Bombay High Court
Akbarali Hasanali Dandawala vs Municipal Corporation Of Greater ... on 9 October, 2019
Author: G.S. Patel
Bench: S.C. Dharmadhikari, G.S. Patel
902.OSWP2244.18.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 2244 OF 2018
Akbarali Hasanali Dandawala ... Petitioner
Vs
1 Municipal Corpn. of Gr. Mumbai & Ors. ... Respondents
WITH
CHAMBER SUMMONS NO. 259 OF 2018
IN
WRIT PETITION NO. 2244 OF 2018
Mahdiali Akberali Dandawala & Anr. ... Applicants
In the matter between :
Akbarali Hasanali Dandawala ... Petitioner
Vs
1 Municipal Corpn. of Gr. Mumbai & Ors. ... Respondents
Mr. Pradeep J. Thorat for the Petitioners/Applicants.
Mr. Narendra W. Walawalkar, senior counsel with Ms. Vandana
Mahadik for the Respondent-MCGM.
CORAM : S.C. DHARMADHIKARI &
G.S. PATEL, JJ.
WEDNESDAY, 09TH OCTOBER, 2019 SRP 1/10 ::: Uploaded on - 10/10/2019 ::: Downloaded on - 10/10/2019 23:40:03 :::
902.OSWP2244.18.doc P.C. :
1 This writ petition, under Article 226 of the Constitution of India, was placed before a Division Bench of this Court on 16th July, 2018, when the following order was passed :
"Not on board. Taken on board.
1 Place the petition on 21st August 2018 under the caption of "Fresh Admission". Reply shall be filed within a period of one month from today. No further time shall be granted till the next date. No action shall be taken on the basis of the impugned notice dated 29th June 2017 till the next date."
2 On account of urgency and because a public project was affected, the writ petition was moved by the Municipal Corporation and on their written request, this Court placed the matter on today's Supplementary Board, viz. 9th October, 2019. The sole petitioner has expired and an application is pending for bringing the heirs and legal representatives of this sole petitioner on record. After perusing the Chamber Summons and the affidavit-in-support, we are of the opinion that no technicality should come in the way of the family pursing the cause, particularly when the sole petitioner was carrying on business as SRP 2/10 ::: Uploaded on - 10/10/2019 ::: Downloaded on - 10/10/2019 23:40:03 :::
902.OSWP2244.18.doc the only source of livelihood. In view thereof, this Chamber Summons is made absolute in terms of prayer clause (a). Amendment to be carried out on or before 14th October, 2019. 3 With the consent of both sides, we have taken up the petition itself for admission. That questions a notice dated 27 th February, 2017 and also the further notices, details of which are set out in prayer clauses (a) to (c) of the petition. 4 The impugned notices are issued so as to call upon the petitioner to hand over a portion of the property in possession of the petitioner. It is stated that there is an urgent requirement to decongest a road. That is a busy road. The traffic converges at the junction of Hill Road and B.J. Road. It has become necessary to widen Hill Road upto full road line and, therefore, the petitioner was called upon to hand over a portion of the property bearing CTS No.572, 573, Hill Road, Bandra West, Mumbai 400050. The petitioner was carrying on business in the name and style of M/s. Khoja Florist.
5 Then the petitioner was informed by a notice of 10 th SRP 3/10 ::: Uploaded on - 10/10/2019 ::: Downloaded on - 10/10/2019 23:40:03 :::
902.OSWP2244.18.doc March, 2018. That notice invokes section 314 of the Mumbai Municipal Corporation Act, 1888 and calls upon the petitioner to hand over the structure on the road / street admeasuring 236.75 square meters.
6 The petitioner is also impugning the two other communications. The two other communications follow an order passed by this Court in Writ Petition (L) No. 929 of 2018. The order passed in that writ petition records the statement of the Municipal Corporation that its officer will pass a speaking order. He will also consider the cause shown by the petitioner. 7 Accordingly, on 25th April, 2018, the Municipal Corporation took on record all the documents and came to the conclusion that the petitioner can be allowed to avail the benefit of a policy. That policy is contained in a document dated 20 th March, 2017. That policy permits removal of the affected structure and its reconstruction by following what is known as Kurar pattern. However, the petitioner was also informed that the portion of the property affected by road line will have to be demolished and it will be demolished after expiry of thirty days from the date of the SRP 4/10 ::: Uploaded on - 10/10/2019 ::: Downloaded on - 10/10/2019 23:40:03 :::
902.OSWP2244.18.doc permission to reconstruct the structure as per the policy. 8 This was followed up by another notice of 29 th June, 2018. The petitioner did not comply with this notice as well and approached this Court in a second writ petition which is the instant petition.
9 The stand of the petitioner appears to be that this land had the structure and that structure existed prior to 1961-62. By virtue of a conveyance of 14th February, 1992, the original owner sold the structure to the petitioner. Thereupon the petitioner's name has been entered in the Property Register Card and relevant documents. There are also assessment bills. The petitioner was also approached by the Municipal Corporation to remove a weather shed. Then, the petitioner also refers to a demarcation of the road at site and says that the structure is affecting the regular line of the street. The argument appears to be that section 314 of the Mumbai Municipal Act, 1888, cannot be invoked.
10 However, we are not required to deal with this SRP 5/10 ::: Uploaded on - 10/10/2019 ::: Downloaded on - 10/10/2019 23:40:03 :::
902.OSWP2244.18.doc argument any further for the simple reason that one of the applicants, who is the legal heir of the original petitioner, is present in Court. On taking instructions from him, the counsel Mr. Pradeep Thorat says that the applicants, who will now be substituted as petitioners, are not averse nor are opposing handing over the structure for demolition so as to widen the road at the junction. However, they are apprehensive that because section 314 of the Mumbai Municipal Corporation Act, 1888 has been invoked, the benefit of the other provisions of the Act may not be extended to them.
11 Mr. Walawalkar, learned senior counsel appearing on behalf of the Mumbai Municipal Corporation says that the Corporation will abide by the order passed by this Court. They are interested in widening the road and not withholding any fair or just relief, including of a monetary compensation to the petitioners. Given the urgency, the petitioners must hand over the possession is the submission of Mr. Walawalkar. 12 In the affidavit-in-reply also, the Municipal Corporation reiterates its stand that this junction to which the SRP 6/10 ::: Uploaded on - 10/10/2019 ::: Downloaded on - 10/10/2019 23:40:03 :::
902.OSWP2244.18.doc traffic converges, witnesses a bottleneck. Some of the major bottlenecks have been removed by extending the benefit of a policy to the persons whose structures were on the regular line of the street. The submission is that Hill Road is a major road connecting S.V. Road to significant places such as Band Stand, Mount Mary Church, St. Andrew's Church and Mehboob Studios. It is heavily crowded and throughout the day. It is necessary to ease the vehicle movement and to avoid traffic congestion. Therefore, the road widening project should not be held up. 13 Chapter XI of the Mumbai Municipal Corporation Act, 1888, titled as 'Regulation of Streets' contains a sub-heading 'Construction, Maintenance and Improvement of Public Streets'. In that we find there is a specific power conferred in the Mumbai Municipal Corporation and particularly its Commissioner to remove any obstruction after a regular line for a street is prescribed. The power in that regard is in section 297. That is under further sub-heading 'Preservation of Regular Line in Public Streets'. Therefore, when there is a prescribed road line or a substituted or a fresh line, after the necessary steps are taken, the Mumbai Municipal Corporation can widen the street by SRP 7/10 ::: Uploaded on - 10/10/2019 ::: Downloaded on - 10/10/2019 23:40:03 :::
902.OSWP2244.18.doc removing all obstructions and hurdles for such widening. Setting back buildings to regular line of the street is also permissible. In the case of any open land or of land occupied by platforms etc is concerned, then, there is a power to acquire the same. If any building which abutts on a public street is in rear of the regular line of such street, the Commissioner may, whenever it is proposed, rebuild such building or alter or repair such building and there is a power conferred in section 300. In the event while causing removal of the structure or setting it back or setting forward of the building to the regular line of the street, by section 301, compensation can be paid.
14 To our mind, in the facts and circumstances of this case, merely because a wrong provision is mentioned, namely, section 314 of the Mumbai Municipal Corporation Act, that does not mean that the Municipal Corporation is denuded of any power to acquire or to remove the obstruction or hurdles on a public street. Once the substantive power is to be found in Chapter XI, then, we can safely proceed on the footing that the instant action is traceable to the provisions in this Chapter. Therefore, the Municipal Corporation can pay the compensation as prescribed in SRP 8/10 ::: Uploaded on - 10/10/2019 ::: Downloaded on - 10/10/2019 23:40:03 :::
902.OSWP2244.18.doc the law itself. If the petitioners are not satisfied with the quantum thereof, then, there are further provisions in law enabling them to dispute the quantum. However, the Municipal Corporation cannot be prevented from widening the street. The Municipal Corporation cannot be prevented from discharging its obligation to the public at large. In the circumstances, we pass the following order :
(a) It will be open for the Municipal Corporation to take forcible possession of the structure and to evict all petitioners therefrom and demolish it provided the petitioners do not hand over vacant and peaceful possession thereof, latest by 30th November, 2019.
(b) In the event the possession is taken from the petitioners either on their own or forcibly, the petitioners shall be extended all reliefs and particularly in terms of section 301 of the Mumbai Municipal Corporation Act, 1888.
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902.OSWP2244.18.doc
(c) The petitioners shall be paid the compensation in terms of the provisions noted above and in accordance with law.
(d) If the petitioners are not agreeable and do not accept the quantum of compensation, it is open to them to accept the amount under protest or without prejudice and thereafter invoke the other remedies so as to seek enhancement in the compensation.
(e) We keep open all contentions of both sides in relation to the monetary compensation.
The writ petition is disposed of in the above terms. There will be no order as to costs.
G.S. PATEL, J. S.C. DHARMADHIKARI, J. SRP 10/10 ::: Uploaded on - 10/10/2019 ::: Downloaded on - 10/10/2019 23:40:03 :::