At this stage without observing anything further on merits of the matter, we are satisfied that no sufficient reason, no opportunity as required under the law revolving around the principles of natural justice has been given. Merely issuing show cause notice itself is not sufficient. The reasoned order as contemplated means application of mind to the documents so supplied as the impugned action/decision ultimately decides and/or take away the rights of the Petitioners to retain the possession of the alleged unauthorised premises as the case is of the existence of the structures prior to 1962. The sections itself entitled the person/party to appear in person or through agent to submit reply and the documents to the show cause notices. The need to give them opportunity in accordance with law therefore also requires to pass reasoned order. This itself means the officer concerned must apply his mind to the documents and the reply by giving all reasonable opportunity to the parties, specially when the order has effect of final decision. There is no further appeal or revision available. The Civil Court's jurisdiction is also barred in view of section 515A of the M.M.C. Act. The officer in question therefore is also required to exercise its authority and/or power judicially, before deciding the rights of the parties/persons. The inherent principles of natural justice, fair play are required to follow by all including the quasi-judicial authority at all stages, including the final decision.
4 Therefore, the requirement of giving full opportunity to prove their case thus cannot be overlooked merely because the sections and the other provisions give/empower authorities/officers of the Respondent - Corporation to initiate action of demolition of "unauthorised premises".
Bombay High Court
Mrs. Lilly P. Pandit vs 2A/488 Ramlal Chawl on 16 January, 2014
Bench: Anoop V. Mohta, A.A. Sayed
1. Rule, returnable forthwith. Heard finally by consent and disposed of by a common judgment as facts and the law involved are common and connected.
2. Pursuant to notices under sections 351 and 354A of the Mumbai Municipal Corporation Act, 1888, (M.M.C. Act) the Respondent - Corporation, 3 of 5 k 908-910 wpl 88.14 group os.doc based on the information which they have collected, treated the premises of the Petitioners' as "unauthorised horizontal extended premises". The Petitioners in view of common notices filed a common Reply on 13 September, 2013 and also annexed the supporting documents. Respondent -
Corporation's Officer by an order dated 3 rd January 2014 without calling upon the Petitioners, and/or parties, to justify their documents in support of case and without giving a hearing maintained the action by unreasoned order dated 3 January 2014 and directed them to demolish the structures within seven days. The action under section 475A of the M.M.C. Act is also threatened. The Petitioners, therefore, invoked the jurisdiction of this Court.
3 At this stage without observing anything further on merits of the matter, we are satisfied that no sufficient reason, no opportunity as required under the law revolving around the principles of natural justice has been given. Merely issuing show cause notice itself is not sufficient. The reasoned order as contemplated means application of mind to the documents so supplied as the impugned action/decision ultimately decides and/or take away the rights of the Petitioners to retain the possession of the alleged unauthorised premises as the case is of the existence of the structures prior to 1962. The sections itself entitled the person/party to appear in person or through agent to submit reply and the documents to the show cause notices. The need to give them opportunity in accordance with law therefore also requires to pass reasoned order. This itself means the officer concerned must apply his mind to the documents and the reply by giving all reasonable opportunity to the parties, specially when the order has effect of final decision. There is no further appeal 4 of 5 k 908-910 wpl 88.14 group os.doc or revision available. The Civil Court's jurisdiction is also barred in view of section 515A of the M.M.C. Act. The officer in question therefore is also required to exercise its authority and/or power judicially, before deciding the rights of the parties/persons. The inherent principles of natural justice, fair play are required to follow by all including the quasi-judicial authority at all stages, including the final decision.
4 Therefore, the requirement of giving full opportunity to prove their case thus cannot be overlooked merely because the sections and the other provisions give/empower authorities/officers of the Respondent - Corporation to initiate action of demolition of "unauthorised premises". Therefore, by keeping all points open, we are inclined to set aside the impugned orders. We permit the Petitioners to file on record additional documents in support of their submissions with regard to the existence of the structure and/or unauthorised construction of premises, if any, within 10 days. The Respondent -
Corporation to consider the same within four weeks thereafter. The Respondent - Corporation is at liberty to pass a fresh order in accordance with law.
5 It is made clear that no question of demolition as alleged unauthorised structure till the decision and two weeks thereafter.
6 Rule is made absolute in aforesaid terms. No costs.
No comments:
Post a Comment