Full Judgment Text
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2006:BHC-AS:16205
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO.289 OF 2006
Vasant Marappa Shetty .. Appellant
versus
The Municipal Corporation of
Gr. Mumbai .. Respondents
...
Mr.Vinay J. Hegde for the appellant.
Mrs.Geeta Jogalekar for respondent.
WITH
APPEAL FROM ORDER NO. 360 of 2006
The Municipal Corporation of
Greater Mumbai .. Appellant
versus
Vasant Marappa Shetty .. Respondents
Mrs.Geeta Jogalekar for the appellant.
Mr.Vinay J. Hegde for the respondent.
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CORAM : D.G. KARNIK, J CORAM : D.G. KARNIK, J CORAM : D.G. KARNIK, J
DATED : 21st August 2006. DATED : 21st August 2006. DATED : 21st August 2006.
ORAL JUDGEMENT : ORAL JUDGEMENT : ORAL JUDGEMENT :
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
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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
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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/-.
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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. Aggrieved by the order of imposition of costs of
Rs.5,000/- and also by the direction to the Municipali
Comissioner to hold an enquiry to determine who were
the officers guilty of illegal and unlawful demolition
and to make adverse entries in the confidential records
of such officers, the defendant has filed the appeal
bearing no.360 of 2006. Since both the appeals are
directed against the same order, they are being
disposed of by this common judgement.
5. Though initially the plaintiff had contended
that his stall was on the private property, at the
stage of hearing of this appeal it was conceded that
the stall was on the footpath of a public road.
Section 3(w) of the MMC Act, defines the street as
follows :
"Street" includes a causeway, footway,
passage etc, over which the public have
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a right of passage or access."
Footway (footpath) is thus a part of the street and
therefore, it must be held that the concerned stall
was on the street.
6. Section 313 of the MMC Act provides that no
person shall, except with the written permission of
the Commissioner place or deposit upon any street, any
stall, chair, bench, box, ladder, bale or other thing
so as to form an obstruction or encroachment thereon.
Section 314 of the Act empowers the Commissioner to
remove any stall, chair, ladder, box, board or shelf
or any other thing whatever placed, deposited,
projected, attached or suspended in, upon, from or to
any street, in contravention of section 313.
Doubtless, the Commissioner has a power to remove all
illegal structures and stalls made on a street. The
only question is whether the Commissioner can remove
any stall or structure placed or erected on a sheet
without any notice to the person concerned. Plain
words of section 314 no doubt empower the Commissioner
to remove the offending structures without notice.
Constitutional validity of section 314 of the MMC Act,
which empowers the Commissioner to remove any
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structure without notice, was challenged before the
Supreme Court in the case of Olga Tellis (Supra).
While repelling the challenge and upholding the
constitutional validity of section 314 of the MMC Act,
the Supreme Court held that section only enables and
does not command the Commissioner to remove structure
without notice. The Supreme Court further held that
though the Commissioner has a power to act without
notice, such power must be exercised sparingly and
only in case of urgency which brook no delay. In all
other cases, the Court held, no departure from the
audi alteram partem rule (hear the other side) must be
presumed to have been intended. The relevant
observations found in paragraph nos.44 and 45 of the
decision of the Supreme Court are quoted herein
below:-
44. ....The challenge of the petitioners
to the validity of the relevant
provisions of the Bombay Municipal
Corporation Act is directed principally
at the procedure prescribed by Sec.314
of that Act, which provides by clause
(a) that the Commissioner may, without
notice, take steps for the removal of
encroachments in or upon any street,
channel, drain etc. By reasons of
Sec.3(w), ’street’ includes a causeway,
footway or passage. In order to decide
whether the procedure prescribed by
Sec.314 is fair and reasonable, we must
first determine the true meaning of that
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section because, the meaning of the law
determines its legality. If a law is
found to direct the doing of an act
which is forbidden by the Constitution
or to compel, in the performance of an
act, the adoption of a procedure which
is impermissible under the Constitution,
it would have to be struck down.
Considered in its proper perspective,
Sec.314 is in the nature of an enabling
provision and not of a compulsive
character. It enables the Commissioner,
in appropriate cases, to dispense with
previous notice to persons who are
likely to be affected by the proposed
action. It does not require and, cannot
be read to mean that, in total disregard
of the relevant circumstances pertaining
to a given situation, the Commissioner
must cause the removal of an
encroachment without issuing previous
notice. The primary rule of
construction is that the language of the
law must receive its plain and natural
meaning. What Sec.314 provides is that
the Commissioner may, without notice,
cause an encroachment to be removed. It
does not command that the Commissioner
shall, without notice, cause an
encroachment to be removed. It does not
command that the Commissioner shall,
without notice, cause an encroachment to
be removed. Putting it differently,
Sec.314 confers on the Commissioner the
discretion to cause an encroachment to
be removed with or without notice. That
discretion has to be exercised in a
reasonable manner so as to comply with
the constitutional mandate that the
procedure accompanying the performance
of a public act must be fair and
reasonable. We must lean in favour of
this interpretation because it helps
sustain the validity of the law.
Reading Sec.314 as containing a command
not to issue notice before the removal
of an encroachment will make the law
invalid.
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45. It must further be presumed
that, while vesting in the Commissioner
the power to act without notice, the
Legislature intended that the power
should be exercised sparingly and in
cases of urgency which brook no delay.
In all other cases, no departure from
the audi alteram partem rule (’Hear the
other side) could be presumed to have
been intended. Sec.314 is so designed
as to exclude the principles of natural
justice by way of exception and not as a
general rule. There are situations
which demand the exclusion of the rules
of natural justice by reason of diverse
factors like time, place, the
apprehended danger and so on. The
ordinary rule which regulates all
procedure is that persons who are likely
to be affected by the proposed action
must be afforded an opportunity of being
heard as to why that action should not
be taken. The hearing may be given
individually or collectively, depending
upon the facts of each situation. A
departure from this fundamental rule of
natural justice may be presumed to have
been intended by the Legislature only in
circumstances must be shown to exist,
when so required, the burden being upon
those who affirm their existence.
7. It is thus clear that though the Commissioner
has the power to remove the structure without notice
the powerty to do so without notice should be
exercised only in rare cases where the Commissioner is
of the opinion that the action of removal of the
structure is so urgently required that issuance of a
notice should be dispensed with. In the present case,
admittedly no order was passed by the Commissioner
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dispensing with the notice nor was the case was so
exceptional or so urgent that the structure should
have been removed without any notice. It was conceded
by the learned counsel for the defendant that no order
was passed by the Commissioner himself under section
314 of the MMC Act for removal of the structure.
Counsel however submitted that in exercise of the
powers conferred u/s.68 of the MMC Act, the
Commissioner has delegated the powers of removal of
unauthorised structures to various ward officers and
senior inspectors operating in their respective wards.
Counsel for the defendant also produced for Court’s
inspection a copy of the order dated 5th September
2005 passed by Dy. Commissioner (Special) exercising
powers of the Commissioner authorising Shri N.S.
Sankhe to exercise all of the powers of the
Commissioner including power u/s.314 of the MMC Act.
Counsel for the defendant submitted that in pursuance
of this power, it was Mr.Sankhe who demolished the
structure of the plaintiff. I have my own doubts
whether the Dy. Commissioner, who himself was
exercising delegated powers of the Commissioner, could
further delegate the powers to ward officers or senior
inspectors on the principle of "delegata potestas non
potest delegari" Assuming however that Mr.Sankhe had
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the delegated power he has not recorded any reasons
why the plaintiff’s structure was to be demolished
without any notice and without granting him any
opportunity of being heard. Learned counsel for the
defendant submitted that there were complaints
received from Karmaveer Dadasaheb Gaikwad Sanskritik
Kendra, a public charitable trust (for short ’the
trust’), about the illegal activities allegedly
committed by the defendant at the suit stall. A copy
of the complaint dated 2nd September 2005 was produced
before the City Civil Court. The complaint was that
people were constantly speaking on the telephone booth
of the said stall. There is a vague allegation in the
complaint that the telephone conversation related to
illegal trafficking in women. At this stage, it may
be noted that stall of the plaintiff was in existence
for several years. The shop and establishment licence
was issued to the plaintiff on 31st August 2001.
Similarly a trade licence was also issued to the
plaintiff by the defendant municipal corporation
itself prior to the year 2001. The licence was
renewed from time to time on 30th December 2002, 12th
December 2003, 17th March 2004 and 21st December 2005.
The licence was valid upto 31st December 2006. Thus
on 7th February 2006, the plaintiff was carrying on
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business in the suit stall with the permission of the
defendant in pursuance of a valid trade licence. In
the circumstances, even if there were complaints made
against the plaintiff, it was duty of the defendant to
issue a notice to the plaintiff before taking any
action of demolition. It was not disputed before me
that the defendant had not made any enquiry for
verification of the truth of the complaint made by the
trust. The statements made in the complaint of the
trust were believed without verification. It cannot
be disputed that any person who is enemical to the
plaintiff can make even a false complaint. It was
duty of the defendant to verify the truth of the
complaint and atleast to give an opportunity of
hearing to the plaintiff so that he could rebut the
allegations. In the circumstances, I find no error in
the conclusion reached by the trial court that the
defendant took the action of demolition of the
plaintiff’s stall illegally and in beach of the
principles laid down by the Supreme Court in Olga
Telli’s case.
8. That takes me to the grievance of the
plaintiff that the trial court ought to have granted a
mandatory injunction. The relief of injunction is
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discriminatory. It cannot be granted as a matter of
course. Though the court is not powerless to grant a
relief of mandatory injunction even during the
pendency of a suit, the Court would generally be slow
in granting the relief of mandatory injunction when it
relates to doing of a thing which, if done may not be
legal. Admittedly, the suit structure was standing on
a public street. Under section 313 of the MMC Act, no
person has a power to erect any stall or construction
on a public street. Public streets are meant for
traffic and movement of the people and vehicles. As
the structure was on the public street and as the
learned Judge has exercised the discretion of not
granting a mandatory injunction directing the
defendant to erect the stall at its own cost, I do not
consider it appropriate, at this stage, to interfere
in the discretion exercised by the trial court.
9. As regards the direction issued by the Court
to hold an enquiry to ascertain who were the officers
responsible for the demolition and to make entries in
the confidential records of the concerned officers it
would be useful to quote the direction issued which
reads thus :
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Municipal Commissioner, Greater Bombay,
Municipal Corporation shall cause
enquiry be made as to who was/were
officer/officers responsible for this
blatantly illegal and unlawful
demolition of the plaintiff’s structure
without following procedure prescribed
by law. He shall enter in appropriate
specific adverse remarks into the
confidential records of the concerned
officer/officers of his/their having
acted contrary to the provisions of
Bombay Municipal Corporation Act and
the law laid down by the Hon’ble High
Court. These adverse remarks shall be
given due weightage, when considering
issue of his/their promotion, if any,
in future.
It appears that this direction was issued because the
identity of the officer responsible for demolition
was not known when the matter was heard by the trial
court. At the hearing before me, learned counsel for
the appellant stated that the demolition has been
effected by Sankhe and a copy of the letter of
authorisation issued to him by the Dy.Commissioner
authorising him to exercise the powers of the
Commissioner u/s.314 of the MMC Act is also produced
before me. Since the identity of the officer who
ordered the demolition is now known, it is not now
necessary to hold an enquiry to ascertain the name of
the officer. However as regards the direction to
make an entry in the confidential records of the
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concerned officer, it appears to me that opportunity
of hearing should be given to him before an adverse
entry is made. It cannot be disputed and it is not
disputed that u/s.314 the commissioner or officer
authorised by him u/s.68 of the MMC Act is entitled
to demolish the structure with or without notice.
Whether the structure should be demolished after
notice or without notice would depend upon the facts
and circumstances of each case and in particular
whether there is any urgency to do so without notice.
This has been clearly laid down by the Supreme Court
in paragraph nos.44 and 45 of Olga Telli’s case
(Supra). The officer concerned, Mr.Sankhe, has not
been given any opportunity to show cause whether, in
view of the complaints received against the plaintiff
and other surrounding circumstances, it was necessary
to exercise the power of demolition without issuing
notice to the plaintiff. If any adverse entry is to
be made in his service records an opportunity of
hearing must be given to him. He ought to be given
an opportunity to show that he exercised the power
bonafide and on account of urgency. Therefore, the
direction given only to hold enquiry about the
identity of the officer without any direction to hold
an enquiry whether the officer, acting bonafide, had
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formed an opinion to exercise the power of demolition
without notice to the plaintiff, cannot be sustained.
Therefore, the direction given in paragraph no.4 of
the operative part of the impugned order needs
modification.
10. For these reasons, appeal no.289 of 2006
filed by the plaintiff is dismissed. Appeal no.360
of 2006 filed by the defendant municipal corporation
is partly allowed. The direction given in paragraph
no.4 of the impugned order dated 10th March 2006 is
set aside and in its place, the following direction
is given.
. The Municipal Commissioner shall hold an
enquiry whether Mr. Sankhe who demolished the
structure without issuing of a notice u/s.314 of the
MMC Act, was acting bonafide and had a reason to act
without notice on account of an urgency. If the
Commissioner comes to the conclusion that there has
been a breach of the directions given by the Supreme
Court in Olga Telli’s case or the power was not
exercised by Mr.Sankhe bonafide in the circumstances
which required him to act without any notice any
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urgently, then the Commissioner shall make an entry
in the service records of Mr. Sankhe to that effect
and shall further he entitled to take appropriate
against him. On the other hand, if the Commissioner
comes to the conclusion that the power was exercised
bonafide and Mr.Sankhe has complied with the
directions of the Supreme Court in Olga Telli’s case
and in particular paragraph nos.44 and 45 thereof,
there would be no need to make any adverse entry in
his service records. Needless to say the plaintiff
may be permitted to take part and adduce evidence in
the enquiry to be held against Mr.Sankhe
11. With these directions, appeals are disposed
of.
D.G. KARNIK, J D.G. KARNIK, J D.G. KARNIK, J
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2006:BHC-AS:16205
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO.289 OF 2006
Vasant Marappa Shetty .. Appellant
versus
The Municipal Corporation of
Gr. Mumbai .. Respondents
...
Mr.Vinay J. Hegde for the appellant.
Mrs.Geeta Jogalekar for respondent.
WITH
APPEAL FROM ORDER NO. 360 of 2006
The Municipal Corporation of
Greater Mumbai .. Appellant
versus
Vasant Marappa Shetty .. Respondents
Mrs.Geeta Jogalekar for the appellant.
Mr.Vinay J. Hegde for the respondent.
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CORAM : D.G. KARNIK, J CORAM : D.G. KARNIK, J CORAM : D.G. KARNIK, J
DATED : 21st August 2006. DATED : 21st August 2006. DATED : 21st August 2006.
ORAL JUDGEMENT : ORAL JUDGEMENT : ORAL JUDGEMENT :
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
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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
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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/-.
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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. Aggrieved by the order of imposition of costs of
Rs.5,000/- and also by the direction to the Municipali
Comissioner to hold an enquiry to determine who were
the officers guilty of illegal and unlawful demolition
and to make adverse entries in the confidential records
of such officers, the defendant has filed the appeal
bearing no.360 of 2006. Since both the appeals are
directed against the same order, they are being
disposed of by this common judgement.
5. Though initially the plaintiff had contended
that his stall was on the private property, at the
stage of hearing of this appeal it was conceded that
the stall was on the footpath of a public road.
Section 3(w) of the MMC Act, defines the street as
follows :
"Street" includes a causeway, footway,
passage etc, over which the public have
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a right of passage or access."
Footway (footpath) is thus a part of the street and
therefore, it must be held that the concerned stall
was on the street.
6. Section 313 of the MMC Act provides that no
person shall, except with the written permission of
the Commissioner place or deposit upon any street, any
stall, chair, bench, box, ladder, bale or other thing
so as to form an obstruction or encroachment thereon.
Section 314 of the Act empowers the Commissioner to
remove any stall, chair, ladder, box, board or shelf
or any other thing whatever placed, deposited,
projected, attached or suspended in, upon, from or to
any street, in contravention of section 313.
Doubtless, the Commissioner has a power to remove all
illegal structures and stalls made on a street. The
only question is whether the Commissioner can remove
any stall or structure placed or erected on a sheet
without any notice to the person concerned. Plain
words of section 314 no doubt empower the Commissioner
to remove the offending structures without notice.
Constitutional validity of section 314 of the MMC Act,
which empowers the Commissioner to remove any
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structure without notice, was challenged before the
Supreme Court in the case of Olga Tellis (Supra).
While repelling the challenge and upholding the
constitutional validity of section 314 of the MMC Act,
the Supreme Court held that section only enables and
does not command the Commissioner to remove structure
without notice. The Supreme Court further held that
though the Commissioner has a power to act without
notice, such power must be exercised sparingly and
only in case of urgency which brook no delay. In all
other cases, the Court held, no departure from the
audi alteram partem rule (hear the other side) must be
presumed to have been intended. The relevant
observations found in paragraph nos.44 and 45 of the
decision of the Supreme Court are quoted herein
below:-
44. ....The challenge of the petitioners
to the validity of the relevant
provisions of the Bombay Municipal
Corporation Act is directed principally
at the procedure prescribed by Sec.314
of that Act, which provides by clause
(a) that the Commissioner may, without
notice, take steps for the removal of
encroachments in or upon any street,
channel, drain etc. By reasons of
Sec.3(w), ’street’ includes a causeway,
footway or passage. In order to decide
whether the procedure prescribed by
Sec.314 is fair and reasonable, we must
first determine the true meaning of that
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section because, the meaning of the law
determines its legality. If a law is
found to direct the doing of an act
which is forbidden by the Constitution
or to compel, in the performance of an
act, the adoption of a procedure which
is impermissible under the Constitution,
it would have to be struck down.
Considered in its proper perspective,
Sec.314 is in the nature of an enabling
provision and not of a compulsive
character. It enables the Commissioner,
in appropriate cases, to dispense with
previous notice to persons who are
likely to be affected by the proposed
action. It does not require and, cannot
be read to mean that, in total disregard
of the relevant circumstances pertaining
to a given situation, the Commissioner
must cause the removal of an
encroachment without issuing previous
notice. The primary rule of
construction is that the language of the
law must receive its plain and natural
meaning. What Sec.314 provides is that
the Commissioner may, without notice,
cause an encroachment to be removed. It
does not command that the Commissioner
shall, without notice, cause an
encroachment to be removed. It does not
command that the Commissioner shall,
without notice, cause an encroachment to
be removed. Putting it differently,
Sec.314 confers on the Commissioner the
discretion to cause an encroachment to
be removed with or without notice. That
discretion has to be exercised in a
reasonable manner so as to comply with
the constitutional mandate that the
procedure accompanying the performance
of a public act must be fair and
reasonable. We must lean in favour of
this interpretation because it helps
sustain the validity of the law.
Reading Sec.314 as containing a command
not to issue notice before the removal
of an encroachment will make the law
invalid.
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9
45. It must further be presumed
that, while vesting in the Commissioner
the power to act without notice, the
Legislature intended that the power
should be exercised sparingly and in
cases of urgency which brook no delay.
In all other cases, no departure from
the audi alteram partem rule (’Hear the
other side) could be presumed to have
been intended. Sec.314 is so designed
as to exclude the principles of natural
justice by way of exception and not as a
general rule. There are situations
which demand the exclusion of the rules
of natural justice by reason of diverse
factors like time, place, the
apprehended danger and so on. The
ordinary rule which regulates all
procedure is that persons who are likely
to be affected by the proposed action
must be afforded an opportunity of being
heard as to why that action should not
be taken. The hearing may be given
individually or collectively, depending
upon the facts of each situation. A
departure from this fundamental rule of
natural justice may be presumed to have
been intended by the Legislature only in
circumstances must be shown to exist,
when so required, the burden being upon
those who affirm their existence.
7. It is thus clear that though the Commissioner
has the power to remove the structure without notice
the powerty to do so without notice should be
exercised only in rare cases where the Commissioner is
of the opinion that the action of removal of the
structure is so urgently required that issuance of a
notice should be dispensed with. In the present case,
admittedly no order was passed by the Commissioner
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10
dispensing with the notice nor was the case was so
exceptional or so urgent that the structure should
have been removed without any notice. It was conceded
by the learned counsel for the defendant that no order
was passed by the Commissioner himself under section
314 of the MMC Act for removal of the structure.
Counsel however submitted that in exercise of the
powers conferred u/s.68 of the MMC Act, the
Commissioner has delegated the powers of removal of
unauthorised structures to various ward officers and
senior inspectors operating in their respective wards.
Counsel for the defendant also produced for Court’s
inspection a copy of the order dated 5th September
2005 passed by Dy. Commissioner (Special) exercising
powers of the Commissioner authorising Shri N.S.
Sankhe to exercise all of the powers of the
Commissioner including power u/s.314 of the MMC Act.
Counsel for the defendant submitted that in pursuance
of this power, it was Mr.Sankhe who demolished the
structure of the plaintiff. I have my own doubts
whether the Dy. Commissioner, who himself was
exercising delegated powers of the Commissioner, could
further delegate the powers to ward officers or senior
inspectors on the principle of "delegata potestas non
potest delegari" Assuming however that Mr.Sankhe had
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11
the delegated power he has not recorded any reasons
why the plaintiff’s structure was to be demolished
without any notice and without granting him any
opportunity of being heard. Learned counsel for the
defendant submitted that there were complaints
received from Karmaveer Dadasaheb Gaikwad Sanskritik
Kendra, a public charitable trust (for short ’the
trust’), about the illegal activities allegedly
committed by the defendant at the suit stall. A copy
of the complaint dated 2nd September 2005 was produced
before the City Civil Court. The complaint was that
people were constantly speaking on the telephone booth
of the said stall. There is a vague allegation in the
complaint that the telephone conversation related to
illegal trafficking in women. At this stage, it may
be noted that stall of the plaintiff was in existence
for several years. The shop and establishment licence
was issued to the plaintiff on 31st August 2001.
Similarly a trade licence was also issued to the
plaintiff by the defendant municipal corporation
itself prior to the year 2001. The licence was
renewed from time to time on 30th December 2002, 12th
December 2003, 17th March 2004 and 21st December 2005.
The licence was valid upto 31st December 2006. Thus
on 7th February 2006, the plaintiff was carrying on
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12
business in the suit stall with the permission of the
defendant in pursuance of a valid trade licence. In
the circumstances, even if there were complaints made
against the plaintiff, it was duty of the defendant to
issue a notice to the plaintiff before taking any
action of demolition. It was not disputed before me
that the defendant had not made any enquiry for
verification of the truth of the complaint made by the
trust. The statements made in the complaint of the
trust were believed without verification. It cannot
be disputed that any person who is enemical to the
plaintiff can make even a false complaint. It was
duty of the defendant to verify the truth of the
complaint and atleast to give an opportunity of
hearing to the plaintiff so that he could rebut the
allegations. In the circumstances, I find no error in
the conclusion reached by the trial court that the
defendant took the action of demolition of the
plaintiff’s stall illegally and in beach of the
principles laid down by the Supreme Court in Olga
Telli’s case.
8. That takes me to the grievance of the
plaintiff that the trial court ought to have granted a
mandatory injunction. The relief of injunction is
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13
discriminatory. It cannot be granted as a matter of
course. Though the court is not powerless to grant a
relief of mandatory injunction even during the
pendency of a suit, the Court would generally be slow
in granting the relief of mandatory injunction when it
relates to doing of a thing which, if done may not be
legal. Admittedly, the suit structure was standing on
a public street. Under section 313 of the MMC Act, no
person has a power to erect any stall or construction
on a public street. Public streets are meant for
traffic and movement of the people and vehicles. As
the structure was on the public street and as the
learned Judge has exercised the discretion of not
granting a mandatory injunction directing the
defendant to erect the stall at its own cost, I do not
consider it appropriate, at this stage, to interfere
in the discretion exercised by the trial court.
9. As regards the direction issued by the Court
to hold an enquiry to ascertain who were the officers
responsible for the demolition and to make entries in
the confidential records of the concerned officers it
would be useful to quote the direction issued which
reads thus :
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14
Municipal Commissioner, Greater Bombay,
Municipal Corporation shall cause
enquiry be made as to who was/were
officer/officers responsible for this
blatantly illegal and unlawful
demolition of the plaintiff’s structure
without following procedure prescribed
by law. He shall enter in appropriate
specific adverse remarks into the
confidential records of the concerned
officer/officers of his/their having
acted contrary to the provisions of
Bombay Municipal Corporation Act and
the law laid down by the Hon’ble High
Court. These adverse remarks shall be
given due weightage, when considering
issue of his/their promotion, if any,
in future.
It appears that this direction was issued because the
identity of the officer responsible for demolition
was not known when the matter was heard by the trial
court. At the hearing before me, learned counsel for
the appellant stated that the demolition has been
effected by Sankhe and a copy of the letter of
authorisation issued to him by the Dy.Commissioner
authorising him to exercise the powers of the
Commissioner u/s.314 of the MMC Act is also produced
before me. Since the identity of the officer who
ordered the demolition is now known, it is not now
necessary to hold an enquiry to ascertain the name of
the officer. However as regards the direction to
make an entry in the confidential records of the
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15
concerned officer, it appears to me that opportunity
of hearing should be given to him before an adverse
entry is made. It cannot be disputed and it is not
disputed that u/s.314 the commissioner or officer
authorised by him u/s.68 of the MMC Act is entitled
to demolish the structure with or without notice.
Whether the structure should be demolished after
notice or without notice would depend upon the facts
and circumstances of each case and in particular
whether there is any urgency to do so without notice.
This has been clearly laid down by the Supreme Court
in paragraph nos.44 and 45 of Olga Telli’s case
(Supra). The officer concerned, Mr.Sankhe, has not
been given any opportunity to show cause whether, in
view of the complaints received against the plaintiff
and other surrounding circumstances, it was necessary
to exercise the power of demolition without issuing
notice to the plaintiff. If any adverse entry is to
be made in his service records an opportunity of
hearing must be given to him. He ought to be given
an opportunity to show that he exercised the power
bonafide and on account of urgency. Therefore, the
direction given only to hold enquiry about the
identity of the officer without any direction to hold
an enquiry whether the officer, acting bonafide, had
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16
formed an opinion to exercise the power of demolition
without notice to the plaintiff, cannot be sustained.
Therefore, the direction given in paragraph no.4 of
the operative part of the impugned order needs
modification.
10. For these reasons, appeal no.289 of 2006
filed by the plaintiff is dismissed. Appeal no.360
of 2006 filed by the defendant municipal corporation
is partly allowed. The direction given in paragraph
no.4 of the impugned order dated 10th March 2006 is
set aside and in its place, the following direction
is given.
. The Municipal Commissioner shall hold an
enquiry whether Mr. Sankhe who demolished the
structure without issuing of a notice u/s.314 of the
MMC Act, was acting bonafide and had a reason to act
without notice on account of an urgency. If the
Commissioner comes to the conclusion that there has
been a breach of the directions given by the Supreme
Court in Olga Telli’s case or the power was not
exercised by Mr.Sankhe bonafide in the circumstances
which required him to act without any notice any
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17
urgently, then the Commissioner shall make an entry
in the service records of Mr. Sankhe to that effect
and shall further he entitled to take appropriate
against him. On the other hand, if the Commissioner
comes to the conclusion that the power was exercised
bonafide and Mr.Sankhe has complied with the
directions of the Supreme Court in Olga Telli’s case
and in particular paragraph nos.44 and 45 thereof,
there would be no need to make any adverse entry in
his service records. Needless to say the plaintiff
may be permitted to take part and adduce evidence in
the enquiry to be held against Mr.Sankhe
11. With these directions, appeals are disposed
of.
D.G. KARNIK, J D.G. KARNIK, J D.G. KARNIK, J
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