ssp 1 WP(L) 1492 of 2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION (L) NO.1492 OF 2011 Mohammed Salim F. Chohan .....Petitioner versus Municipal Corporation of Gr.Mumbai and Anr. ..... Respondents Mr.Prashant Karande with Mr.M.H.I.Patel, for the petitioner. Ms.P.A.Purandare, for respondent No.1. Mr.R.R.Arolkar, for respondent No.2. CORAM: P.B.MAJMUDAR & R.M.SAVANT, JJ. DATE: 18 th AUGUST, 2011 P.C. 1. Rule. With the consent of the parties, rule is made returnable forthwith and heard. Ms.Purandare and Mr.Arolkar waive service for the respective respondents. 2. The above petition takes exception to the communication dated 04-07-2011 addressed to the Architect of the petitioner by the Deputy Chief Engineer, Building Proposal (City) of the respondent No.1 Corporation. By the said communication, the directions contained in para No.3 were issued, which are reproduced hereunder : “You are hereby called upon to submit the amended plans showing the new columns at 1.50 M clear open space from common plot boundary by removing the slab, beam portions and columns constructed on plot boundary above Ground Level and provide 1.5 M clear open space. ssp 2 WP(L) 1492 of 2011 However, the foundation of existing 5 columns at plot boundary shall not be disturbed to avoid any damage to structure on adjoining plot. The amended plans showing the modifications shall be submitted to this Office immediately and thereafter, on issuance of approval for the same, the work shall be executed/completed on priority. Further you are called upon to deposit `17,97,000/- as penalty for the retained portion of parking structure”. 3. The said communication is challenged on the ground that the petitioner has been asked to make deposit of `17,97,000/- as penalty for the retained portion of parking structure. The said deposit has been sought from the petitioner without hearing him. The petitioner by the said communication has also been asked to submit his explanation within 15 days from the receipt of the same. 4. Learned counsel appearing for respondent No.1 Corporation does not dispute the fact that the said deposit has been sought from the petitioner by the authority without hearing the petitioner. In our view, since the said communication has the consequence of the petitioner being asked to deposit a sum of `17,97,000/-, least that was expected was to hear the petitioner on the said aspect. Learned counsel for respondent No.2 states that the penalty has been levied on account of the fact that the petitioner has not abided by the DC regulations in question in the matter of keeping open space around the building. Be that as it may, in our view, since the petitioner has been asked to give an ssp 3 WP(L) 1492 of 2011 explanation, as also since the petitioner was not heard prior to the issuance of the said communication, the same would have to be set aside and the matter would have to be relegated back to the concerned authority, who would hear the petitioner and respondent No.2 on the aspect of condonation of requirements of the marginal space around the building. It is after the hearing respective parties that the concerned authority would pass fresh orders in accordance with law. The parties to appear before the concerned authority on 05-09-2011. The concerned authority to dispose of the proceedings within a period of two weeks thereafter. The contentions of both the parties are explicitly kept open to be agitated before the concerned authority. 5. Rule is accordingly made absolute to the aforesaid extent with parties to bear their respective costs. ( R.M.SAVANT, J. ) ( P.B.MAJMUDAR, J. )