Demolition of structures on public property requires adherence to procedural safeguards, including notice and fair hearing, especially when legality is questioned.

1. Heard learned counsel for the parties. By consent, heard finally at the stage of admission.

2. These two cross appeals, filed by the plaintiff and the defendant in the suit, are directed against the same order i.e. the order dated 10th March 2006 passed by learned City Civil Judge, Gr. Mumbai on the draft motion in suit bearing Stamp no.698 of 2006. For the sake of convenience, the parties in these appeals are referred to by their status in the original suit.

3. The plaintiff was carrying on business in a wooden stall admeasuring 2.28 meters situated on the footpath of RTO Lane Naka, Lokhandwala Road, Andheri (West), Mumbai. The stall was known as shop no.1 and was situated on the footpath of the public road. On 7th February 2006, the officers of the defendant, the Municipal Corporation of Gr.Mumbai all of sudden and without any notice to the plaintiff, demolished the stall and seized and took away all the articles therein. According to the plaintiff, he was lawfully carrying on the business in the said stall for many years after obtaining a licence issued by the Inspector of Shops and Establishments as also the temporary permission granted to him by the defendant Municipal Corporation. According to the plaintiff, the action of the defendant and its officers in demolishing the stall without any notice is illegal, contrary to law and contrary to the decision of the Supreme Court in Olga Tellis Vs. Bombay Municipal Corporation reported in AIR 1986 S.C. 180. Aggrieved by the illegal action of the defendant, the plaintiff filed a suit in the City Civil Court Bombay for a declaration that the action of the defendant in demolishing the plaintiff’s stall without any notice on 7th February 2006 was illegal, unlawful and was a gross abuse of the power and for a mandatory injunction directing the defendant to reconstruct the stall and for restoration of a status quo ante as it existed prior to 7th February 2006. In the suit, the plaintiff took out a motion for an interim mandatory order directing the defendant to reconstruct the stall and restore the status quo ante as it existed prior to 7th February 2006 and also for return of the articles illegally seized and taken away by the defendant. After hearing the parties and after considering the evidence adduced before it the City Civil Court, by its order dated 10th March 2006, held that the action of the defendant in demolishing the stall without any notice was illegal and contrary to law. It granted a permission to the plaintiff to reconstruct the suit structure of the original size i.e. 6’ x 4’ with a height of 6 1/2’ at the same place as it existed before, subject to the plaintiff obtaining appropriate permission of the defendant Municipal Corporation under the relevant provisions of the Mumbai Municipal Corporation Act (for short ’the MMC Act’). The trial Court further directed the Municipal Commissioner to make an inquiry as to who were the officers responsible for the illegal and unlawful demolition of the plaintiff’s structure without following the procedure prescribed by law, and to enter the appropriate adverse remarks in the confidential records of the concerned officers of having acted contrary to the provisions of MMC Act and that to give due weightage to such adverse remarks while considering their case for promotion ,if any, in future. The Court also ordered the defendant to pay costs of Rs.5,000/-.

4. Aggrieved by the part of the order which required the plaintiff to obtain permission of the defendant to reconstruct the stall in its original place and denial of the relief of mandatory injunction directing the defendant to reconstruct the stall at its own expense, the plaintiff has filed appeal no.289 of 2006. Aggrie