1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINALCIVIL JURISDICTION WRIT PETITION NO. 2181 OF 2008 ABCD Drums and Barels Industries & Anr. ..Petitioners versus Brihanmumbai Municipal Corporation & Ors. ..Respondents And Madhukar S. Survey and Others ...Applicant. Mr. R.A. Rodrigues and Mr. Sagar Talekar for the petitioners. Mr. Mihir Desai for Applicant Mr. P.J. Ramchandani for Respondent No.3 Ms. S.A. Modle for Respondent Nos. 1 and 2. CORAM : F.I. REBELLO & A. A. SAYED , JJ. DATED : 6TH MAY, 2010. P.C. 1 Rule. Heard forthwith. 2 The petitioners had approached this Court, impugning the order dated 2-2-2008, whereby permission No.E-8 of 1986-87, was cancelled with effect from 14-01-2008. The main grievance of the petitioner is that they had shown cause by the communication of 3--01-2008 to the show cause notice dated 17-12-2007. The order or 2-2-2008 does not disclose that the same has been considered. 2 3 When the matter had first come up before us considering the concern expressed by respondent No.3 that the running of the establishment endangers the life of the residents of the first floor, we had appointed a structural engineer from the Panel maintained by this Court. His report is dated 15-4-2010. In his report it is set out that the suit building is structurally safe and can be repaired economically and life of the building can be extended by a period of 10 to 15 years. The Secretary of respondent No.3 has filed affidavit pointing out that the report itself mentions that the first floor rooms are slightly leaned out. In the report what is set out is that some of the flooring of the portion of the first floor are slightly leaned out. It is also pointed out that the petitioners have provided M.S. Girders and staunction so as to avoid further deflection in the flooring of 1st floor. A separation gap was observed between the Teak wood posts and brick walls. This is reflected in the report of the structural valuer also. However after considering all these aspects, the report of the structural engineer says that the cracks observed in the walls are surface cracks and not structural cracks and the building is structurally safe. 4 An objection was raised on behalf of respondent No.3 that the petitioner is having alternate remedy by way of preferring an appeal against the impugned order. Our attention is invited to our order dated 6th 3 November 2006 in a Writ Petition No. 2922 of 2003 that this Court has declined to exercise the extra ordinary jurisdiction. It is now settled that the rule of alternate remedy is rule of procedure. It is always open for the Court in some circumstances including when the petitioner allege violation of the fundamental rights. In the instant violation of Article 14 of the Constitution of India is alleged. In such cases this Court can bypass the procedure of alternate remedy. Apart from that this objection was raised not at initial stage but after when the structural engineer was appointed and when the matter was kept for disposal. In our opinion, considering the contentions by the petitioner that before the impugned order was passed their objection were not considered by the Corporation, in our opinion this will be the fit case to exercise our extra ordinary jurisdiction. 5 By our order dated 18-3-2010 we had considered the objections raised in so far as cancellation of licence is concerned. The petitioner has pointed out that they have necessary connection from BEST and they have now applied to the Corporation for increasing the load which is pending for consideration before the Corporation. 4 6 In our opinion the impugned order suffers from violation of natural justice and it is set aside. It is will open to the Corporation after giving opportunity to the petitioner and after considering their representation and as also after hearing respondent No.3, to pass an order according to law. Rule made absolute accordingly. No order as to costs. ( F.I. REBELLO, J.) ( A. A. SAYED, J.)