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2018 Supreme(Bom) 847
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
A.S. OKA, P.N. DESHMUKH, JJ.
Javed Khaliq Khan & Ors. - Petitioners
Vs.
Thane Municipal Corporation & Ors. - Respondents
Writ Petition No.7856 of 2016 along with Writ Petition Nos.4754, 6429 of 2017 along with Writ Petition Nos.9242, 7857, 7858, 7860, 7861, 7863, 7864, 9122, 6738, 6739, 9517, 11345, 6697, 7460 of 2016 along with Writ Petition ST.No.26330 of 2016 along with Writ Petition No.9520 of 2016
Decided On : 21-06-2018
For the Petitioners: Mr. Rahul D. Motkar, Mr. Vishal Kanade, Mr. S.A. Shaikh, Mr. Atharva A. Dandekar, Ms. Smruti Tulpule, Ms. Ketki Gadkari.
For the Respondents:Mr. Mandar Limaye, Mr. Rohit P. Sahadeo, Mr. R.S. Apte, Senior Advocate i/b Mr. N.R. Bubna, Ms. R.A. Salunkhe, A.G.P.
Headnote:
Maharashtra Municipal Corporations Act, 1949 - section 231 - B.M.C. Act - Section 351 - Corporation to re-construct demolished structures – Claim to be in possession of shop - This group of petitions was finally heard by this Bench on February - After hearing parties petitions were fixed on February for dictation of Judgment - However with effect from same date there was change of assignment - Thereafter as per administrative order passed by Honble Acting Chief Justice these petitions have been ordered to be again placed before this Bench - Accordingly petitions were placed before this Bench on April - After hearing further submissions Judgment was reserved – Held, In present case there is no challenge to acquisition proceedings - In fact there are no acquisition proceedings - Challenge in all these petitions Article is action of illegal demolition structures of petitioners in which they were carrying on business for running their livelihood - From assertions made in petitions which are not disputed it appears that petitioners are small time traders who were earning their livelihood by conducting business in said structures - Admittedly structures have been demolished without following due process of law - Said Municipal Corporation has expressed inability to rehabilitate petitioners in terms of its own Resolution petitioners are admittedly entitled to rehabilitation in terms of said resolution - Therefore decision Apex Court will have no application in present cases - While carrying out reconstruction petitioners shall ensure that area reconstructed structures will be same as area of respective structures on date of its demolition - Construction material of amen type shall be used for reconstruction Before commencement work of reconstruction petitioners shall serve notice in writing to Designated Officer concerned ward - Notice shall be advance notice of seven days mentioning time at which work of reconstruction shall commence - It will be open for Designated Officer or any other Officer nominated by him to remain present at time of reconstruction Court make it clear that even if shops structures subject matter of these petitions are reconstructed same will not confer any legality on structures - If original shops structures were constructed without obtaining development permission after reconstruction of said shops structures it will be open for said Municipal Corporation to take action of demolition reconstructed shops structures - However action of demolition shall not be initiated without complying with directions issued by this Court in case of supra – Appeal allowed
A.S. OKA, J.
1. This group of petitions was finally heard by this Bench on 20th February 2018. After hearing the parties, the petitions were fixed on 26th February 2018 for dictation of Judgment. However, with effect from the same date, there was a change of assignment. Thereafter, as per the administrative order passed by the Hon'ble the Acting Chief Justice, these petitions have been ordered to be again placed before this Bench. Accordingly, the petitions were placed before this Bench on 12th April 2018. After hearing further submissions, the Judgment was reserved.
2. In this group of petitions, the challenge by the petitioners is to the action of demolition of their respective structures/shop premises by the Municipal Corporation of city of Thane (for short 'the said Corporation'). According to the case of the petitioners, the action of demolition was taken without following any due process of law of whatsoever nature. The prayers which are pressed into service by the petitioners are essentially for direction to the said Corporation to re-construct the demolished structures. In some of the petitions, there is a prayer for seeking a writ of mandamus directing the said Corporation to pay compensation.
3. In Writ Petition No.7856 of 2016, the petitioner claimed to be in possession of a shop bearing more particularly described in paragraph 1 of the petition situated at Kausa, Thane. In the said petition, the case made out is that the said shop was in existence for more than 35 years. It is alleged that on 7th May 2016, the said shop was demolished illegally and highhandedly by the Officers of the said Corporation for road widening. There are various prayers made in this petition including a prayer for seeking a writ of mandamus against the said Corporation to rebuild the said shop. There is a prayer for grant of compensation. There is an affidavit in reply filed to the said petition by the said Corporation of Shri Shankar Patole, Assistant Municipal Commissioner in which he has stated that the said shop was affected by a Development Plan road (for short ‘D.P.Road'). It is stated that the said shop was coming within a 40 meter wide D.P.Road and was demolished for the purpose of widening of the road. It is alleged that the shop was constructed without obtaining development permission. Reliance is placed on the decision of the Apex Court in the case of Ramniklal N. Bhutta and another Vs. State of Maharashtra and others, (1997) 1 SCC 134 by contending that the public interest is in favour of widening of a very congested road which has to be weighed against the private interest of the petitioner. There is another affidavit filed on behalf of the Municipal Corporation of Shri Jhunjhar P. Pardeshi in which it is claimed that illegal extension of shop on the D.P.Road has been removed. It is reiterated that the petitioner could not produce a copy of permission granted for construction of the shop.
4. In Writ Petition No.4754 of 2017, a similar grievance is made in respect of a shop more particularly described in paragraph 1 of the petition. Here again allegation is that on 5th May 2016, the officers of the said Corporation demolished the said shop without following due process of law. There is no reply filed by the said Corporation to this petition.
5. In Writ Petition No.9242 of 2016, the petitioner claimed to be in possession of the two shops bearing shop No.E-1 and A-11 at Mumbra, Thane which are more particularly described in paragraph 1 of the petition. It is stated in the petition that the Shop No.E-1 was substantially damaged in the demolition drive carried on 4th, 5th and 6th of May 2016 by the said Corporation and a substantial part of it was demolished. It is alleged that the second shop bearing No.A-11 was completely demolished. There are similar prayers in this petition in respect of the shops as in case of the shop premises subject matter of other petitions. There is a prayer made for protecting the shop No.E-1 from fu
