IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION WRIT WRIT WRIT PETITION NO.51 OF 2008 PETITION NO.51 OF 2008 PETITION NO.51 OF 2008 Fehmida Abubakar Varakaya ..Petitioner V/s. The State of Maharashtra & Ors. ..Respondents ....... Mr. K.D. Jha for the Petitioner Mr. R.M. Kadam, AG with Ms. S.M. Dandekar, AGP for Respondent-State Ms. P.A. Purandare for Respondent-BMC ....... CORAM CORAM CORAM : SHRI J.N.PATEL & : SHRI J.N.PATEL & : SHRI J.N.PATEL & SHRI SHRI SHRI K.K.TATED, JJ. K.K.TATED, JJ. K.K.TATED, JJ. DATE DATE DATE : 4TH SEPTEMBER, 2008 : 4TH SEPTEMBER, 2008 : 4TH SEPTEMBER, 2008 P.C.: . Heard. 2. The Petitioner has challenged the validity of the Section 55 of the MRTP Act and seeks a Writ of this Court to quash and strike down Section 55 of the MRTP Act, as ultra vires of fundamental rights guaranteed under the Constitution of India. 3. It is the case of the Petitioner that she is having a temporary structure adjacent to Room No.404, : 2 : Building No.17, Tata Colony, Bandra Kurla Complex, Bandra(E), Mumbai-51 which is made of B.M. wall having corroborated asbestos sheet admeasuring 16x10 i.e. 160 Sq.Ft. Inspite of the said temporary structure being regularized by MHADA i.e. Respondent No.2, the Respondent No.3 has issued Notice under Section 55 of the MRTP Act. The Petitioner specifically relied on a document which is annexed to the Petition as Exhibit-E Exhibit-E Exhibit-E to show that Respondent No.2 has regularized the structure by imposing penalty of Rs.2,700/-, to the Petition. 4. It is not in dispute that the temporary structure has been erected without seeking any permission from local planning authority and, therefore, proceedings were initiated against the Petitioner. On the receipt of the Notice under Section 55 of the MRTP Act, the Chairman / Secretary of the Tata Colony Co-operative Society Ltd. has approached the City Civil Court by filing Civil Suit bearing Suit No.2423 of 2007 and took out Notice of Motion No.2607 of 2007 seeking parties to maintain status quo in respect of the subject matter governed under Section 55 of the MRTP Act. The City Civil Court did not grant any interim relief. Aggrieved by the same, the Society preferred the Appeal : 3 : from Order No.637 of 2007 in this Court, which also came be to dismissed. The Petitioner’s tenement is one of such tenements out of which Tata Colony which is consisting of 7 Housing Societies having 21 buildings comprising of tenements allotted by MHADA under LIG / NPS scheme. The learned counsel for the Petitioner has read out various provisions of the MRTP Act, 1966 and the procedure which is required to be followed by the Statutory bodies in respect of the removal or continuance of unauthorized temporary structure. It is submitted that Section 55 does not provide for any notice to the parties before initiating action for removal or discontinuance of unauthorized temporary structure i.e. contrary to fundamental right of a citizen. As such, an action which does not contemplate a notice to be given is inconsistant with the settled law that the authorities cannot remove the unauthorized construction without following due process of law. 5. The learned Advocate General pointed out to this Court a decision of the Supreme Court rendered in the case of Ahmedabad Municipal Corporation V/s. Nawab Khan Ahmedabad Municipal Corporation V/s. Nawab Khan Ahmedabad Municipal Corporation V/s. Nawab Khan Gulab Gulab Gulab Khan & Ors. reported in SCC-121 (1997) 11 Khan & Ors. reported in SCC-121 (1997) 11 Khan & Ors. reported in SCC-121 (1997) 11, and particularly in para 10 of the reported judgment that the Supreme Court has laid down the procedure to be : 4 : adopted for removing encroachment and held in the said case that the action taken by the appellant-Corporation was not violative of the principle of natural justice. 6. On bare reading of Section 55, it is quite clear that the party is given 15 days notice to meet the case of the local planning authority on being served with the Notice under Section 55 as it specifically provided that if such a notice is served, the party should remove his unauthorized construction within 15 days of the receipt of notice and if thereafter the parties does not comply with the notice within the said period, the planning authority may request the District Magistrate or the Commissioner of Police, as the case may be, to summarily remove or discontinue, as the case may be, without any notice as directed in the notice. Therefore, we do not find that Section 55 of the MRTP Act when read in isolation or in conjuction with other provisions can be held to be ultravirus as within 15 days period the person who is served with such notice can always approach the competent authority (planning authority) and establish that the said construction is authorised. 7. In the present case, the Petitioner, except for placing reliance on document annexed at Exhibit-E, has : 5 : not placed anything on record to show that the said construction is sanctioned by the planning authority. Therefore, in our view challenge to Section 55 of the MRTP act is without any foundation. 8. The learned counsel for the Petitioner submitted that this Court may stay the effect and operation of the order or grant some type of protection. We fail to understand when the challenge to Section 55, which has been turned down by this Court, what type of stay can be given or protection can be extended to the Petitioner. Therefore, prayer is rejected. 9. The Petition is dismissed accordingly. (J.N. (J.N. (J.N. Patel, J.) Patel, J.) Patel, J.) (K.K. (K.K. (K.K. Tated, J.) Tated, J.) Tated, J.)