1 AO No.1138/10 & 1389/10 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.1138 OF 2010 (i) Prabhakar Gangaram Shinde (ii)Dr.Suchita Prakash Shinde ... Appellants versus (i) The Municipal Corporation of Gr.Bombay. (ii)Miss Liza Boccaro .. Respondents WITH APPEAL FROM ORDER NO.1389 OF 2010 Miss Liza Boccaro ... Appellant versus The Municipal Corporation of Gr.Bombay... Respondent ... Mr. P.G.Lad for the appellants Ms.K.K.Soraan for BMC respondent CORAM : D.G. KARNIK, J DATED : 22nd December 2010 2 AO No.1138/10 & 1389/10 P.C. 1. Heard learned counsel for the appellants as well as the respondent municipal corporation. 2. These two appeals are directed against the two orders, both dated 31 July 2010, passed by the Adhoc District Judge, City Civil Court, Dindoshi, Bombay dismissing the respective motions taken out by the plaintiffs (appellants) in two suits. 3. Appellants in Appeal No.1138/10 are the owners of shops 4 and 5 (for short “the suit shops”) situated in the compound of the property of Gagangiri Co-op Housing Society Ltd, Carter Road, Bandra Mumbai. Appellant in appeal no.1389/10 is a tenant in occupation of the suit shops. A common notice under section 53 of the Maharashtra Regional and Town Planning Act, 1966 (for short “the MRTP Act”) was issued to the appellants i.e the owners as well as the tenant of shop nos.4 and 5 on 12 June 2009. The owners filed a suit (L.C. Suit No.1437/09) challenging the said notice. The tenants filed another suit (L.C.Suit No.1136/09) challenging the very notice. Since both the suits relate to the same structures viz the suit shops and relate to the same notice dated 12 June 2009, these two appeals are heard and disposed of by this common order. 3 AO No.1138/10 & 1389/10 4. The notice dated 12 June 2009 alleges that the appellants had carried out unauthorised additions and alterations in the suit shops beyond the plans approved by the planning authority on 25 October 2000. The notice required the appellants to remove the additions and alterations carried out in suit shops within one month from the date of receipt of the notice. The notice further stated that in the event the appellants failed to comply with the notice they would be prosecuted and unauthorised constructions would be demolished at the risk of the appellants. Aggrieved by the notice, the owners and the tenants filed two separate suits challenging the notice. In each of the suits, the appellants made an application for an interim injunction restraining the respondent municipal corporation from giving effect to the notice and demolishing the construction pending the decision of the suit. By two separate orders, the trial court rejected both the motions. Aggrieved appellants are in appeal. 5. Mr.Lad, learned counsel appearing for the appellant firstly submits that the notice is vague. It does not give any description of the alleged unauthorised additions or alterations allegedly carried out by the appellants and therefore, notice was liable to be quashed. He further submits that notice refers to a report (of a site inspection) but a copy of the report was not furnished to the appellants. The notice was issued by the Assistant Commissioner of the municipal corporation without verifying the correctness of the report and without even furnishing a copy of the report to the 4 AO No.1138/10 & 1389/10 appellants and therefore, the notice was bad in law. Mr.Lad further submits that the appellants had made out a good prima facie case for grant of an interim injunction and the trial court therefore erred in refusing to grant an interim injunction. 6. Learned counsel for the respondent municipal corporation fairly conceded that proper description of the alleged unauthorised additions and alterations was not given in the notice and to that extent the notice was defective. She further submitted that even in respect of few other similar notices which were issued in respect of other alleged unauthorised constructions in the shops in the same building this Court in AO no.1068/10, AO No.1078/10 and AO No. 1326/10 instead of striking down the notices had permitted the respondents to withdraw the notices with liberty to issue fresh notices and hence in this case also same course be followed. I would have ordinarily accepted the request of the municipal corporation to allow it to withdraw the notices in question and dispose of the appeals but for the fact that the appellants were put to an unnecessary expenditure of filing of a suit to challenge the notice which was ex-facie defective. Not only that the respondent had an opportunity of mending its ways and withdrawing of the notice when the matter came before the trial court but it opposed the motions which were dismissed and the appellants were driven to further expenses of approaching this Court. In the circumstances I am not inclined to allow the respondent Corporation to withdraw the notices simplicitor without 5 AO No.1138/10 & 1389/10 compensating the appellants by way of compensatory costs. 7. The notice issued and signed by Mr.Srinivas Mulgundkar, Assistant Municipal Commissioner, H Ward, states : “And whereas it has been reported to me that you have commenced, undertaken or carried out the development or instituted or changed the user of the land described in the schedule appended below” (underlining supplied) The original file of the respondent municipal corporation was produced for my inspection by the learned counsel for the respondent. The file contains the inspection report dated 5 May 2009 submitted by Mr.S.G. Narkar, Sub-Engineer. If on the basis of the report of Mr.Narkar, Assistant Commissioner was convinced that the appellants had carried out any unauthorised construction and had issued the notice on the basis of that report, a copy of the report ought to have been furnished to the appellants. That was not done. I have also perused the report of Mr.Narkar. It only says “Unauthorised additions and alterations carried out in the compound of the building at Shop nos.4 and 5, Gagangiri CHS Ltd, Off Carter Road, Bandra (W). 6 AO No.1138/10 & 1389/10 The report of the sub-engineer does not describe what were the unauthorised additions and alterations. A mere ipsi dixit by Mr.Narkar that unauthorised additions and alterations were carried out in the compound was accepted by Assistant Commissioner without even caring to ascertain what were the unauthorised additions and alterations. The notice appears to have mechanically issued without any application of mind. The file does not contain any noting made by an Assistant Commissioner about his satisfaction that any unauthorised additions and alterations were made by the appellants. 8. Section 53 of the MRTP Act reads as follows: Section 53 (1) Where any development of land has been carried out as indicated in sub-section (1) of section 52 the Planing Authority may subject to the provisions of this section serve on the owner a notice requiring him, within such period being not less than one month as may be specified therein after the service of the notice, to take such steps as may be specified in the notice, (a) in cases specified in clause (a) or (c) of sub- section (1) of section 52, to restore the land to its condition existing before the said development took 7 AO No.1138/10 & 1389/10 place, (b) in cases specified in clause (b) or (d) of sub- section (1) of section 52 to secure compliance with the conditions or with the permission as modified : Provided that, where the notice requires the discontinuance of any use of land, the Planning Authority shall serve a notice on the occupier also. (2) In particular, such notice may, for purpose of sub-section (1) require - (a) the demolition or alteration of any building or works ; (b) the carrying out on land of any building or other operations ; (c) the discontinuance of any use of land. (3) Any person aggrieved by such notice may, within the period specified in the notice and in the manner prescribed, apply for permission under section 44 of retention on the land of any building or works or for the continuance of any use of the land, to which the notice relates, and pending the final determination or withdrawal of the application, the mere notice itself shall not affect the retention of buildings or works or 8 AO No.1138/10 & 1389/10 the continuance of such use. (4) The foregoing provisions of this Chapter shall, so far as may be applicable, apply to an application made under sub-section (3) (5) If the permission applied for is granted, the notice shall stand withdrawn; but if the permission applied for is not granted, the notice shall stand; or if such permission is granted for the retention only of some buildings, or works, or for the continuance of use of only a part of the land, the notice shall stand withdrawn as respects such buildings or works or such part of the land, as the case may be, and thereupon, the owner shall be required to take steps specified in the notice under sub-section(1) as respects such other buildings, works or part of the land. (6) If within the period specified in the notice or within the same period after the disposal of the application under sub-section 94) the notice or so much of it as stand is not complied with, the Planning Authority may - (a) Prosecute the owners for not complying with the notice; and where the notice requires the 9 AO No.1138/10 & 1389/10 discontinuance of any use of land any other person also who uses the land or causes or permits the land to be used in contravention of the notice ; and (b) where the notice requires the demolition or alteration of any building or works or carrying out any building or other operations, itself cause the restoration of the land to its condition before the development took place and secure compliance with the conditions of the permission or with the permission as modified by taking such steps as the Planning Authority may consider necessary including demolition or alteration of any building or works or carrying out of any building or other operations; and recover the amount of any expenses incurred by it in this behalf from the owner as arrears of land revenue. (7) Any person prosecuted under clause (a) of sub- section (6) shall, on conviction be punished with imprisonment for a term which shall not be less than one month but which may extend to three years and with find which shall not be less than two thousand rupees but which may extend to five thousand rupees and in the case of a continuing offence with a further daily find 10 AO No.1138/10 & 1389/10 which may extend to two hundred rupees for every day during which such offence continues after conviction for the first commission of the offence. 9. Though section 53 does not contemplate holding of any enquiry before issuing of any notice directing an owner of a property to remove the unauthorised structure, in my view, giving of an opportunity to the person who has allegedly carried out an unauthorised construction is implicit in section 53. For all we know, a structure which is alleged to be unauthorised might have been erected by the owner after obtaining the requisite permission of the planning authority/municipal corporation. In some cases, the structure may be very old and records of old building permission may not be available or be misplaced in the office of planning authority but can be produced by the owner if is given a show cause notice or an opportunity of being heard. He may be able to show that the structure has been erected with due permission and action under section 53 of the MRTP Act is uncalled for. Therefore, before issuing of a notice under section 53 directing the removal of an alleged unauthorised structure, the 11 AO No.1138/10 & 1389/10 owner should be given an opportunity to show that the structure is authorised and has been constructed with the approval of the planning authority. The Assistant Commissioner appears to have issued the notice mechanically on the basis of a report of Mr.Narkar which itself does not state the nature of the alleged unauthorised construction, nor does it describe it. It is not clear what were the additions and alterations the owner was expected to demolish on receipt of a notice u/s.53 in the absence of any description of the alleged unauthorised structure. Needless to say the building plans were approved by respondent Municipal Corporation on 25 October 2000 and the notice itself recites that building plans were passed on 25 October 2000. The notice does not indicate that the suit shops themselves were unauthorised and/or were erected without proper approval. If the shops were authorised but there were any alterations made in the suit shops without necessary permission, the nature of the alleged unauthorised alterations ought to have been disclosed in the notice. That has not been done. In the circumstances, ex-facie the notice was illegal. While considering the request of the respondent 12 AO No.1138/10 & 1389/10 for permission to withdraw the notice as stated earlier, it can be given only subject to payment of compensatory costs. Accordingly, appeals are disposed of by granting permission to the respondent municipal corporation to withdraw the impugned notice with liberty to issue fresh notice after giving a reasonable opportunity of hearing the appellants subject to the condition the respondent shall pay costs of Rs.5,000/- to the appellants in each of the appeals. The respondent no.1 is free to reimburse itself by recovering the costs from the persons who were responsible for issuance of the notice without prior verification of the facts and without giving description of the alleged unauthorised additions and alterations. (D.G.KARNIK, J)