1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION (L.) NO.1040 OF 2009 Hardcastle Restaurants Private Ltd. ... Petitioner V/s. The Municipal Corporation of Greater Mumbai & Ors. ... Respondents Mr. S.U. Kamdar, Sr. Advocate, with Mr. Simil Purohit i/b. M/s. Khaitan & Co. for the petitioner. Ms. Geeta Joglekar for Respondent Nos.1 and 2. Ms. Rajni Iyer, Sr. Advocate, with Mr. Ranjit Thorat and Ms. Janhavi Durve i/b. M/s. K. Ahser & Co. for Respondent No.4. CORAM : A.V. NIRGUDE & R.G. KETKAR, JJ. [VACATION COURT] DATE : 20TH MAY, 2009. P.C. : 1. This Writ Petition challenges the order dated 5th September, 2009 passed by the Respondent No.2 directing the demolition of a temporary shelter of the petitioner. The petitioner is a company carrying on business of chain of restaurant popularly known as McDonalds. This temporary shelter was put up by the petitioner pursuant to Municipal Corporation’s 'no objection certificate' / permission granted on 25th January, 2006. Following conditions were mentioned in the permission letter at Annexure “J” to the Petition : 1. That the work should be completed within 6 months from the date hereof and if the work is 2 not completed within time, the sanction will be lapse and fresh sanction will have to be obtained from this office. 2. The security deposit recovered / paid towards faithful compliance of conditions by way of assurance to regularise / rectify the work due to incidental change in policy. 3. This No Objection Certificate is only for construction of temporary shelter with KIOSK of polycarbonate nature and P.V.C. coated fabric roof with conical awning as shown in the accompanying plan u/No. 17 of 05.10.2005 and as approved by M.H.C.C. and the proposed development on the plot shall be in accordance with the Municipal regulations and bye-laws. 4. You should pay the amount as and when will be demanded by the Corporation as per the policy of allowing work in compulsory open space. 5. The transfer matter shall be got completed. 6. That the proposed permission to construct shelter and KIOSK is purely on temporary basis with reference to earlier allowed “UMBRELLAS” and same shall be demolished / removed as and when requested by M.M.C. 7. The work completion plan with details shall be submitted to this office. 8. This NOC is granted as per the approval of Heritage Conservation Committe. dt. 14.01.2005. 9. That the Regd. Undertaking on stamp paper of Rs.100/- shall be submitted stating that as and 3 when required by MMC that use of the plot under reference should be stopped as restaurant, you should do so without asking for any compensation and entering into any litigation against MMC. 2. The Assistant Commissioner “A” Ward of the Municipal Corporation issued a stop work notice under Section 354-A of the Bombay Municipal Corporation’s Act on 8th February, 2006 directing the petitioner to stop the erection of the shelter and threatening that in case of failure to stop the action of removal/demolition would be taken. The petitioner then made representation to the Assistant Commissioner on the basis of the no objection certificate issued in their favour on 25th January, 2006. The Assistant Commissioner, “A” Ward then vide his letter dated 1st March, 2006 withdrew the action under Section 354-A of the BMC Act. However, on 30th August, 2007, the Assistant Commissioner in “A” Ward cancelled the NOC granted to the petitioner on 25th January, 2006. He directed the petitioner to remove the shelter etc. and bring back the plot of land to its original position within 15 days failing which an action would be initiated. The petitioner then made representation to the Assistant Commissioner that since the NOC was granted after perusing and examining voluminous documents, the said was granted on merits. They also pointed out that they did not even use this shelter for a period of 1 year. They further pointed out that for putting up the shelter they had incurred substantial amount of money. So they requested the Assistant Commissioner to withdrew the letter dated 30th August, 2007 and avoid taking action against them. Since the Municipal Corporation did not yield to the requests of the petitioner, the petitioner filed a suit before the Bombay 4 City Civil Court and sought an order of temporary injunction to restrain the Municipal Corporation from demolishing the shelter without following due process of law. The learned Judge of the Bombay City Civil Court granted ad- interim injunction and directed the Corporation not to demolish the shelter without following due process of law. The Assistant Commissioner “A” Ward thereafter on 8th July, 2008 issued notice under Section 55 of the Maharashtra Regional and Town Planning Act, 1966. In this notice it was pointed out that the shelter was unauthorized structure and therefore it should be removed within 15 days from the receipt of the notice. The petitioner thereafter filed the Writ Petition No.2682 of 2008 in this court. By this Court’s order dated 12th January, 2009, the Municipal Corporation was directed to consider the notice dated 8th July, 2008 as a show cause notice to the petitioner. The petitioner was given liberty to file a reply to the show cause notice. This Court then directed the Corporation to hear the petitioner and then pass appropriate order within a period of four weeks. The Municipal Corporation was also directed to hear the Respondent No.4 (the lessee) before passing such order. The petitioner thereafter submitted a detailed reply to the notice. It is an admitted fact that thereafter a hearing was given to the petitioner. The Respondent No.4 was also permitted to file his written submission. The Assistant Commissioner “A” Ward thereafter passed the impugned order on 5th May, 2009. While passing the order and while rejecting the contention of the petitioner, he stated that "he had carefully perused the written say of the plaintiff as well as the petitioner". He further said that "he also carefully heard them and he had come to a conclusion that the structure was unauthorized". The learned Counsel appearing for the petitioner criticized this order saying that this order mentioned no reason why 5 the Assistant Commissioner came to the above mentioned conclusion. He asserted that having regard to the procedure followed prior to the granting of the 'no objection certificate', there was no possibility of withdrawing the said 'no objection certificate' and so the action was illegal. 3. We heard the submissions of the learned Counsels appearing for the parties at length. But we are not inclined to hold in favour of the petitioner. The petitioner conveniently forgot the conditions on which the no objection certificate was issued. We have enumerated those conditions above. It is obvious from these conditions that all the parties concerned were aware that the structure was temporary one. It was made of polycarbonate coated fabric. It was erected purely on temporary basis in the place where earlier umbrellas were erected by the petitioner and were removed through the Municipal Corporation’s action. Having regard to the temporary nature of the structure, the petitioner were quite aware that the 'no objection' issued in their favour could have been withdrawn at any time without assigning any reason. It created no right in favour of the petitioner even though the BMC while granting the NOC received certain amount from the petitioner. It finally came to be withdrawn after about 1 year. This action of withdrawal of the NOC in our considered view is unassailable. The petitioner was given sufficient hearing despite of this aspect of the matter. We now think that the petitioner cannot be protected further. 4. The Petition stands dismissed. [R.G. KETKAR, J.] [A.V. NIRGUDE, J.]