1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 49 OF 2008 WRIT PETITION NO. 49 OF 2008 WRIT PETITION NO. 49 OF 2008 Hotel Sahara Star Sahara Hospitality Ltd., & Anr. .. Petitioners. vs. Municipal Corporation of Greater Mumbai & Ors. .. Respondents. Mr. K.K. Singhavi, Sr. Adv., with Ms. Sanika Deshpande i/by M/s. Haresh Mehta & Co., for Petitioners. Mr. C.U. Singh with Ms. A.R. Joshi for Respondent nos.1 to 3. CORAM: J.N. PATEL, & CORAM: J.N. PATEL, & CORAM: J.N. PATEL, & K.K. TATED, JJ. K.K. TATED, JJ. K.K. TATED, JJ. DATE: 31ST JULY, 2008. DATE: 31ST JULY, 2008. DATE: 31ST JULY, 2008. P.C. . Reply tendered by the respondent Municipal Corporation is taken on record. 2. Heard the learned counsel for the parties. 2 3. This petition can be disposed of at the stage of admission itself. The petitioner company has invoked the extra-ordinary jurisdiction of this Court under Article 226 of the Constitution of India seeking refund of a sum of Rs. 5 lacs which is allegedly recovered from the petitioner against administrative charges and for initiating disciplinary action against respondent no. 3. 4. It is the case of the petitioner that on 23.10.2007 the Exhibition Co-ordinator who had organised Felicitation Ceremony and Award Night for renowned architects at the petitioner’s hotel on 31.10.2007. An application to the Ward Officer by his letter dated 17.10.2007 for display of two flex / viny / banners (hoardings) each having size 20’ x 40’ on the premises of the petitioner’s hotel facing north bound highway was made. No permission was received by the organisers and as the event was due five flex / viny / banners (hoardings) each having size 20’ x 40’ came to be displayed on the premises. 5. The respondent no. 3 along with eight or ten other officers with security personnel without giving any notice to the petitioner no. 2 visited the petitioner’s hotel premises and forced the petitioner to remove those banners (hoardings) and called upon the petitioner no.2 to pay up a sum of Rs. 5 lacs by 3 cheque on the spot by way of administrative charges. The petitioner no.2 who was the Vice-President of the petitioner no.1 was coerced due to threatening given by respondent no. 3 that if the banners (hoardings) were not removed and the payment demanded was not made, he would lodge an F.I.R. at the Airport Police Station and get him arrested because of which the petitioners removed the said banners (hoardings) and issued a cheque for the sum of 5,00,000/- bearing no. 970194 dated 17.10.2007 drawn on UCO Bank, Santacruz (West), Mumbai for which the respondent issued a receipt having received the amount on account of the administrative charges. Thereafter the petitioner has made correspondence with the respondent and it is the case of the petitioner that a demand of Rs. 5,00,000/- as administrative charges is unauthorised and illegal and that such amount cannot be recovered by the respondent Corporation without following the procedure prescribed under 328 and 328-A of the M.M.C. Act, 1888. 6. In short, it is the case of the petitioner that the aforesaid action on the part of the officials of the respondent Corporation is nothing but violation of the fundamental right of the petitioners to peacefully carry on their business. If at all there was breach of the provisions of the M.M.C. Act, 1888, nothing prevented the respondents from taking recourse to the due process of law and, therefore, they should be directed to refund the amount of Rs. 5,00,000/- 4 collected as administrative charges without any justification in law and disciplinary action should be initiated against respondent no. 3. 7. An affidavit in reply has been tendered by the respondent Municipal Corporation which is sworn in by Shri Bhaskar S. Gholap, Superintendent of Licence Department of the respondent Corporation. It is contended that the petitioners having committed breach of the provisions of Sections 328 and 328A of the Mumbai Municipal Corporation Act, 1888 by displaying five Vinyl Banners each admeasuring 40’ x 20’ without obtaining necessary permission, the authorities were justified in removing the banners and collecting the sum of Rs. 5,00,000. Though in the affidavit in reply no justification has been given as to how the authorities assessed the amount of Rs. 5,00,000/- as recoverable from the petitioners. But the fact is not disputed that the respondent collected the amount at the establishment of the petitioners by cheque. 8. It is further contended that the petitioners’ letter dated 23.10.2007 is under consideration and that it will be examined by the Additional Municipal Commissioner (City) on its merits as per the provisions of law and then if it is found that the petitioners are entitled for refund of the amount, the same can be refunded to the petitioners. 5 9. Mr. K.K. Singhavi, the learned Sr. Advocate appearing for the petitioners, submitted that the petitioners are aggrieved by the high-handed action on the part of the officials of the respondent Municipal Corporation who had visited the establishment of the petitioners and virtually extorted a sum of Rs. 5,00,000/- without any justification and without following the due process of law. It is contended that if the petitioners had violated any provisions of the Mumbai Municipal Corporation Act, 1888 then nothing prevented the authorities from initiating proceedings against the petitioners. 10. Mr. C.U. Singh, the learned Sr. Advocate appearing for the respondent Municipal Corporation, submits that the representation made by the petitioners is under active consideration and that the respondent Municipal Corporation does not want to agitate the issue and if this Court directs that the sum of Rs. 5 lacs would be refunded to the petitioners, the same would be refunded to the petitioners and the respondent Corporation be granted leave to initiate necessary proceedings against the petitioners for committing breach of provisions of section 328 and 328-A of the Mumbai Municipal Corporation Act, 1888 having displayed five flex/vinyl banners (hoardings) each of 40’ x 20’without obtaining necessary permission from the competent authority. 6 11. We do not want to express any opinion on the merits of the matter in view of the fact that the respondents at least before the Court are very fair to state that they would refund the amount of Rs. 5 lacs recovered from the petitioners and then take recourse to the provisions of law in initiating proceedings against the petitioners and would follow the due procedure of law. Mr. Singhavi, the learned Sr. Advocate appearing for the petitioners, submits that this stand taken on the part of the Municipal Corporation is acceptable to the petitioners and he is ready to take whatever amount is found due and payable to him by them if it is established that they have committed any violation of the provisions of the Mumbai Municipal Corporation Act, 1888 and the law provides for any charge, fine, penalty to be recovered in accordance with law. 12. In view of this, we dispose of this petition with the direction to the respondent Municipal Corporation to forthwith refund the amount of Rs. 5 lacs to the petitioner and definitely on or before 7.8.2008. We make it clear that if the amount is not refunded on or before 7.8.2008, the Municipal Corporation would also bear simple interest on the said amount at the rate of 18% per annum till the amount is pending recovery by the petitioners. Needless to say the Corporation can proceed in the matter in accordance with law. 7 13. Petition stands disposed of accordingly with no order as to costs. (J.N. Patel, J.) (J.N. Patel, J.) (J.N. Patel, J.) ( K.K. Tated, J.) ( K.K. Tated, J.) ( K.K. Tated, J.)