Bombay High Court
Omprakash Sawalram Agrawal vs The Nagpur Municipal Corporation on 19 July, 2010
Author: B.P. Dharmadhikari
Bench: B.P. Dharmadhikari
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NOS. 4564, 4565, 4650, 4651, 4975, 4976,
4977, 4978, 4979, 4980, 4981, 4982,
4983, 4985, 4986, 4990, 4991, 4992,
4993, 5300, 5301 & 5631 OF 2007.
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(1) WRIT PETITION No. 4564/2007
1.Omprakash Sawalram Agrawal,
aged about 50 years, Occ.: Business,
r/o Corporation Chawl,
Sitabuldi Super Market. Nagpur.
2.Uttam Hajarilal Chawariya,
aged about 39 years, Occ.: Business,
r/o Corporation Chawl,
Sitabuldi Super Market. Nagpur
3.Hiralal Jiwanlal Sawal
aged about 68 years, Occ.: Business,
r/o Corporation Chawl,
Sitabuldi Super Market. Nagpur.
4.Indrachand Banwarilal Agrawal (Mehadia),
aged about 62 years, Occ.: Business,
r/o Corporation Chawl,
Sitabuldi Super Market. Nagpur.
5.Venichand Premchand Dhruv,
aged about 68 years, Occ.: Business,
r/o Corporation Chawl,
Sitabuldi Super Market.
6.Vasantchand Premchand Dhruva,
aged about 58 years, Occ.: Business,
r/o Corporation Chawl,
Sitabuldi Super Market.
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7.Suvarna Kau Marras,
aged about 42 years, Occ.: Business,
r/o Corporation Chawl,
Sitabuldi Super Market. Nagpur.
8.Shyamlal Zanaklal Chawariya
through Prop. Smt. Nirmala Shyamlal Chawariya,
aged about 62 years, Occ.: Business,
r/o Corporation Chawl,
Sitabuldi Super Market. Nagpur.
9.Purshottam s/o Hajarilal Chouria
aged about 33 years, Occ.: Business,
r/o Corporation Chawl,
Sitabuldi Super Market. Nagpur
10. Hajarilal Zanaklal Chouria,
aged about 63 years, Occ.: Business,
r/o Corporation Chawl,
Sitabuldi Super Market. Nagpur
11.Dinesh Mulchand Bhaiya,
aged about 37 years, Occ.: Business,
r/o Corporation Chawl,
Sitabuldi Super Market. Nagpur.
12.Shri Fazalbhai Badruddin,
aged about 79 years, Occ.: Business, c/o Shop No.1
Super Market, Temple Bazar, New Chawl,
Sitabuldi. Nagpur.
13.Jugal Kishore s/o Radhakisan Chandak
aged about 63 years, Occ.: Business, c/o Shop No.1
Super Market, Temple Bazar, New Chawl,
Sitabuldi. Nagpur.
14.Smt. Gayatridevi Gulabchand Gupta
aged about 54 years, Occ.: Business, c/o Shop No.1
Super Market, Temple Bazar, New Chawl,
Sitabuldi. Nagpur.
15.Amrutlal Jiwanlal Sawal
aged about 57 years, Occ.: Business, c/o Shop No.1
Super Market, Temple Bazar, New Chawl,
Sitabuldi. Nagpur. ... PETITIONERS.
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VERSUS
1. The Nagpur Municipal Corporation,
through its Commissioner,
Civil Lines, Nagpur.
2. The Additional Municipal Commissioner,
Civil Lines, Nagpur.
3. The Market Superintendent,
Nagpur Municipal Corporation,
Civil Lines, Nagpur. ... RESPONDENTS.
.....
Mr. Masood Shareef Advocate for the Petitioners.
Mr. S.M. Puranik Advocate for Respondents.
.............
(2) WRIT PETITION No. 4565/2007
Maharashtra State Cooperative Consumers
Federation Limited, having its House at
Super Market, Sitabuldi, Nagpur through'
its Divisional Manager Shri Babarao s/o
Gulabrao Choudhari, aged about 52 years. ... PETITIONER.
- VERSUS -
1. The Nagpur Municipal Corporation,
through its Commissioner,
Civil Lines, Nagpur.
2. The Additional Municipal Commissioner,
Nagpur Municipal Corporation,
Civil Lines, Nagpur ... RESPONDENTS.
.....
Mr.B.B. Mehadia Advocate for the Petitioner.
Mr. S.M. Puranik Advocate for Respondents.
....
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(3) WRIT PETITION No. 4650/2007
M/s. D.H. Enterprises, through its
Proprietor, Shri Hiralal s/o Ghanshyamdas Jaswani,
aged about 57 years, Occupation Business,
r/o. 35, Red cross Road, Sadar, Nagpur. ... PETITIONER.
- VERSUS -
1. The Nagpur Municipal Corporation,
through its Commissioner,
Nagpur.
2. The Additional Deputy Municipal Commissioner,
Nagpur Municipal Corporation,
Civil Lines, Nagpur .... RESPONDENTS.
.....
Mr.B.B. Mehadia Advocate for the Petitioner.
Mr. S.M. Puranik Advocate for Respondents.
....
(4) WRIT PETITION No. 4651/2007
Hiralal s/o Ghanshyamdas Jaswani,
aged about 57 years, Occupation Business,
r/o. 35, Red cross Road, Sadar, Nagpur. ... PETITIONER.
- VERSUS -
1. The Nagpur Municipal Corporation,
through its Commissioner,
Nagpur.
2. The Additional Deputy Municipal Commissioner,
Nagpur Municipal Corporation,
Civil Lines, Nagpur ... RESPONDENTS.
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.....
Mr.B.B. Mehadia Advocate for the Petitioner.
Mr. S.M. Puranik Advocate for Respondents.
....
(5) WRIT PETITION No. 4975/2007
Hiralal Jiwanlal Sawal
aged about 68 years, Occ.: Business,
r/o Corporation Chawl,
Sitabuldi Super Market. Nagpur. ... PETITIONER.
- VERSUS -
1. The Nagpur Municipal Corporation,
through its Commissioner,
Civil Lines, Nagpur.
2. The Additional Municipal Commissioner,
Civil Lines, Nagpur.
3. The Market Superintendent,
Nagpur Municipal Corporation,
Civil Lines, Nagpur. ... RESPONDENTS.
.....
Mr. Masood Shareef Advocate for the Petitioner.
Mr. S.M. Puranik Advocate for Respondents.
....
(6) WRIT PETITION No. 4976/2007
Omprakash Sawalram Agrawal,
aged about 50 years, Occ.: Business,
at Shop No.3, Super Market, Sitabuldi,
resident of 147, Lendra Park, Nagpur. ... PETITIONER.
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VERSUS -
-
1. The Nagpur Municipal Corporation,
through its Commissioner,
Civil Lines, Nagpur.
2. The Additional Municipal Commissioner,
Civil Lines, Nagpur.
3. The Market Superintendent,
Nagpur Municipal Corporation,
Civil Lines, Nagpur. ... RESPONDENTS.
.....
Mr. Anand Parchure and Mr. Masood Shareef Advocates for the Petitioner.
Mr. S.M. Puranik Advocate for Respondents.
....
(7) WRIT PETITION No. 4977/2007
Uttam Hajarilal Chawariya,
aged about 39 years, Occ.: Business,
r/o Corporation Chawl,
Sitabuldi Super Market. Nagpur. ... PETITIONER.
- VERSUS -
1. The Nagpur Municipal Corporation,
through its Commissioner,
Civil Lines, Nagpur.
2. The Additional Municipal Commissioner,
Civil Lines, Nagpur.
3. The Market Superintendent,
Nagpur Municipal Corporation,
Civil Lines, Nagpur. ... RESPONDENTS.
.....
Mr. Masood Shareef Advocate for the Petitioner.
Mr. S.M. Puranik Advocate for Respondents.
....
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(8) WRIT PETITION No. 4978/2007
Vasantchand Premchand Dhruva,
aged about 58 years, Occ.: Business,
r/o Corporation Chawl,
Sitabuldi Super Market. ... PETITIONER.
VERSUS
1. The Nagpur Municipal Corporation,
through its Commissioner,
Civil Lines, Nagpur.
2. The Additional Municipal Commissioner,
Civil Lines, Nagpur.
3. The Market Superintendent,
Nagpur Municipal Corporation,
Civil Lines, Nagpur. ... RESPONDENTS.
.....
Mr. Masood Shareef Advocate for the Petitioner.
Mr. S.M. Puranik Advocate for Respondents.
....
(9) WRIT PETITION No. 4979/2007.
Jugal Kishore s/o Radhakisan Chandak
aged about 63 years, Occ.: Business, c/o Shop No.1
Super Market, Temple Bazar, New Chawl,
Sitabuldi. Nagpur. ... PETITIONER.
VERSUS
1. The Nagpur Municipal Corporation,
through its Commissioner,
Civil Lines, Nagpur.
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2. The Additional Municipal Commissioner,
Civil Lines, Nagpur.
3. The Market Superintendent,
Nagpur Municipal Corporation,
Civil Lines, Nagpur. ... RESPONDENTS.
.....
Mr. Masood Shareef Advocate for the Petitioner.
Mr. S.M. Puranik Advocate for Respondents.
....
(10) WRIT PETITION No. 4980/2007.
Amrutlal Jiwanlal Sawal
aged about 57 years, Occ.: Business, c/o Shop No.1
Super Market, Temple Bazar, New Chawl,
Sitabuldi. Nagpur. ... PETITIONER.
- VERSUS -
1. The Nagpur Municipal Corporation,
through its Commissioner,
Civil Lines, Nagpur.
2. The Additional Municipal Commissioner,
Civil Lines, Nagpur.
3. The Market Superintendent,
Nagpur Municipal Corporation,
Civil Lines, Nagpur. ... RESPONDENTS.
.....
Mr. Masood Shareef Advocate for the Petitioners.
Mr. S.M. Puranik Advocate for Respondents.
....
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(11 ) WRIT PETITION No. 4981/2007.
Shyamlal Zanaklal Chawariya
through Prop. Smt. Nirmala Shyamlal Chawariya,
aged about 62 years, Occ.: Business,
r/o Corporation Chawl,
Sitabuldi Super Market. Nagpur. ... PETITIONER.
- VERSUS -
1. The Nagpur Municipal Corporation,
through its Commissioner,
Civil Lines, Nagpur.
2. The Additional Municipal Commissioner,
Civil Lines, Nagpur.
3. The Market Superintendent,
Nagpur Municipal Corporation,
Civil Lines, Nagpur. ... RESPONDENTS.
.....
Mr. Masood Shareef Advocate for the Petitioners.
Mr. S.M. Puranik Advocate for Respondents.
....
(12) WRIT PETITION No. 4982/2007.
Purshottam Hajarilal Chouria
aged about 33 years, Occ.: Business,
r/o Corporation Chawl,
Sitabuldi Super Market. Nagpur. ... PETITIONER.
- VERSUS -
1. The Nagpur Municipal Corporation,
through its Commissioner,
Civil Lines, Nagpur.
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2. The Additional Municipal Commissioner,
Civil Lines, Nagpur.
3. The Market Superintendent,
Nagpur Municipal Corporation,
Civil Lines, Nagpur. ... RESPONDENTS.
.....
Mr. Masood Shareef Advocate for the Petitioner.
Mr. S.M. Puranik Advocate for Respondents.
....
(13) WRIT PETITION No. 4983/2007.
Smt. Gayatridevi Gulabchand Gupta
aged about 54 years, Occ.: Business, c/o Shop No.1
Super Market, Temple Bazar, New Chawl,
Sitabuldi. Nagpur. ... PETITIONER.
- VERSUS -
1. The Nagpur Municipal Corporation,
through its Commissioner,
Civil Lines, Nagpur.
2. The Additional Municipal Commissioner,
Civil Lines, Nagpur.
3. The Market Superintendent,
Nagpur Municipal Corporation,
Civil Lines, Nagpur. ... RESPONDENTS.
.....
Mr. Masood Shareef Advocate for the Petitioner.
Mr. S.M. Puranik Advocate for Respondents.
....
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(14) WRIT PETITION No. 4985/2007.
Shri Fazalbhai Badruddin,
aged about 79 years, Occ.: Business, c/o Shop No.1
Super Market, Temple Bazar, New Chawl,
Sitabuldi. Nagpur. ... PETITIONER.
- VERSUS -
1. The Nagpur Municipal Corporation,
through its Commissioner,
Civil Lines, Nagpur.
2. The Additional Municipal Commissioner,
Civil Lines, Nagpur.
3. The Market Superintendent,
Nagpur Municipal Corporation,
Civil Lines, Nagpur. ... RESPONDENTS.
.....
Mr. Masood Shareef Advocate for the Petitioner.
Mr. S.M. Puranik Advocate for Respondents.
....
( 15 ) WRIT PETITION No. 4986/2007
Venichand Premchand Dhruv,
aged about 68 years, Occ.: Business,
r/o Corporation Chawl,
Sitabuldi Super Market. ... PETITIONER.
- VERSUS -
1. The Nagpur Municipal Corporation,
through its Commissioner,
Civil Lines, Nagpur.
2. The Additional Municipal Commissioner,
Civil Lines, Nagpur.
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3. The Market Superintendent,
Nagpur Municipal Corporation,
Civil Lines, Nagpur. ... RESPONDENTS.
.....
Mr. Masood Shareef Advocate for the Petitioners.
Mr. S.M. Puranik Advocate for Respondents.
....
(16 ) WRIT PETITION No. 4990/2007.
Suvarna Kaur Marras,
Partner vinodkumar Shyamlal Chouria,
aged a bout 40 years, Occ.: Business,
r/o Corporation Chawl,
Sitabuldi Super Market. Nagpur. ... PETITIONER.
- VERSUS -
1. The Nagpur Municipal Corporation,
through its Commissioner,
Civil Lines, Nagpur.
2. The Additional Municipal Commissioner,
Civil Lines, Nagpur.
3. The Market Superintendent,
Nagpur Municipal Corporation,
Civil Lines, Nagpur. ... RESPONDENTS.
.....
Mr. Masood Shareef Advocate for the Petitioners.
Mr. S.M. Puranik Advocate for Respondents.
....
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(17 ) WRIT PETITION No. 4991/2007.
Indrachand Banwarilal Agrawal (Mehadia),
aged about 62 years, Occ.: Business,
r/o Corporation Chawl,
Sitabuldi Super Market. Nagpur. ... PETITIONER.
- VERSUS -
1. The Nagpur Municipal Corporation,
through its Commissioner,
Civil Lines, Nagpur.
2. The Additional Municipal Commissioner,
Civil Lines, Nagpur.
3. The Market Superintendent,
Nagpur Municipal Corporation,
Civil Lines, Nagpur. ... RESPONDENTS.
.....
Mr. Masood Shareef Advocate for the Petitioners.
Mr. S.M. Puranik Advocate for Respondents.
....
(18 ) WRIT PETITION No. 4992/2007.
Hajarilal Zanaklal Chouria,
aged about 63 years, Occ.: Business,
r/o Corporation Chawl,
Sitabuldi Super Market. Nagpur. ... PETITIONER.
- VERSUS -
1. The Nagpur Municipal Corporation,
through its Commissioner,
Civil Lines, Nagpur.
2. The Additional Municipal Commissioner,
Civil Lines, Nagpur.
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3. The Market Superintendent,
Nagpur Municipal Corporation,
Civil Lines, Nagpur. ... RESPONDENTS.
.....
Mr. Masood Shareef Advocate for the Petitioners.
Mr. S.M. Puranik Advocate for Respondents.
....
(19 ) WRIT PETITION No. 4993/2007.
Dinesh Mulchand Bhaiya,
aged about 37 years, Occ.: Business,
r/o Corporation Chawl,
Sitabuldi Super Market. Nagpur. ... PETITIONER.
- VERSUS -
1. The Nagpur Municipal Corporation,
through its Commissioner,
Civil Lines, Nagpur.
2. The Additional Municipal Commissioner,
Civil Lines, Nagpur.
3. The Market Superintendent,
Nagpur Municipal Corporation,
Civil Lines, Nagpur. ... RESPONDENTS.
.....
Mr. Masood Shareef Advocate for the Petitioners.
Mr. S.M. Puranik Advocate for Respondents.
....
(20) WRIT PETITION No. 5300/2007
Vasant Champaklal Mehta,
aged about 71 years, Occ.: Doctor,
Shopt No.11 and 12 Super Market
Mahatama Gandhi Bazar, Sitabuldi
Nagpur. ... PETITIONER.
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VERSUS
1. The Nagpur Municipal Corporation,
through its Commissioner,
Civil Lines, Nagpur.
2. The Additional Municipal Commissioner,
Civil Lines, Nagpur.
3. The Market Superintendent,
Nagpur Municipal Corporation,
Civil Lines, Nagpur. ... RESPONDENTS.
.....
Mr. Neeraj Patil, Advocate for the Petitioner.
Mr. S.M. Puranik Advocate for Respondents.
....
(21 ) WRIT PETITION . No. 5301/2007
Shri Ashok V. Mudholkar,
aged about 37 years, Occ.: Business,
Shopt No.10 Super Market
Mahatama Gandhi Bazar, Sitabuldi
Nagpur. ... PETITIONER.
VERSUS
1. The Nagpur Municipal Corporation,
through its Commissioner,
Civil Lines, Nagpur.
2. The Additional Municipal Commissioner,
Civil Lines, Nagpur.
3. The Market Superintendent,
Nagpur Municipal Corporation,
Civil Lines, Nagpur. ... RESPONDENTS.
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.....
Mr. Neeraj Patil, Advocate for the Petitioner.
Mr. S.M. Puranik Advocate for Respondents.
....
(22 ) WRIT PETITION No. 5631/2007
Purushottam Motilal Sahu (deceased)
through legal representative
Shri Ramanlal s/o Purshottam Sahu,
aged about 44 years,
Shop No.1 Super Marketig
Mahatama Gandhi Bazar, Sitabuldi
Nagpur. ... PETITIONER.
VERSUS
1. The Nagpur Municipal Corporation,
through its Commissioner,
Civil Lines, Nagpur.
2. The Additional Municipal Commissioner,
Civil Lines, Nagpur.
3. The Market Superintendent,
Nagpur Municipal Corporation,
Civil Lines, Nagpur. ... RESPONDENTS.
.....
Mr. Neeraj Patil, Advocate for the Petitioner.
Mr. S.M. Puranik Advocate for Respondents.
....
CORAM : B.P. DHARMADHIKARI, J.
Date of reserving the Judgment. - 2nd JULY, 2010
Date of Pronouncement. - 19th JULY, 2010
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JUDGEMENT.
1. All petitioners before this Court occupy as tenants the shops in a Supermarket situated in busy crowded market area known as Sitabuldi in Nagpur. The supermarket is owned by Respondents i.e. Nagpur Municipal Corporation (NMC) is a local authority constituted for municipal administration of Nagpur City under the provisions of City of Nagpur Corporation Act, 1948 (hereinafter referred to as "the NMC Act"
for short). It is also a planing authority for Nagpur under Maharashtra Regional and Town Planing Act,1961. The NMC wants to replace the said supermarket by a modern shopping mall with a view to remove traffic problems or parking difficulties. Its Standing Committee has resolved accordingly NMC then issued show cause notices under Section 76B(2) of the NMC Act to the petitioners who filed their replies to it. Respondent no. 2 heard them and rejected their objections on 16/3/2007. Rejection was communicated to petitioners by the market superintendent of the NMC on 20/3/2007. They then filed appeal as provided for under Section 76F of NMC Act before the District Judge and DJ-3 dismissed their appeals by common order dated 3/10/2007. All these writ petitions question this order in appeal as also earlier order of ADMC dated 16/3/2007. The matters cane to be adjourned from time ::: Downloaded on - 09/06/2013 16:10:32 ::: 18 to time as efforts were being made to dispose of them finally at admission stage. Previous Bench fixed the matters at 2.30 PM and then the matters were placed before me. I have heard Shri B.B. Mehadia, Shri Masood Sharif, Shri Neeraj Patil, Shri Anand Parchure, learned Counsel for respective petitioners and Shri S.M. Puranik, learned Counsel for NMC finally by making Rule returnable forthwith by consent.
2. Shri B.B. Mehadia, learned counsel for the petitioner in W.P.No.4565/2007 has tendered synopsis and invited attention to events stated therein to urge that a ready format is used mechanically to issue show cause notices (SCN) in the matter without bothering to find out requirements of Section 76B of the City of Nagpur Corporation Act, 1948. He advanced the lead arguments which are adopted by other learned Counsel who then made additional submissions. Other learned Counsel include Shri Anand Parchure, Shri Masood Sharif and Shri Neeraj Patil.
3. According to Shri Mehadia, learned counsel the notice under Section 76-B is vague as it does not specify grounds for satisfaction of the Commissioner, no public interest is apparent or mentioned and as proforma of SCN is used, the model clauses not necessary in the facts of present matters are retained. Thus, the grounds on which the show ::: Downloaded on - 09/06/2013 16:10:32 ::: 19 cause is based are not communicated to the noticee at all. The law contemplates an effective opportunity of hearing that too, before the decision to evict is taken. Because of these lacunae said hearing is denied to the petitioners. Support is being taken from the judgment of the Hon'ble Apex Court reported at (1980) 3 SCC 1--AIR 1980 SC.
1157 "Nasir Ahmed v. Assistant Custodian General, Evacuee Property, U.P., Lucknow". The SCN and consequential order are therefore bad.
(2001) 1 SCC 291--AIR 2001 SC. 250 "Food Corporation of India v.
State of Punjab" is being relied upon by him. The final order after hearing passed by the Additional Municipal commissioner (ADMC) is stated to be containing grounds even beyond SCN. The judgment of Hon'ble Apex Court reported at (1994) 4 SCC 269--1994 AIR SCW 2923 "Indian Nut Products v. Union of India" and of Hon'ble Gujrat High Court at AIR 2003 Guj. 332--Shreeji Mailing Service, Ahmedabad v.
Govt. of India and others, are pressed into service to highlight the importance of the requirement of satisfaction to be recorded and relevance of material then looked into. AIR 1967 SC 295-"Barium Chemicals Ltd. v. Company Law Board" is also cited to drive home the point. Not giving of one month time to vacate in his order by ADMC is also given as an instance of non-application of mind. The learned Counsel states that later on in appeal proceedings before the District Court a pursis came to be filed on 21/4/2007 giving that time from date ::: Downloaded on - 09/06/2013 16:10:32 ::: 20 of the pursis. Adv. Sharif for petitioner in WP 4975/2007 has relied upon AIR 1988 SC 371--"Vinod Kumar Singh v. Banaras Hindu University" to contend that by such pursis the order of ADMC is not validated. He shows SCN received therein to urge that there the relevant clauses are tick-marked but then the grounds 5A and 5B do not survive. The reply filed to SCN is not considered by ADMC.
According to him the subjective satisfaction of the Commissioner envisaged by Section 76B must be seen on record with application of mind to the relevant material. Here no such subjective satisfaction is recorded or apparent, and the same can not be substantiated on the strength of subsequent events. The list of 38 shops stated to be reserved for allotment to petitioners at concessional rates is not prepared and though effort was made to bring this omission on record in appeal proceedings before the District Court, the leaned Court has not taken its due cognizance. The application seeking production of list, location map and area, reply of NMC thereto and order as upon it are relied upon.
4. Shri Mehadia, learned Counsel has also contended that the law contemplates opportunity of hearing before the decision is recorded and in present matter actions to be initiated on all important issues were already pre-decided. General Body of the NMC had already resolved to develop the area in particular manner, to construct a shopping mall and ::: Downloaded on - 09/06/2013 16:10:32 ::: 21 then tenders were also invited as if the site is vacant. The work order was also issued and the concerned contractor then also demolished part of the super market building. Because of these steps of superiors, irreversible for subordinate authority which heard the petitioners, the fate of hearing on SCN was already sealed and opportunity of hearing was an empty formality. He banks upon the judgment of the Hon'ble Apex Court reported at AIR 1989 SC 568--"H. L. Trehan v. Union of India".
Shri Sharif, learned Counssel has elaborated this position further by pointing out that the authority subordinate to Commissioner has passed the order on 16/3/2007 which has been communicated on 20/3/2007. NMC had then already advertised the scheme on 3/3/2007 extending time to apply till 21/3/2007 and by giving letter on 20/3/2007 only, petitioner in Writ Petition No. 4975/2007 has given a letter to pay the deposit if accepted without prejudice to his rights. As per clause 12 of the conditions of allotment, such deposit does not confer any right on petitioner and he paid that amount of Rs. 50,000/- on 21/3/2007 i.e. within time. All these dates and developments according to him show that hearing offered was only a farce.
5. Shri Mehadia, learned Counsel further urged that the eviction of the petitioners is not in public interest or for public purpose at all. He ::: Downloaded on - 09/06/2013 16:10:32 ::: 22 cites AIR 1956 All 594-- "Mohd. Raihan v. State of U.P." to argue that proposed work has to be in the interest of the visitors/customers of supermarket. The basis of allotment in proposed complex is stated to be commercial with a view to earn huge profits when a public body has to act fairly and in the interest of all. The amount of interest free deposit is being worked out on present market value of property. This attitude is compared with private landlords' motive to state that the very purpose of exempting such local body from rent control legislation is being breached thereby. AIR 1953 Bom. 170 (Rampratap Jaidayal v. Dominion of India), AIR 1954 SC 153-- (Baburao Shantaram More v. Bombay Housing Board), AIR 2004 SC 1815-- (Jamshed Hormusji Wadia, v.
Board of Trustees, Port of Mumbai) and AIR 1989 SC 1642--(M/s.
Dwarkadas Marfatia and Sons v. Board of Trustees of the Port of Bombay), are shown to point out the reasons for which such exemption is held valid. Real design of NMC is to evict poor petitioners and to induct wealthy persons. Project as designed is of international standards and does not take care of small businessmen like petitioners. As such it is not for a common man and also not in public interest at all. The mode and manner of attempted compliance with Section 76B also shows malafides and dishonesty. Facts considered by the District Court are mostly not appearing in SCN and hence it overlooked the deprivation of opportunity of effective hearing. Shri Sharif, learned Counsel furthers this line by ::: Downloaded on - 09/06/2013 16:10:32 ::: 23 alleging that the decision was to have 7 such malls in City and work on remaining Shopping Malls has come to standstill. The present project also can not be therefore reasonably completed and as alleged public purpose for which eviction of petitioners is being sought does not survive now, the SCN and consequential orders passed have become meaningless.
6. Shri Mehadia, learned counsel points out judgment of Hon'ble Apex Court at AIR 1993 SC 1601-- (Food Corporation of India v. M/s.
Kamdhenu Cattle Feed Industries) and states that being tenants of a public body like NMC the petitioners legitimately expected to be treated fairlyand equally in the matter. They expected adherence to the lawand not a high handed arbitrary action throwing them on street after a farce of hearing. The supermarket is located in notified slum area and thereby confers additional protection on petitioners. They all expected a reasonable approach by public body and allotment in new premises at a reasonable rent consistence with object of rent control legislation.
Attention is invited to Article 21 of the Constitution of India and AIR 1986 SC 180-- (Olga Tellis v. Bombay Municipal Corporation) with stand that livelihood or future of petitioners, their families and of small employees with them, of other hawkers and persons doing incidental jobs depend on their established businesses since last about 40 years.
::: Downloaded on - 09/06/2013 16:10:32 ::: 24Such eviction by illegal action is therefore alleged to be unconstitutional.
Reservation of 38 shops in the scheme for petitioners is an eyewash because their location is on backside ie. not on Sitabuldi main road but on Temple bazar road where the business prospects are substantially diminished. 50% discount being given to petitioners is also on that account only. They can not be allowed to be left to earn on street and till the project is complete, an alternate arrangement needs to be made for them to carry on the business.
7. Learned Counsel also contends that though notification dated 23/8/2006 removes the supermarket from slum area, still the action initiated is in violation of The Maharashtra Slum areas (improvement, clearance and re-development) Act, 1971 (hereinafter referred to as "the Slum Act" hereafter). Section 3X(c) defining protected occupier, Section 3X(o)-dwelling structure are pressed into service to urge that under Section 3Z(1) no eviction is permitted and under Section 3Z(2) decision whether to evict or not is to be taken by State Government only, that too in larger public interest. Notification dated 23/8/2006 is issued to defeat Section 3Y and Section 3Z of the Slum Act and reason behind grant thereof is incorrect as the property is for commercial purpose throughout. The exemption is to defeat the orders of the Division Bench of this Court passed on 5/12/2005 in WP 5647/2005. He also maintains ::: Downloaded on - 09/06/2013 16:10:32 ::: 25 that dwelling structure also includes commercial structure. Judgments reported at AIR 1957 SC 521-- (Lila Vati Bai v. State of Bombay)and AIR 1998 Bom. 216-- (Smt. Sugandha Manik Kane and others v. The Conservator of Forests, with his Office at Panaji, Goa and others.) are relied upon.
8. Shri Neeraj Patil, learned counsel for the petitioners has urged that satisfaction envisaged under Section 76B has to be of Municipal Commissioner only and consideration of reply or objections to SCN also must be by him personally. Section 76E of the NMC Act expressly gives powers of civil court only to Municipal Commissioner and his order is also made subject to appeal. The provisions of Section 76G confer finality on such orders and Section 76H also bars the jurisdiction of civil court. This power therefore can not be delegated and not regulated either by either Section 59(5) or Section 59-C or then Section 387 of NMC ACT. According to him there was earlier no section and even today no other provision in NMC Act conferring such quasi-judicial obligations on any officer or authority. He relies upon 1972 Mah.L.J. 661 (Ganeshrao Deshmukh vs. Devisingh Venkatsingh) and AIR 1965 SC 1486--(Bombay Municipal Corporation v. Dhondu Narayan Chowdhary)"
to buttress his stand. Chapter VA of the Bombay Municipal Corporation Act,1961 (hereinafter referred to as "the BMC Act" for short) is referred ::: Downloaded on - 09/06/2013 16:10:32 ::: 26 by him to show that by very same amendment by which Section 105A or 105B are added, Section 68 permitting delegation of powers conferred thereby also came to be inserted. Thus BMC Act expressly contemplates delegation by Municipal Commissioner of such quasi-judicial powers. But then in absence of similar simultaneous amendment in NMC Act, he draws an inference that legislature never intended delegation of these powers in framework of the NMC Act. Section 59 or 59-C at the most permits delegation of administrative functions by the Municipal Commissioner.
9. Shri Puranik, learned counsel for the respondent NMC and its ADMC states that on 15/3/2003, Standing Committee of NMC passed a resolution to have complex of 106 shops in place of existing supermarket and out of it, reserved 38 shops for existing licensees like present 18 petitioners. Petitioners have booked their respective shops at concessional rates and deposited the amount. On 30/9/2005 there was a meeting between Municipal Commissioner, Maharashtra State Cooperative Consumers Federation Ltd. (petitioner in WP 4565/2005) and other petitioners which failed to evolve any solution. On 5/10/2005 detailed scheme of development was published and on 10/10/2005, audio visual demonstration was conducted. Since then all details are within knowledge of the petitioners. On 6/10/2006 the construction ::: Downloaded on - 09/06/2013 16:10:32 ::: 27 contract came to be awarded . Thereafter on 12/12/2006 notices under Section 76B of NMC Act came to be issued and the same were replied to on 26/12/2006. Thus all necessary details were with the petitioners and they have not suffered any prejudice. Their replies reveal their knowledge. The supermarket area is excluded from slum by a valid exercise of power and that exercise has not been questioned before the competent forum till date. In any case because of Section 26 of the Slum Act, it is not applicable to NMC and as the petitioners have no photo-
passes as per its Section 22, they are not entitled to any protection. Shri Puranik, learned counsel urged that none of the petitioners are averse to the scheme and most of them have also acted upon the concession offered by depositing that amount. The shelter or arguments of Article 21 or legitimate expectation are misconceived as petitioners are getting the shops in accordance with the scheme. He also states that ADMC is the officer of same rank as that of Municipal Commissioner and hence, grievance about delegation does not hold any water. All steps taken by the respondents are within knowledge of the petitioners and after taking them into confidence. Those who have deposited concessional amount can not now approbate and reprobate. Others have no right to stall the scheme which is in public interest as it is being implemented as per law.
The right of petitioners to occupy has been terminated as per Section 76B and hence, they have to vacate. As the legal provisions are being ::: Downloaded on - 09/06/2013 16:10:32 ::: 28 adhered to and in view of mandate of Art. 14 of the Constitution of India, open process for allotment is being followed, this Court should maintain the concurrent orders.
10. Shri Mehadia, learned counsel states that in Sitabuldi area no photo-passes are issued at any time and hence that can not be the reason to deny the protection of welfare measure like Slum Act to petitioners. As payment is not made by all and most of the petitioners who deposited have done it without prejudice, their rights are not affected at all. Petitioners have yet not obtained any benefit and hence no question of estoppel arises. The area of respective tenements is being reduced by 83% and hence petitioners can always make the grievance.
In any case, petitioners have no choice but to act safe to protect their bread and butter.
11. Perusal of Ganeshrao Deshmukh vs. Devisingh Venkatsingh-
(supra) and Bombay Municipal Corporation v. Dhondu Narayan Chowdhary (supra) relied upon by Shri Patil, learned counsel show that normally a power to adjudicate can not be delegated. In judgment of Hon'ble Apex Court, the provisions of Section 68 of BMC Act are considered. Said section is similar to Section 59(5) of the NMC Act.
In any case in 1998, Section 59C has been inserted by amendment in it ::: Downloaded on - 09/06/2013 16:10:32 ::: 29 which again permits Municipal Commissioner to delegate his powers, duties and functions. Section 387 of the NMC Act also enables aggrieved person to challenge the order of delegate in an appeal before the delegate officer appointed as appellate authority by the Municipal Commissioner. That appellate order can then be challenged in revision before the Municipal Commissioner. In the scheme of the act the questions regarding un-authorized or dilapidated structures or constructions need to be looked into by these delegates. Hence it can not be accepted that before introduction of Chapter VIA in it the NMC Act contained no provision requiring exercise of quasi-judicial powers.
Section 287 thereof also bars jurisdiction of the civil court in matters specified therein. Thus delegation of quasi-judicial powers or of power to hear appeal from an order passed in exercise of that authority is permissible in NMC Act. Section 76A in chapter VIA also provides for an appeal to the District Court. Following observations of Hon'ble Apex Court therefore apply even in relation to Section 59(5) or Section 59-C of the NMC Act.
"3. No question has been raised that any of the amendments is ultra vires so the words of Section 68 must be reasonably construed. It goes without saying that judicial power cannot ordinarily be delegated unless the law expressly or by clear implication permits it. In the present case the amendment of Section 68 by inclusion of ::: Downloaded on - 09/06/2013 16:10:32 ::: 30 delegation of the functions of the Commissioner under Sections 105B to 105E does indicate the intention that the judicial or quasi-judicial powers contained in Chapter VIA were expressly intended to be delegated. To the delegation as such there can be no objection. What is objected to is the provision, both in the section as well as in the order of delegation, that the exercise of the function is to be under "the Commissioner's control" and "subject to his revision."
These words are really appropriate to a delegation of administrative functions where the control may be deeper then in judicial matters. In respect of judicial or quasi-
judicial functions these words cannot of course bear the meaning which they bear in the delegation of administrative functions. When the Commissioner stated that his functions were delegated subject to his control and revision it did not mean that he reserved to himself the right to intervene to impose his own decision upon his delegate. What those words meant was that the Commissioner could control the exercise administratively as to the kinds of cases in which the delegate could take action or the period or time during which the power might be exercised and so on and so forth. In other words. the administrative side of the delegate's duties was to be the subject of control and revision but not the essential power to decide whether to take action or not in a particular case. This is also the intention of Section 68 as interpreted in the context of the several delegated powers. This is apparent from the fact that the order of the delegate ::: Downloaded on - 09/06/2013 16:10:32 ::: 31 amounts to an order by the Commissioner and is appealable as such. If it were not so the appeal to the Bombay City Civil Court would be incompetent and the order could not be assailed. The order of the delegate was the order of the Commissioner and the control envisaged both in Section 68 and the order of delegation was not control over the decision as such but over the administrative aspects of cased and their disposal. No. allegation has been made that the Commissioner intervened in the decision of the case or improperly influenced it. In these circumstances, the order impugned in the appeal cannot be sustained."
Hon'ble Apex Court therefore allowed the appeal of Corporation and set aside the order of the Bombay City Civil Court and restored the order of the officer who exercised powers under Section 105B of the Act.
Words "Any of the powers, duties or functions conferred or imposed upon or vested in the Commissioner" used in Section 68 of the BMC Act also appear in Section 59(5) of NMC Act. Section 59-C uses the words "Any of the powers, duties and functions conferred upon or assigned to or vested in the Mayor, the Deputy Mayor and the Commissioner". Section 68 of BMC Act contemplates powers flowing from various sections specified in its sub-
section (2) while both these Sections specify "by this Act" and "by or under this Act" respectively. Thus entire Act as such stands covered and powers, functions or duties cast upon the Commissioner thereunder can ::: Downloaded on - 09/06/2013 16:10:32 ::: 32 be delegated. It therefore follows that simultaneous addition of Section 68 in BMC Act by itself is not sufficient to take other view here due to scheme of the NMC Act. It is also shown to this Court that the Municipal Commissioner and ADMC are the officers of same rank. The objection to the exercise of power under Section 76B by the delegate therefore has to fail.
12. Other contention on merits need to be looked into in the light of legal rights and obligations of the parties, specially Section 76B of the NMC Act. Here the respondents do not come with the case that petitioners are in unauthorized occupation of corporation premises. The case is corporation premises are required by it in public interest. Section 76B permits Municipal Commissioner to issue notice of eviction if he is satisfied that the premises are required in public interest. According to respondents notice is served as petitioners were in arrears of rent and as premises are required in public interest. Section 76B(6) confers discretion upon the Commissioner not to evict even after order/notice under sub-section (1) if the tenant clears the arrears in time as stipulated there. Hence, need for public purpose is the only relevant ground here.
Person on whom the notice/order under Section 76B(1) is served is under obligation to vacate within one month of its receipt. Sub-section (2) mandates that Commissioner shall issue notice to show cause why an ::: Downloaded on - 09/06/2013 16:10:32 ::: 33 order of eviction under sub-section (1) should not be made. Such SCN has to specify the grounds on which the eviction is proposed and call upon persons concerned to show cause why it should not be so made. If such person applies for extension of time to vacate, Commissioner may grant it on appropriate terms and conditions. Any application or reply of such person together with the documents is to be kept on record and that person is entitled to be heard through an advocate before the Commissioner. Sub section (3) permits Commissioner to use necessary force to secure possession from person whose eviction is ordered under sub-section (1). Hence before issuing notice under sub-section (2), the Commissioner need not record any satisfaction on need to proceed under sub-section (1) thereof. The satisfaction warranted by sub-section (1) is to be recorded in final notice for eviction. It is not the case of any of the petitioners that such satisfaction is not reached by the ADMC here.
Only contention that it was inevitable because of the events like resolution of Standing Committee, of inviting tenders for construction of Shopping Mall or awarding that contact. The petitioners therefore urge that before the public interest is noticed and acted upon, they must be heard. I do not find any substance in this contention. The democratically elected representatives of citizens of Nagpur in NMC are entitled to decide which particular development is essential in particular area. In fact need for such development is being disputed by pointing out ::: Downloaded on - 09/06/2013 16:10:32 ::: 34 that to be in public interest, it must be for those who use the facility.
Reasons disclosed by NMC as necessitating such development are not even alleged to be false. Consideration of public purpose in "Mohd.
Raihan v. State of U.P." (supra) by Allahabad High Court is relied on for that purpose. There the phrase "public interest" used in Section 47(1) of the Motor Vehicles Act,1939 has been construed because of the nature of obligation to grant or refuse stage carriage permit on RTA and Court has found that it mean the interest of the people using that stage carriage and not public in general. Order of ADMC passed on objection of petitioner mentions that existing Supermarket is constructed in 1964 when commercial activities were limited. Now there is manifold increase and area has become congested. Then adequate parking was not provided and the public has to face serious inconvenience. Maintenance of cleanliness in the premises and surrounding area is also found a problem. Thus respondent NMC being local authority as also planning authority thought it fit to construct a Shopping Mall with modern facilities and enough parking place for public convenience. The project is as per Development Control Rules and building bye-laws. It is stated that it will face-lift the area and remove traffic congestion in surroundings.
The present 1+1 storied building is occupied by several as licensees or sub-licenses, or even unauthorizedly. These facts are not in dispute before me. Petitioners can not be allowed to place their individual ::: Downloaded on - 09/06/2013 16:10:32 ::: 35 grievance when larger public interest is involved. Allegations of favouring rich affluent class at their costs are not substantiated at all.
Applications for allotment were invited and open fair process has been or is to be followed by the NMC and any private motives are therefore ruled out. Petitioners are also given an equally fair chance. Once law permits development in particular manner and a policy decision is taken by planning authority, procedure prescribed is to be followed and individual grievances have to yield to public good normally. Facts show that in present matter sufficient number of shops are being reserved for petitioners and their interests are adequately protected.
13. Chapter VIA has been added to NMC Act by Maharashtra Act 45 of 2005 and its purpose is to empower NMC to evict persons from corporation premises. It contains Section 76A to 76J. Section 76A defines corporation premises, regulations and unauthorized occupation.
There is no dispute between parties that the supermarket involved constitutes corporation premises and continuing in occupation thereof after the determination of their authority under Section 76B(1) is unauthorized occupation. Provisions of Section 76B are already discussed at necessary length above. That section also contains procedure enabling Commissioner to sell movables in properties taken in possession under Section 76B and to credit surplus after deducting sale ::: Downloaded on - 09/06/2013 16:10:33 ::: 36 expenditure to the person/s entitled to it. In case, the entitlement is in dispute the Commissioner can refer that dispute to civil court. Section 76C confers power upon Commissioner to recover rent or damages as arrears of property tax and lays down procedure therefor. Section 76D enables recovery through deductions from salary if occupant is a corporation employee. Section 76E gives Commissioner powers of civil court under CPC to summon and enforce attendance of any person and examine him on oath, require the discovery and production of documents and for any other purpose prescribed by regulations framed under Section 76I. Section 76F contemplates an appeal from orders under Section 76B or Section 76C to the District Judge and enables appellate court to stay the impugned orders. Section 76G makes orders passed under above provisions final and save as otherwise provided, it can not be assailed in any original suit, application or execution proceedings.
Section 76H takes away the jurisdiction of civil court in relation to evictions or recovery under chapter VIA. Section 76I gives power to Commissioner to frame regulations with approval of Standing Committee on matters stipulated therein. Regulations can be on the form of notices under Section 76Band 76C, holding of inquiries, procedure for taking possession of corporation premises, manner of assessing the damages and principles therefor, manner of preferring the appeal and procedure therein, any other matter which has to be or may be prescribed under the ::: Downloaded on - 09/06/2013 16:10:33 ::: 37 chapter. Section 76G prescribes penalty for any person who obstructs lawful exercise of any power under chapter VIA of NMC Act. Powers under Section 76B can be exercised notwithstanding anything contained in any law for the the time being in force. Thus a special procedure not till then in existence has been made available to NMC and that is with particular purpose. That object and purpose permits eviction of authorized occupants in public interest. It is therefore apparent that once public interest is available, the power under Section 76B can be resorted to. Satisfaction of Commissioner under Section 76B(1) is required to be reached after hearing the occupant as per Subsection (2) thereof. The speedy remedy is deliberately provided as public interest in such matters is found paramount by State Legislature.
14. No document of allotment of shops to petitioners is on record.
However, it is apparent that their contract to occupy is subject to chapter VIA of the NMC Act. Petitioners have not raised any objection or contention to the contrary. The above scheme of Chapter VIA indicates that objections available to them may therefore be like (i) the purpose disclosed is not genuinely in public interest; (ii) the site notified is not suitable for the purpose notified; (iii) it is not so well suited as compared to any other site; (iv) the area proposed is excessive; (v) the objector's shop has been selected maliciously or vexatiously. Except for contending ::: Downloaded on - 09/06/2013 16:10:33 ::: 38 that purpose is not public purpose and alleging malafides, the petitioners have not raised any other ground. Their attempts to supersede the public interest are obviously without any merit.
15. The scheme of Section 76B envisages reaching of the subjective satisfaction by municipal commissioner only after the hearing under its subsection (2) is over. Admittedly that satisfaction is reached here only after hearing the petitioners accordingly. No such satisfaction is contemplated when a SCN under subsection (2) is being issued. I therefore do not find any substance in their contention that hearing was an empty formality. The municipal commissioner and petitioners can not dictate what is in public interest and also can not prohibit the Standing committee from considering a particular subject or resolving in particular manner. AIR 1989 SC. 568 "H. L. Trehan v.
Union of India" is relied upon to show that post decisional hearing is not legal. There the Caltex Oil Refining Co. was nationalized and its chairman issued a circular rationalizing the service conditions which came to be challenged. It was urged that circular was issued without hearing the employees and in that background the Hon'ble Apex Court has observed that grant of post decisional hearing would be an empty formality as authority hearing would be doing so with closed mind. The representation of employees would not be properly considered and ::: Downloaded on - 09/06/2013 16:10:33 ::: 39 hence, there would be no compliance with principles of natural justice.
Thus before the Hon'ble Apex Court question was of affecting the existing service conditions and thus of a violation of right. The petitioners here are in occupation subject to Chapter VIA of NMC Act and hence, have no such vested right. Moreover, their rights, if any, are sought to be terminated as per law and not in its violation. I find that they have failed to establish that it is post decisional hearing. Contention of Shri Sharif, learned counsel that impugned order of ADMC dated 16/3/2007 was passed in the background of public advertisement dated 3/3/2007 and was a decision taken under compulsion also can not be accepted. By that advertisement, the license holders like petitioners were informed that inspite of commencement of booking for them since October, 2005, they had not taken advantage and hence for them only the last date was extended till 21/3/2007. Petitioners were communicated passing of final orders by ADMC on 20/3/2007 and they also wrote to Market Superintendent of NMC inquiring whether the NMC would accept their applications without prejudice to their legal rights to challenge the validity of the scheme. Clause 12 of the scheme provides that mere deposit of the amount did not create any legal right in person so depositing to claim any allotment and hence, it is clear that by depositing the amount, petitioners do not stand to lose anything.
::: Downloaded on - 09/06/2013 16:10:33 ::: 4016. Documents filed by Petitioner association in Writ Petition No.4565/2007 show that decision to have shopping mall on Sitabuldi main road was made known through paper advertisement on 8/10/2005.
It reveals that vide earlier advertisement applications for booking were invited and last date therefor was extended to 21/10/2005. Interested persons were also informed about holding of audio video show on 10/10/2005. Other advertisement dated 5/10/2005 invites pre-
qualification bids for construction of a shopping mall in place of supermarket by 20/10/2005 and discloses value of project to be 33 Crores. The Respondents contend that said show was attended by the petitioners while petitioners deny it. However, that debate is not very relevant as material discloses that the petitioners were aware and could have collected any data needed by them. Following observations of Hon'ble Apex Court in paragraph 8 of AIR 1973 SC. 1150 (Munshi Singh v. Union of India) are helpful here:--
"8. As already noticed, in the notifications under Section 4 all that was stated was that the land was required--------------------------- in a specified way. If the Master Plan which came to be sanctioned on September 4, 1962 had been available for inspection by the persons interested in filing objections or even if the knowledge of ::: Downloaded on - 09/06/2013 16:10:33 ::: 41 its existence on the part of the appellants had been satisfactorily proved the position may have been different. In that situation the appellants could not claim that they were unable to file objections owing to the lack of any indication in the notification under Section 4 of the nature of development for which the area was being requisitioned. On behalf of the State----------------- required to enable this Court to pronounce judgment."
It therefore can not be said that while filing reply to SCN petitioners were not in position to procure necessary material to effectively defend themselves. SCN i.e. Show Cause Notice here is issued on 12/12/2006 and thus more than one year after the audio video demonstration or public invitation for pre-qualification bid. Reply to it by petitioners is 22/12/2006. Thus argument of Shri Sharif, learned Counsel that subjective satisfaction reached by Respondent Municipal Commissioner is not based on any material or then was justified before ADMC or Appellate Court on the strength of material which became available subsequently can not be accepted. Learned Counsel has pointed out that an application was moved on 24/9/2007 in Appellate Court calling upon the NMC to give details of 38 shops reserved for licensees and with location map and area as also names of those 38 persons. I find that on 26/9/2007, NMC filed reply and pointed out its futility and lack of legal ::: Downloaded on - 09/06/2013 16:10:33 ::: 42 base. The Appellate Court considered that controversy and passed common order in all Appeals pending before it holding that such direction was unnecessary and effect of non-production can be considered only at final hearing stage. It is apparent that list of 38 allottees or map/area was not relevant at all before the Appellate Court as Chapter VIA does not require it and only a concession was being extended to 38 legal occupiers by Respondents. No legal right of the petitioners is affected because of its non-filing. Consideration above also shows that petitioners were under wrong conception about their legal rights and entitlement. They only raised roving objections asserting rights not available to them. They perhaps wanted to delay the commencement of development. Their say that it was a post decisional hearing is without any merit.
17. In Shreeji Mailing Service, Ahmedabad v. Govt. of India and others (supra) when certain grounds mentioned or which formed the basis of the impugned order were not reflected in the show-cause notice, it has been held that no opportunity is given to petitioner to meet such grounds before final decision is taken by the authority. Principles of natural justice required all the grounds to be intimated to the party concerned if the same were to be used for an adverse order. Indian Nut Products v. Union of India (supra) reveals that in the notice, there was ::: Downloaded on - 09/06/2013 16:10:33 ::: 43 only reference to Sec. 3(1) of the Kerala Cashew Factories (Acquisition) Act (29 of 1974), without disclosing whether the Government was satisfied in respect of the existence of any of the situations under clause
(a), (b) or (c) thereof. No details had been mentioned in the said notice.
Towards the end of the said notice, under the heading "Grounds" it was stated that the factory was lying closed and that there was no possibility of its functioning within a period of ten days or in the immediate future and, therefore, the Government was of the opinion that the said situation "will lead to a large scale unemployment........" An order under Section 3(1) on the ground specified in clause (c) of sub-section (1) can be issued by the State Government only when the State Government is satisfied that "there has been large scale unemployment, other than by way of layoff or retrenchment, of the workers of a cashew nut factory".
The grounds did not even state that there had been any unemployment much less large scale unemployment. No details like the date from which each of the 36 factories was lying closed were mentioned. Hon'ble Apex Court finds that by a common notice all the 36 cashew factories could not be summoned to show cause without giving particulars of conditions existing in different factories. Hon'ble Apex Court observes that if a statute requires an authority to exercise power, when such authority is satisfied that conditions exist for exercise of that power, the satisfaction has to be based on the existence of grounds mentioned in the statute.
::: Downloaded on - 09/06/2013 16:10:33 ::: 44The grounds must be made out on the basis of the relevant material. If the existence of the conditions required for the exercise of the power is challenged, the Courts are entitled to examine whether those conditions existed when the order was made. A person aggrieved by such action can question the satisfaction by showing that it was wholly based on irrelevant grounds and hence amounted to no satisfaction at all. In other words, the existence of the circumstances in question is open to judicial review. I find the reliance misconceived as such individual scrutiny of each shop occupier is not necessary in present matter. Hon'ble Apex Court in Nasir Ahmed, v. Assistant Custodian General, Evacuee Property, U.P., Lucknow and another, (supra) considers Administration of Evacuee Property Act (31 of 1950). The notice under Section 7 (1) of that Act called upon the appellant and his brother to show cause why they should not be declared evacuees under clause (iii) of Section 2 (d) of the Act and the ground mentioned in the notice was also based on that clause.
The notice that was issued merely reproduced the form without mentioning the particulars on which the case against the appellant was based. The authorities concerned declared them evacuees under clauses
(i) and (ii) as well. Hon'ble Apex Court held that the notice and the declaration that followed were both invalid. The foundation of a proceeding under Section 7 has to be a valid notice and an inquiry which travels beyond the bounds of the notice is declared impermissible and ::: Downloaded on - 09/06/2013 16:10:33 ::: 45 without jurisdiction to that extent. Food Corporation of India, v. State of Punjab and others, (supra) is judgment of Hon'ble Apex Court on Sections. 66, 67 and 68A of Punjab Municipal Act (3 of 1911). Hon'ble Apex Court there finds that while vesting the power in the Committee to amend an assessment list, the Legislature has taken care to specify the circumstances in and the grounds on which such amendment may be made, it has also laid down the manner in which such amendment or revision of the assessment list is to be made. Care has also been taken to comply with the principle of natural justice by making the provision for giving to the person who is likely to be affected by the proposed amendment not less than a month's time to tender objection, if any to the Committee and allowing him an opportunity of being heard in support of the objections raised. Notice to the affected person mandated in the section is not an empty formality; it is meant for a purpose. Apex Court states that a vague and unspecific notice will not provide reasonable opportunity to the noticee to file objection meeting the reasons/grounds on which the amendment of the assessment list is proposed to be made.
Such a notice cannot be taken as complying with the statutory requirement. The notice issued to the Food Corporation, merely stated that property has been wrongly left out from assessment list. It neither gave the reason for/or the ground on which the amendment was proposed to be made nor did it indicate any material on the basis of ::: Downloaded on - 09/06/2013 16:10:33 ::: 46 which the revision as stated in the notice was proposed to be made.
Such a notice not only was held not complying with the statutory requirements,and defeating the very purpose of the statutory provisions.
In Barium Chemicals Ltd. and another, v. Company Law Board and Others, Hon'ble Apex Court considers Section 237(b) of the Companies Act and states that words 'If in the opinion of Central Government' imply that formation of opinion is subjective process but existence of circumstances suggesting inference of what has been set out in sub-
clauses (i), (ii) or (iii) must be made out. In paragraph 60 it is further observed that though an order passed in exercise of power under a statute cannot be challenged on the ground of propriety or sufficiency, it is liable to be quashed on the ground of malafides, dishonesty or corrupt purpose. Even if it is passed in good faith and with the best of intention to further the purpose of the legislation which confers the power, since the Authority has to act in accordance with and within the limits of that legislation, its order can also be challenged if it is beyond those limits or is passed on grounds extraneous to the legislation or if there are no grounds at all for passing it or if the grounds are such that no one can reasonably arrive at the opinion or satisfaction requisite under the legislation. In any one of these situations, Hon'ble Court states that it can wel1 be said that the authority did not honestly form its opinion or that in forming it, it did not apply its mind to the relevant facts. NMC ::: Downloaded on - 09/06/2013 16:10:33 ::: 47 seeks the eviction of petitioners before this Court in public interest and that ground is applicable universally to all and upheld by ADMC as also District Judge-3, Nagpur. These rulings therefore are not germane here.
18. Vinod Kumar Singh v. Banaras Hindu University (supra) pressed into service by Shri Sharif, learned Counsel states that Rule 3 of 0rder 20, Civil P.C. permits alternation or additions to a judgment so long as it is not signed. It is only after the judgment is both pronounced and signed that alterations or additions are not permissible, except under the provisions of Section 152 or Section 114 of the Civil Procedure Code or, in very exceptional cases, under Section 151 of the Civil Procedure Code. But, while the Court has undoubted power to alter or modify a judgment, delivered but not signed, such power should be exercised judicially, sparingly and for adequate reasons. When a judgment is pronounced in open Court, parties act on the basis that it is the judgment of the Court and that the signing is a formality to follow. When the judgment is pronounced, parties present in the Court know the conclusion in the matter and often on the basis of such pronouncement, they proceed to conduct their affairs. If what is pronounced in Court is not acted upon, certainly litigants would be prejudiced. Confidence of the litigants in the judicial process would be shaken. The filing of Pursis on 21/4/2007 before the District Court in appeal under Section 76F does ::: Downloaded on - 09/06/2013 16:10:33 ::: 48 not in any way constitute such an exercise to the prejudice of petitioners and reliance on this judgment for said purpose is bad. In any case period for eviction is statutorily prescribed and steps to be taken for recovery of possession upon such failure to vacate are also enacted. No prejudice is therefore caused to the petitioners in any way.
19. (1980) 4 SCC 374 = AIR 1981 SC. 136 (S.L. Kapoor v.
Jagmohan) has been relied upon by Shri Mehadia, learned counsel to urge that violation of principles of natural justice ipso facto renders the impugned order bad and no proof or plea of prejudice is necessary.
Facts there show that the observations have been made in the matter of supersession of a municipal committee. The observations that requirements of natural justice are met only if opportunity to represent is given in view of proposed action and the demands of nature justice are not met even if the very person proceeded against has furnished the information on which the action is based, if it is furnished in a casual way or for some other purpose. The person proceeded against must know that he is being required to meet the allegations which might lead to a certain action being taken against him. If that is made known the requirements are met. But then these observations are due to findings that the New Delhi Municipal Committee was never put on notice of any action proposed to be taken under Section 238 of the Punjab Municipal ::: Downloaded on - 09/06/2013 16:10:33 ::: 49 Act and no opportunity was given to the Municipal Committee to explain any fact or circumstance on the basis of which that action was proposed.
Hon'ble Apex Court notes that if there was any correspondence between the New Delhi Municipal Committee and any other authority about the subject matter or any of the allegations, if information was given and gathered it was for entirely different purposes.
20. In present matter as already noted above, there was earlier round of litigation in WP 5647/2005 and on 5/12/2005 in its order, this Court has noted intention of NMC to have a shopping complex at place of existing supermarket. The order passed and earlier public advertisement clearly bring on record the purpose for which eviction of the petitioners was sought. In some matters, petitioners have accepted that relevant clause in SCN served upon them was pointed out by applying "tick-mark"
while according to others it was not so. It is not the contention of any of the petitioners that ADMC did not hear him or then inspection of NMC records was denied to them. Even in appeal no such grievance has been made. Thus reasonable opportunity to show cause and of hearing as envisaged in Section 76B has been extended to all of them. Argument that findings in paragraph 13and 16 of the impugned order by District Court in appeal are beyond the SCN is erroneous as that part only notices the need for development as felt in public interest. The technical ::: Downloaded on - 09/06/2013 16:10:33 ::: 50 objections now raised are by way of afterthought and liable to be rejected.
21. Rampratap Jaidayal v. Dominion of India, (AIR 1953 Bom
170) is considered later in AIR 2001 Bom. 26 (Board of Trustees, Port of Bombay v. Jayantilal Dharamsey) where the Division Bench has observed:-- " 49. By a series of judgments of this Court as well as of the Supreme Court, it has been held that the Government and its agencies which are exempted from the rigours of the Rent Act cannot themselves practise where by the legislation, the landlords are prevented from doing. The following judgments were cited : 1. (1952) 54 Bom LR 927 : (AIR 1953 Bom
170) (Rampratap Jaidayal v. Dominion of India).2. 1954 SCR 572 : (AIR 1954 SC 153).3. AIR 1989 SC 1642 Dwarkadas Marfatia v. Board of Trustees of the Port of Bombay. 4. 1992 Mad LJ 1356." In present matter, it is clear that the enjoyment of their rights by the petitioners is subject to provisions of Chapter VIA and NMC is exercising its rights under that Chapter only. Not only this but it has reserved shops for allotment to petitioners at concessional rate as part of its project. The interest free deposit is half of what is being charged in open market. The rent per month to be paid by them after such allotment in new mall is to be divided into two equal parts. 50% thereof is to be appropriated towards rent while remaining 50% towards the amount to be deposited by ::: Downloaded on - 09/06/2013 16:10:33 ::: 51 petitioners as interest free deposit. Thus NMC is not seeking eviction of the petitioners but it is only a temporary vacation to enable it to construct a shopping mall and to accommodate them back in it at reasonable rates. This is attempt by it to balance public interest with individual needs. Petitioners therefore can not insist for any other concession or favour and can not urge that the location of their shops in proposed complex must be shown to them in advance or then the location is convenient. Law does not confer any such right on them. The NMC has acted fairly enough and it can not be even compared with private landlords. There is no requirement of any no objection from them before the project is conceived or undertaken. AIR 1954 SC 153 and AIR 1989 SC 1642 cited by the petitioners are already considered by the Division Bench (supra) of this High Court and hence, it is not necessary to go into its details. AIR 2004 SC. 1815-- "Jamshed Hormusji Wadia, v. Board of Trustees, Port of Mumbai" considers Major Port Trust Act (38 of 1963), Section 49and lays down that actions of State and its instrumentalities in field of landlord-tenant relationship should be tested not under rent control legislation but under Constitution. Observations in paragraph 20 show that steps taken were reasonable and accepting current market rents as worked out by consultant would be profiteering.
But in facts before me, there are no such allegations of exorbitant rent .or then threat to evict because of any refusal by petitioners to a demand to ::: Downloaded on - 09/06/2013 16:10:33 ::: 52 hike rent. On the contrary, substantial concessions are given to petitioners by NMC. In fact,here, the findings in paragraphs 18 and 19 by the Hon'ble Apex Court go against them. Those observations are :--
" 18. In our opinion, in the field of contracts the State and its instrumentalities ought to so design their activities as would ensure fair competition and non-
discrimination. They can augment their resources but the object should be to serve the public cause and to do public good by resorting to fair and reasonable methods.
The State and its instrumentalities, as the landlords, have the liberty of revising the rates of rent so as to compensate themselves against loss caused by inflationary tendencies. They can -and rather must -
also save themselves from negative balances caused by the cost of maintenance, and payment of taxes and costs of administration. The State, as landlord, need not necessarily be a benevolent and good charitable Samaritan. The felt need for expanding or stimulating its own activities or other activities in the public interest having once arisen the State need not hold its hands from seeking eviction of its lessees. However, the State cannot be seen to be indulging in rack-renting, profiteering and indulging in whimsical or unreasonable evictions or bargains.
19. A balance has to be struck between the two ::: Downloaded on - 09/06/2013 16:10:33 ::: 53 extremes. Having been exempted from the operation of rent control legislation the courts cannot hold them tied to the same shackles from which the State and its instrumentalities have been freed by the legislature in their wisdom and thereby requiring them to be ruled indirectly or by analogy by the same law from which they are exempt. Otherwise, it would tantamount to defeating the exemption clause consciously enacted by the Legislature. At the same time the liberty given to the State and its instrumentalities by the statute enacted under the Constitution does not exempt them from honouring the Constitution itself. They continue to be ruled by Article 14. The validity of their actions in the field of landlord-tenant relationship is available to be tested not under the rent control legislation but under the Constitution. The rent control legislations are temporary, if not seasonal; the Constitution is permanent and all time law."
It can not be said that project is designed only for rich and influential tenants. The decision is by the legally competent body and process adopted by the Respondents is an open procedure with sympathetic view for petitioners. This concession is neither mandated by the law nor by Constitution of India. Hence, I, do not find any private landlord like attitude here.
::: Downloaded on - 09/06/2013 16:10:33 ::: 5422. It is not in dispute that competent authority has on 23/8/2006 issued a notification and commercial area has been excluded from the slum area. Section 26 of the Slum Act clarifies that nothing contained in Chapter VI of that Act i.e. commencing from Section 22 to Section 25 applies to eviction of tenants like petitioners from buildings belonging to State Government or local authorities. The Appellate Court has thus rightly found that argument of protection of possession till permission of competent authority is therefore erroneous. But then Section 26 grants exemption only from Chapter VI and not from Chapter IB. Section 3Z thereof does not permit eviction of a tenant and only State Government can allow it in larger public interest. Purpose of this Chapter can be seen from Section 3Y and Section 3X(C) grants protection to occupiers of a dwelling structure who holds photo-pass and not to others. But then Section 3X(a) which defines dwelling structure to mean a structure used as a dwelling or otherwise. Its inclusive part also does not expand it to commercial or non-residential structures. The definition thus confines its operation to structures used for residential purpose or then, at the most to mixed user i.e. for both . Residential and commercial purpose. Any other interpretation will render the design of legislature behind using the word "dwelling" to qualify the word "structure". If any structure in slum area was to be regulated, word "dwelling" would not have been employed. Chapter IB therefore does not apply to purely commercial ::: Downloaded on - 09/06/2013 16:10:33 ::: 55 buildings like the one in use and occupation of the petitioners. Words "otherwise" used in the definition do not expand its meaning to cover activities sought to be excluded by legislature by employing the word "dwelling" in it. Word "otherwise" is not used in that provision to defeat the limitations flowing from use of word " dwelling". Supermarket constructed by NMC for commercial user is definitely not covered thereunder. The petitioners have not challenged the notification of exemption dated 23/8/2006 before the competent forum and it can not be assailed in these proceedings. The contention that since its construction the supermarket in year 1966 the petitioners occupy the shop-blocks and are being used for commercial purposes and still it was recognized as slum in 1976, and now with oblique motive it is being excluded from the slum area is therefore not only misplaced but also misconceived. Bare perusal of this chapter clearly shows that its intention is only to protect the residential occupancies. In AIR 1957 SC 521--"Lila Vati Bai v. State of Bombay" in paragraph 11 Hon'ble Apex Court has after appreciating the context in which the words "or otherwise" are use found that principles of ejusdem generis did not apply.
It was contended on behalf of the petitioner before Hon'ble Apex Court that Explanation (a) to Section 6 quoted above contemplates a vacancy when a tenant "ceases to be in occupation upon termination of his tenancy, eviction, or assignment or transfer in any other manner of his ::: Downloaded on - 09/06/2013 16:10:33 ::: 56 interest in the premises or otherwise". The argument further advanced was to the effect that admittedly there was no termination, eviction, assignment or transfer and that the words "or otherwise" must be construed as ejusdem generis with the words immediately preceding them:
and that therefore on the facts as admitted even in the affidavit filed on behalf of the Government there was in law no vacancy. Hon'ble Court found that it could not go behind the declaration made by the Government that there was a vacancy. Rule of ejusdem generis was found to have no application. The Legislature was held cautious and thorough-
going enough to bar all avenues of escape by using the words "or otherwise." Those words were not the words of limitation but of extension so as to cover all possible ways in which a vacancy may occur.
Legislature used those words in an all inclusive sense. As observed by the Hon'ble Apex Court little later, here also I can say that no decided case of any court, holding that the words "otherwise" have ever been used in the sense contended for on behalf of the petitioner, has been brought to my notice. AIR 1998 Bom. 216-- (Smt. Sugandha Manik Kane and others v. The Conservator of Forests, with his Office at Panaji, Goa and others.) now need consideration. Section 96 in Chapter VIII of Goa, Daman and Diu Land Revenue Code (1968), is found to speak about acquisition of rights only and not about existing right or obligation of any person to inform about such existing rights to the Talathi. Only when a ::: Downloaded on - 09/06/2013 16:10:33 ::: 57 person acquires right, by way of succession, survivor ship, inheritance of partition, purchase, mortgage, gift, lease or otherwise, any right as holder, occupant, mortgagee, landlord, tenant or Government Lessee of any land that such person has to inform about the acquisition of such right. Section 96 does provide that the person acquiring any right in the manner specified thereunder, as well as 'otherwise' has to inform about the same to the Talathi. Rule of 'ejusdem generis' is resorted to hold that the word 'otherwise' has to be understood, as mode of acquisition of right. Again the words have been interpreted in the context used and hence, this judgment is also of no help to the petitioners here.
23. This notification dated 23/8/2006 can also not be labeled as an attempt to get over the Division Bench order dated 5/12/2005 in Writ Petition No.5647/2005. High Court disposed of that writ petition after recording submission of the NMC there that it would not dispossess the occupants before it summarily and by directing it to not to dispossess them without following due process of law and such eviction would be undertaken after taking permission from competent authority under Slum Act, 1971, if required in the law. The order therefore does not adjudicate necessity of such permission and leaves it open. It also does not bar issuance of any exemption notification like dated 23/8/2006. In view of findings on Section 26and "dwelling structure" above, this line of defense ::: Downloaded on - 09/06/2013 16:10:33 ::: 58 warrants nothing but rejection.
24. Loss of a source of earning livelihood not only for themselves and families but also to several others indulging in incidental or co-
lateral businesses can also not be relevant when scheme of Chapter VIA of NMC Act is taken note of. The petitioners can not here try to demonstrate any more right than available to them under that Chapter.
Article 21 also permits deprivation of life and liberty in accordance with the procedure established by law. AIR 1986 SC 180 (Olga Tellis v.
Bombay Municipal Corporation) relied upon by the petitioners does not consider a relationship regulated by contract or statutory provisions.
Hon'ble Apex Court has stated while summing up the petitioners' case before it, that the main plank of their argument was that the right to life which is guaranteed by Article 21 includes the right to livelihood and since, they will be deprived of their livelihood if they are evicted from their slum and pavement dwellings, their eviction is tantamount to deprivation of their life and is hence unconstitutional. Thus right to reside in slums on footpath was co-related with livelihood earned. The observations and findings that right to life include right to earn livelihood there are therefore not relevant in case of present petitioners as they do not reside their and their right is being terminated as per law. Later Constitution Bench judgment of Hon'ble Apex Court in AIR 2006 SC.
::: Downloaded on - 09/06/2013 16:10:33 ::: 591806 (Secretary, State of Karnataka v. Umadevi) has rejected the argument that right to employment is part of right to life. The consideration there clearly shows that primacy needs to be given to Rule of Law and to general public good. Here NMC has proposed a project for benefit of not only traders or businessmen but also for members of general public visiting the shops or establishments and also required to use the public roads or facilities in vicinity. The project therefore is aimed at making better provisions for customers, for commuters etc. At the same time it also attempts to accommodate petitioners. It can not be viewed as violating Article 21 in any manner.
25. Legitimate expectation is also looked into by Hon'ble Apex Court in "Secretary, State of Karnataka v. Umadevi"(supra). The employees there contended that because of long continuation as temporaries or casuals and past regularization of similar employees by the State, they also deserved same treatment. The following observations are important in present context :-
"The doctrine of legitimate expectation can be invoked if the decisions of the Administrative Authority affect the person by depriving him of some benefit or advantage which either (i) he had in the past been permitted by the decision-maker to enjoy and which he ::: Downloaded on - 09/06/2013 16:10:33 ::: 60 can legitimately expect to be permitted to continue to do until there have been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; or (ii) he has received assurance from the decision-maker that they will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn. Though, there is a case that the State had made regularizations in the past of similarly situated employees, the fact remains that such regularizations were done only pursuant to judicial directions, either of the Administrative Tribunal or of the High Court and in some case by this Court. Moreover, the invocation of the doctrine of legitimate expectation cannot enable the employees to claim that they must be made permanent or they must be regularized in the service though they had not been selected in terms of the rules for appointment. The fact that in certain cases the Court had directed regularization of the employees involved in those cases cannot be made use of to found a claim based on legitimate expectation. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot ::: Downloaded on - 09/06/2013 16:10:33 ::: 61 invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in concerned cases, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post."
Present petitioners have not pleaded any such concession or assurance by NMC to them and parties together can not do anything to defeat the object and purpose of Chapter VIA of the NMC Act. General public interest is bound to be supreme.
26. Judgment of Hon'ble Apex Court at AIR 1993 SC 1601 (Food Corporation of India v. M/s. Kamdhenu Cattle Feed Industries) relied upon by Shri Mehadia, learned counsel also shows significant and determinative role of general public interest even in contractual matter.
Following two paragraphs cull down the law :-
::: Downloaded on - 09/06/2013 16:10:33 ::: 62"7. In contractual sphere as in all other State actions, the State and all its instrumentalities have to conform to Art, 14 of the Constitution of which non-
arbitrariness is a significant facet. There is no unfettered discretion in public law: A public authority possesses powers only to use them for public good. This imposes the duty to act fairly and to adopt a procedure which is 'fair play in action'. Due observance of this obligation as a part of good administration raises a reasonable or legitimate expectation in every citizen to be treated fairly in his interaction with the State and its instrumentalities, with this element forming a necessary component of the decision-making process in all State actions. To satisfy this requirement of non-
arbitrariness in a State action, it is, therefore, necessary to consider and give due weight to the reasonable or legitimate expectations of the persons likely to be affected by the decision or else that unfairness in the exercise of the power may amount to an abuse or excess of power apart from affecting the bonafides of the decision in a given case. The decision so made would be exposed to challenge on the ground of arbitrariness. Rule of law does not completely eliminate discretion in the exercise of power, as it is unrealistic, but provides for control of its exercise by judicial review.
8. The mere reasonable or legitimate expectation of a ::: Downloaded on - 09/06/2013 16:10:33 ::: 63 citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirement of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness, a necessary concomitant of the rule of law. Every legitimate expectation is a relevant factor requiring due consideration in a fair decision-
making process. Whether the expectation of the claimant is reasonable or legitimate in the context is a question of fact in each case. Whenever the question arises, it is to be determined not according to the claimant's perception but in larger public interest wherein other more important considerations may outweigh what would otherwise have been the legitimate expectation of the claimant. A bona fide decision of the public authority reached in this manner would satisfy the requirement of non-arbitrariness and withstand judicial scrutiny. The doctrine of legitimate expectation gets assimilated in the rule of law and operates in our legal system in this manner and to this extent. -"
It can not therefore be accepted that petitioners could have any legitimate expectation here to continue as tenants for ever particularly when provisions of Chapter VIA also govern their contract of tenancy.
The reliance upon provisions of Rent Control legislations or Slum Act to ::: Downloaded on - 09/06/2013 16:10:33 ::: 64 work out any expectation is ill founded. They can not here contend that their proposed eviction in accordance with said Chapter VIA of NMC Act is arbitrary or unfair. They can not complain of any abuse of position by the NMC when it is offering them shops in new Mall at 50% of the rates applicable to others. The argument that till the new accommodation becomes available for occupation, they should be given some alternate site is not supported by any contractual or statutory obligation on respondents.
27. With the result, I do not find any jurisdictional error or perversity in the order passed by the District Judge-3, Nagpur or ADMC.
The authority of petitioners to continue to occupy the shop blocks in Supermarket has been terminated as per law and they are also asked to vacate accordingly. There is no abuse of power by NMC and petitioners have been treated fairly and as per law. No case is therefore made out warranting any interference in writ jurisdiction. All Writ Petitions are therefore dismissed. Rule discharged. No order as to costs.
JUDGE dragon.
::: Downloaded on - 09/06/2013 16:10:33 ::: 6528. At this stage, respective counsel for petitioners pray that orders protecting their possession till today should be continued for further period of 6 weeks so at to enable them to take further appropriate steps in the matter. In the interest of justice, possession of petitioners is accordingly protected till 30th August, 2010 and the said arrangement and protection shall cease to operate automatically thereafter.
JUDGE Rgd.
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