MIS TRIG GUARDS FORCE LTD.

MAHARASHTRA INDUS. DEV. CORPN. & ORS.

DECEMBER 6, 2007 B

[DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.]

Urban Development:

C Maharashtra Slums Clearance & Improvement Act, 1971:

Commercial structures/shops in slum area-Demolition of- Jssuance of notice by the authority to demolish shops allegedly without following mandatory requirements in terms of provisions under MRTP

Act-Order for demolition passed by the authority-Challenge to- D Dismissed by High Court-On appeal, Held: The main grievance of appellant-company was that they were not aware of the materials relied on by the High Court-Under the circumstances it would be appropriate to remand the matter to High Court for disposal afresh- Direction issued-Monopolies and Restrictive Trade Practices Act- E Ss. 52 and 53.

Appellants' case was that they constructed commercial structures consisting of shops in a slum area; one of their shop, a single storey structure was in existence long before the notified date F fixed for protecting existing structures under the Maharashtra Slums

Clearance & Improvement Act, 1971; respondent No.3, authority, wanted to evict the appellant-tenant from the said shop with ulterior motive and malafide intention in order to give respondent No.4, a Hotel, direct access, on the Highway; respondent No.3 camouflaged a notice to demolish the structure on non-existing grounds without G fulfilling the mandatory requirement of at least 30 days notice as required under Section 53(1) of the MRTP Act and without conducting any enquiry as to whether there existed any ground under Section 52(1) ofMRTP Act to demolish the structure, directed the

H 1044

TRJGGUARDSFORCELTD. v. MAHARASHTRAINDUS. 1045

DEV.CORPN.

appellant to demolish the structure/shop. The writ petition filed by A the appellant challenging the action of the authority was dismissed by the High Court; Review Petition filed by the appellant was also dismissed by the High Court; In the meantime, an order was passed by the authority providing respondent No.4 access on the main Highway after demolishing the shop/shops. The appellant B approached the High Court by filing another writ petition, which was dismissed by the Division Bench of the High Court. Hence, the present appeals.

Disposing of the appeals, the Court

HELD: 1.1. Inasmuch as the main grievance of the appellant was with regard to the orders passed by the High Court based on the plans produced by MIDC and the appellant was not aware of those materials which were relied on by the High Court, the matter

is remanded to the High Court. Since the issue relates to demolition D of structures and in the light of assertion of the appellant, ends of justice would be met by fresh disposal after affording opportunity to all the parties. [Para 7) (1049-A, BJ

on th~·!~!~~ ~~~;:e:yt~:! h~~~;:: !:~:~: ::~e:~:dr:~~::!::t~ E including MIDC. [Para 7) (1049-B]

CIVIL APPELLATE JURJSDICTION: Civil Appeal Nos. 984- 986 of2005.

From the final Judgment and Order dated l.8.2002 and 22. l.2003 F of the High Court of Judicature at Bombay in W.P. No. 3997/2002 and R.P. No. 98/2002 in W.P. No. 3997/2002 respectively.

Dr. Raj iv Dhawan, Sushi! Kumar Jain, Puneet Jain, H.D. Thanvi, Piyush Jain and Prathibha Jain for the Appellant.

Shyam Divan, Shruti Choudhury, Jayasree Singh, V.N. Raghupathy, Gagan Sanghi and Rameshwar Prasad Goyal (for Mis. Fox Manda! & Co.) for the Respondents.

The Judgment of the Court was delivered by H

A P. SATHASIVAM, J. (1) M/s Trig Guards Force Ltd., New Bombay, aggrieved by the order dated 1.8.2002 passed in Writ Petition No. 3997 of 2002, Order dated 22.1.2003 passed in Review Petition No. 98 of2002 in W.P. No. 3997 of2002 and Order dated 17.2.2003 passed in Writ Petition No. 864 of2003 by the High Court of Judicature B at Bombay, has filed the above appeals by way of special leave petitions.

(2) Brief facts are as follows:

According to the appellant, they constructed commercial structures consisting of nearly 50-60 shops in a slum area known as Turbhe Slum, C Turbhe Village facing Thane-Belapur Highway Road. One of their shops bearing No. 6104 was a single storey building/structure built in and was in existence long before 1.1.1995 i.e., the notified date fixed for protected structures under the Maharashtra Slums Clearance & Improvement Act, 1971 (hereinafter referred to as "the Slum Act") and as per the D Government Resolution and Notification issued from time to time. The said building was assessed for Municipal Tax prior to 1.1.1995 and in this regard the assessment was canied out by the Assessment Department ofNavi Mumbai Municipal Corporation. The said Bill shows that the assessment was levied from 1994-95 and there was electric connection E in the said building since long. The area was constructed under Section 47 of the Slum Act. The provisions of Municipal Laws and other laws were not applicable in respect of the said shops/structures and have to be governed as per the provisions of the Slum Act. The Deputy Engineer, M.l.D.C. Division-II (Respondent No.3 herein) wanted to evict the

F appellant from the said shop with ulterior motive and ma/a fide intention.

Behind the aforesaid shop/shops (on Turbhe Village Thane-Belapur Highway Road), there is a Hotel Centre Point. The said Hotel had no direct access on the Highway. Respondent No.3 with a ma/a fide intention to give direct access to respondent No.4 from eastern side of the Hotel G i.e., directly on the Highway camouflaged a notice to demolish the structure on non-existing grounds. The said notice did not fulfil the mandatory requirement of at least 30 days notice as required under Section 53(1) of the MRTP Act. By the said notice, respondent No.3 without any enquiry as to whether there was existence of ground under Section 52(1) of MRTP Act, directed the appellant to demolish the structure/shop.

TRIGGUARDSFORCELTD. v. MAHARASHTRA INDUS. 1047

DEV.CORPN. [P.SATHASIVAM, J.] -/ --..i

When the appellant challenged the action of the official respondent on the A basis of the lay out plan (which was not shown to them), their writ petition was dismissed by the High Court. Review Petition filed by the appellant was also dismissed on the same grounds. Meanwhile, on the application of the 4th respondent-Hotel Centre Point, an order was passed by the , official respondent providing way to the main Highway after demolishing B the shop/shops. Again the appellant approached the High Court by way of a writ petition namely, W.P. No. 864 of 2003. By order dated 17.2.2003, tl-te Division Bench of the High Court placing reliance on its earlier order dated 1.8.2002 passed in W.P. No. 3997 of 2002, order dated 22.1.2003 passed in Review Petition No. 98 of2002 and finding c no merit, dismissed the said writ petition, hence, the present appeals before this Court.

(3) Heard Dr. Rajiv Dhawan, learned senior counsel appeating for the appellant and Mr. Shyam Divan, learned senior counsel appearing for D

MIDC.

( 4) Dr. Raj iv Dhawan, learned senior counsel, for the appellant made the following contentions:

(i) The MIDC had no basis to demolish the premises of the appellm1t.

(ii) Due process requirements under the statues were not followed by the official respondents.

(iii) There was no application of mind by the MIDC in so far as: F

(a) the appellm1t was the lawful owner of the premises;

(b) the premises were in a sanctioned layout scheme;

( c) the area was a protected slum area;

(iv) There was no effective hearing granted to the appellant prior G

) to the demolition which violates the principles of natural justice.

(v) The appellant was denied information which formed the basis of the in1pugnedjudgment of the High Court.

(vi) The High Court exceeded its jurisdiction in granting legal H

A sanction to the authorities to demolish the premises without an effective hearing, without due notice and without supplying any information to the appellant.

(vii) The action of the authority favouring 4th respondent-Hotel Centre Point is ma/a fide one.

(5) Mr. Sh yam Divan, learned senior counsel, appearing for MIDC refuted all the above contentions. According to him, if it is a Slum Area, there must be a specific notification, in the absence of such notification, the claim of the appellant that their premises lie in Slum Area cannot be C accepted. He denied the allegation that action was taken at the behest of 4th respondent-Hotel Centre Point. He finally contended that the statutory scheme provides appeal and revision, without exhausting the same, writ petitions before the High Court are not maintainable.

(6) We considered the relevant materials and rival contentions of the learned senior counsel appearing on either side. We also perused the orders of the High Court dated 1.8.2002 in Writ Petition No. 3997 of 2002, dated 22.1.2003 in Review Petition No. 98 of 2002 as well as order dated 17.2.2003 in Writ Petition No. 864 of2003. In the first order, E the Division Bench of the High Court, after holding that since the appellant had encroached upon the road and constructed a ground, two storeyed structure which is wholly unauthorized, confirmed the notice issued for demolition and dismissed the first writ petition. While considering the review petition, the Division Bench after perusing the plans provided by MIDC and finding that the appellants have raised unauthorized construction F on the area demarcated for road dismissed the same. When the appellants filed another writ petition, namely, Writ Petition No. 864 of2003, the Division Bench, after noting that earlier orders were passed based on the plans produced by the MIDC and of the fact that the appellant had raised unauthorized construction on the area demarcated for road, dismissed the G said writ petition. Though Dr. Rajiv Dhawan, learned senior counsel,

appe.aring for the appellants took us through various provisions of the MRTP Act and contended that the official respondents were not justified in demolishing their structure, we are not inclined to go into those aspects in the light of the order to be passed hereunder.

TRIG GUARDS FORCE LTD. v. MAHARASHTRA 1049

INDUS.DEV.CORPN. [P.SATHASIVAM, J.]

(7) Inasmuch as the main grievance of the appellant was with regard A to the orders passed by the High Court based on the plans produced by MIDC and the appellant was not aware of those materials which were relied on by the High Court, we inclined to remand the matter to the High Court. Since the issue relates to demolition of structures and in the light of assertion of the appellant, we are of the view that ends of justice would B be met by fresh disposal after affording opportunity to all the parties. It is made clear that we are not expressing anything on the stand taken by the appellant as well as by the respondents including MIDC. In view of the same, we set aside the order dated 17.2.2003 passed by the High Court in W.P. No. 864 of2003 and restore the said writ petition on its file. The c High Court is requested to dispose of the same afresh after affording opportunity to all the parties. They are at liberty to place their respective claim by way of an affidavit/counter affidavit supported by documents within a period of four weeks from the date of receipt of the copy of this judgment and thereafter it is for the Division Bench ofthe High Court to D decide the writ petition on merits as early as possible.

(8) The Civil Appeals are disposed of on the above terms. No costs:

S.K.S.

Appeals disposed of.