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2018 Supreme(Bom) 1284
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
A.S. OKA, RIYAZ I. CHAGLA, JJ.
M/s.Asian Rubber Works and another - Petitioners
Versus
The Assistant Commissioner, R/South Ward, Municipal Corporation of Greater Mumbai and others - Respondents
Writ Petition No. 2858 of 2014
Decided On : 17-09-2018
For the Petitioners: Ms. Jai Kanade with Mr. B.G. Ligade.
For the Respondents:Mr. R.S. Apte, Senior Advocate with Ms. Vanadana Mahadik and Ms. K.H. Mastakar, Mr. Manmohan A. Amonkar with Mr. Jacob Kadantot.
The main legal point established in the judgment is the violation of the petitioners' rights under Article 14 and 300A of the Constitution of India due to the illegal demolition of the bungalow without notice.
Headnote:
Demolition - Illegal Demolition of Bungalow - Mumbai Municipal Corporation Act, 1888, Section 354 - Summary of Acts and Sections: The court discussed the illegal demolition of a bungalow under Section 354 of the Mumbai Municipal Corporation Act, 1888. It highlighted the violation of rights under Article 14 and 300A of the Constitution of India and permitted the petitioners to reconstruct the bungalow at their own cost, subject to the outcome of the pending writ petition.
Fact of the Case:
The petitioners challenged the illegal demolition of a bungalow by the Mumbai Municipal Corporation under Section 354 of the Mumbai Municipal Corporation Act, 1888. The demolition was carried out without notice to the petitioners, who were tenants of the structure. The court noted that the demolition was based on the ground that the bungalow was in a dangerous and ruinous condition.
Finding of the Court:
The court found that the demolition of the bungalow was completely illegal and a gross violation of the petitioners' rights under Article 14 and 300A of the Constitution of India. It held that the Municipal Corporation had committed a gross illegality by demolishing the bungalow without notice to the petitioners.
Issues: The main issues were the legality of the demolition of the bungalow under Section 354 of the Mumbai Municipal Corporation Act, 1888, and the violation of the petitioners' rights under the Constitution of India.
Ratio Decidendi: The court's decision was based on the fact that the demolition was carried out without notice to the petitioners, who were tenants of the structure. It also considered the Municipal Corporation's awareness of the pending litigation and the grant of stay in the writ petition filed by the petitioners.
Final Decision: The court permitted the petitioners to reconstruct the bungalow at their own cost, subject to the outcome of the pending writ petition. It held that the reconstruction would not create any equity in favor of the petitioners and would be subject to final orders in the writ petition. If the decree of eviction passed by the Small Causes Court is upheld, the petitioners would have to hand over the possession of the reconstructed bungalow to the second respondent.
A.S. Oka, J.
The grievance made in this petition under Article 226 of the Constitution of India is about the illegal demolition of the bungalow admeasuring 5,500 sq.ft. more particularly described in paragraph-2 of the petition. According to the case of the petitioner, the second respondent-Trust was the landlord of the petitioners. There is a challenge in this petition to a notice dated 6th June 2014 issued by the first respondent who is the Assistant Commissioner of the Mumbai Municipal Corporation in exercise of the powers under section 354 of the Mumbai Municipal Corporation Act, 1888 (for short “the said Act”).
2. The petitioners have referred to a decree passed by the Court of Small Causes at Mumbai in a suit filed by the second respondent. The decree is for possession of the bungalow described in paragraph-2 of the petition (for short “the subject bungalow”). The decree was passed on the grounds of bonafide requirement, nuisance and annoyance and acquisition of alternate accommodation. The said decree was challenged by the petitioners by preferring an appeal before the appellate Bench of the Small Causes Court. Though in the appeal preferred by the petitioners, the decree for possession was confirmed by the appellate Bench, the same was confirmed only on the ground of alleged subletting and the other grounds were negatived. Writ Petition No.8532/2004 filed by the petitioners for challenging the decrees passed by the trial Court and the appellate Court has been admitted by the learned single Judge of this Court in which stay has been granted to the execution of the decree.
3. The case made out in the petition is that on 24th October 2014 when the second petitioner was away from the subject bungalow, the same was demolished. It is alleged that by the time the second petitioner came back, the first floor was already demolished. It is alleged that while the second petitioner was trying to collect information, some persons at the instance of the first respondent came and tried to demolish the rest of the subject bungalow. However, the second petitioner could some how prevent them from demolishing the rest of the structure. After learning that the part of the subject bungalow was demolished on the basis of the notice dated 6th June 2014 issued under section 354 of the said Act, on 29th October 2014, the petitioners applied for a copy of the said notice. On the basis of the said application, a copy of the impugned notice dated 6th June 2014 was provided to the petitioners. Thereafter, the present petition was presented for filing on 1st November 2014 and lodged on 3rd November 2014. An additional affidavit has been affirmed on 1st November 2014 by the second petitioner in which he has stated that in the afternoon of 1st November 2014, the rest of the bungalow was demolished. Apart from seeking quashing of the said notice, there is a prayer made for seeking a writ of mandamus against the respondents to restore the subject bungalow. In the alternative, a prayer is made for permitting the petitioners to construct the subject bungalow. Another prayer is to provide alternate accommodation to the petitioners.
4. On 12th March 2018, a notice for final disposal was issued. On 10th November 2014, ad-interim relief directing the parties to maintain status quo was passed. The order dated 12th March 2018 notes the submission of the petitioners that a copy of the impugned notice was provided to the second petitioner on 29th October 2014. While issuing notice for final disposal under the said order dated 12th March 2018, in paragraphs-3 and 4 of the said order, this Court observed thus :
“3. Firstly, the submission is that the notice is in respect of building “Kashikanand Ashram”. Our attention was invited to the description of the premises held by the petitioner in the Writ Petition. It is pointed out that the Small Causes Court at Mumbai passed a decree for possession against the petitioners in respect of the said premises in a Suit
