FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 7192 OF 2011 group Office Notes, Office Memoranda of Coram appearances, Court's Orders Court's or Judge's orders or directions and Registrar's orders. 1 WRIT PETITION NO. 7192 OF 2011 “Smt. Valabai Purushottam Patel Vs. Municipal Corporation Aurangabad through its Municipal Commissioner and another) WITH WRIT PETITION NO. 7193 OF 2011 “Amtesh Kaur Wd/ Kulbeer Singh Chatwal Vs. Municipal Corporation, Aurangabad and another.” WITH WRIT PETITION NO. 7179 OF 2011 “Mongiben Danabhai Patel Vs. Municipal Corporation, Aurangabad and another” WITH WRIT PETITION NO. 7152 OF 2011 “M/s. Sai Shakti Group through its Partner Vs. Municipal Corporation, Aurangabad and another” WITH WRIT PETITION NO. 5514 OF 2011 “Prabhakar Sadashivrao Kulkarni Vs. The State of Maharashtra and others” WITH WRIT PETITION NO. 5515 OF 2011 “Kailash Namdevrao Wadhe Vs. The State of Maharashtra and others” WITH WRIT PETITION NO. 5516 OF 2011 “Javerilal Fathechand Gujrani Vs. The State of Maharashtra and others” WITH WRIT PETITION NO. 7938 OF 2011 “Jogindar Singh Laddha Singh through GPA Vs. Municipal Corporation, Aurangabad through Commissioner and another” ****** Mr. A.B. Kale,/ Mr. Deodatta Palodkar/ Mr. Satyajit R. Vakil, Advocate for petitioners Mr. V.D. Godbharle, AGP for respondent – 1/State. Mr. A.M. Karad, Advocate for respondent Nos. 2 to 4 (Corporation).. FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 7192 OF 2011 group Office Notes, Office Memoranda of Coram appearances, Court's Orders Court's or Judge's orders or directions and Registrar's orders. 2 CORAM :- B.R. GAVAI & A.V. POTDAR, JJ. DATE :- 16TH DECEMBER, 2011. PER COURT :- 1] Rule. Rule made returnable forthwith. Heard finally by consent of parties. WP No. 7938/2011 Not on board, however, identical matters are on board, production permitted. 2] By way of these petitions, the petitioners take exception to the orders dated 21.7.2011 passed by the Assistant Director of Town Planning, vide which the building permissions granted to the petitioners way back in 1960 and 1970 have been cancelled. 3] Shri Karad, learned Standing Counsel appearing for the respondents submits that since it is found that the petitioners have obtained building permission by suppression of material facts and by giving false information regarding the title of the property, the same have been cancelled by taking recourse to Section 258 of the Bombay Provincial Municipal Corporation Act. 4] For considering the submission made by learned counsel for the corporation, it will be necessary to refer to Section FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 7192 OF 2011 group Office Notes, Office Memoranda of Coram appearances, Court's Orders Court's or Judge's orders or directions and Registrar's orders. 3 258 of the B.P.M.C. Act, which reads thus : - “If at any time after permission to proceed with any building or work has been given under the rules, the Commissioner is satisfied that such permission was granted in consequence of any material misrepresentation or fraudulent statement contained in the notice given or information furnished under Section 253 or 254, or of further information, if any, furnished, he may cancel such permission, and any work done thereunder shall be deemed to have been done without his permission.” 5] Perusal of the said section itself would reveal that the before taking action, as contemplated under section 258, the Commissioner is required to arrive at a satisfaction that such permissions were granted in consequence of any material misrepresentation or fraudulent statement. It can thus clearly be seen that the statutory provision itself before taking action under Section 258, the authority is required to arrive at subjective satisfaction, which, in our opinion, cannot be arrived at, without giving an opportunity of being heard to the party concerned. 6] If subjective satisfaction is to be arrived at and that too as to whether permission was granted on the basis of the FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 7192 OF 2011 group Office Notes, Office Memoranda of Coram appearances, Court's Orders Court's or Judge's orders or directions and Registrar's orders. 4 misrepresentation or fraudulent statement, it cannot be arrived at, unless a show cause notice is issued to the party concerned, pointing out the material on the basis of which such action is contemplated and unless an opportunity of being heard is given to the party concerned to meet those allegations. Unless all these things are done, the arrival of subjective satisfaction is not possible. By now, it is a settled principle of law that every order, inviting adverse civil consequences has to be preceded by principles of natural justice. It is also equally settled principle of law that principles of natural justice are required to be read in a statutory provision, unless explicitly or by necessary implication, their applicability is excluded. Reliance in this respect could be placed on the judgment of the Apex Court in the case of “ C.B. Gautam Vs. Union of India” reported in (1993)1 SCC 78. 7] It is not in dispute that the impugned orders are issued by the Assistant Director of Town Planning without either giving any show cause notice or without giving an opportunity of hearing in the matter. As already discussed hereinabove since we find that the action under Section 258, cannot be taken unless the authority concerned arrives at a subjective satisfaction that the grounds for taking action, as contemplated under the said section are made out, in our view, the principles of natural justice are inbuilt in the said provision. FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 7192 OF 2011 group Office Notes, Office Memoranda of Coram appearances, Court's Orders Court's or Judge's orders or directions and Registrar's orders. 5 8] The impugned action, which is take in blatant and patent disregard to the principles of natural justice, is not sustainable in law. The petitions, therefore, deserves to eb allowed on this short ground. 9] At the same time, it is to be noted that when a senior officer of the rank of Assistant Director of Town Planning takes such drastic action, he is expected to follow the procedure as prescribed under the law. 10] We, therefore, allow the petitions. The impugned orders are quashed and set aside, with costs, which are quantified at Rs.5,000/- in each of the matters. Costs to be paid to the petitioners within a period of 2 weeks from today, by crossed demand drafts, drawn in the name of the petitioners. The respondent Municipal Corporation would also be at liberty to make an enquiry for recovering the costs, from the officer, who is responsible for this unwarranted and unnecessary litigation. Rule made absolute in abovesaid terms. [A.V. POTDAR,J.] [B.R. GAVAI, J.] grt/-