1 IN IN IN THE HIGH COURT OF JUDICATURE OF BOMBAY THE HIGH COURT OF JUDICATURE OF BOMBAY THE HIGH COURT OF JUDICATURE OF BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.2029 OF 2008 Jagdish Ramchand Tahilramani. ..Petitioner V/s. The Municipal Corpn. of Gr.Mumbai & Ors...Respondents. Mr.Aditya Chitale for Petitioner. Mr.N.A.Shaikh for Respondents. CORAM: CORAM: CORAM: A.M.KHANWILKAR,J A.M.KHANWILKAR,J A.M.KHANWILKAR,J DATE DATE DATE : OCTOBER 1, 2008. : OCTOBER 1, 2008. : OCTOBER 1, 2008. P.C. P.C. P.C. : : : 1. Heard Counsel for the parties. 2. Rule. Rule made returnable forthwith by consent. As short question is involved Petition is taken for hearing forthwith by consent. 3. By this Petition, Petitioner has challenged the Order dated 26th March, 2007 essentially on the ground that the same has been passed without giving opportunity of being heard to the Petitioner. The main controversy, which was to be examined by the Corporation is whether the structure in question can be regularised, as requested by the Petitioner. The Corporation through Counsel before this Court submits that decision on that representation was taken as back as on 9th November, 1998 by the concerned 2 Officer, which is evident from the communication bearing No.CE/141/MSC/AM. However, it is common ground that this Order has not been communicated to the Petitioner. The fact that such Order was passed, becomes doubtful, especially in the light of subsequent development, in particular, issuance of showcause notice to the Petitioner dated 23rd March, 1999 under the signature of Executive Engineer, Building Proposal(H & K Ward) Exh. M. at page-53 of the paper book. The fact that such notice was issued has not been disputed. It is also seen from the averments in the Petition that in response to the said show cause notice, the Petitioner submitted reply and appeared before the concerned Executive Engineer and availed of personal hearing. That fact is reinforced from the communication sent by the Petitioner to the Executive Engineer dated 6th May, 1999. It is not in dispute that no order has been passed by the Executive Engineer Building Proposal on or before 6th May, 1999. In the peculiar facts and circumstances of the case, it will be appropriate to proceed on the assumption that as of now the representation of the Petitioner for regularisation of the suit structure is still pending consideration before the Competent Authority, namely, Executive Engineer, Building Proposal (H & K Ward). If the said request is still pending consideration before the Competent Authority, the question of issuing 3 peremptory direction to the Petitioner in respect of the suit structure as stated in the communication dated 26th March, 2007 is completely misplaced. In the circumstances, the said communication-cum-order of demolition of the suit structure dated 26th March, 2007 is set aside. 4. It is also made clear that assuming that some order was passed on 9th November, 1998, it will have to be treated as nonest in the eyes of law as the same, admittedly, was never communicated to the Petitioner. In the circumstances, the only option for the Competent Authority is to consider the representation of the Petitioner for regularisation of the suit structure afresh on its own merits in accordance with the law. All questions in that behalf are left open. 5. It is expected that the Competent Authority will pass appropriate order on the said representation as expeditiously as possible and not later than 31st October, 2008. 6. Petition disposed of on the above terms. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)