1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.2494 OF 2009 Chandrashekhar Madhukar Karnik ..Petitioner V/s. The Bombay Municipal Corporation ..Respondents & ors Mr.K.V.Tembe i/b.Mr.Amol K. Tembe, Advocate, for the petitioner Mrs.G.S.Joglekar, Advocate, for MCGM Mr.P.Kawali i/b.Mr.Jagdeep K. Raut, Advocate, for respondent No.4 CORAM : J. N. PATEL & C. L. PANGARKAR, JJ. DATE : 18TH FEBRUARY, 2010 P.C. . Heard the learned counsel for the parties. 2. Rule. 3. Rule, returnable forthwith. 4. Heard with consent of the parties. 5. By this Writ Petition, the petitioner challenges the Order passed by the Assistant 2 Municipal Commissioner (M/East) dated 10th November, 2009/23rd November, 2009. 6. The petitioner claims to be a tenant in respect of an open piece of land. It is alleged that he runs a factory there. The Municipal Authorities found that the petitioner has made construction of certain shades and other things in respect of which no permission was granted by the Municipal Corporation. Since a temporary structure was found to be unauthorized, a notice under Section 55 of the Maharashtra Regional & Town Planning Act, 1966, came to be issued to the petitioner. 7. In reply to the said notice contention was raised that the structure which is sought to be demolished under Section 55 of the Maharashtra Regional & Town Planning Act, 1966, was in fact a structure of a permanent nature and therefore, notice under Section 55 3 of the Maharashtra Regional & Town Planning Act, 1966, was itself invalid. 8. The petitioner challenged the said notice itself and this Court directed the Assistant Municipal Commissioner to pass appropriate Order after hearing the petitioner and to decide the questions afresh. Thereafter, the Order impugned came to be passed by the Assistant Municipal Commissioner. 9. The learned counsel for the petitioner raised a contention that notice under Section 55 of the Maharashtra Regional & Town Planning Act, 1966, could not be said to be valid in the eyes of law since two conditions are required to be considered before issuance of the said notice. The first condition according to him is that the structure should be of a temporary nature and second, it should be unauthorized. He submits that unless and 4 until the two conditions are fulfilled, no notice could be issued by the Municipal Corporation under Section 55 of the Maharashtra Regional & Town Planning Act, 1966. According to him, when a specific plea was raised by the petitioner that the structure was not of a temporary nature and was of a permanent nature, summary demolition under Section 55 of the Maharashtra Regional & Town Planning Act, 1966, could not be ordered. 10. We find substance in the submission made by the learned counsel for the petitioner that the impugned Order does not decide the question as to whether structure is of permanent or of temporary nature. We also find that the Assistant Municipal Commissioner ought to have decided the question whether the structure that is ought to be demolished by notice under Section 55 of the Maharashtra Regional & Town Planning Act, 1966, is a 5 temporary or is of permanent nature. Since the Order does not disclose that the Assistant Municipal Commissioner has applied his mind with that perspective, the said Order is needs to be set aside. It would, therefore, be necessary to direct the Assistant Municipal Commissioner to re-hear the petitioner, the respondents and any person appearing on behalf of the Municipal Corporation and decide as to whether the structure is of a permanent or of a temporary nature and then take action in accordance with law. Exercise should be completed within a period of eight weeks. The parties should appear before the Assistant Municipal Commissioner on 2nd March, 2010. 11. Rule is made absolute. 12. No Order as to costs. (J. N. PATEL, J.) (C. L. PANGARKAR, J.)