1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION (L) NO.2328 OF 2009 Girish Jethalal Chheda ..Petitioner Vs. Municipal Corporation of Greater Mumbai & Anr. ..Respondents Mr. Niranjan Pandit with Mr. R. U. Singh for the Petitioner Ms. T. H. Puranik, BMC for the Respondents CORAM: DR. D.Y. CHANDRACHUD, J. DATE: 25th November , 2009 P.C. : 1. Rule, 2. With the Consent of the Counsel, the Petition is taken up for final hearing. Learned Counsel for the Respondents waives service. 3. The challenge in this proceeding is to a notice under Section 351 of the Mumbai Municipal Corporation Act, 1888. The Notice alleges that the Petitioner had made an unauthorised change of user from garage to a kitchen and had unauthorisedly constructed two toilets in the 2 area. The Petitioners submitted a reply on 19th June 2009. Thereafter, there was a further reply dated 22nd September 2009, by which a copy of the Assessment Extract was forwarded. The Assistant Municipal Commissioner, “D” ward, called upon the Petitioner to discontinue the change of user and to remove the unauthorised work within 15 days, failing which, it was stated that the unauthorised work would be demolished and a prosecution would be instituted under Section 475A. The impugned order records that until date the Petitioner had not submitted a copy of the approved plan or the extract from the Assessment Department. 4. Ordinarily, this Court would have been inclined to relegate the Petitioner to the remedy of a Suit. However, the Petitioner has submitted that though he had filed a copy of the Assessment Extract on 22nd September 2009, the Assistant Municipal Commissioner has proceeded on the basis that this was not filed. The Assistant Municipal Commissioner has thereupon observed that his office had obtained remarks of the Assessment department and it appears that the garage is assessed as a garage and not for any commercial activity. In paragraphs 9(a), 9(d) and 9(f) of the Writ Petition, the Petitioner has 3 observed that he separately owns a garage, which is on one side of the building. The Petitioner avers that there is no kitchen in the garage nor is there any toilet in the garage. In so far as the residential room is concerned, it has been submitted that it is a separate unit and there is a kitchen only in the residential room and not in the garage. 5. Considering what is set out in the previous paragraph, it will be appropriate to remand the proceedings back to the Assistant Municipal Commissioner with certain directions. The Petition is accordingly disposed of in the following terms: (i) The Assistant Municipal Commissioner is directed to pass a fresh order on the notice under Section 351 after hearing both the Petitioner and the Complainant Co-operative Society; (ii) The Notice under Section 351 shall be disposed of after considering the additional reply dated 22nd September 2009, filed by the Petitioner; (iii) In the event that the complainant society desires to file any representation, the Assistant Municipal Commissioner shall permit it to do so; (iv) Should the Assistant Municipal Commissioner consider it 4 appropriate to do so, he would be at liberty to issue suitable directions for inspection of the premises in order to verify the exact factual position; (v) In order to facilitate a fresh order being passed, the impugned order dated 11th November 2009 is set aside. However, it is clarified that, this Court has not expressed any opinion on the merits of the rival contentions, which are kept open; (vi) Upon remand, the Assistant Municipal Commissioner shall pass a fresh order expeditiously, preferably within a period of four weeks from today; (vii) The Petition is accordingly disposed of. (Dr. D.Y.Chandrachud, J)