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2018 SCC OnLine Bom 2695

In the High Court of Bombay

Ordinary Original Civil Jurisdiction
(BEFORE A.S. OKA AND RIYAZ I. CHAGLA, JJ.)

Mohd. Sayed Mohd. Salim Nagori Rizvi Age 30 Yrs.,

Indian Inhabitant, R/at. Friends Apartment, 36
Bazar Road, near Temple Bandra (W), Mumbai -
400 050 … Petitioner;
Versus
The Municipal Commissioner & Ors. … Respondents.
Writ Petition No. 518 of 2017
Decided on September 17, 2018, [Judgment Reserved on 14th
August, 2018]
Ms. Aditii Naikare, I/b Mr. Pradeep J. Thorat, for Petitioner.
Ms. Shital Mane, for Respondent - BMC.
The Judgment of the Court was delivered by
RIYAZ I. CHAGLA, J.:— The Petitioner by the present Petition is
seeking a direction against the Respondents to reconstruct the
stall/shop occupied by the Petitioner which is alleged to have been
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illegally demolished by the Respondents on 16 December, 2016
without following the due process of law or in the alternative a direction
to the Respondents to provide suitable alternate premises of equivalent
area as that of the said premises and in the nearby vicinity of the said
premises which have been illegally demolished by the Respondents.
Further, relief has been sought by way of amendment to the Petition for
quashing and setting aside order dated 11th December, 2017 passed by
the Assistant Municipal Commissioner, H - West Ward, Mumbai
Municipal Corporation which upholds the impugned action of demolition
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as well as a challenge to clause (v) of the Circular dated 5 October,
2015 to the extent that it holds that the license issued under Section
394 of the Mumbai Municipal Corporation Act, 1888 (for short “the said
Act”) will not be considered to treat the structure as authorised.
2. The Petitioner claims to be suffering from 100% hearing disability.
The stall/shop admeasuring 9.24 sq. mtrs situate at Abdul House, John
Baptista Road, Iraniwadi, Bandra (West), Mumbai 400 040 is the
subject matter of the present Petition (for short “the subject
premises”). The Petitioner has stated that the subject premises was
originally situate on the private land CTS No. B/639 owned by Aaron
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Daniel Abrahim and others. The Petitioner's predecessor one Shri

Ankush Salgaonkar was carrying on business from the subject premises
prior to 1986. Respondent No. 1 - Corporation acquired a portion of the
land CTS No. B/639 for the purpose of road widening due to which the
size of the subject premises was required to be reduced by the
predecessor. Respondent No. 1 - Corporation permitted the Petitioner's
predecessor to construct the subject premises admeasuring 4.20 meter
× 2.20 meter. A request was made by the Petitioner's predecessor to
increase the size of the subject premises and pursuant to the request,
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Respondent No. 2 issued letter dated 20 June, 2011 granting
permission to increase the size to the original size of 6 × 4 sq. mtrs.
Respondent No. 2 further permitted the said Shri Ankush Salgaonkar to
carry out repairs of the subject premises on terms and conditions
mentioned therein. The Petitioner purchased the subject premises from
the previous owner, the said Shri Ankush Salgaonkar under Agreement
for Sale dated 30th June, 2012 for valuable consideration. It is stated in
the Petition that the Petitioner's predecessor who was carrying on
business in the subject premises in the name and style of M/s. Lalita
Stores was paying necessary fees and ground rent in respect of the
subject premises to the Respondent - Corporation and was issued a
Registration Certificate in respect of his establishment under the
Bombay Shops and Establishments Act, 1948. Respondent No. 3 had
also issued license under Section 394 of the said Act in respect of
business carried out by the predecessor of the Petitioner from the
subject premises.
3. An application was submitted to the Respondent No. 1 -
Corporation for transfer of the subject premises in his name. The
Assistant Engineer (Maintenance), H/W Ward of the Respondent No. 1 -
Corporation issued letter dated 9th August, 2014 transferring the
subject premises in favour of the Petitioner on terms and conditions
mentioned in the said letter. The Petitioner appears to have also been
directed by the Respondent No. 1 - Corporation to pay transfer charges
amounting to Rs. 50,000/- and 10 years ground rent amounting to Rs.
7,200/- within seven days for effecting transfer of the subject premises
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in favour of the Petitioner. In pursuance of order dated 6 August,
2014 passed by the Deputy Municipal Commissioner, Zone III, the
Petitioner paid transfer charges of Rs. 50,000/- and 10 years ground
rent amounting to Rs. 7,200/- to the Respondent No. 1 - Corporation.
The Petitioner's name was accordingly included in the Ground Rent
Register in place of his predecessor, Shri Ankush Salgaonkar. The
Petitioner started business in the name and style of M/s. Siddhivinayak
Fast Food from the subject premises and was issued Registration
Certificate by Respondent No. 1 - Corporation for his establishment
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under the Maharashtra Shops and Establishments Act, 1948. A Trade

License was also issued by Respondent No. 3 under Section 394 of the
said Act in respect of the business of the Petitioner's Fast Food Centre
and Chat carried out from the subject premises. The Petitioner further
obtained Registration Certificate under the Food Safety and Standards
Act, 2006 in respect of the business of M/s. Siddhivinayak Fast Food
carried out from the subject premises. A police license has also been
obtained and electricity connection from Reliance Energy for conducting
the business from the subject premises.
4. The Petitioner has stated in the Petition that in the month of
September, 2016 the officials of the Respondent No. 1 - Corporation
visited the subject premises and informed the Petitioner that the
subject premises is unauthorised and same will be demolished as soon
as necessary police protection is obtained. The Petitioner accordingly
filed Long Cause Suit No. 2449 of 2016 before the City Civil Court at
Dindoshi against the Respondents seeking an order of injunction
restraining the Respondents from disturbing the possession of the
Petitioner over the subject premises or demolishing the subject
premises without following due process of law. An order dated 21st
September, 2016 was passed by the learned Judge of the City Civil
Court at Dindoshi by which ad-interim relief was granted to the
Petitioner and the Respondent No. 1 - Corporation was restrained from
demolishing the subject premises without following due process of law.
th
Thereafter, the Respondent No. 3 issued Notice dated 15 December,
2016 to the Petitioner stating that the trade activity is not permitted on
the footpath without license under Section 313 of the said Act. It
further stated that the subject premises is situated on Municipal
footpath and hence ground rent is cancelled. Consequently license
under Section 394 of the said Act is also cancelled. The Respondent No.
3 directed the Petitioner to discontinue trade activity from the subject
premises with immediate effect. On the very next day i.e. 16th
December, 2016, the officers of the Respondent No. 1 - Corporation
visited the subject premises and demolished the same. This according
to the Petitioner was done without following due process of law and
despite an order of injunction having been passed by the City Civil
Court at Dindoshi restraining Respondent No. 1 - Corporation from
demolishing the subject premises. The Petitioner filed a complaint
th
dated 16 December, 2016 against the Respondents with the Inspector
of Police, Bandra Police Station. The Petitioner has thereafter filed the
present Petition.
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5. An order dated 20 November, 2017 came to be passed by this
Court wherein a statement was made by the learned counsel for the
Respondent No. 1 - Corporation on instructions that the case of the
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Petitioner would be reconsidered by the Respondent No. 1 - Corporation

and decision would be rendered within 10 days. The statement was
accordingly accepted. An order dated 11th December, 2017 came to be
passed by the Respondent No. 1-Corporation wherein it was held that
as the subject premises was on the footpath and there was no license
under Section 313 of the said Act, the same shall be treated as
unauthorised encroachment on footpath and hence no compensation
shall be awarded to the Petitioner against demolition of the subject
premises on the footpath. The Petitioner being aggrieved by the
th
impugned order dated 11 December, 2017 as well as the reliance
upon the Respondent No. 1 - Corporation on the said Circular dated 5th
th
October, 2015 has amended the Petition. This Court by order dated 10
January, 2008 issued notice to the parties that considering the nature
of the issue involved in this Petition, this Petition needs to be disposed
of finally at the stage of admission. Accordingly, this Petition is taken
up for final disposal.
6. The learned counsel appearing for the Petitioner submits that the
subject premises was demolished by the Respondent No. 1 -
Corporation without following due process of law. He submits that the
th
Notice issued by the Respondent No. 1-Corporation on 15 December,
2016 cancelled the ground rent of the subject premises as well as the
health license issued to the Petitioner with immediate effect. On the
very next day of the issue of the Notice dated 15th December, 2016, the
Respondent No. 1 - Corporation demolished the subject premises
without granting the Petitioner an opportunity of hearing and in
violation of the principles of natural justice. He has submitted that the
subject premises of the Petitioner is an authorised structure having
been issued all the requisite permissions including necessary health
license by the Respondent No. 1 - Corporation and license under the
Maharashtra Shops and Establishments Act, 1948 for carrying out
business from the subject premises. Further, the Petitioner has paid the
transfer charges and 10 years ground rent as directed by the
Respondent No. 1 - Corporation. He submits that the Petitioner is a
disabled person and the business carried out by the subject premises
was his only source of livelihood. He has submitted that the demolition
of the subject premises was also in breach of order of injunction dated
st
21 September, 2016 passed by the learned Judge of the City Civil
Court at Dindoshi. He has submitted that having been issued the
requisite licenses, the Respondent No. 1 - Corporation could not
demolish the subject premises only on the premise that the license
under Section 313 of the said Act appears to have not been issued. He
submits that the Respondent No. 1 - Corporation has justified the
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demolition of the subject premises by erroneously placing reliance on

the impugned circular dated 5th October, 2015 and in particular clause
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(v) thereof in its impugned order dated 11 December, 2017. He
submits that Respondent No. 1 - Corporation cannot ignore the
payments of transfer charges, ground rent made by the Petitioner as
well as health license and Shops and Establishments license issued to
the Petitioner for carrying out the business from the subject premises.
He has submitted that the subject premises is not obstructing the
pedestrian and vehicular traffic and/or is situated on Municipal road. He
has submitted that the impugned action of the Respondents of
demolition of the subject premises without notice and/or hearing is
contrary to the well settled law laid down by the Supreme Court as well
as this Court. He has relied upon a judgment of this Court in
Navinchandra Shyamji Chhadva v. State of Maharashtra1., wherein this
bench had on the facts of the case held that the act of issuing notice
under Section 314 of the said Act cannot be said to amount to following
due process of law. He has submitted that the subject premises having
been demolished without following due process of law in the present
case ought to be reconstructed and/or suitable alternate premises
ought to be made available to the Petitioner of an equivalent area as
that of the subject premises in nearby vicinity so that the Petitioner
may be able to carry out his business.
7. The learned counsel appearing for the Respondent - Corporation
has supported the impugned action of the Respondents. He has
submitted that the action of demolition of the subject premises has
been taken under Section 314 of the said Act as the subject premises
was on a Municipal footpath and hence under the said provision the
Commissioner of the Respondent No. 1 - Corporation can remove the
subject premises without issuance of notice. He has submitted that the
subject premises was required to be removed in view of the Circular of
th
the Respondent No. 1 - Corporation dated 15 October, 2015. He has
placed reliance upon clause (v) of the impugned Circular and submitted
that only when the subject premises has valid license under Section
313 of the said Act, the premises shall be treated as authorised. He has
submitted that the Respondents have by following due process of law
demolished the subject premises as per the provisions of Section 314 of
the said Act by giving sufficient time to the Petitioner to remove his
belongings or articles on 16th December, 2016. He has submitted that
the Respondent No. 1 - Corporation agreed to reconsider the decision
regarding removal of the subject premises and had granted a hearing
to the Petitioner and reconsidered all his documents. He submits that
after hearing the Petitioner, the Respondent No. 1 - Corporation passed
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order on 11 December, 2017 upholding the action of demolition of the
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subject premises by placing reliance upon the Circular dated 5th

October, 2015 and the fact that no license under Section 313 of the
said Act had been issued for the subject premises and/or the subject
premises was not originally allotted to any disabled/physically
challenged person. He has placed reliance upon the Affidavit of Shri
Sharad Ughade, Assistant Commissioner, H/W Ward of the Respondent
No. 1 - Corporation in support of his submission. The deponent of the
said Affidavit has relied upon similar Petitions filed by the other
Petitioners in this Court where this Court has observed that the
Commissioner has power to remove without notice anything erected,
deposited or hawked in contravention of Sections 312, 313 and 313A of
the said Act and such discretion vested in the Commissioner and action
was justified in that case viz. Writ Petition (L) No. 45 of 2016 as the
premises was blocking a Nallah and hence was demolished.
8. We have considered the submissions. The Petitioner is aggrieved
by the demolition of his subject premises carried out by the
Respondent No. 1 - Corporation under Section 314 of the said Act on
16th December, 2016 without any Notice and/or hearing. It appears
that one day prior to the demolition of the subject premises, the
Respondent No. 1 - Corporation issued letter/notice to the Petitioner
cancelling the health license and the ground rent of the subject
premises. The Respondent No. 1 - Corporation proceeds on the premise
that the Petitioner did not possess a license under Section 313 of the
th
said Act and that under its Circular dated 5 October, 2015 only those
stalls/shops shall be treated as authorised where they are having a
license under Section 313 of the said Act. The Respondents claim that
they are entitled under Section 314 of the said Act to demolish the said
structure without any notice as the subject premises was on a Municipal
footpath and without having a licence under Section 313 of the said
Act. The subsequent order issued by Respondent No. 1 - Corporation on
11th December, 2017 upon agreeing to reconsider the case of the
th
Petitioner as recorded by order of this Court dated 20 November,
2017, also proceeds on the premise that the unauthorised
encroachment was on a footpath and as no license had been granted
under Section 313 of the said Act, the premises was demolished.
9. It would in this context be relevant to consider the scope and
ambit of Section 314 of the said Act which reads thus:—
Section 314
[Power to remove without notice anything erected, deposited or
hawked in contravention of section 312, 313 or 313A.] [1]
(a) any wall, fence, rail, post, step, booth or other structure or
fixture which shall be erected or set up in or upon any street,
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or upon or over any open channel, drain, well or tank contrary

to the provisions of subsection (1) of section 312, after the
same comes into force [2] [in the city or in the suburbs, after
the date of the coming into force of the Bombay Municipal
(Extension of Limits) Act, 1950 [3] [or in the extended suburbs
after the date of the coming into force of the Bombay Municipal
(Further Extension of Limits and Schedule BBA (Amendment)]
Act, 1956];]
(b) any stall, chair, bench, box, ladder, bale, board or shelf, or
any other thing whatever placed, deposited, projected,
attached, or suspended in, upon, from or to any place in
contravention of sub-section (1) of section 313;
(c) any article whatsoever hawked or exposed for sale in any
public place or in any public street in contravention of the
provisions of section 313A and any vehicle, package, box,
board, shelf or any other thing in or on which such article is
placed or kept for the purpose of sale.]
(d) any person, unauthorisedly occupying or wrongfully in
possession of any public land, from such land together with all
the things and material unauthorisedly placed, projected or
deposited on such land by such person:
Provided that, the Commissioner shall, while executing such
removal, allow such person to take away his personal belongings and
household articles, such as cooking vessels, bed and beddings of the
family, etc.]
10. The constitutional validity of Section 314 of the said Act came up
for challenge before the Supreme Court in the case of Olga Tellis v.
Bombay Municipal Corporation2. The Supreme Court in paragraphs 44
and 45 held thus:—
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 Section 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, drains, etc. By reason of Section 3(w), ‘street’
includes a causeway, foootway or passage. In order to decide
whether the procedure prescribed by Section 314 is fair and
reasonable, we must first determine the true meaning of that 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,
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Section 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 Section
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. Putting, it differently, Section 314 confers on the
Commissioner the discretion to cause an encroachment to be
removed with or without notice. That discretion has to be exercise 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 Section 314 as containing a command not to issue notice
before the removal of an encroachment will make the law invalid.
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. Section 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 or natural justice by reason or 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 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 which warrant it. Such circumstances must be shown
to exist, when so required, the burden being upon those who affirm
their existence.
11. The Supreme Court thus held Section 314 to be in the nature of
an enabling provision and not of a compulsive character. It enables the
Commissioner in appropriate cases, to dispense with the previous
notice to persons who are likely to be affected by the proposed action.
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However, this cannot be to read to mean that in total disregard of

relevant circumstances, pertaining to a given situation, the
Commissioner must cause the removal of encroachment without issuing
previous notice. The discretion exercised by the Commissioner under
Section 314 of the said Act is to be exercised in a reasonable manner so
as to to comply with the constitutional mandate that the procedure
accompanying the purpose of a public act must be fair and reasonable.
The Supreme Court accordingly upheld the constitutional validity of
Section 314 of the said Act. This decision of the Supreme Court has
been consistently followed by this Court. Two of the decisions of this
Court are worth mentioning in the context of the present case. In
3
Savitri Laxman Suvare v. The Union of India , the Division Bench of this
Court has referred to the judgment of the Supreme Court in Olga Tellis
(Supra) and has observed that the Supreme Court in that case had held
that a minimal notice and hearing is not ruled out in all cases and for
all times under Section 314. This Court has observed that a general rule
was not laid down in the judgment of the Supreme Court that in every
case which is of emergent nature, the Corporation is obliged to follow
the principles of natural justice. The Corporation would have to justify
that there was an urgency. That there was indeed a requirement of
expeditious removal without notice of certain structures as they were
affecting public streets, pavements, footpaths or other similar
conveniences. The record would have to be produced for the Court to be
satisfied with regard to the dispensation of a notice and hearing by the
Corporation. This Court in so observing held that, beyond these
observations nothing else can be read into this judgment. This has
been observed in paragraph 18 of the said decision which reads thus:—
“18. Once the only reliance that is placed is on the scheme at
page 145 and that is found to be wholly inapplicable, then we do not
see how assistance can be derived from the judgment of the Hon'ble
Supreme Court of India in Olga Tellis. In that case, the Hon'ble
Supreme Court of India was considering a challenge to the
constitutional validity of Section 314 of the Mumbai Municipal
Corporation Act, 1888. In Mr. Sabban's submission, those residing
on pavements and footpaths were evicted as a part of the block or
mass demolition drive. They were thrown out of their hutments and
hut-like structures or from the pavements without any prior notice,
leave alone a hearing. Reliance was placed by Municipal Corporation
on Section 314, which empowers and authorizes it to remove all
obstructions and obstacles on public streets, pavements and
footpaths. In considering that challenge, the Hon'ble Supreme Court
held that a minimal notice and hearing is not ruled out in all cases
and for all times under Section 314. The Section could be saved by
reading into it a requirement of this nature, depending upon the
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facts and circumstances of each case. No general rule was laid down
that in every such case which is of emergent nature as well, the
Corporation is obliged to follow the principles of natural justice. On
the other hand, if the action was challenged in Court, the
Corporation would have to justify that there was an urgency, that
there was indeed a requirement of expeditious removal without
notice of certain structures as they were affecting public streets,
pavements, footpaths or other similar conveniences. The record
would have to be produced for the Court to be satisfied with regard
to the dispensation of a notice and hearing by the Corporation.
Beyond this, we do not read anything in this judgment. Rather it
holds that there is no fundamental or vested right in squatting or
encroaching on public lands and properties. There is no license to
enter upon such lands unauthorizedly, or to remain there merely
because the occupation is of decades together. Neither is there any
obligation of the State or the other authorities to provide such
persons who are affected or removed an alternate site or
accommodation. It was because the plight of these pavement
dwellers and those on the footpaths being there for decades together
moved the Supreme Court that the eventual directions on which Mr.
Sabban relies were issued”.
12. Another decision of this Court worth referring to in this context is
in Javed Khalid Khan v. Thane Municipal Corporation4. The Division
Bench of this Court disposed of a group of Writ Petitions by a common
judgment. These Petitions challenged the action taken by Respondent
No. 1 - Corporation of demolition of the shops under Section 231 of the
Maharashtra Municipal Corporations Act, 1949. Section 314 is almost
identical to Section 231 of the MMC Act, 1949 and hence this judgment
is relevant in the facts of the present case. The Division Bench of this
Court comprising one of us (A.S. Oka.J.) in paragraphs 20 to 22 held
thus:—
20. We have carefully considered the submissions. There is no
dispute between the parties that the shop premises/structures
subject matter of these petitions were in existence and were
demolished by the said Corporation. As far as the demolition of
illegal structures is concerned, the law has been laid down by the
Division Bench of this Court in the case of Sopan Maruti Thopate
(supra). Paragraphs 19 to 21 of the said decision read thus:
“19. Hence, on the basis of the law as discussed above, it
is directed that after 1st May, 1996 the Bombay Municipal
Corporation or the Municipal Corporations constituted
under the B.P.M.C. Act would follow the following
procedure before taking action under Section 351 of the
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B.M.C. Act or under S. 260 of the B.P.M.C. Act.

“(i) In every case where a notice under Section 351 of the
B.M.C. Act/under Sec. 260 of B.P.M.C. Act is issued to a
party 15 days' time shall be given for submitting the
reply. In case the party to whom notice is issued sends
the reply with the documents, and shows cause, the
Municipal Commissioner or Deputy Municipal
Commissioner shall consider the reply and if no sufficient
cause is shown, give short reasons for not accepting the
contention of the affected party.
(ii) It would be open to the Commissioner to demolish the
offending structure 15 days after the order of the
Commissioner/Deputy Municipal Commissioner is
communicated to the affected person.
(iii) In case the staff of the Corporation detects the building which
is in the process of being constructed and/or reconstructed
and/or extended without valid permission from the Corporation,
it would be open to the Commissioner to demolish the same by
giving a short notice of 24 hours after drawing a panchanama
at the site and also by taking photographs of such structure
and/or extension. The photographs should indicate the date
when the same were taken.
(iv) In case where the Municipal Corporation has followed due
process of law and demolished the unauthorised structure and
or extension, if the same is reconstructed without valid
permission within a period of one year, it would also be open to
the Corporation to demolish the same by giving a short notice
of 24 hours.
(v) If the offending structure and/or extension which is assessed
by the Corporation for two years, notice shall provide for 15
days' time to show cause. If the Deputy Municipal
Commissioner comes to the conclusion that he requires
assistance of the party, he may give an oral hearing if he
deems fit and proper before passing the order. It is made clear
that oral hearing is not at all compulsory but it is at the
discretion of the authority.
(vi) In any other case the Corporation is directed to issue a show
cause notice in case of any structure and/or extension other
than those mentioned in clauses (i) to (iv) above. The
Corporation shall provide for 7 days' time to show cause in
such a case.”
20. In case the notice is issued under Sec. 478 of the B.P.M.C.
Act, 1949 and if the person has not complied with the requisitions
of the Commissioner, then it would be open to the Commissioner
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to demolish the unauthorised structure after expiry of 30 days of

the period specified in the notice for removal of such construction.
21. The Municipal Corporations in the State of
Maharashtra would follow the above directions so as to
avoid unnecessary litigation.”
(emphasis added)
21 The said decision of the Division Bench of this Court has
admittedly attained finality. It deals with section 260 of the said Act
of 1949 as is clear from paragraph 19 of the said Judgment in which
the said Act of 1949 is referred as B.P.M.C. Act. It is an admitted
position that in none of the cases in hand, the aforesaid directions
issued by the Division Bench were followed. In few cases, where
notices were issued on 26th/30th April 2016 under section 260 of the
said Act of 1949, admittedly 15 days time was not granted to the
petitioner to submit a reply to the notice. Admittedly, much before
the completion of the period of 15 days from the date of service of
notices, the structures were demolished.
22 A vague contention has been raised in some of the petitions by
the said Corporation that in view of section 231 of the said Act of
1949, it was not necessary to serve a notice to the petitioners. We
must note here that it is not the case of the said Corporation that
principles of natural justice have been followed before taking action
of demolition. These issues were considered by the Division Bench of
this Court of which one of us (A.S. Oka, J.) was a party by the
st
aforesaid Judgment dated 31 July 2015. Paragraphs 7 to 10 of the
said decision read thus:
“7. The law on the aspect is no more res integra starting from
the decision of the Apex Court in the case of Olga Tellis v. Bombay
Municipal Corporation. The Apex Court held that before taking
action of removal of encroachment on the streets or
footpaths, the rule of audi alteram partem has to be
complied with.
8. In the present case, admittedly, no opportunity whatsoever
of being heard was granted to the Petitioner in any form before
taking action of demolition and no notice was served to the
Petitioner before taking action of demolition.
9. In the affidavit in reply, reliance is placed on Section
231 of the said Act by contending that it was not necessary
to issue any notice for removing encroachments on the
public road. Section 231 of the said Act reads thus:
231. The Commissioner may, without notice, remove
anything erected, deposited or hawked or exposed for sale
in contravention of Act. The Commissioner may, without
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notice, cause to be removed,—

(a) any wall, fence, rail, post, step, booth or other structure
whether fixed or movable and whether of a permanent or
a temporary nature, or any fixture which shall be created
or set up in or upon or over any street or upon or over
any open channel, drain, well or tank contrary to the
provisions of this Act after the appointed day;
(b) any stall, chair, bench, box, ladder, bale, board or shelf,
or any other thing whatever placed, deposited, projected,
attached or suspended in, upon from or to any place in
contravention of this Act;
(c) any article whatsoever hawked or exposed for sale in a
public place or in any public street in contravention of
the provisions of this Act and any vehicle, package, box
or any other thing in or on which such article is placed.”
10. It is contended that as the shop structure was on the road,
Section 231 of the said Act will apply. Along with the affidavit in
reply, no material whatsoever has been placed on record by
the first Respondent showing that the shop structure subject
matter of this Petition was constructed on a public street,
open channel, drain, tank or well. Hence, Section 231 of the
said Act has no application.”
13. The decision of this Court in Javed Khalid (Supra) has gone on to
hold that for the demolition of illegal structures, the law laid down by
the Division Bench of this Court in the case of Sopan Maruti Thopte v.
5
Pune Municipal Corporation has to be followed. This Court negated the
submission of the Corporation that in lieu of Section 231 of the Act of
1949, it was not necessary to serve a notice to the Petitioners. The
Division Bench of this Court held that the principles of natural justice
are required to be followed and has relied upon its earlier decision
dated 31st July, 2015, where the rule of audi alteram partem has to be
complied with before removal of encroachments on streets or footpaths
following the judgment of the Supreme Court in Olga Tellis (Supra).
This Court accordingly directed the Petitioners to reconstruct the
demolished structures and make representation to the Corporation for
compensation by providing all details.
14. In the present case we find that the Respondent No. 1 -
Corporation has demolished the subject premises without Notice and/or
granting an opportunity of hearing to the Petitioner. Section 314 of the
said Act has to be read as an enabling provisions and in the facts of the
present case, particularly considering that the Petitioner was suffering
from 100% hearing disability and the business being his only source of
livelihood, it was necessary for the Respondent No. 1 - Corporation to
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grant a hearing to the Petitioner and pass order of demolition prior to

taking the impugned action. Further, the Petitioner had in his
possession the requisite licenses viz. health license and the license
under the Shops and Establishments Act, for carrying out the business
from the subject premises. The Petitioner had also paid the transfer
charges and ground rent for 10 years i.e. upto the year 2023 with
respect to the subject premises. We note that the Respondent No. 1 -
th
Corporation has by its Circular dated 5 October, 2015 provided in
clause (v) that only stalls/shops having valid license under Section 313
of the said Act shall be treated as authorised stalls. However, the
Circular does not mean that in every case, the power under Section 314
should be exercised without notice. In the subject premises has a
health license and a license under the Shops and Establishments Act
for carrying out the business from the subject premises. The premises
was demolished within 24 hours of the cancellation of licenses. The
Petitioner has also disputed that the subject premises is obstructing
pedestrian and vehicular traffic and/or situated on Municipal Road. The
impugned order has also been passed after the demolition of the
subject premises by merely relying upon the Circular dated 5th October,
2015 treating the subject premises as unauthorised. The decision of the
Respondent No. 1 - Corporation must be held to be flawed as there is
no justification of urgency and/or requirement of expeditious removal of
the subject premises without prior notice on the premise they were
affecting streets, pavements, footpaths or other similar conveniences.
Moreover, the Petitioner suffers from a major disability. Thus, in our
view, the action of demolition carried out by the Respondent No. 1 -
Corporation in violation of the principles of natural justice was illegal as
the facts of the case did not warrant taking of action without prior
notice.
15. We accordingly pass the following order:—
(a) It will be open for the Petitioner to reconstruct the subject
premises which has been demolished at his own cost. The
reconstruction will be at his own cost without claiming any equity.
(b) While carrying out reconstruction, the Petitioner shall ensure that
the area of the reconstructed premises will be the same as the
area of the subject premises on the date of its demolition. The
construction material of the same type shall be used for
reconstruction;
(c) Before commencement of work of reconstruction, the Petitioner
shall serve the notice in writing to the Designated Officer of the
concerned ward. The notice shall be advance notice of seven days
mentioning the time at which the work of reconstruction shall
commence. It will be open for the Designated Officer or any officer
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nominated by him to remain present at the time of

reconstruction;
(d) We make it clear that even if the premises are reconstructed, the
same will not confer any legality on the subject premises. It will
be open for the Respondent No. 1 - Corporation to take action of
demolition of the subject premises, if it is constructed without
obtaining development permission and/or are in violation of
Section 314 of the said Act. However, such action of demolition
shall not be initiated without complying with the requirements of
the principles of natural justice.
(e) If the Petitioner is not in a position to reconstruct the subject
premises, the Petitioner can make an application to the
Respondents to provide suitable alternate premises of equivalent
area as that the subject premises and in the nearby vicinity of the
subject premises in lieu of the subject premises being demolished
by the Respondents. Such application shall be decided within a
period of four weeks;
(f) It will be open for the Petitioner to make representation to the
Respondent No. 1 - Corporation for seeking compensation for the
reconstructed premises by providing all the details. Such
representation, if made, shall be decided by the Respondent No. 1
- Corporation and the decision shall be communicated to the
Petitioner within two months from the date of the representation.
We make it clear that no adjudication is made on merits of the
claim of compensation;
th
(g) The order dated 11 December, 2017 passed by the Assistant
Municipal Commissioner, H/E Ward, Mumbai Municipal Corporation
is quashed and set aside;
(h) The Notice dated 16th December, 2016 issued by Respondent No.
3 cancelling the Trade Licence in respect of the subject premises
is quashed and set aside;
(i) Rule is made absolute on the above terms with no order as to
costs;
(j) We direct that the order of reconstruction shall not be
implemented for a period of one month from the date on which
this order is uploaded;
(k) All concerned to act upon an authenticated copy of this
Judgment and order.
———
1
Writ Petition No. 454 of 2016 decided on 1s t March, 2018.

2
(1985) 3 SCC 545
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3
2016 SCC OnLine Bom 1502.

4 st
Writ Petition No. 7856 of 2016 decided on 21 June, 2018.

5
1996 Mah LJ 963.

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