Bombay High Court
Shri. Arun Babu Mhatre vs Kalyan Dombivali Municipal ... on 9 March, 2021
Equivalent citations: AIRONLINE 2021 BOM 1035
Bench: S.J. Kathawalla, R.I.Chagla
Digitally signed
N. D. by N. D. Jagtap
Date:
Jagtap 2021.03.09
20:26:52 +0530
Nitin 1 / 15 WPL-98444-2020.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION (ST) NO. 98444 OF 2020
Arun Mhatre ... Petitioner
Versus
Kalyan Dombivali Municipal Corporation & Ors. ... Respondents
ALONG WITH
WRIT PETITION (ST) NO. 98435 OF 2020
Bhaskar Bhoir ... Petitioner
Versus
Kalyan Dombivali Municipal Corporation & Ors. ... Respondents
WITH
WRIT PETITION (ST) NO. 98463 OF 2020
Ramchandra Bhoir ... Petitioner
Versus
Kalyan Dombivali Municipal Corporation & Ors. ... Respondents
WITH
WRIT PETITION (ST) NO. 98462 OF 2020
Ramchandra Bhoir ... Petitioner
Versus
Kalyan Dombivali Municipal Corporation & Ors. ... Respondents
WITH
WRIT PETITION (ST) NO. 98466 OF 2020
Balu Bhoir ... Petitioner
Versus
Kalyan Dombivali Municipal Corporation & Ors. ... Respondents
WITH
Nitin 2 / 15 WPL-98444-2020.doc
WRIT PETITION (ST) NO. 98459 OF 2020
Sudhakar Bhoir ... Petitioner
Versus
Kalyan Dombivali Municipal Corporation & Ors. ... Respondents
WITH
WRIT PETITION (ST) NO. 98440 OF 2020
Bhaskar Bhoir ... Petitioner
Versus
Kalyan Dombivali Municipal Corporation & Ors. ... Respondents
WITH
WRIT PETITION (ST) NO. 98449 OF 2020
Sudhakar Bhoir ... Petitioner
Versus
Kalyan Dombivali Municipal Corporation & Ors. ... Respondents
WITH
WRIT PETITION (ST) NO. 97543 OF 2020
Balu Walku Bhoir ... Petitioner
Versus
Kalyan Dombivali Municipal Corporation & Ors. ... Respondents
Mr.Sagar A. Joshi for the Petitioners.
Mr.A.S.Rao for Respondent Nos. 1 to 3.
CORAM : S.J. KATHAWALLA, &
R.I.CHAGLA, JJ.
RESERVED ON : 5TH JANUARY, 2021
PRONOUNCED ON : 9TH MARCH, 2021
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JUDGMENT :
1. This group of Writ Petitions impugn an Order dated 25 th November, 2020 passed by Respondent No. 3 - The Designated Ofcer & Ward Ofcer of Respondent No. 1 Corporation (impugned Order) passed under Section 212 (2) of the Maharashtra Municipal Corporation Act, 1949 (the Act).
2. The brief facts leading to the fling of these Writ Petitions are as under :
2.1. The Petitioners claim to be owners of certain lands within the limits of Respondent No.1 Corporation. On these lands, the Petitioners' have built structures thereon (structures).
2.2. In and around September, 2018, Respondent No.1 Corporation's ofcers visited the structures and marked a wall with red colour. 2.3. On 29th October, 2018, Respondent No. 3 issued a notice to the Petitioners under Section 212 (1) of the Act. In the said notice, it was alleged that the Development Plan of Kalyan Dombivali Municipal Corporation was sanctioned on 3 rd September, 2005 and in the said Development Plan, Subhash Road, Dombivali West (Hanuman Temple to Hemant General Store) (the said road) was shown 18 mtrs wide. The said notice further alleges that Respondent No.1 Corporation after carrying out the survey has drawn the regular line of the street. As per the said regular line of the street, the area admeasuring 56 sq.mtrs. of 5 shops on the right side of the road is coming in the way of road widening of the said street and therefore, it is necessary to demolish the area mentioned in the said notice and compensation by way of T.D.R. / Nitin 4 / 15 WPL-98444-2020.doc F.S.I. or cash would be payable in accordance with Section 216 of the Act. 2.4. On 17th November, 2018, the Petitioners claim to have visited Respondent No. 3's ofce and tendered their reply / objections to the notice. 2.5. On 13th November, 2018, an Application was made to the Information Ofcer of Ward No. 7H seeking information inter alia about the action taken in order to prescribe the street line under Section 210 of the Act (RTI Application). 2.6. In response to the RTI Application, the Petitioner in Writ Petition No. 98466 of 2020 was informed on 29 th November, 2018 that since no action under Section 210 of the Act is taken, the street line is not fied / decided. 2.7. Apprehending demolition, the Petitioners fled the Writ Petitions before this Court. At the hearing of the Writ Petitions on 29 th November, 2018, the following Order came to be passed :
"Heard Mr.Oak, learned counsel for the petitioners and Mr.Rao, learned counsel for the Corporation.
2. By these petitions, the petitioners are challenging the notice issued under Section 212 (1) of the Maharashtra Municipal Corporation Act.
3. Mr.Rao, learned counsel for the Corporation, at the outset, submitted that the petitions are premature inasmuch as the proposal to acquire the land if it falls within regular line of public street will have to be approved by the standing committee. He submitted that once the proposal is approved, then again 15 days fresh notice would be issued to the petitioners under Section 212 (2) of the Maharashtra Municipal Corporation Act and, in the Nitin 5 / 15 WPL-98444-2020.doc event, the petitioners are agrieved by such notice, they can approach this Court afresh. The statement is accepted.
4. In the light of the statement made by Mr.Rao, learned counsel for the Corporation, Mr. Oak, learned counsel for the petitioners, sought leave to withdraw the petitions with liberty to approach this Court, in the event, the respondent - Corporation issues notice under Section 212 (2) of the Maharashtra Municipal Corporation Act. Leave as sought, is granted. The writ petitions are dismissed as withdrawn."
2.8. On 21st February, 2019, Respondent No. 3 passed an Order directing the Petitioners to remove the structures. Being aggrieved by this Order, the Petitioners fled Writ Petitions.
2.9. At the hearing of the Writ Petitions held on 11 th February, 2020, the following order came to be passed :
"1. The learned advocate for Respondent Nos. 1 to 3, on instructions, seeks to withdraw the notice dated 29 th October, 2018 and the impugned Order dated 21st February, 2019. In view thereof, the learned Advocate for the Petitioner, on instructions, seeks to withdraw the above Petition. The Petition is disposed of as withdrawn."
2.10. On 3rd July, 2020, Respondent No. 3 issued another notice under Section 212 (1) of the Act inter alia contending that the said structures fall within the regular line of the street.
Nitin 6 / 15 WPL-98444-2020.doc 2.11 On 5th October, 2020, Respondent No.3 issued another notice and withdrew the earlier notice dated 3rd July, 2020.
2.12. In response to the notice dated 5 th October, 2020, the Petitioners fled their reply and requested for a personal hearing.
2.13. On 25th November, 2020, Respondent No. 3 passed the impugned Order. The impugned Order directed the Petitioners to demolish the structures within a period of 07 days and handover the land beneath the structures so demolished to the Respondents.
2.14. Being aggrieved by the impugned Order, the Petitioners preferred the present Writ Petitions.
2.15. On 18th December, 2020, this Court passed an Order restraining Respondent No.1 Corporation from taking any coercive action in the matter.
3. The aforesaid are the brief facts.
4. Appearing for the Petitioner, Advocate Sagar Joshi submitted that in the present case, there has been a breach of natural justice as no personal hearing was granted to the Petitioner despite a request for one. Further, that in order to issue a notice under Section 212 (1) of the Act, the basis has to be "regular line of the public street" as drawn under Section 210 of the Act. The information received in response to the RTI Application demonstrates that no action under Section 210 of the Act has been taken and therefore the regular line of the street has not been prescribed. On this count, the impugned Order ought to be set aside. Further, that Respondent No. 3 has Nitin 7 / 15 WPL-98444-2020.doc no power and authority to issue the impugned Order.
5. Appearing for the Respondent No.1 Corporation, Mr.Rao submitted that there has been no violation of natural justice. That in any event, the Petitioners are entitled to compensation under Section 216 of the Act. The Petitioners' personal interest cannot override larger public interest. Despite the regular street line being published in local newspapers i.e. Dainaik Maharashtra Times, Janmat and Thane Vaibhav as early as on 18th February, 2016, where the present road is shown at Serial No.122, none of the Petitioners' lodged any objection. That the Petitioners had approached the incorrect department i.e. the Assistant Engineer, Dombivali Division, Kalyan Dombivali Municipal Corporation instead of the Town Planning Department with its RTI query and therefore no cognizance can be taken qua the reply / report dated 29th November, 2018. That a Commissioner's power under Section 212 of the Act can be delegated with the approval of the Standing Committee.
6. At the outset, we propose to frst deal with the Petitioners' argument that in the present case, there has been a breach of natural justice as no personal hearing was granted to the Petitioners prior to issuance of the impugned Order. In order to deal with this contention, it would be necessary to reproduce Section 212 of the Act, which reads as under :
"212. Additional power to Commissioner to order setting back of buildings to regular line of street. - (1) If any building or any part thereof is within the regular line of a public street Nitin 8 / 15 WPL-98444-2020.doc and if, in the opinion of the Commissioner, it is necessary to set back the building to the regular line of the street, he may, if the provisions of section 211 do not apply, by written notice -
(a) require the owner of such building to show cause within such period as is specifed in such notice by a statement in writing subscribed by him or by an agent duly authorised by him in that behalf and addressed to the Commissioner, why such building or any part thereof, which is within the regular line of the street shall not be pulled down and the land within the said line acquired by the Commissioner; or
(b) require the said owner on such day and at such time and place as shall be specifed in such notice to attend personally or by an agent duly authorised by him in that behalf and show cause why such building or any part thereof which is within the regular line of the street shall not be pulled down and the land within the said line acquired by the Commissioner."
7. In our view, the contention as canvassed by the Petitioners cannot be accepted. This would be in violation of the language used by the legislature in sub- clauses (a) and (b) reproduced above. If the legislature did in fact intend to provide that in all cases personal hearings were necessary, there was no necessity of providing two separate clauses (a) and (b). The legislature could have in clause (a) itself provided that a personal hearing should be given by adding the word "and" at the end of clause (a) instead of "or". This language intentionally used by the legislature clearly gives discretion to either call for a written response or to ofer a personal hearing. In Nitin 9 / 15 WPL-98444-2020.doc any event, the principle of natural justice would not stand violated merely because the afected person is provided an opportunity to make a written representation and not follow that up with a personal hearing. It is in the discretion of the Commissioner to issue a notice under clause (b) of sub-section (1) which contemplates an oral or personal hearing. In our considered opinion, the interpretation of the word "or" at the end of clause (a) cannot be interpreted as "and". The clear intention of the Statute does not require such a reading.
8. The Petitioners' placed reliance on this Court's decision in Amodkumar Gangwar vs. Kalyan Dombivali Municipal Corporation 1 in order to argue that "or" shall be read as "and" in between Section 212 (1) (a) and (b). We do not agree with the submissions. Firstly, it is apparent that in the said decision, this Court was only dealing with the delegation of powers from the Standing Committee to the Commissioner and not the question which has arisen in this matter. The observation of this Court which the Petitioners rely upon is a general observation and is not to be construed in the manner contended by the Petitioners. This Court had not ruled that "or" shall be read as "and" in between Section 212 (1) (a) and (b).
9. With regard to the principles of natural justice, it has been repeatedly held that personal hearings are not to be eitended in every case. The requirement of natural justice cannot be a straight - jacket formula. In the conteit of Section 212, the Commissioner may either call for statement in writing showing cause or ofer a 1 2017 (6) Mh. L.J. 374 Nitin 10 / 15 WPL-98444-2020.doc personal hearing to show cause. Furthermore, it is always open to the Commissioner, after considering the written statement, to give personal hearing, if at all he requires it. This is the plain and literal interpretation of the said section. This would be sufcient compliance with the principles of natural justice and also provisions of Section 212 of the Act. We cannot read words into the Section as the Petitioners' intend for us to do.
10. In view of the aforesaid discussion, we reject the Petitioners' argument as to violation of natural justice.
11. The Petitioners' neit contention is with respect to the response received by them to the RTI Application. In this respect, it is pertinent to note that the Respondent has pointed out that the Petitioner had approached the wrong department and therefore the response given cannot be relied upon. In fact, the Respondent No. 1 Corporation in its Afdavit in Reply, has pointed out that the Commissioner prescribed the regular line of the street and on 18 th February, 2016, published the same in the local newspapers i.e. Dainik Maharashtra Times, Janmat and Thane Vaibhav where the present road is shown at Serial No. 122. Pertinently, the Petitioners did not respond and / or object to the said publication. Coloured photocopies of the publication in the local newspapers 'Janmat' dated 16 th February, 2016 and 'Thane Vaibhav' dated 20th February, 2016 are subsequently tendered in Court. In any event, the said publication (not coloured) was already anneied as Anneiure 'B' to the Afdavit in Reply dated 20th December, 2020.
12. The Petitioners have further contended that the Respondents have not Nitin 11 / 15 WPL-98444-2020.doc brought on record the date on which the publication of the regular line of the street was placed before the Standing Committee, and the date on which the Standing Committee discussed the same and accorded sanction about prescribing such street line. This argument overlooks Section 210 of the Act. Unequivocally, Section 210 (1)
(a) empowers the Commissioner to prescribe a street line for the frst time without the prior approval of the Standing Committee (as has been done in the present case). It is only under Section 210 (1) (b) of the Act, where the Commissioner prescribes a fresh line in substitution of the street line prescribed for the frst time under Section 210 (1)
(a) of the Act that the approval of the Standing Committee is required.
13. Post issuance of the Show Cause Notice, once the written reply of the Petitioners was received, the same was placed before the Standing Committee who vide Resolution No. 188 passed on 5th November, 2020 accorded its approval to issue the impugned Order. This being so, we see no illegality in the manner in which the impugned Order came to be issued.
14. Whilst adjudicating upon the Petitioners' grievances, one cannot lose sight of the purpose, intent and objective of the sections. Owing to the constant and enormous increase in population and trafc in congested parts of a City, Municipal Corporations such as the Respondent No. 1 Corporation are constantly under pressure to widen streets. One of the several methods to do so is contained in Section 212 of the Act. The regular line of the street as prescribed under Section 210 of the Act may pass through properties of owners abutting on the streets. As a result, it is impossible Nitin 12 / 15 WPL-98444-2020.doc to widen the streets unless parts of land belonging to the owners are acquired. Sometimes a building or a structure or part of it stands on such land (such as in the present case) and unless that portion of the building which falls within the line is removed, widening would be impossible. Therefore, in the frst instance, Section 212 requires that the Commissioner shall issue a Show Cause Notice calling upon the owner to respond as to why the building or a part of the building which falls within the line of street should not be pulled down. After considering such reply, if the Commissioner is of the opinion that the building or part thereof should be pulled down, he must obtain the approval of the Standing Committee and then serve a notice on the owners to pull down the ofending building or part of building within a certain time. Should the owner cooperate, he will himself remove the ofending structure and release the land underneath it. Should the owner not cooperate, the Commissioner is empowered to pull down the ofending structure at the cost of the owner. Sub-section (4) of Section 212 of the Act provides that the Commissioner shall at once take possession on behalf of the Corporation of the portion of the land within the said line (line of the public street) therefore occupied by the said building, and such land shall thereafter be deemed a part of the public street and shall vest as such in the Corporation.
15. In our opinion, all of the above stipulations have been duly followed in the present matter and therefore, we refrain from interfering with the action taken by the Corporation.
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16. It is the Petitioners' neit argument that Respondent No. 3 has no authority to issue the impugned Order. The authority to issue an Order under Section 212 of the Act undoubtedly vests with the Commissioner. This is the plain language of Section 212. However, under Section 69 of the Act, Municipal Ofcers such as Respondent No.3 may be empowered to eiercise the powers conferred on a Commissioner under the Act. This delegation is subject to approval of the Standing Committee. Section 69 reads as under :
"69. Municipal ofcers may be empowered to exercise certain of the powers, etc. of the Commissioner or the Transport Manager. - (1) Subject to the provisions of sub- sections (2) and (3), any of the powers, duties or functions conferred or imposed upon or vested in the Commissioner or the Transport Manager by or under any of the provisions of this Act may be exercised, performed or discharged, under the control of the Commissioner or the Transport Manager; as the case may be, and subject to his revision and to such conditions and limitations, if any, as may be prescribed by rules, or as he shall think ft to prescribe in a manner not inconsistent with the provisions of this Act or Rules, by any municipal ofcer whom the Commissioner or the Transport Manager generally or specially empowers by order in writing in this behalf; and to the extent to which any municipal ofcer is so empowered the word "Commissioner" and the words "Transport Manager" occurring in any provision in this Act, shall be deemed to include such ofcer.
Nitin 14 / 15 WPL-98444-2020.doc (2) The Commissioner shall not, except with the prior approval of the Standing Committee, make an order under sub-section (1) afecting his powers, duties or functions under any of the following sections, sub-sections and clauses, namely:-
10(1)(h), 12(1), 18(1), 26(2), 43(2), 43(2), 43(2), 43(5), 51(2), 67(3)(b), 67(3)(c), 67(3)(d), 71(2), 73, 77, 78(1), 85, 86, 87, 90, 92(2), 94, 95, 121, 122, 125, 126, 130(1)(b), 131(1), 134, 137, 144, 152, 154, 160, 174, 176, 177, 188, 195, 196, 197, 201, 205, 207, 208, 209, 210, 212, 213, 214, 216, 220, 224, 232, 243, 268, 269, 270, 272(2), 273, 274, 275, 275(1), 277, 278, 281, 298, 300, 301, 303, 305, 310, 317, 386(2), 439(3), 439(4), 441, 442, 445, 466, 481 except clause (a) of sub-section (1).
(emphasis supplied)
17. Accordingly, the Commissioner sought for the approval of the Standing Committee for such delegation and approval was granted on 22 nd February, 2016 vide Resolution No. 208. In view thereof, we also reject this argument canvassed by the Petitioners.
18. Whilst passing this Order, we have also taken into account the public interest involved in the matter as opposed to the private interest of the Petitioners.
The Respondent No.1 Corporation has contended before us that the eiisting roads have not been widened for the last 50 years. The Respondent No.1 Corporation has specifcally pleaded that as a result of infui of population, there is a constant increase in trafc at Dombivali and the eiisting roads and infrastructure are unable to bear the Nitin 15 / 15 WPL-98444-2020.doc brunt of this increased quantum of population and trafc. In any event, considering that the Petitioners will be compensated under Section 216 of the Act, we fail to see how the Petitioners stand prejudiced by the impugned actions of the Corporation. Having said so, we would eipect the Respondent No. 1 Corporation to take into consideration the applicable Scheme for compensation and adequately compensate the Petitioners in accordance with law. Should the Petitioners be aggrieved by the computation of compensation being awarded to them, they can always initiate action in accordance with law.
19. The Writ Petitions are accordingly dismissed.
(R.I.CHAGLA, J. ) ( S.J. KATHAWALLA, J. )