The question of sanction plan and/or necessary documents in
support of alleged construction certainly need opportunity. The Assistant
Commissioner, in my view, just cannot pass single line order without giving an
opportunity of hearing. If the documents are filed on record and when nothing to
show that the show cause notice was also issued to the owner, therefore
reasoning so given by the learned Judge though not recorded in the order passed
by the Assistant Commissioner on 11.3.2013, in my view, is unacceptable. The
situation is that the reasoned order need to be passed by the Assistant
Commissioner first and then the Court can note the said order and reasoning so
mentioned.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO. 361 OF 2013
with
CIVIL APPLICATION NO. 441 OF 2013
Mr. Arvind Pradhanbhai Dama
Vs.
The Municipal Corporation of Greater
Mumbai
CORAM : ANOOP V. MOHTA, J.
DATE
: AUGUST 30, 2013.
Citation;2014 (3) ALL M R 26 Bom
Rule made returnable forthwith. Heard finally, by consent of the
learned Counsel appearing for the parties.
The Appellant-original Plaintiff has challenged the show cause
notice under Section 351 issued under MMC Act and in a suit prayed for
injunction as the threat was given to demolish the unauthorised structure through
the Municipal Corporation's Agency. The Trial Judge has refused to grant ad-
interim relief on 21.3.2013. The Plaintiff has been in possession of the premises
even prior to 1987 as a tenant and paying the rent regularly to the
landlord/owner.
To the show cause notice, being tenant in occupation, the Appellant
filed reply dated 27.2.2013 and reference is also made to the various documents
including ration card, electricity bill and rent receipts. The averments are
specifically made that no such notice was issued and/or received by the
owner/landlord of the property. It is neither the case of the Respondent-
and/or individually.
Corporation that they have served the show cause notice to the owner separately
The question of sanction plan and/or necessary documents in
support of alleged construction certainly need opportunity. The Assistant
Commissioner, in my view, just cannot pass single line order without giving an
opportunity of hearing. If the documents are filed on record and when nothing to
show that the show cause notice was also issued to the owner, therefore
reasoning so given by the learned Judge though not recorded in the order passed
by the Assistant Commissioner on 11.3.2013, in my view, is unacceptable. The
situation is that the reasoned order need to be passed by the Assistant
Commissioner first and then the Court can note the said order and reasoning so
mentioned. The learned Court cannot give reasons for the first time which were
provided and/or given by the Assistant Commissioner confirming the show cause
notice in issue. This, in my view, is relevant factor to quash and set aside
impugned order dated 21.3.2013.
The Appellant makes statement that the property is in their
possession since long time. They are in occupation and in a given case the owner
and/or the tenant or occupier could have applied for regularisation of the same
also and are in occupation prior to 1987. The request was also made by the
Applicant in the reply to give personal hearing before passing any order in the
matter. The submission is that there is no personal hearing or person is required
as contended by the learned Counsel for the Respondent-Corporation, is also of
no assistance specifically when the Assistant Commissioner passed unreasoned
order by overlooking the submission so raised in the reply to the show cause
notice. There is nothing to show that any such notice was served upon the owner
prior to the show cause notice in question. The submission is made that let an
opportunity be given to the occupant to file additional documents and additional
reply before the Assistant Commissioner. This, in my view, will also curtail
further litigation as well as resolve the dispute at the earliest. Additional
documents to be filed within three weeks.
6
In view of above, it is made clear that the Defendant not to take
further action based upon the impugned show cause notice till the Assistant
Commissioner decide the issue again after giving an opportunity to the Plaintiff
and/or landlord. The Assistant Commissioner to dispose of the issue, as
expeditiously as possible. The Trial Judge to reconsider everything again
including grant of protection as granted by this Court pending the decision of the
Assistant Commissioner.
This order of stay to continue two weeks thereafter if the adverse
order is passed by the Assistant Commissioner against the Plaintiff. The
Respondent-Corporation to file reply accordingly after the decision of the
Assistant Commissioner to the Notice of Motion, which is still pending.
The Appeal from Order as well as Civil Application stand disposed
8
of accordingly. Rule made absolute in the aforesaid terms. No costs.
(ANOOP V. MOHTA, J.)
No comments:
Post a Comment