ABDUL RASHID KHAN Vs. BRIHANMUMBAI MAHANAGAR PALIKA

JUDGEMENT

(1.) In the present appeals, the appellants-original petitioners challenge common order dated 4.8.2008 passed by the Single Judge dismissing the appellant's writ petition. The appellant-original petitioner filed writ petition under Article 226 of the Constitution of India challenging Notice under section 55 of the Maharashtra Regional and Town Planning Act, 1966 hereinafter referred to as M.R.T.P. Act (for brevity sake) issued by the Assistant Commissioner, H/East Municipal Corporation, Greater Mumbai in respect of unauthorized construction being adjacent to the Building No. 1, Tata Colony, B.K. Road, Bandra (E), Mumbai-51. It is the case of the appellant that he is in possession of the suit premises for the last several years and not only that Municipal Corporation granted them permission to repair the said suit construction. It is the case of the appellant that the suit construction is not of a temporary nature but the same is constructed of bricks and RCC structure. It is the case of the appellant that previously the respondent issued notice to the Secretary of Building No.1. The said notice was challenged in Bombay City Civil Court by instituting the suit. In the said suit, Bombay City Civil Court refused to grant any relief and therefore the appeal from order was preferred in this Hon'ble Court being Appeal from Order No. 145 of 2008 with Civil Application No. 184 of 2008. The said matter is decided by this Hon'ble Court by order dated 18.2.2008 holding that the occupants of the alleged unauthorized construction should be issued notice under M.R.T.P. Act and in view of that this Hon'ble Court allowed the Appeal from Order No. 145 of 2008. At the time of allowing the said appeal from order, this Hon'ble Court made it clear that the said order will not prevent Municipal Corporation to take action by following due process of law. Thereafter, the appellant received notice under section 55 of M.R.T.P. Act from Bombay Municipal Corporation. It is the case of the appellant that in the notice under Section 55 of MRTP Act, the Corporation nowhere explained how the so called structure is of temporary nature. The learned Senior Counsel appearing on behalf of the appellant took us through section 55 of the M.R.T.P. Act, 1966 and pointed out that the said Section requires that Corporation should have issued Notice under section 55 of the M.R.T.P. Act, 1966. It is the contention of the appellant that the notice issued by the respondent under section 55 is not as per law as. the same does not disclose and point out how the structure could be called a structure of temporary nature.

(2.) The learned Senior Counsel appearing on behalf of the Appellant submitted that on 10th July, 1991, a notice was issued to the predecessor-in-title of the suit property under section 351 of the Mumbai Municipal Corporation Act alleging that they had carried out brick and masonary work exceeding 15 feet without obtaining a permission and calling upon the said predecessor-in-title to show cause as to why the said extension of brick and masonary work beyond 15 ft. should not be pulled down. He further submitted that pursuant to the said notice dated 10th April, 1991, the predecessor-in-title complied with the requisitions and actually pulled down the extension of brick and masonary work beyond 15 ft. in respect of the suit structure. The learned Senior Counsel further submitted that both the repair permission as well as the section 351 notice demonstrate the fact that the said structure was firstly permanent in nature and secondly, was a duly authorized and legal structure upto a height of 15 ft. The learned Counsel further submitted that the respondents have not issued notices in respect of Shop No. 1, which was owned by Shri Bajirao Thorat and that the notices are in respect of the structure surrounding Shop No . 1 which appears to have been transferred by Shri Bajirao Thorat through some intermediary to the appellant. The learned Senior Counsel appearing on behalf of the appellant submitted that section 55 of M.R.T.P. Act can be invoked only in respect of cases of unauthorized and temporary developments. He further submitted that the structure belonging to the appellant are neither unauthorized nor temporary in nature.

(3.) The respondent-Municipal Corporation filed their Affidavit in reply before the Single Judge and pointed out that the appellant carried out unauthorized construction in compulsory open space in front of the premises in their possession on the ground floor. Paragraph 4 of the affidavit in reply dated 7.7.2008 filed by Sanjay Vijay Pradhan on behalf of Municipal Corporation reads as under :-