MANU/MH/2652/2018

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 518 of 2017
Decided On: 17.09.2018
Appellants: Mohd. Sayed Mohd. Salim Nagori Rizvi
Vs.
Respondent: The Municipal Commissioner and Ors.
Hon'ble Judges/Coram:
Abhay Shreeniwas Oka and Riyaz I. Chagla, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Aditii Naikare I/b Pradeep J. Thorat
For Respondents/Defendant: Shital Mane
Case Note:
Civil - Illegal demolition - Reconstruction - Present petition is filed seeking
a direction against respondents to reconstruct the stall/shop occupied by
petitioner which is alleged to have been illegally demolished by
respondents without following the due process of law - Whether petitioner
has made out a case for grant of necessary direction as prayed - Held,
respondent Corporation demolished the subject premises without notice -
Opportunity of hearing to petitioner was not given - Decision of respondent
corporation was flawed - There is no justification of urgency and
requirement of expeditious removal of subject premises without prior
notice - Action of demolition carried out by respondent Corporation in
violation of principles of natural justice was illegal - Disposed of. [14]
JUDGMENT
Riyaz I. Chagla, J.
1 . The Petitioner by the present Petition is seeking a direction against the
Respondents to reconstruct the stall/shop occupied by the Petitioner which is alleged
to have been illegally demolished by the Respondents on 16th December, 2016
without following the due process of law or in the alternative a direction to the
Respondents to provide suitable alternate premises of equivalent area as that of the
said premises and in the nearby vicinity of the said premises which have been
illegally demolished by the Respondents. Further, relief has been sought by way of
amendment to the Petition for quashing and setting aside order dated 11th
December, 2017 passed by the Assistant Municipal Commissioner, H-West Ward,
Mumbai Municipal Corporation which upholds the impugned action of demolition as
well as a challenge to clause (v) of the Circular dated 5th October, 2015 to the extent
that it holds that the license issued under Section 394 of the Mumbai Municipal
Corporation Act, 1888 (for short "the said Act") will not be considered to treat the
structure as authorised.
2. The Petitioner claims to be suffering from 100% hearing disability. The stall/shop
admeasuring 9.24 sq. mtrs situate at Abdul House, John Baptista Road, Iraniwadi,
Bandra (West), Mumbai 400 040 is the subject matter of the present Petition (for

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short "the subject premises"). The Petitioner has stated that the subject premises was
originally situate on the private land CTS No. B/639 owned by Aaron Daniel Abrahim
and others. The Petitioner's predecessor one Shri Ankush Salgaonkar was carrying on
business from the subject premises prior to 1986. Respondent No. 1-Corporation
acquired a portion of the land CTS No. B/639 for the purpose of road widening due to
which the size of the subject premises was required to be reduced by the
predecessor. Respondent No. 1-Corporation permitted the Petitioner's predecessor to
construct the subject premises admeasuring 4.20 meter X 2.20 meter. A request was
made by the Petitioner's predecessor to increase the size of the subject premises and
pursuant to the request, Respondent No. 2 issued letter dated 20th June, 2011
granting permission to increase the size to the original size of 6 X 4 sq. mtrs.
Respondent No. 2 further permitted the said Shri Ankush Salgaonkar to carry out
repairs of the subject premises on terms and conditions mentioned therein. The
Petitioner purchased the subject premises from the previous owner, the said Shri
Ankush Salgaonkar under Agreement for Sale dated 30th June, 2012 for valuable
consideration. It is stated in the Petition that the Petitioner's predecessor who was
carrying on business in the subject premises in the name and style of M/s. Lalita
Stores was paying necessary fees and ground rent in respect of the subject premises
to the Respondent-Corporation and was issued a Registration Certificate in respect of
his establishment under the Bombay Shops and Establishments Act, 1948.
Respondent No. 3 had also issued license under Section 394 of the said Act in respect
of business carried out by the predecessor of the Petitioner from the subject
premises.
3. An application was submitted to the Respondent No. 1-Corporation for transfer of
the subject premises in his name. The Assistant Engineer (Maintenance), H/W Ward
of the Respondent No. 1-Corporation issued letter dated 9th August, 2014
transferring the subject premises in favour of the Petitioner on terms and conditions
mentioned in the said letter. The Petitioner appears to have also been directed by the
Respondent No. 1-Corporation to pay transfer charges amounting to Rs. 50,000/- and
10 years ground rent amounting to Rs. 7,200/- within seven days for effecting
transfer of the subject premises in favour of the Petitioner. In pursuance of order
dated 6th August, 2014 passed by the Deputy Municipal Commissioner, Zone III, the
Petitioner paid transfer charges of Rs. 50,000/- and 10 years ground rent amounting
to Rs. 7,200/- to the Respondent No. 1-Corporation. The Petitioner's name was
accordingly included in the Ground Rent Register in place of his predecessor, Shri
Ankush Salgaonkar. The Petitioner started business in the name and style of M/s.
Siddhivinayak Fast Food from the subject premises and was issued Registration
Certificate by Respondent No. 1-Corporation for his establishment under the
Maharashtra Shops and Establishments Act, 1948. A Trade License was also issued by
Respondent No. 3 under Section 394 of the said Act in respect of the business of the
Petitioner's Fast Food Centre and Chat carried out from the subject premises. The
Petitioner further obtained Registration Certificate under the Food Safety and
Standards Act, 2006 in respect of the business of M/s. Siddhivinayak Fast Food
carried out from the subject premises. A police license has also been obtained and
electricity connection from Reliance Energy for conducting the business from the
subject premises.
4. The Petitioner has stated in the Petition that in the month of September, 2016 the
officials of the Respondent No. 1-Corporation visited the subject premises and
informed the Petitioner that the subject premises is unauthorised and same will be
demolished as soon as necessary police protection is obtained. The Petitioner
accordingly filed Long Cause Suit No. 2449 of 2016 before the City Civil Court at

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Dindoshi against the Respondents seeking an order of injunction restraining the
Respondents from disturbing the possession of the Petitioner over the subject
premises or demolishing the subject premises without following due process of law.
An order dated 21st September, 2016 was passed by the learned Judge of the City
Civil Court at Dindoshi by which ad-interim relief was granted to the Petitioner and
the Respondent No. 1-Corporation was restrained from demolishing the subject
premises without following due process of law. Thereafter, the Respondent No. 3
issued Notice dated 15th December, 2016 to the Petitioner stating that the trade
activity is not permitted on the footpath without license under Section 313 of the said
Act. It further stated that the subject premises is situated on Municipal footpath and
hence ground rent is cancelled. Consequently license under Section 394 of the said
Act is also cancelled. The Respondent No. 3 directed the Petitioner to discontinue
trade activity from the subject premises with immediate effect. On the very next day
i.e. 16th December, 2016, the officers of the Respondent No. 1-Corporation visited
the subject premises and demolished the same. This according to the Petitioner was
done without following due process of law and despite an order of injunction having
been passed by the City Civil Court at Dindoshi restraining Respondent No. 1-
Corporation from demolishing the subject premises. The Petitioner filed a complaint
dated 16th December, 2016 against the Respondents with the Inspector of Police,
Bandra Police Station. The Petitioner has thereafter filed the present Petition.
5. An order dated 20th November, 2017 came to be passed by this Court wherein a
statement was made by the learned counsel for the Respondent No. 1-Corporation on
instructions that the case of the Petitioner would be reconsidered by the Respondent
No. 1-Corporation and decision would be rendered within 10 days. The statement
was accordingly accepted. An order dated 11th December, 2017 came to be passed
by the Respondent No. 1-Corporation wherein it was held that as the subject
premises was on the footpath and there was no license under Section 313 of the said
Act, the same shall be treated as unauthorised encroachment on footpath and hence
no compensation shall be awarded to the Petitioner against demolition of the subject
premises on the footpath. The Petitioner being aggrieved by the impugned order
dated 11th December, 2017 as well as the reliance upon the Respondent No. 1-
Corporation on the said Circular dated 5th October, 2015 has amended the Petition.
This Court by order dated 10th January, 2008 issued notice to the parties that
considering the nature of the issue involved in this Petition, this Petition needs to be
disposed of finally at the stage of admission. Accordingly, this Petition is taken up for
final disposal.
6. The learned counsel appearing for the Petitioner submits that the subject premises
was demolished by the Respondent No. 1-Corporation without following due process
of law. He submits that the Notice issued by the Respondent No. 1-Corporation on
15th December, 2016 cancelled the ground rent of the subject premises as well as
the health license issued to the Petitioner with immediate effect. On the very next day
of the issue of the Notice dated 15th December, 2016, the Respondent No. 1-
Corporation demolished the subject premises without granting the Petitioner an
opportunity of hearing and in violation of the principles of natural justice. He has
submitted that the subject premises of the Petitioner is an authorised structure having
been issued all the requisite permissions including necessary health license by the
Respondent No. 1-Corporation and license under the Maharashtra Shops and
Establishments Act, 1948 for carrying out business from the subject premises.
Further, the Petitioner has paid the transfer charges and 10 years ground rent as
directed by the Respondent No. 1-Corporation. He submits that the Petitioner is a
disabled person and the business carried out by the subject premises was his only

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source of livelihood. He has submitted that the demolition of the subject premises
was also in breach of order of injunction dated 21st September, 2016 passed by the
learned Judge of the City Civil Court at Dindoshi. He has submitted that having been
issued the requisite licenses, the Respondent No. 1-Corporation could not demolish
the subject premises only on the premise that the license under Section 313 of the
said Act appears to have not been issued. He submits that the Respondent No. 1-
Corporation has justified the demolition of the subject premises by erroneously
placing reliance on the impugned circular dated 5th October, 2015 and in particular
clause (v) thereof in its impugned order dated 11th December, 2017. He submits that
Respondent No. 1-Corporation cannot ignore the payments of transfer charges,
ground rent made by the Petitioner as well as health license and Shops and
Establishments license issued to the Petitioner for carrying out the business from the
subject premises. He has submitted that the subject premises is not obstructing the
pedestrian and vehicular traffic and/or is situated on Municipal road. He has
submitted that the impugned action of the Respondents of demolition of the subject
premises without notice and/or hearing is contrary to the well settled law laid down
by the Supreme Court as well as this Court. He has relied upon a judgment of this
Court in Navinchandra Shyamji Chhadva & Ors. Vs. State of Maharashtra & Ors1.,
wherein this bench had on the facts of the case held that the act of issuing notice
under Section 314 of the said Act cannot be said to amount to following due process
of law. He has submitted that the subject premises having been demolished without
following due process of law in the present case ought to be reconstructed and/or
suitable alternate premises ought to be made available to the Petitioner of an
equivalent area as that of the subject premises in nearby vicinity so that the
Petitioner may be able to carry out his business.
7. The learned counsel appearing for the Respondent-Corporation has supported the
impugned action of the Respondents. He has submitted that the action of demolition
of the subject premises has been taken under Section 314 of the said Act as the
subject premises was on a Municipal footpath and hence under the said provision the
Commissioner of the Respondent No. 1-Corporation can remove the subject premises
without issuance of notice. He has submitted that the subject premises was required
to be removed in view of the Circular of the Respondent No. 1-Corporation dated
15th October, 2015. He has placed reliance upon clause (v) of the impugned Circular
and submitted that only when the subject premises has valid license under Section
313 of the said Act, the premises shall be treated as authorised. He has submitted
that the Respondents have by following due process of law demolished the subject
premises as per the provisions of Section 314 of the said Act by giving sufficient time
to the Petitioner to remove his belongings or articles on 16th December, 2016. He
has submitted that the Respondent No. 1-Corporation agreed to reconsider the
decision regarding removal of the subject premises and had granted a hearing to the
Petitioner and reconsidered all his documents. He submits that after hearing the
Petitioner, the Respondent No. 1-Corporation passed order on 11th December, 2017
upholding the action of demolition of the subject premises by placing reliance upon
the Circular dated 5th October, 2015 and the fact that no license under Section 313
of the said Act had been issued for the subject premises and/or the subject premises
was not originally allotted to any disabled/physically challenged person. He has
placed reliance upon the Affidavit of Shri Sharad Ughade, Assistant Commissioner,
H/W Ward of the Respondent No. 1-Corporation in support of his submission. The
deponent of the said Affidavit has relied upon similar Petitions filed by the other
Petitioners in this Court where this Court has observed that the Commissioner has
power to remove without notice anything erected, deposited or hawked in

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contravention of Sections 312, 313 and 313A of the said Act and such discretion
vested in the Commissioner and action was justified in that case viz. Writ Petition (L)
No. 45 of 2016 as the premises was blocking a Nallah and hence was demolished.
8. We have considered the submissions. The Petitioner is aggrieved by the demolition
of his subject premises carried out by the Respondent No. 1-Corporation under
Section 314 of the said Act on 16th December, 2016 without any Notice and/or
hearing. It appears that one day prior to the demolition of the subject premises, the
Respondent No. 1-Corporation issued letter/notice to the Petitioner cancelling the
health license and the ground rent of the subject premises. The Respondent No. 1-
Corporation proceeds on the premise that the Petitioner did not possess a license
under Section 313 of the said Act and that under its Circular dated 5th October, 2015
only those stalls/shops shall be treated as authorised where they are having a license
under Section 313 of the said Act. The Respondents claim that they are entitled under
Section 314 of the said Act to demolish the said structure without any notice as the
subject premises was on a Municipal footpath and without having a licence under
Section 313 of the said Act. The subsequent order issued by Respondent No. 1-
Corporation on 11th December, 2017 upon agreeing to reconsider the case of the
Petitioner as recorded by order of this Court dated 20th November, 2017, also
proceeds on the premise that the unauthorised encroachment was on a footpath and
as no license had been granted under Section 313 of the said Act, the premises was
demolished.
9. It would in this context be relevant to consider the scope and ambit of Section 314
of the said Act which reads thus:-
Section 314
[Power to remove without notice anything erected, deposited or hawked in
contravention of section 312, 313 or 313A.] [1]
(a) any wall, fence, rail, post, step, booth or other structure or fixture which
shall be erected or set up in or upon any street, or upon or over any open
channel, drain, well or tank contrary to the provisions of subsection (1) of
section 312, after the same comes into force [2] [in the city or in the
suburbs, after the date of the coming into force of the Bombay Municipal
(Extension of Limits) Act, 1950 [3] [or in the extended suburbs after the date
of the coming into force of the Bombay Municipal (Further Extension of
Limits and Schedule BBA (Amendment)] Act, 1956];]
(b) any stall, chair, bench, box, ladder, bale, board or shelf, or any other
thing whatever placed, deposited, projected, attached, or suspended in,
upon, from or to any place in contravention of sub-section (1) of section
313;
(c) any article whatsoever hawked or exposed for sale in any public place or
in any public street in contravention of the provisions of section 313A and
any vehicle, package, box, board, shelf or any other thing in or on which
such article is placed or kept for the purpose of sale.]
(d) any person, unauthorisedly occupying or wrongfully in possession of any
public land, from such land together with all the things and material
unauthorisedly placed, projected or deposited on such land by such person:

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 Provided that, the Commissioner shall, while executing such
removal, allow such person to take away his personal belongings
and household articles, such as cooking vessels, bed and beddings
of the family, etc.]
10. The constitutional validity of Section 314 of the said Act came up for challenge
before the Supreme Court in the case of Olga Tellis and Ors. Vs. Bombay Municipal
Corporation and Ors. MANU/SC/0039/1985 : (1985) 3 Supreme Court Cases 545. The
Supreme Court in paragraphs 44 and 45 held thus:-
44. The challenge of the petitioners to the validity of the relevant provisions
of the Bombay Municipal Corporation Act is directed principally at the
procedure prescribed by Section 314 of that Act, which provides by clause
(a) that the Commissioner may, without notice, take steps for the removal of
encroachments in or upon any street, channel, drains, etc. By reason of
Section 3(w), 'street' includes a causeway, footway or passage. In order to
decide whether the procedure prescribed by Section 314 is fair and
reasonable, we must first determine the true meaning of that section
because, the meaning of the law determines its legality. If a law is found to
direct the doing of an act which is forbidden by the Constitution or to
compel, in the performance of an act, the adoption of a procedure which is
impermissible under the Constitution, it would have to be struck down.
Considered in its proper perspective, Section 314 is in the nature of an
enabling provision and not of a compulsive character. It enables the
Commissioner, in appropriate cases, to dispense with previous notice to
persons who are likely to be affected by the proposed action. It does not
require and, cannot be read to mean that, in total disregard of the relevant
circumstances pertaining to a given situation, the Commissioner must cause
the removal of an encroachment without issuing previous notice. The primary
rule of construction is that the language of the law must receive its plain and
natural meaning. What Section 314 provides is that the Commissioner may,
without notice, cause an encroachment to be removed. It does not command
that the Commissioner shall, without notice, cause an encroachment to be
removed. Putting, it differently, Section 314 confers on the Commissioner the
discretion to cause an encroachment to be removed with or without notice.
That discretion has to be exercise in a reasonable manner so as to comply
with the constitutional mandate that the procedure accompanying the
performance of a public act must be fair and reasonable. We must lean in
favour of this interpretation because it helps sustain the validity of the law.
Reading Section 314 as containing a command not to issue notice before the
removal of an encroachment will make the law invalid.
45. It must further be presumed that, while vesting in the Commissioner the
power to act without notice, the Legislature intended that the power should
be exercised sparingly and in cases of urgency which brook no delay. In all
other cases, no departure from the audi alteram partem rule ('Hear the other
side') could be presumed to have been intended. Section 314 is so designed
as to exclude the principles of natural justice by way of exception and not as
a general rule. There are situations which demand the exclusion of the rules
or natural justice by reason or diverse factors like time, place, the
apprehended danger and so on. The ordinary rule which regulates all
procedure is that persons who are likely to be affected by proposed action
must be afforded an opportunity of being heard as to why that action should

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 not be taken. The hearing may be given individually or collectively,
depending upon the facts of each situation. A departure from this
fundamental rule of natural justice may be presumed to have been intended
by the Legislature only in circumstances which warrant it. Such
circumstances must be shown to exist, when so required, the burden being
upon those who affirm their existence.
11. The Supreme Court thus held Section 314 to be in the nature of an enabling
provision and not of a compulsive character. It enables the Commissioner in
appropriate cases, to dispense with the previous notice to persons who are likely to
be affected by the proposed action. However, this cannot be to read to mean that in
total disregard of relevant circumstances, pertaining to a given situation, the
Commissioner must cause the removal of encroachment without issuing previous
notice. The discretion exercised by the Commissioner under Section 314 of the said
Act is to be exercised in a reasonable manner so as to comply with the constitutional
mandate that the procedure accompanying the purpose of a public act must be fair
and reasonable. The Supreme Court accordingly upheld the constitutional validity of
Section 314 of the said Act. This decision of the Supreme Court has been consistently
followed by this Court. Two of the decisions of this Court are worth mentioning in the
context of the present case. In Savitri Laxman Suvare and 7 Ors. Vs. The Union of
India and 4 Ors. 2016 SCC Online Bom 1502, the Division Bench of this Court has
referred to the judgment of the Supreme Court in Olga Tellis (Supra) and has
observed that the Supreme Court in that case had held that a minimal notice and
hearing is not ruled out in all cases and for all times under Section 314. This Court
has observed that a general rule was not laid down in the judgment of the Supreme
Court that in every case which is of emergent nature, the Corporation is obliged to
follow the principles of natural justice. The Corporation would have to justify that
there was an urgency. That there was indeed a requirement of expeditious removal
without notice of certain structures as they were affecting public streets, pavements,
footpaths or other similar conveniences. The record would have to be produced for
the Court to be satisfied with regard to the dispensation of a notice and hearing by
the Corporation. This Court in so observing held that, beyond these observations
nothing else can be read into this judgment. This has been observed in paragraph 18
of the said decision which reads thus:-
"18. Once the only reliance that is placed is on the scheme at page 145 and
that is found to be wholly inapplicable, then we do not see how assistance
can be derived from the judgment of the Hon'ble Supreme Court of India in
Olga Tellis. In that case, the Hon'ble Supreme Court of India was considering
a challenge to the constitutional validity of Section 314 of the Mumbai
Municipal Corporation Act, 1888. In Mr. Sabban's submission, those residing
on pavements and footpaths were evicted as a part of the block or mass
demolition drive. They were thrown out of their hutments and hut-like
structures or from the pavements without any prior notice, leave alone a
hearing. Reliance was placed by Municipal Corporation on Section 314, which
empowers and authorizes it to remove all obstructions and obstacles on
public streets, pavements and footpaths. In considering that challenge, the
Hon'ble Supreme Court held that a minimal notice and hearing is not ruled
out in all cases and for all times under Section 314. The Section could be
saved by reading into it a requirement of this nature, depending upon the
facts and circumstances of each case. No general rule was laid down that in
every such case which is of emergent nature as well, the Corporation is
obliged to follow the principles of natural justice. On the other hand, if the

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 action was challenged in Court, the Corporation would have to justify that
there was an urgency, that there was indeed a requirement of expeditious
removal without notice of certain structures as they were affecting public
streets, pavements, footpaths or other similar conveniences. The record
would have to be produced for the Court to be satisfied with regard to the
dispensation of a notice and hearing by the Corporation. Beyond this, we do
not read anything in this judgment. Rather it holds that there is no
fundamental or vested right in squatting or encroaching on public lands and
properties. There is no license to enter upon such lands unauthorizedly, or to
remain there merely because the occupation is of decades together. Neither
is there any obligation of the State or the other authorities to provide such
persons who are affected or removed an alternate site or accommodation. It
was because the plight of these pavement dwellers and those on the
footpaths being there for decades together moved the Supreme Court that
the eventual directions on which Mr. Sabban relies were issued".
12. Another decision of this Court worth referring to in this context is in Javed Khalid
Khan Vs. Thane Municipal Corporation & Ors.2. The Division Bench of this Court
disposed of a group of Writ Petitions by a common judgment. These Petitions
challenged the action taken by Respondent No. 1-Corporation of demolition of the
shops under Section 231 of the Maharashtra Municipal Corporations Act, 1949.
Section 314 is almost identical to Section 231 of the MMC Act, 1949 and hence this
judgment is relevant in the facts of the present case. The Division Bench of this Court
comprising one of us (A.S. Oka. J.) in paragraphs 20 to 22 held thus:-
2 0 . We have carefully considered the submissions. There is no dispute
between the parties that the shop premises/structures subject matter of these
petitions were in existence and were demolished by the said Corporation. As
far as the demolition of illegal structures is concerned, the law has been laid
down by the Division Bench of this Court in the case of Sopan Maruti
Thopate and others (supra). Paragraphs 19 to 21 of the said decision read
thus:
"19. Hence, on the basis of the law as discussed above, it is
directed that after 1st May, 1996 the Bombay Municipal
Corporation or the Municipal Corporations constituted under
the B.P.M.C. Act would follow the following procedure before
taking action under Section 351 of the B.M.C. Act or under S.
260 of the B.P.M.C. Act.
"(i) In every case where a notice under Section 351
of the B.M.C. Act/under Sec. 260 of B.P.M.C. Act is
issued to a party 15 days' time shall be given for
submitting the reply. In case the party to whom
notice is issued sends the reply with the documents,
and shows cause, the Municipal Commissioner or
Deputy Municipal Commissioner shall consider the
reply and if no sufficient cause is shown, give short
reasons for not accepting the contention of the
affected party.
(ii) It would be open to the Commissioner to
demolish the offending structure 15 days after the

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 order of the Commissioner/Deputy Municipal
Commissioner is communicated to the affected
person.
(iii) In case the staff of the Corporation detects the building
which is in the process of being constructed and/or
reconstructed and/or extended without valid permission
from the Corporation, it would be open to the Commissioner
to demolish the same by giving a short notice of 24 hours
after drawing a panchanama at the site and also by taking
photographs of such structure and/or extension. The
photographs should indicate the date when the same were
taken.
(iv) In case where the Municipal Corporation has followed
due process of law and demolished the unauthorised
structure and or extension, if the same is reconstructed
without valid permission within a period of one year, it
would also be open to the Corporation to demolish the same
by giving a short notice of 24 hours.
(v) If the offending structure and/or extension which is
assessed by the Corporation for two years, notice shall
provide for 15 days' time to show cause. If the Deputy
Municipal Commissioner comes to the conclusion that he
requires assistance of the party, he may give an oral hearing
if he deems fit and proper before passing the order. It is
made clear that oral hearing is not at all compulsory but it is
at the discretion of the authority.
(vi) In any other case the Corporation is directed to issue a
show cause notice in case of any structure and/or extension
other than those mentioned in clauses (i) to (iv) above. The
Corporation shall provide for 7 days' time to show cause in
such a case."
20. In case the notice is issued under Sec. 478 of the B.P.M.C. Act,
1949 and if the person has not complied with the requisitions of the
Commissioner, then it would be open to the Commissioner to
demolish the unauthorised structure after expiry of 30 days of the
period specified in the notice for removal of such construction.
21. The Municipal Corporations in the State of Maharashtra
would follow the above directions so as to avoid unnecessary
litigation."
(emphasis added)
The said decision of the Division Bench of this Court has admittedly attained
finality. It deals with section 260 of the said Act of 1949 as is clear from
paragraph 19 of the said Judgment in which the said Act of 1949 is referred
as B.P.M.C. Act. It is an admitted position that in none of the cases in hand,
the aforesaid directions issued by the Division Bench were followed. In few
cases, where notices were issued on 26th/30th April 2016 under section 260

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of the said Act of 1949, admittedly 15 days time was not granted to the
petitioner to submit a reply to the notice. Admittedly, much before the
completion of the period of 15 days from the date of service of notices, the
structures were demolished.
A vague contention has been raised in some of the petitions by the said
Corporation that in view of section 231 of the said Act of 1949, it was not
necessary to serve a notice to the petitioners. We must note here that it is
not the case of the said Corporation that principles of natural justice have
been followed before taking action of demolition. These issues were
considered by the Division Bench of this Court of which one of us (A.S. Oka,
J.) was a party by the aforesaid Judgment dated 31st July 2015. Paragraphs
7 to 10 of the said decision read thus:
"7. The law on the aspect is no more res integra starting from the
decision of the Apex Court in the case of Olga Tellis and others v.
Bombay Municipal Corporation and others. The Apex Court held that
before taking action of removal of encroachment on the streets or
footpaths, the rule of audi alteram partem has to be complied with.
8 . In the present case, admittedly, no opportunity whatsoever of
being heard was granted to the Petitioner in any form before taking
action of demolition and no notice was served to the Petitioner
before taking action of demolition.
9 . In the affidavit in reply, reliance is placed on Section231 of the
said Act by contending that it was not necessary to issue any notice
for removing encroachments on the public road. Section 231 of the
said Act reads thus:
2 3 1 . The Commissioner may, without notice, remove
anything erected, deposited or hawked or exposed for sale
in contravention of Act. The Commissioner may, without
notice, cause to be removed,--
(a) any wall, fence, rail, post, step, booth or other structure
whether fixed or movable and whether of a permanent or a
temporary nature, or any fixture which shall be created or
set up in or upon or over any street or upon or over any
open channel, drain, well or tank contrary to the provisions
of this Act after the appointed day;
(b) any stall, chair, bench, box, ladder, bale, board or shelf,
or any other thing whatever placed, deposited, projected,
attached or suspended in, upon from or to any place in
contravention of this Act;
(c) any article whatsoever hawked or exposed for sale in a
public place or in any public street in contravention of the
provisions of this Act and any vehicle, package, box or any
other thing in or on which such article is placed."
1 0 . It is contended that as the shop structure was on the road,
Section 231 of the said Act will apply. Along with the affidavit in

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 reply, no material whatsoever has been placed on record by the first
Respondent showing that the shop structure subject matter of this
Petition was constructed on a public street, open channel, drain, tank
or well. Hence, Section 231 of the said Act has no application."
13. The decision of this Court in Javed Khalid (Supra) has gone on to hold that for
the demolition of illegal structures, the law laid down by the Division Bench of this
Court in the case of Sopan Maruti Thopte and Anr. Vs. Pune Municipal Corporation
MANU/MH/0053/1996 : (1996) Mh. L.J. 963 has to be followed. This Court negated
the submission of the Corporation that in lieu of Section 231 of the Act of 1949, it
was not necessary to serve a notice to the Petitioners. The Division Bench of this
Court held that the principles of natural justice are required to be followed and has
relied upon its earlier decision dated 31st July, 2015, where the rule of audi alteram
partem has to be complied with before removal of encroachments on streets or
footpaths following the judgment of the Supreme Court in Olga Tellis (Supra). This
Court accordingly directed the Petitioners to reconstruct the demolished structures
and make representation to the Corporation for compensation by providing all details.
1 4 . In the present case we find that the Respondent No. 1-Corporation has
demolished the subject premises without Notice and/or granting an opportunity of
hearing to the Petitioner. Section 314 of the said Act has to be read as an enabling
provisions and in the facts of the present case, particularly considering that the
Petitioner was suffering from 100% hearing disability and the business being his only
source of livelihood, it was necessary for the Respondent No. 1-Corporation to grant
a hearing to the Petitioner and pass order of demolition prior to taking the impugned
action. Further, the Petitioner had in his possession the requisite licenses viz. health
license and the license under the Shops and Establishments Act, for carrying out the
business from the subject premises. The Petitioner had also paid the transfer charges
and ground rent for 10 years i.e. upto the year 2023 with respect to the subject
premises. We note that the Respondent No. 1-Corporation has by its Circular dated
5th October, 2015 provided in clause (v) that only stalls/shops having valid license
under Section 313 of the said Act shall be treated as authorised stalls. However, the
Circular does not mean that in every case, the power under Section 314 should be
exercised without notice. In the subject premises has a health license and a license
under the Shops and Establishments Act for carrying out the business from the
subject premises. The premises was demolished within 24 hours of the cancellation
of licenses. The Petitioner has also disputed that the subject premises is obstructing
pedestrian and vehicular traffic and/or situated on Municipal Road. The impugned
order has also been passed after the demolition of the subject premises by merely
relying upon the Circular dated 5th October, 2015 treating the subject premises as
unauthorised. The decision of the Respondent No. 1-Corporation must be held to be
flawed as there is no justification of urgency and/or requirement of expeditious
removal of the subject premises without prior notice on the premise they were
affecting streets, pavements, footpaths or other similar conveniences. Moreover, the
Petitioner suffers from a major disability. Thus, in our view, the action of demolition
carried out by the Respondent No. 1-Corporation in violation of the principles of
natural justice was illegal as the facts of the case did not warrant taking of action
without prior notice.
15. We accordingly pass the following order:-
(a) It will be open for the Petitioner to reconstruct the subject premises
which has been demolished at his own cost. The reconstruction will be at his

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own cost without claiming any equity.
(b) While carrying out reconstruction, the Petitioner shall ensure that the
area of the reconstructed premises will be the same as the area of the
subject premises on the date of its demolition. The construction material of
the same type shall be used for reconstruction;
(c) Before commencement of work of reconstruction, the Petitioner shall
serve the notice in writing to the Designated Officer of the concerned ward.
The notice shall be advance notice of seven days mentioning the time at
which the work of reconstruction shall commence. It will be open for the
Designated Officer or any officer nominated by him to remain present at the
time of reconstruction;
(d) We make it clear that even if the premises are reconstructed, the same
will not confer any legality on the subject premises. It will be open for the
Respondent No. 1-Corporation to take action of demolition of the subject
premises, if it is constructed without obtaining development permission
and/or are in violation of Section 314 of the said Act. However, such action
of demolition shall not be initiated without complying with the requirements
of the principles of natural justice.
(e) If the Petitioner is not in a position to reconstruct the subject premises,
the Petitioner can make an application to the Respondents to provide suitable
alternate premises of equivalent area as that the subject premises and in the
nearby vicinity of the subject premises in lieu of the subject premises being
demolished by the Respondents. Such application shall be decided within a
period of four weeks;
(f) It will be open for the Petitioner to make representation to the
Respondent No. 1-Corporation for seeking compensation for the
reconstructed premises by providing all the details. Such representation, if
made, shall be decided by the Respondent No. 1-Corporation and the
decision shall be communicated to the Petitioner within two months from the
date of the representation. We make it clear that no adjudication is made on
merits of the claim of compensation;
(g) The order dated 11th December, 2017 passed by the Assistant Municipal
Commissioner, H/E Ward, Mumbai Municipal Corporation is quashed and set
aside;
(h) The Notice dated 16th December, 2016 issued by Respondent No. 3
cancelling the Trade Licence in respect of the subject premises is quashed
and set aside;
(i) Rule is made absolute on the above terms with no order as to costs;
(j) We direct that the order of reconstruction shall not be implemented for a
period of one month from the date on which this order is uploaded;
(k) All concerned to act upon an authenticated copy of this Judgment and
order.

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1 Writ Petition No. 454 of 2016 decided on 1st March, 2018
2 Writ Petition No. 7856 of 2016 decided on 21st June, 2018
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