Full Judgment Text
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PETITIONER:
KANTAPRASAD D. PATEL
Vs.
RESPONDENT:
MUNICIPAL CORPORATION OF GREATERBOMBAY & ORS.
DATE OF JUDGMENT: 15/04/1996
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
G.B. PATTANAIK (J)
CITATION:
JT 1996 (5) 370 1996 SCALE (4)196
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
Leave granted.
We have heard learned counsel on both sides.
This appeal by special leave arises from the order of
the Division Bench of the High Court of Bombay in Appeal
No.565/92 made on march 3, 1995. The admitted facts are that
the appellant claimed to have purchased the disputed site
from one A.M. Patil in 1965 and constructed sheds thereon.
He also alleged to have had a lease from him. On that basis,
he claimed that the structure was existing prior to April 1,
1992. The respondents issued notice to the appellant for
demolition. The Deputy Municipal Commissioner initially by
order dated January 27, 1983 directed him to retain a shed
admeasuring 30" x 30" but other structures were directed to
be demolished. After 5 years, notice was issued to the
appellant to demolish that shed. Calling the same in
question, the appellant filed the writ petition. In Writ
Petition No.1375/88, the learned single Judge had held that
the exercise of the power of review should be made bona fide
within a reasonable time. After considerable lapse of time,
power of review cannot be exercised. The Division Bench has
set aside the order holding that there is no evidence on
record to show that the appellant had constructed the above
structure prior to April 1, 1962. Under those circumstances,
the appellant could not be permitted to retain the structure
which was illegally constructed.,
It is sought to be contended for the appellant that the
Additional Commissioner has no power to review the order
passed by a subordinate officer on January 27, 1983 in the
impugned order and, therefore, it is one of nullity. We find
no force in the contention. It must he established as a fact
that the appellant has title to the property and
construction was made bona fide in compliance of lawful
permission or prior to April 1, 1962. It is an admitted fact
that even the lease deed does not contain any recital as
regards the existence of any structure. Learned counsel
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sought to reply upon an order passed by the civil Court and
also the affidavit of the lessor filed in 1966 to show the
existence of the shed. It would be obvious that the shed was
constructed after April 1, 1962 as found by the High Court.
Under those circumstances, the authority was rightly
justified in exercising that power. We do not find any
illegality in the order warranting interference.
The appeal is accordingly dismissed. No costs.