Full Judgment Text
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5414 OF 2002
Venus Housing Enterprises ……. Appellant (s)
Vs.
Brihanmumbai Municipal Corporation & Ors.…… Respondent (s)
O R D E R
The appellant claims to be the owner of final Plot
No.874 of Town Planning Scheme No.IV, Mahim, Mumbai
(hereinafter ‘the Scheme’, for short). Respondents 5 to 7
(for short ‘tenants’) are the tenants in regard to
structure no.1 therein. The said plot no.874 facing Prabha
Devi Road (later S.K. Bole Marg) on the one side and Cadell
Road (later Veer Savarkar Marg) on the other side was
earmarked for residential use in the said Scheme which came
into force on 15.8.1963. The Asst. Engineer, Town Planning,
Municipal Corporation for Greater Bombay (‘the Corporation’
for short) issued a show-cause notice dated 9.8.1990 under
section 89 read with section 165 of the Maharashtra
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Regional and Town Planning Act, 1966 (‘the Act’, for short)
to the tenants calling upon them to show cause why they
should not be evicted from the said structure in
enforcement of the said Scheme. The said notice alleged
that final plot no.874 was being put to non-conforming use
in contravention of Regulation No.25 of the Regulations
controlling the development of the area covered by the
above final Scheme. The tenants showed cause in reply. They
also filed a suit challenging the said notice. The interim
prayer sought by them was rejected by the trial court, but
on appeal, was granted by the High Court and confirmed by
this Court.
2. On 10.4.2000, the Corporation withdrew the said show-
cause notice in view of an undertaking submitted by the
said respondents to withdraw the suit (Suit No.7011 of 1990
filed by them pending in the City Civil Court, Bombay).
3. Feeling aggrieved, the appellant-landlord of the
premises filed WP No.1511 of 2000 for quashing the
withdrawal letter dated 10.4.2000 and seeking a direction
to the Corporation to forthwith implement the Scheme and
the Regulations and for certain consequential reliefs. The
High Court examined the matter, found that withdrawal of
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show-cause notice was proper and not open to challenge and
consequently, dismissed the writ petition by order dated
25.6.2001. The said order is challenged in this appeal by
special leave.
4. Learned counsel for the appellant submitted that the
tenants (respondents 5 to 7) were using the premises for
running a showroom dealing in electrical appliances, for
repairing air-conditioners and for charging batteries,
which amounted to commercial/industrial use; that having
regard to clause 25 of the said Scheme, the non-conforming
use of any premises under the Scheme could continue only
for a period of 16 years from the date on which the final
Scheme came into force, and therefore, from 15.8.1979, the
non-conforming user had to be discontinued; and that if the
non-conforming use was continued thereafter it would be
illegal and constitute an offence punishable under the Act
and it was the duty of the Planning Authority to take
action for demolition under section 90; and that the
Corporation having taken such action for the continued
violation by respondents 5 to 7 by issuing the show cause
notice, ought not to have withdrawn the said notice.
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5. The Corporation in its counter has given detailed
reasons as to why it withdrew the notice after considering
the representation/objections filed by respondents 5 to 7.
The High Court has also referred to the said reasons in
detail. It is sufficient to refer to some of them :
(a)
The Scheme, vide clause 1(O) provides that subject
to the marginal open spaces prescribed under the
Regulations, shops will be permitted along the
frontage of plots enumerated in Appendix ‘B’ to the
Scheme and the frontage of plots abutting the 18
roads enumerated therein. Appendix ‘B’ to the Scheme
which lists final plots along the frontage of which
shops are allowed, includes Final Plot No.874. The
portion in the occupation of respondents 5 to 7 is
situated along the frontage of Plot No.874 and thus
use thereof as a shop is not an non-conforming user.
(b) Section 89 of the Act refers to summary eviction of
any person who continues to occupy any land which he
is not entitled to occupy under the final Scheme.
Admittedly, respondents 5 to 7 are not in
unauthorized occupation of any land. Therefore,
section 89 would not apply. As the show-cause notice
was issued only under section 89 and not under any
other provision, the same had to be withdrawn.
(c) The show-cause notice clearly specified that it was
issued in pursuance of an order of the Minister
which required show-cause notice to be issued only
in regard to another structure in Final Plot NO.874
in the occupation of M/s Parmy Manufactory Pvt. Ltd.
The Minister’s order did not relate to structure
no.1 which was in the occupation of respondents 5 to
7. Consequently, the notice which was wrongly issued
had to be withdrawn.
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6. Learned counsel for the appellant contend that clause
1(o) of the Scheme permitted shops only in regard to plots
facing a portion of Cadell Road (Veer Savarkar Marg)
between Sayani Road and Dr. Annie Besant Road. According to
him, Plot No.874 did not fall between Sayani Road and Dr.
Annie Besant Road and therefore, shops were not permitted
in regard to Plot No.874. Learned counsel for the
Corporation and learned counsel appearing for respondents 5
to 7 rightly submitted that clause 1(o) read with Appendix
‘B’ made it clear that along the frontage of Plot No.874
shops were in fact permitted and as Plot No.874 faced two
roads i.e. S. K. Bole Marg and Veer Savarkar Marg, shops
were in fact permitted along the frontage on both the
roads. The High Court has also examined this contention and
recorded a finding of fact that there is no restriction in
regard to existence of shops on the frontage of Plot
No.874.
7. Some contentions were urged by the appellant in regard
to the interpretation of clauses 25 and 28 of the Scheme.
Respondents 5 to 7 also contended that the landlord should
not be permitted to file a writ petition to challenge the
withdrawal of a notice issued in regard to its premises,
and thereby use the show-cause notice as a mode of trying
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to evict a tenant thereby circumventing the laws relating
to eviction. It is unnecessary to examine these contentions
in this case. We are satisfied that on the facts and
circumstances, the High Court has considered the reasons
given by the Corporation for withdrawing the show-cause
notice and found that the withdrawal was neither arbitrary,
nor discriminatory, nor motivated. We find that the
reasoning given does not suffer from any infirmity and,
therefore, there is no ground to interfere with the
withdrawal of the notice.
8. Appeal is, therefore, dismissed.
……………….……………………………..J
[R. V. Raveendran]
…………….……………………………..J
[Aftab Alam]
New Delhi;
October 16, 2008.