IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 5414 OF 2002

Venus Housing Enterprises      ……. Appellant (s) Vs. Brihanmumbai Municipal Corporation & Ors.…… Respondent (s)  

O R D E R

The appellant claims to be the owner of final Plot No.874  of  Town  Planning  Scheme  No.IV,  Mahim,  Mumbai (hereinafter ‘the Scheme’, for short). Respondents 5 to 7 (for  short  ‘tenants’)  are  the  tenants  in  regard  to structure no.1 therein. The said plot no.874 facing Prabha Devi Road (later S.K. Bole Marg) on the one side and Cadell Road  (later  Veer  Savarkar  Marg)  on  the  other  side  was earmarked for residential use in the said Scheme which came into force on 15.8.1963. The Asst. Engineer, Town Planning, Municipal Corporation for Greater Bombay (‘the Corporation’ for short) issued a show-cause notice dated 9.8.1990 under section  89  read  with  section  165  of  the  Maharashtra

Regional and Town Planning Act, 1966 (‘the Act’, for short) to the tenants calling upon them to show cause why they should  not  be  evicted  from  the  said  structure  in enforcement  of  the  said  Scheme.  The  said  notice  alleged that final plot no.874 was being put to non-conforming use in  contravention  of  Regulation  No.25  of  the  Regulations controlling  the  development  of  the  area  covered  by  the above final Scheme. The tenants showed cause in reply. They also filed a suit challenging the said notice. The interim prayer sought by them was rejected by the trial court, but on appeal, was granted by the High Court and confirmed by this Court.  

2. On 10.4.2000, the Corporation withdrew the said show- cause notice in view of an undertaking submitted by the said respondents to withdraw the suit (Suit No.7011 of 1990 filed by them pending in the City Civil Court, Bombay).  

3. Feeling  aggrieved,  the  appellant-landlord  of  the premises  filed  WP  No.1511  of  2000  for  quashing  the withdrawal letter dated 10.4.2000 and seeking a direction to the Corporation to forthwith implement the Scheme and the Regulations and for certain consequential reliefs. The High Court examined the matter, found that withdrawal of

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show-cause notice was proper and not open to challenge and consequently, dismissed the writ petition by order dated 25.6.2001. The said order is challenged in this appeal by special leave.  

4. Learned counsel for the appellant submitted that the tenants (respondents  5 to 7) were using the premises for running a showroom dealing in electrical appliances, for repairing  air-conditioners  and  for  charging  batteries, which  amounted  to  commercial/industrial  use;  that  having regard to clause 25 of the said Scheme, the non-conforming use of any premises under the Scheme could continue only for a period of 16 years from the date on which the final Scheme came into force, and therefore, from 15.8.1979, the non-conforming user had to be discontinued; and that if the non-conforming  use  was  continued  thereafter  it  would  be illegal and constitute an offence punishable under the Act and  it  was  the  duty  of  the  Planning  Authority  to  take action  for  demolition  under  section  90;  and  that  the Corporation  having  taken  such  action  for  the  continued violation by respondents 5 to 7 by issuing the show cause notice, ought not to have withdrawn the said notice.  

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5. The  Corporation  in  its  counter  has  given  detailed reasons as to why it withdrew the notice after considering the representation/objections filed by respondents 5 to 7. The High Court has also referred to the said reasons in detail. It is sufficient to refer to some of them :  

(a) The Scheme, vide clause 1(O) provides that subject to  the  marginal  open  spaces  prescribed  under  the Regulations,  shops  will  be  permitted  along  the frontage of plots enumerated in Appendix ‘B’ to the Scheme and the frontage of plots abutting the 18 roads enumerated therein. Appendix ‘B’ to the Scheme which lists final plots along the frontage of which shops are allowed, includes Final Plot No.874. The portion in the occupation of respondents 5 to 7 is situated along the frontage of Plot No.874 and thus use thereof as a shop is not an non-conforming user.

(b) Section 89 of the Act refers to summary eviction of any person who continues to occupy any land which he is not entitled to occupy under the final Scheme. Admittedly,  respondents  5  to  7  are  not  in unauthorized  occupation  of  any  land.  Therefore, section 89 would not apply. As the show-cause notice was issued only under section 89 and not under any other provision, the same had to be withdrawn.  

(c) The show-cause notice clearly specified that it was issued  in  pursuance  of  an  order  of  the  Minister which required show-cause notice to be issued only in regard to another structure in Final Plot NO.874 in the occupation of M/s Parmy Manufactory Pvt. Ltd. The  Minister’s  order  did  not  relate  to  structure no.1 which was in the occupation of respondents 5 to 7. Consequently, the notice which was wrongly issued had to be withdrawn.  

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6. Learned counsel for the appellant contend that clause 1(o) of the Scheme permitted shops only in regard to plots facing  a  portion  of  Cadell  Road  (Veer  Savarkar  Marg) between Sayani Road and Dr. Annie Besant Road. According to him, Plot No.874 did not fall between Sayani Road and Dr. Annie Besant Road and therefore, shops were not permitted in  regard  to  Plot  No.874.  Learned  counsel  for  the Corporation and learned counsel appearing for respondents 5 to 7 rightly submitted that clause 1(o) read with Appendix ‘B’ made it clear that along the frontage of Plot No.874 shops were in fact permitted and as Plot No.874 faced two roads i.e. S. K. Bole Marg and Veer Savarkar Marg, shops were  in  fact  permitted  along  the  frontage  on  both  the roads. The High Court has also examined this contention and recorded a finding of fact that there is no restriction in regard  to  existence  of  shops  on  the  frontage  of  Plot No.874.  

7. Some contentions were urged by the appellant in regard to the interpretation of clauses 25 and 28 of the Scheme. Respondents 5 to 7 also contended that the landlord should not be permitted to file a writ petition to challenge the withdrawal of a notice issued in regard to its premises, and thereby use the show-cause notice as a mode of trying

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to evict a tenant thereby circumventing the laws relating to eviction. It is unnecessary to examine these contentions in  this  case.  We  are  satisfied  that  on  the  facts  and circumstances, the High Court has considered the reasons given  by  the  Corporation  for  withdrawing  the  show-cause notice and found that the withdrawal was neither arbitrary, nor  discriminatory,  nor  motivated.  We  find  that  the reasoning  given  does  not  suffer  from  any  infirmity  and, therefore,  there  is  no  ground  to  interfere  with  the withdrawal of the notice.  

8. Appeal is, therefore, dismissed.  

……………….……………………………..J [R. V. Raveendran]

…………….……………………………..J [Aftab Alam]

New Delhi;  October 16, 2008.  

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