No proof of pre-datum line structure existence via assessments, Tikka Sheets, repair permissions, or IOD; illegal structures incurably demolishable; subsequent permissions do not legitimize.

Judgment (Per : Kamal Khata, J) :-

1) By this Writ Petition under article 226 of the Constitution of India, the Petitioners seek to quash and set aside seven impugned Notices dated 22^nd December, 2022, as well as seven Speaking Orders dated 10^th March, 2023, with respect to property situated at Bharat Coal Compound, Bail Bazar, Kurla West, Mumbai – 400070.

Brief facts.

2) The Petitioner No.1 is carrying on business in partnership from Bharat Coal Compound on land bearing Survey No.36, Hissa No.15, Old C.T.S. No.66 (Part) corresponding to new C.T.S. No.704 admeasuring 1340.70 square meters, bearing Survey No.36, Hissa No.16, C.T.S. No.66 (Part) admeasuring 432.33 square meters, aggregating to 1773.12 square meters, together with industrial shed admeasuring 13061 square feet on the ground floor of the building. The industrial shed originally consisted of 6 industrial galas which has been assessed to Municipal taxes prior to 1962. The Petitioners assert that, their premises constitute a tolerated structure existing prior to the datum line of 1^st April 1962, for non-residential structures, as supported by Tikka Sheets and Brihanmumbai Municipal Corporation (‘BMC’) assessment records.

3) Mr. S.U. Kamdar, learned senior counsel for the Petitioners argues that, the assessment records bearing No.L3345(3) revealed that said Gala was assessed to Municipal taxes prior to 1962. He submitted that, the Petitioners have various documents to show their lawful use and occupation and possession.

3.1) He submits that, the impugned Notices are issued at the behest of interested parties who were bound to convey the property to the Petitioners. He principally relies upon the decision of the Supreme Court in the case of UMC Technologies Private Limited vs. Food Corporation of India & Anr. reported in (2021) 2 SCC 551 to contend that, the impugned Notices should be adequate and set out the grounds necessitating action and the penalty/action proposed, should be mentioned specifically and unambiguously. An Order travelling beyond the bounds of Notice is impermissible and without jurisdiction to that extent. It is essential for the Notice to specify the particular grounds on the basis of which an action is proposed to be taken so as to enable the noticee to answer the case against him. If these conditions are not satisfied, the person cannot be said to have been granted any reasonable opportunity of being heard. Relying on this Judgment, he submitted that, the speaking Order was beyond the scope and purview of the Show Cause Notice issued under Section 351 of the Mumbai Municipal Corporation Act, 1888 (‘MMC Act’).

3.2) He invited our attention to the various documents annexed to the Petition in support of his contention. He particularly relied upon a communication dated 19^th January, 1993, to submit that, the said document was addressed by the Assistant Assessor and Collector of the BMC to the partner of the Petitioner No.1 which categorically stated that, the property bearing No.L3345(3) has been assessed to Municipal taxes since 1^st April, 1962. He also invited our attention to the Assessment bill dated 29^th December 2012 and particularly to the date 1^st April, 1962 in the row immediately after the address of the Petitioner with a description first Assessment date being 1^st April, 1962.

3.3) He also drew our attention to th