Sunday 14 October 2012

Whether Municipal corporation is obliged to follow due process of law prior to demolition of unauthorised construction?

Mere issuance of notice under the said section is not sufficient to suggest that the due process of law has been followed, inasmuch as after issuance of notice, the concerned person would file response and which response has to be considered by appropriate officer designated for that purpose and that officer is obliged to pass decision, one way or the other. Moreover, such a decision has to be communicated to the affected person giving reasonable opportunity to that person to challenge that decision as permissible by law. There is nothing on record to show that such a course has been followed. Unless such a course was followed, it is not possible to conclude that due process of law has been complied with. If the record placed before the Court suggests that due process of law has not been complied with, then, obviously, the application as preferred by the petitioner deserves to be considered and appropriate orders passed thereon. However, as observed earlier, the Court below has rejected the application on the solitary ground, which is unacceptable for the reasons indicated above.

Bombay High Court
Mangesh Amar Ghorpade vs Kalyan Dombivali Municipal ... on 2 September, 2003
Equivalent citations: 2005 (3) BomCR 483

Khanwilkar A.M., J.

1. Rule. Rule made returnable forthwith by consent. Mr. Kulkarni waives notice for the sole respondent.
2. As short question is involved, petition taken up for final disposal forthwith by consent.
3. The petitioner is in occupation of a Vada Pav stall at Ali No. 52, near Railway Court, Station Road, Kalyan. The petitioner apprehended demolition of the said structure. Therefore, he instituted suit before the Civil Judge, Junior Division, Kalyan, being Regular Civil Suit No. 338 of 2000. In that suit, application for interim relief was filed, being Exhibit 5, which was allowed on 2nd April, 2002. Essentially, the Civil Court directed the Corporation to maintain status quo in respect of the suit stall till dure process of law was followed, in terms of the decision in Sopan Maruti Thopte v. Pune Municipal Corporation, reported in 1996(Supp.) Bom.C.R. 724 : 1996(2) All.M.R. 383. It is seen that thereafter the Corporation issued notice on 8th April, 2002 purporting it to be under Section 260 of the Bombay Provincial Municipal Corporation Act. However, there is nothing on record to indicate as to whether the said proceedings have taken to their logical end. The grievance of the petitioner is that the petitioner has not been informed about any decision taken by the Corporation nor any intimation has been given to the petitioner about culmination of the said proceedings. Instead, on 28th January, 2003, the officers of the Corporation visited the site and resorted to demolition, which was resisted by the petitioner, pointing out that there was already a Court order operating in favour of the petitioner. Nonetheless, partial demolition has been done. It is in that backdrop, the petitioner filed application under Order 39, Rule 2-A of the C.P.C. for taking appropriate action against the Corporation. The Court below has rejected the said application by the impugned judgment and order dated 19th March, 2003 on the sole reasoning that the notice was issued to the petitioner under Section 260 of the Act and, therefore, the Corporation had followed due process of law. This reason completely overlooks that mere issuance of notice under the said section is not sufficient to suggest that the due process of law has been followed, inasmuch as after issuance of notice, the concerned person would file response and which response has to be considered by appropriate officer designated for that purpose and that officer is obliged to pass decision, one way or the other. Moreover, such a decision has to be communicated to the affected person giving reasonable opportunity to that person to challenge that decision as permissible by law. There is nothing on record to show that such a course has been followed. Unless such a course was followed, it is not possible to conclude that due process of law has been complied with. If the record placed before the Court suggests that due process of law has not been complied with, then, obviously, the application as preferred by the petitioner deserves to be considered and appropriate orders passed thereon. However, as observed earlier, the Court below has rejected the application on the solitary ground, which is unacceptable for the reasons indicated above.
4. As a necessary consequence, the impugned judgment and order is set aside and the application is restored to the file of the Civil Judge, Junior Division, Kalyan, for reconsideration thereof on its own merits in accordance with law. That be done as expeditiously as possible, preferably within one month from the date of receipt of writ of the Court.
5. Rule made absolute on the above terms. No order as to costs.
6. In view of this order, the Counsel for the petitioner states that he is not pressing relief for challenging the order passed on the application, Exhibit 10, in Civil Miscellaneous Appeal No. 51 of 2002. That statement is accepted.
Print Page

No comments:

Post a Comment