessment bills, the xerox copy of Caste Certificate and Caste Validity

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Certificate issued by the Government, Ration Card, Electric Bill, Voter Identity Card does not prove the existence of notice structure prior to 17th April, 1964.

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Therefore, the notice was maintained and it was decided to enforce it in accordance with law.

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What we find after hearing both counsel and, at great length, is that the notice is issued under Section 55 of the Maharashtra Regional and Town Planning Act, 1966. That enables the corporation as a planning authority to deal with any unauthorised development of temporary nature. The temporary structure is the one which could be dealt with and proceeded against. However, what one finds is that though the notice is styled as one under Section 55 of the Maharashtra Regional and Town Planning Act, 1966, what the authority essentially scrutinised and verified in this case is the existence of the entire structure and prior to the datum line, namely, 17th April, 1964. In the given facts and circumstances, this exercise was impermissible. If the authority itself was unsure as to whether the development and construction at site is of temporary nature or not, then, the notice could not have been issued to ascertain that fact. The notice may have been issued under Section 55 but, the order proceeds on the footing

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that the construction as a whole itself is unauthorised and illegal and it does not satisfy the requirement in terms of the policy of the Municipal Corporation. The Corporation according to it tolerates structures which are in existence prior to a cut-off date, namely, 17th April, 1964. If that was the exercise desired to be undertaken, then, the notice issued for that purpose ought to have been specific and traceable to some different provision other than Section 55 of the Maharashtra Regional and Town Planning Act, 1966.

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On this ground alone, we are of the opinion that the Petition deserves to succeed. The impugned order dated 23rd February, 2013 and the notice on which it is based are both quashed and set aside leaving other options open to the Corporation to deal with the construction and work at site. The Corporation needless to state will follow due process of law in dealing with the work and construction at site and stated to be carried out by the Petitioner. All contentions in that behalf are kept open. Writ Petition is allowed in the above terms.

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Lahu Ramchandra Pilena v. Assistant Commissioner Municipal Corporation of Gr. Mumbai and Anr.

Case brief

What is this about?

What did the court decide?

Lahu Ramchandra Pilena v. Assistant Commissioner Municipal Corporation of Gr. Mumbai and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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Statutes considered

Parties & counsel

Coram

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