wp-lod-2838-10.doc 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION LOD.NO.2838 OF 2010 Rita Singh @ Rajnigandha & Ors .. Petitioners Versus Municipal Corporation of Greater Mumbai & Anr .. Respondents Mr.M.M.Vashi i/by M.P.Vashi & Associates for the petitioners. Mrs.T.H.Puranik for B.M.C. CORAM: S.C.DHARMADHIKARI, J. DATE : 7th FEBRUARY 2011 P.C. . Heard both sides. Rule. By consent, heard forthwith. 2 The petitioner has impugned in this writ petition under Article 226 of the Constitution of India, the order dated 1st December 2010 directing the petitioner to remove the alleged unauthorised structure as mentioned in the notice within seven days from the receipt of the order, failing which the Corporation will take wp-lod-2838-10.doc 2 steps to demolish it. 3 Mr.Vashi appearing for the petitioner submits that the petitioner has been carrying on business from Shop Nos.1 and 2. It is the case of the petitioner that both shops were already amalgamated and there was no wall in between the two shops. The petitioner was carrying on business of running a restaurant under appropriate licences. 4 It is stated that the shops are located in a building which is administered and managed by the Co-operative Housing Society, namely, Greenfield Co-operative Housing Society. That society filed a civil suit being Suit No.7328 of 1994 in the City Civil Court and in the said civil suit the society prayed for several reliefs against the petitioner. The society brought to the notice of the City Civil Court that the petitioner has without permission of the society erected a partition wall between shop Nos.2 and 3 of the society’s property, illegally constructed a fountain in a portion of the society’s compound, completely closed the rear side windows with wp-lod-2838-10.doc 3 iron casing and erected/installed two sintex water tanks abutting the rear side windows. On a preliminary issue of jurisdiction being raised and the attention of the City Civil Court being invited to section 91 of the Maharashtra Co-operative Housing Society Act, 1960, the City Civil Court by the order dated 24th January 1996 held that it has no jurisdiction to entertain and try the suit and proceeded to reject the plaint. 5 Mr.Vashi submits that the society has thereupon and that too, after a period of more than 14 years filed a writ petition in this Court complaining about unauthorised construction and this Court recorded the statements of the Corporation that it has issued notice dated 8th September 2010 under section 351 of the Bombay Municipal Corporation Act, 1888. The writ petition was, therefore, disposed off in pursuance of the notice. Mr.Vashi submits that the notice describes the unauthorised work as construction of structure on rear side of shop Nos.1 and 2 admeasuring with M.S.Pipes of plastic sheet roof also additions, alterations and amalgamation of two shops i.e Shop Nos.1 and 2 by removing brick masonary wall wp-lod-2838-10.doc 4 and adding W.C and bath admeasuring 29’-0” X 23’-0” X ht 9’-0”. Mr.Vashi submits that this work which is mentioned in the notice is not the same as was made the subject matter of the civil suit by the society. Further, if action is taken on the basis of the complaint of the society, then, the society’s version earlier and now is at complete variance. Whether any construction of structure on rear side of shop was made or whether there is any alteration, addition and amalgamation of the existing shop is not clear from the notice so also the order. 6 On the other hand Ms.Puranik appearing on behalf of the respondents supported the conclusion and submitted that the structure is not reflected in the approved plan sanctioned by planning authority and, therefore, cannot be treated as tolerated. She submits that the order, therefore, is justified. 7 Further, she contended that the petition involves disputed question of facts and, therefore, this Court should not entertain it but relegate the petitioner to the ordinary remedy of filing a civil suit. wp-lod-2838-10.doc 5 8 With the assistance of the learned counsel appearing for the parties, I have perused the petition and the orders of the City Civil Court and the Division Bench of this Court so also, the impugned Notice and the order thereon dated 1st December 2010. 9 Ordinarily, I would have upheld the objection of the learned advocate appearing for the Corporation but in the facts circumstances of the present case, it is apparent that the notice under section 351 pertains to the construction of structure on rear side of Shop Nos.1 and 2 with M.S.pipes and plastic sheet roofs which is termed as unauthorised. Further, additions, alterations and amalgamation of two shops i.e Shop Nos.1 and 2 by means of removing brick masonary wall and adding WC and bath admeasuring 29’-0” X 23’-0” X ht 9’-0”. However, the conclusion of the Assistant Commissioner, K West Ward is that the structure cannot be termed as authorised because it was not in existence prior to 1st April 1962 in a non-slum area. What has been done on the rear side of the shop is termed as a structure by the Assistant Municipal wp-lod-2838-10.doc 6 Commissioner. Therefore, he calls upon the petitioner to produce proof of its existence prior to 1st April 1962. If a structure is made with MS pipes and plastic sheet roofs and that too on rear side of Shop Nos.1 and 2 can that be termed as construction independent of the shop or whether that is an extension of the shop has not been clarified at all. Further, the order does not say anything about the alleged alteration, addition and amalgamation of Shop Nos.1 and 2 and construction of the WC and bathroom. Now, one fails to understand as to how all three words can find place in the notice, namely, addition, alteration and amalgamation. The amalgamation of two shops is referred to but, why the words “additions” and “alterations” appear in the notice and in relation to what, is also not clear. When such is the wording of the notice which is being issued and the order reflecting complete non application of mind on the part of the Assistant Municipal Commissioner, then, the order under challenge cannot be sustained. The Assistant Municipal Commissioner, K Ward has without any reference to the notice and rather ignoring it passed an order. The order is clearly contrary to the contents of the notice. In such circumstances, the order cannot wp-lod-2838-10.doc 7 be sustained and is required to be quashed and set aside. 10 In the result, the writ petition succeeds. The order dated 1st December 2010 is quashed and set aside and the Assistant Municipal Commissioner, K West Ward is directed to pass a fresh order on the notice issued under section 351 of the Mumbai Municipal Corporation Act, 1888 within a period of eight weeks from today and without being influenced in any manner by his earlier order and the conclusions recorded therein. The Assistant Municipal Commissioner, K West Ward shall pass a fresh order after hearing the petitioner and after giving an opportunity to the Co-operative Housing Society to appear and make its submissions. At the request of Mr.Vashi, the petitioner is given one weeks’ time to file additional reply to the notice and produce such documents as he may be advised. The authorities to take into account the additional reply and documents, if filed, within this period while passing the fresh order. Needless to state that I have not expressed any opinion on any of the contentions raised in the petition including on the point of jurisdiction. I have only invited attention wp-lod-2838-10.doc 8 of the authorities to the contents of their notice and the conclusion drawn in the order so also its apparent inconsistency. Therefore, needless to state that all contentions of the petitioner are kept open. Petition is disposed off with the aforesaid direction. (S.C.DHARMADHIKARI, J)