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CASE NO.: Appeal (civil)  984-986 of 2005

PETITIONER: M/s Trig Guards Force Ltd

RESPONDENT: Maharashtra Indus. Dev. Corpn. & Ors

DATE OF JUDGMENT: 06/12/2007

BENCH: Dr. Arijit Pasayat & P. Sathasivam

JUDGMENT: JUDGMENT

CIVIL APPEAL NOs. 984-986 OF 2005

P. Sathasivam, J.

1)      M/s Trig Guards Force Ltd., New Bombay, aggrieved by  the order dated 1.8.2002 passed in Writ Petition No. 3997 of  2002, Order dated 22.1.2003 passed in Review Petition No. 98  of 2002 in W.P. No. 3997 of 2002 and Order dated 17.2.2003  passed in Writ Petition No. 864 of 2003 by the High Court of  Judicature at Bombay, has filed the above appeals by way of  special leave petitions. 2)      Brief facts are as follows: According to the appellant, they constructed commercial  structures consisting of nearly 50-60 shops in a slum area  known as Turbhe Slum, Turbhe Village facing Thane-Belapur  Highway Road.  One of their shops bearing No. 6104 was a  single storey building/structure built in and was in existence  long before 1.1.1995 i.e., the notified date fixed for protected  structures under the Maharashtra Slums Clearance &  Improvement Act, 1971 (hereinafter referred to as "the Slum  Act") and as per the Government Resolution and Notification  issued from time to time.  The said building was assessed for  Municipal Tax prior to 1.1.1995 and in this regard the  assessment was carried out by the Assessment Department of  Navi Mumbai Municipal Corporation.  The said Bill shows that  the assessment was levied from 1994-95 and there was  electric connection in the said building since long.  The area  was constructed under Section 47 of the Slum Act.  The  provisions of Municipal Laws and other laws were not  applicable in respect of the said shops/structures and have to  be governed as per the provisions of the Slum Act.  The  Deputy Engineer, M.I.D.C. Division-II (Respondent No.3  herein) wanted to evict the appellant from the said shop with  ulterior motive and mala fide intention.  Behind the aforesaid  shop/shops (on Turbhe Village Thane-Belapur Highway Road),  there is a Hotel Centre Point.  The said Hotel had no direct  access on the Highway.  Respondent No.3 with a mala fide  intention to give direct access to respondent No.4 from eastern  side of the Hotel i.e., directly on the Highway camouflaged a  notice to demolish the structure on non-existing grounds.  The  said notice did not fulfil the mandatory requirement of at least  30 days notice as required under Section 53(1) of the MRTP  Act.  By the said notice, respondent No.3 without any enquiry  as to whether there was existence of ground under Section  52(1) of MRTP Act, directed the appellant to demolish the  structure/shop.  When the appellant challenged the action of  the official respondent on the basis of the lay out plan (which

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was not shown to them), their writ petition was dismissed by  the High Court.  Review Petition filed by the appellant was also  dismissed on the same grounds.  Meanwhile, on the  application of the 4th respondent-Hotel Centre Point, an order  was passed by the official respondent providing way to the  main Highway after demolishing the shop/shops.  Again the  appellant approached the High Court by way of a writ petition  namely, W.P. No. 864 of 2003.  By order dated 17.2.2003, the  Division Bench of the High Court placing reliance on its earlier  order dated 1.8.2002 passed in W.P. No. 3997 of 2002, order  dated 22.1.2003 passed in Review Petition No. 98 of 2002 and  finding no merit, dismissed the said writ petition,  hence, the  present appeals before this Court. 3)      Heard Dr. Rajiv Dhawan, learned senior counsel  appearing for the appellant and Mr. Shyam Divan, learned  senior counsel appearing for MIDC. 4)      Dr. Rajiv Dhawan, learned senior counsel, for the  appellant made the following contentions: (i)     The MIDC had no basis to demolish the premises of the  appellant. (ii)    Due process requirements under the statues were not  followed by the official respondents. (iii)   There was no application of mind by the MIDC in so far  as: (a)     the appellant was the lawful owner of the premises; (b)     the premises were in a sanctioned layout scheme; (c)     the area was a protected slum area; (iv)    There was no effective hearing granted to the appellant  prior to the demolition which violates the principles of natural  justice.   (v)     The appellant was denied information which formed the  basis of the impugned judgment of the High Court. (vi)    The High Court exceeded its jurisdiction in granting legal  sanction to the authorities to demolish the premises without  an effective hearing, without due notice and without supplying  any information to the appellant. (vii)   The action of the authority favouring 4th respondent- Hotel Centre Point is mala fide one. 5)      Mr. Shyam Divan, learned senior counsel, appearing for  MIDC refuted all the above contentions.  According to him, if it  is a Slum Area, there must be a specific notification, in the  absence of such notification, the claim of the appellant that  their premises lie in Slum Area cannot be accepted.  He denied  the allegation that action was taken at the behest of 4th  respondent-Hotel Centre Point.  He finally contended that the  statutory scheme provides appeal and revision, without  exhausting the same, writ petitions before the High Court are  not maintainable.   6)      We considered the relevant materials and rival  contentions of the learned senior counsel appearing on either  side.  We also perused the orders of the High Court dated  1.8.2002 in Writ Petition No. 3997 of 2002, dated 22.1.2003 in  Review Petition No. 98 of 2002 as well as order dated  17.2.2003 in Writ Petition No. 864 of 2003.  In the first order,  the Division Bench of the High Court, after holding that since  the appellant had encroached upon the road and constructed  a ground, two storeyed structure which is wholly  unauthorized, confirmed the notice issued for demolition and  dismissed the first writ petition.  While considering the review  petition, the Division Bench after perusing the plans provided  by MIDC and finding that the appellants have raised  unauthorized construction on the area demarcated for road  dismissed the same.  When the appellants filed another writ  petition, namely, Writ Petition No. 864 of 2003, the Division  Bench, after noting that earlier orders were passed based on

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the plans produced by the MIDC and of the fact that the  appellant had raised unauthorized construction on the area  demarcated for road, dismissed the said writ petition.  Though  Dr. Rajiv Dhawan, learned senior counsel, appearing for the  appellants took us through various provisions of the MRTP Act  and contended that the official respondents were not justified  in demolishing their structure,  we are not inclined to go into  those aspects in the light of the order to be passed hereunder. 7)      Inasmuch as the main grievance of the appellant was  with regard to the orders passed by the High Court based on  the plans produced by MIDC and the appellant was not aware  of those materials which were relied on by the High Court, we  inclined to remand the matter to the High Court.  Since the  issue relates to demolition of structures and in the light of  assertion of the appellant, we are of the view that ends of  justice would be met by fresh disposal after affording  opportunity to all the parties.  It is made clear that we are not  expressing anything on the stand taken by the appellant as  well as by the respondents including MIDC.  In view of the  same, we set aside the order dated 17.2.2003 passed by the  High Court in W.P. No. 864 of 2003 and restore the said writ  petition on its file.  The High Court is requested to dispose of  the same afresh after affording opportunity to all the parties.   They are at liberty to place their respective claim by way of an  affidavit/counter affidavit supported by documents within a  period of four weeks from the date of receipt of the copy of this  judgment and thereafter it is for the Division Bench of the  High Court to decide the writ petition on merits as early as  possible. 8)      The Civil Appeals are disposed of on the above terms.  No  costs.