Partly allowed

Mohd Jakir Mohd Umar and 14 Ors. v. Assistant Commissioner and 3 Ors.

Bombay HC7 Feb 2018WP/743/2018

Case brief

AI extract

What is this about?

The High Court held that publishing a public notice does not constitute due process of law for demolishing structures. The petition was dismissed in part, restraining respondents from demolition based solely on the notice, while allowing them to pursue eviction via the Slum Act.

What did the court decide?

Petitioners restrained from demolishing structures on the basis of the public notice dated 28th November 2017; respondents allowed to follow due process of law for eviction or demolition.

Mohd Jakir Mohd Umar and 14 Ors. Vs Assistant… — Writ and Judicial Review | Bombay HC (2018)

oswpl3501

ssp

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
 WRIT PETITION (L)NO.3501 OF 2017

¶5

Mohd.Jakir Mohd. Umar & Ors....Petitioners
vs.
Assistant Commissioner,
Municipal Corporation of
Greater Mumbai & Ors. ...Respondents

¶6

Mr.Asif Hussain i/b Hina Ansari for the Petitioners
Mr.Hemant Haryan, AGP for the respondent-State
Ms K.H.Mastakar for MMC.

¶7

CORAM : A.S.OKA, &
 P.N.DESHMUKH,JJ.
DATE : FEBRUARY 7, 2018

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P.C.:

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1Heard the learned counsel for the petitioners,
the learned counsel for the respondent Nos.1 and 2
and the learned AGP for respondent Nos.3 and 4.
Action of demolition is sought to be taken against
the structures of the petitioners on the basis of
the public notice at Exhibit-A issued by the
Assistant Commissioner of the second respondent-
Mumbai Municipal Corporation. The order of
demolition is passed for implementation of the
scheme of widening of Mithi river.

¶10

2There is an affidavit of Shri Sunil Shinde,
Tahsildar (Enc./Rem.) in the office of the Deputy
Collector, Bandra, Mumbai. In the affidavit, it is
stated that the order of eviction was passed against
the subject structure and other structures on 16th

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2 oswpl3501

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March 2015 by the Deputy Collector (Encroachment)
cum Competent Authority under the provisions of
section 3(2) and 2(4) of the Maharashtra Slum Areas
(Improvement, Clearance and Redevelopment) Act,
1971 (for short `Slum Act'). The affidavit further
discloses that large number of slum dwellers had
preferred appeals under section 35 of the Slum Act.
The said appeal was allowed by the order dated 13th
December 2017. The orders of eviction dated 16th
March 2015 have been set aside by the Appellate
Authority and the matters have been remitted to the
Deputy Collector (Encroachment) cum Competent
Authority for fresh adjudication and for passing a
fresh order. To the affidavit of Shri Shinde, a
copy of the order of the Appellate Authority has
been annexed.

¶13

3Therefore, it is obvious that unless and until
the Deputy Collector (Encroachment) passes an order
of eviction under the Slum Act, the respondent Nos.3
and 4 cannot take action of eviction. As far as the
Mumbai Municipal Corporation is concerned, the
demolition is sought to be made on the basis of the
public notice at Exhibit-A. Obviously, due process
of law is not followed by the Mumbai Municipal
Corporation. It is not stated in the public notice
that the structures are sought to be demolished on
the ground that the same are illegal. Therefore, if
Mumbai Municipal Corporation wants to take action,
the said Municipal Corporation will have to follow
due process of law.

¶14

oswpl3501

¶15

¶16

4Hence, we dispose of the petition by passing
the following order:

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(I)We hold that the act of publication of
public notice at Exhibit-A cannot be termed
as due process of law which can be followed
before the structures of the petitioners are
demolished;

¶18

(II)Subject to what is observed above, we
restrain the respondent Nos.1 and 2 from
demolishingthestructuresofthe
petitioners on the basis of the said public
notice dated 28th November 2017 (Exhibit-A to
the petition);

¶19

(III)We make it clear that it is always
open for the said respondents to follow due
process of law and demolish the structures
of the petitioners/evict the petitioners;

¶20

(IV)All contentions of the parties in that
behalf are kept open;

¶21

(V)We make it clear that this order will
not affect the pending proceedings under the
Slum Act;

¶22

(VI)Writ petition is disposed of.

¶23

(P.N.DESHMUKH,J.)

Mohd Jakir Mohd Umar and 14 Ors. v. Assistant Commissioner and 3 Ors.

Case brief

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What did the court decide?

Mohd Jakir Mohd Umar and 14 Ors. v. Assistant Commissioner and 3 Ors.

Case brief

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What the court decided

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