1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION rpa WRIT PETITION NO. 494 OF 2010 Mrs. Manali Atul Ashar .. Petitioner v/s. The Municipal Corporation of Brihan Mumbai .. Respondents .... Mr. Navin Parekh a/w. Hetal Patel for Petitioner. Mr. S. S. Pakale a/w. Ms. Trupti Puranik for Respondent No.1- BMC. Mr. Aditya Khandeparkar a/w. Mr. Ashwin Shetye i/b. Khaitan & Jaykar for Respondent No.2. Ms. Pooja Chavan for Respondent No.3. .... CORAM : S. J. KATHAWALLA, J. DATE : MARCH 8, 2010. P.C. By this writ petition, the petitioner has impugned the Orders being No. DMC/SPL/OD/434 dated 24th February, 2010 and the Order bearing Reference No. AMC/NO.3162/III dated 6th February, 2010 passed by the officers of the Municipal Corporation i.e. the Respondent No.1. 2. The learned Advocate appearing for the Petitioner has pointed out that the Deputy Municipal Commissioner by his order dated 8th December, 2009 had allowed the Petitioner to continue 2 with the hoarding on the terrace of the building ‘Usha Nisha Co.Op. Housing Society” at C.T.S. No. 1521, S.V. Road, Vile Parle (West), Mumbai (the said building). In his said Order the Deputy Municipal Commissioner observed as follows : "2. N.O.C. from the topmost floor is a must as per clause Part II 16(1) of is not applicable to subject hoarding, as this is requisite condition for new Hoarding Permission. Also at the time of hearing Advertiser is willing to modify but has apprehension that he would not get NOC from top most floor occupier hence I am of the view that NOC should not be insisted but due care is to be taken that no nuisance be caused to the top most floor occupier." 3. Thereafter, the Petitioner received a Show Cause Notice No. DMC/SPL/434, dated 11th February, 2010 whereby the Petitioner was inter-alia directed to submit the NOC from the top most floor occupier on or before 18th February, 2010, and to appear before the Deputy Municipal Commissioner (Special) for personal hearing alongwith all the relevant papers. From the Show Cause Notice, it appeared that an Appeal was preferred by Mr. Vimal Kishor Kacholia, the tenant of the topmost floor, against the order passed by the Deputy Municipal Corporation (Special) on 8th December, 2009. The said Appeal was heard by the Additional Municipal Corporation (City) who had passed an order 3 negating the effect of the order dated 8th December, 2009 without hearing the Petitioner. Pursuant to the Show Cause Notice an order dated 24th February, 2010 is passed by the Dy. Municipal Corporation (Special) which is also impugned by the Petition herein. 4. The main issue raised in the present Petition is whether the Additional Commissioner (City) could have passed an order setting aside the order dated 8th December, 2009 in an Appeal filed by the occupant of the top most floor without giving notice to the Petitioner. In any event, without going into any arguments, the learned Advocate appearing for the Respondent No. 2 has fairly submitted that no notice of the Appeal and its hearing by the Additional Commissioner (City) of the Corporation was a mistake on their part and that they have no objection if the orders dated 6th February, 2010 and 24th February, 2010, are set aside and the Appeal, is directed to be re-heard. 5. In view thereof, the following order is passed. :: O R D E R :: i. The Orders dated 6th February, 2010 and 4 24th February, 2010, are set aside. ii. The Appeal filed by Vimal Kishor Kacholia against the order passed by the BMC dated 8th December, 2009, shall be heard afresh by the Municipal Commissioner, within a period of six weeks from today. iii. All the contentions of the parties are kept open. iv. The Respondent No. 2 shall within a period of one week from today join the Petitioner as a party Respondent to the said Appeal and also serve a complete set of the Appeal papers to the Petitioner. iv. The writ petition is, accordingly, disposed of. [ S. J. KATHAWALLA, J. ] 5