1 APPL622/10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL (L) NO.622 OF 2010 IN WRIT PETITION NO.1343 OF 2008 Smt Aparna Chawalla ...Appellant v/s Municipal Corporation of Greater Mumbai and others ...Respondents Mr Jai Chinoy, Sr. Counsel with Ms Sonal B. and Ms Kainaz Irani i/b M/s FF and Associates for Appellant. Mr A.Y. Sakhare, Sr. Counsel with Ms T.H. Purohit for Respondent No.1. Mr S.D. Mogre for Respondent Nos.2 and 3. Mr R.R. Bhosale, AGP for Respondent No.4. CORAM : D.K. DESHMUKH AND ANOOP V. MOHTA JJ. DATE : 7TH MARCH 2011. 2 APPL622/10 P.C. :- 1] Admit. Heard finally by consent of the parties. 2] By this appeal, the appellant challenges the order dated 28th July 2010 passed in writ petition No.1343 of 2008. In that petition, the present appellant had challenged the order dated 13th February 2006 as also the order dated 23rd August 2007 passed by the Municipal Corporation of Greater Mumbai. The relevant facts are that the petitioner has a flat in a building. The flat above the petitioner s flat is owned by the present respondent No.2. Because the respondent No.2 carried out certain alterations in her flat, the appellant was facing inconvenience and therefore she was making complaints to the Corporation, however the Corporation was not looking into those complaints. The appellant therefore filed writ petition No.2698 of 2003 in this Court. That petition was disposed off by order dated 13th 3 APPL622/10 December 2004. The order reads thus :- We have heard the learned counsel for the parties. In the peculiar facts and circumstances of this case, we direct the Municipal Commissioner for Greater Mumbai to treat this petition as a representation from the petitioner. He is directed to depute an officer to visit the site and thereafter, if necessary, give appropriate directions. The inspection be carried out in the presence of both the parties on 17th December 2004. No further directions are necessary. This petition is accordingly disposed off. It appears that the alterations in the flat were carried out by the respondent No.2 without getting prior permission of the Corporation to make alterations in the flat, but after carrying out the alterations, a proposal was submitted to regularise the alterations. That proposal was considered by 4 APPL622/10 the Corporation. The petitioner was also heard in that process. Ultimately, the proposal was rejected by the Executive Engineer (Building Proposal Department) by communication dated 29th October 2005. The order reads as under :- With reference to above, the matter was discussed with you in past many times and you are directed to submit the amended plan by relocating the toilet which are contravening under section 251A of M.M.C. Act. However, till date, you have failed to submit the amended plans, hence your proposal is hereby rejected and recorded. It appears that after the proposal was rejected, the respondent No.2 approached the Corporation again for reconsideration of the proposal. On 13th February 2006, following order was passed on that proposal :- 5 APPL622/10 Sub: Property bearing flat No.81-73 on 8 th floor of the building known as Vijay Apartment situated at 16, Charmichael Road, Mumbai 400 026 belonging to Smt Vanita Bhandari. Architect: Subhash Shah and Associates, Plans for reference at Pg.C-1 In this case, Architect M/s Subhash Shah and Associates had submitted the proposal for regularisation of internal additions and amalgamation. Since the matter was involving the regularisation of toilet block with contravene u/s 251A of M.M.C. Act, the proposal was rejected and recorded. Further as per the directions of O.S.D. (M.C.) the proposal is reopened by charging 10 % scrutiny fees. Thus, pursuant to the directions issued by the O.S.D. (M.C.), the Corporation decided to reopen the proposal of the respondent No.2 for regularisation of the alterations in the flat, which 6 APPL622/10 was rejected on 29th October 2005. This decision admittedly had been taken without hearing the petitioner. It appears that thereafter the proposal was again scrutinised and ultimately by order dated 23rd August 2007, the Corporation decided to regularise the alterations made in the flat by the respondent No.2 subject to certain conditions. The conditions read thus :- 1.That the extreme care shall be taken in future to avoid leakage, making the floor impervious by applying water proofing treatment in respect of the work of toilets. 2. That indemnity bond indemnifying the M.C.G.M. Against any damages / claims etc. regarding the leakages in respect of work carried out shall be submitted to this office. 3. That the approval granted for regularisation is subjected to the final order from the Hon ble City Civil Court 7 APPL622/10 that may be passed in the matter under reference. The petitioner has approached this Court challenging this order. 3] The learned Single Judge disposed off the petition by order dated 28th July 2010. The learned Single Judge appears to have rejected the petition only because civil suit filed by the petitioner is pending before the Bombay City Civil Court. Though the learned Single Judge has observed that she is suspicious about integrity of the order regularising the alterations, she has not decided the petition on merits. The learned counsel appearing for petitioner submits that the civil suit against the order regularising the alterations in the flat is not maintainable because of the provisions of the Town Planning Act. According to the learned counsel therefore, the learned Single Judge was not justified in rejecting the petition because of the pendency of the civil suit. 8 APPL622/10 4] We have heard the learned counsel appearing for petitioner as also the learned counsel appearing for Corporation and the respondent No.2. We find from the record that the Corporation was fully aware at least from 13th December 2004 when order in writ petition No.2698 of 2003 was passed that the petitioner was opposing the alteration that was carried out in the flat by the respondent No.2. From the documents on record, it is clear that the petitioner was involved in the process that took place after 13th December 2004. Ultimately, the Corporation rejected the proposal for regularisation of the alteration. Really speaking, the consequence of the order dated 29th October 2005 rejecting the proposal for regularisation should have been that the Corporation should have proceeded against the respondent No.2 for restoration of the flat to its original condition. That was not done, instead the Corporation decided to take up the proposal of the respondent No.2 for reconsideration. Even assuming that the Corporation had power to take up the 9 APPL622/10 proposal for reconsideration, without there being any change in the circumstances, in our opinion, it could not have been done without granting the petitioner an opportunity of being heard and to put forth her objection. That was the requirement of Article 14 of the Constitution of India and the principles of fair play and natural justice. The submission of the learned counsel appearing for Corporation and the respondent No.2 that because pursuant to the order of the Bombay City Civil Court, the petitioner was heard after the order of the Corporation deciding to regularise the alteration will cure the defect in the order, in our opinion, cannot be accepted. As we find that the order dated 13th February 2006 was itself infirm having been made in breach of the principles of natural justice, the order of regularisation cannot be held to be legal and valid. In our opinion, the Corporation should have heard the petitioner before deciding to take up the proposal of the respondent No.2 for reconsideration and should have involved the petitioner in reconsideration of the proposal 10 APPL622/10 because the petitioner interest of the petitioner is adversely affected by the order of regularisation. It appears from the record that in the process of carrying out alteration in her flat, the respondent No.2 has constructed a bathroom and w.c. On the bedroom of the petitioner which is leaking. The learned counsel appearing for petitioner pointed out that the proposal of the respondent No.2 for regularisation was rejected by the Corporation by relying on the provisions of section 251A of the Corporation Act which contains complete prohibition on construction of w.c., bathroom over a bedroom or a kitchen. The learned counsel appearing for petitioner submitted before us that even today, the bedroom in the flat of the petitioner is leaking because of the construction of bathroom in the flat of respondent No.2. Taking overall view of the matter therefore, in our opinion, following order would meet the ends of justice. 5] The order dated 28th July 2010 passed in writ petition No.1343 of 2008 by the learned Single 11 APPL622/10 Judge is set aside. The order dated 13th February 2006 and the order dated 23rd August 2007 are set aside. The Corporation is directed to decide afresh, after granting the petitioner an opportunity of being heard, the question whether the decision of the Corporation to reject the proposal submitted by the respondent No.2 for regularisation of the modification carried out by her in her flat is to be reopened or not. In case, the Corporation decides to reopen that decision and take up the proposal of the respondent No.l2 for regularisation of the modification made by her in her flat for consideration, the Corporation shall do so after granting the petitioner an opportunity of making representation in that case. 6] Considering the grievance made by the learned counsel for petitioner that the bedroom of the petitioner is leaking even today and it is occupied by mother who is 96 years of age, in our opinion, it will be appropriate for the Corporation to depute a competent Engineer within a period of 12 APPL622/10 two weeks to carry out inspection of the flat of the petitioner and the respondent No.2. If the Corporation finds that there is substance in the grievance made on behalf of the petitioner, the Corporation shall take action against the respondent No.2 in accordance with law. The inspection to be carried with due intimation to the petitioner and the respondent No.2. The learned counsel appearing for Corporation states that inspection by the Engineer of both the flats can be carried out on 17th March 2011. The learned counsel appearing for petitioner and the respondent No.2 have no objection. Appeal is disposed off. Parties to act on the copy of this order duly authenticated by the Associate / Private Secretary of this Court. Certified copy expedited. ( JUSTICE D.K. DESHMUKH ) ( JUSTICE ANOOP V. MOHTA )