: 1 : wp.8443.2010.sxw vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8443 OF 2010 Ahmed Gulam Rasul Molapiya & Ors. ... Petitioners V/s. Brihanmumbai Municipal Corporation & Ors. ... Respondents Mr.P.P. Chavan with Madhukar Kalzunkar for the Petitioners Mr.A.Y. Sakhare, Sr.Adv. With M.M. Malvankar Respondent Nos.1 & 2 Mr.S.G. Surana for Intervener Respondent No.4 Mr.R.A. Thorat for Intervener CORAM: S.C.DHARMADHIKARI, J. DATE: JUNE 9, 2011. P.C.: 1. This Petition under Articles 226 and 227 is directed against the order of the learned Judge, City Civil Court in Miscellaneous Application No.12 of 2010. By order dated 25.8.2010, the appeal preferred by the petitioners to challenge the order of eviction from municipal premises passed by the enquiry officer on 2.2.2010 is confirmed. 2. Inviting my attention to the notice dated 25.8.2008 and further notice which has been issued on 24.12.2008, it is contended by Mr.Chavan, appearing for the petitioners, that the only reason and ground for terminating the petitioner’s occupation is that the premises described in the schedule to the notice are required in public interest and public purpose of redevelopment of : 2 : wp.8443.2010.sxw the municipal property. Since the petitioners raised a dispute on the issue of frontage to be given that the Municipal Corporation resorted to the Eviction proceeding. He submits that there was a specific stand taken in reply to the notice that the redevelopment of municipal property under DC Regulation 33 (7) does not fall within the meaning of public purpose and, therefore notice u/s 105B of the Mumbai Municipal Corporation Act, 1888 cannot be issued. He has also invited my attention to the compilation of documents and submitted that before the enquiry officer, the Corporation admitted that the dispute regarding the frontage area resulted in the notice u/s 105B of the Act being issued. For all these reasons and when the earlier grounds of eviction have been given up, the Corporation cannot resort to the drastic action of eviction from municipal premises. He submits that the Court below has failed to appreciate this vital aspect of the matter and has refused to interfere with the order of eviction. 3. Mr.Sakhare, learned Senior Counsel, appearing on behalf of the Municipal Corporation of Greater Mumbai while supporting the impugned orders submitted that the municipal premises which have been given on lease to the petitioners are constructed in 1947. The building is old and dilapidated. It is required to be pulled down. If such a building is required to be pulled down for rehabilitating the existing occupants, then, surely redevelopment of said property in terms of statutory provisions is a public purpose and if the petitioners are directed to vacate the premises so as to enable the redevelopment they cannot question the action on the ground that there is no public purpose or public interest. Ultimately, involvement of public interest is : 3 : wp.8443.2010.sxw inherent when the Municipal Corporation decides to redevelop the Municipal property. For all these reasons the learned Counsel submits that the petition be dismissed. 4. With the assistance of the learned Counsel appearing for the parties, I have perused the orders under challenge and some of the documents to which my attention is invited. I have also perused the relevant statutory provisions. As far as the first contention of Mr.Chavan is concerned, to my mind, there is no substance therein. The action must be seen in its entirety. It is not as if the notice was given to the petitioners only because they raised a dispute of frontage. The notice had to be issued because the property was to be redeveloped and for enabling the redevelopment the occupants who have existing premises in their possession had to remove themselves and vacate the same. That alone would have enabled the demolition of the premises. Therefore, the notices were given to all. Most of them complied with the notices. The petitioners do not object to the redevelopment. They are ready and willing to join the redevelopment scheme. They only wanted a particular area and location so as to facilitate the restaurant business. The dispute in that behalf raised by them necessitated the issuance of notices because thereafter the petitioners refused to comply with the requisition contained in the relevant documents. They did not remove themselves. It is in these circumstances that the notices came to be issued. Therefore it is not as if the proceedings were instituted malafide and merely to harass the petitioners because they raised a dispute with regard to the frontage. : 4 : wp.8443.2010.sxw 5. Equally untenable in the present facts and circumstances is the second contention inasmuch as any wider controversy or larger issue need not be gone into once the petitioners themselves were ready and willing to remove themselves at one stage and facilitate the redevelopment of the property. The larger issue, as to whether the municipal premises being redeveloped by resorting to DC regulation 33(7) by the Municipal Corporation either by itself or through any agency or facilitating the redevelopment by the occupants themselves are matters in public interest or serve larger public purpose, need not be gone into in the peculiar facts of this case. The correctness of the observations in that behalf by the Court below therefore is not necessary to be decided. Once the petitioners agree that the premises were occupied for long time and the buildings and structures are fairly old and require to be pulled down for redevelopment and were ready and willing to join the said scheme but finding that there is a dispute that the subject action had to be initiated. On facts, it has been noted by the Court below that the petitioners had executed agreements with the developer. That development agreement did not contemplate any particular location or size of the premises in the newly constructed building. In such circumstances and finding that even if the municipal tenants in this case are not cooperating in redevelopment they will not be left without any premises but would be accommodated elsewhere by the corporation that the lower appellate Court was right in not interfering with the order of eviction. : 5 : wp.8443.2010.sxw 6. I am of the opinion that there is much substance in the contentions of the Corporation as also the reasons assigned by the Court below do not appear to suffer from any error of law apparent on the face of the record nor are they vitiated by any perversity warranting my interference under Articles 226 and 227 of the Constitution of India. 7. The Petition is therefore dismissed. 8. Civil application No.1150 of 2011 does not survive and the same stands disposed of. 9. At this stage, Mr.Chavan, appearing on behalf of the Petitioners, requests that the ad-interim order granted by this Court on 19.10.2010 be continued so as to enable the petitioners to challenge this order in a higher Court. This request is opposed by the Counsel appearing for the respondents on the ground that the petitioners have refused to comply with the notice and because of the structure that is in their possession and occupation there is inconvenience and hardship is caused to people who have moved into Rehabilitation building. The construction of the new building (rehabilitation) is complete and part occupation certificate is issued, some of the occupants have already moved in and the construction of the second (sale) building wherein purchasers have purchased their units and flats is completed upto 19th floor. In such circumstances, I am of the opinion that the request made by the : 6 : wp.8443.2010.sxw petitioners cannot be granted in the larger interest of justice and bearing in mind the convenience of the other occupants. The request is therefore refused. (S.C.DHARMADHIKARI, J.)