Abdul Rashid Khan Vs. Brihanmumbai Mahanagar Palika, - Court Judgment

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property - unauthorised structure - compulsory open space - prior permission - section 3(sb), 351 of mumbai municipal corporation act, 1888 - section 55 of maharashtra regional town planning act, 1966 (m.r.t.p. act) - article 226 of constitution of india - notice under section 55 of m.r.t.p act issued to appellant/petitioner in respect of unauthorized construction - writ petition filed by appellant dismissed - appellant contended suit construction neither unauthorized nor of temporary nature but constructed of bricks and rcc structure - respondent contended unauthorized construction carried out in compulsory open space on ground floor and common notice issued to secretary and chairman of the society as well pasted on conspicuous part of each of the structures - writ petition was dismissed - hence, present appeals - held, appellants failed to produce even a single document to show that they obtained any permission from competent authority for constructing suit premises or they were authorized to carry out the said construction in compulsory open space - construction carried out in compulsory open space without obtaining prior permission from competent authority cannot be tolerated as per provisions of bombay municipal corporation act and the maharashtra regional town planning act, 1966 - appeals dismissed - section 34: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the act bombay court fees act (36 of 1959), schedule i, article 3, schedule ii, article 1(f)(iii) held, according to article 3 of schedule i, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under article 1. thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. but from this requirement of payment of court fee on ad valorem basis, article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue court challenging any award made under the arbitration act, 1940.thus, the provisions of article 3 of schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the arbitration act, 1940. thus the provisions of article 3 of schedule i do not apply when an application is filed challenging an award made under the arbitration act, 1940. the question, therefore, that arises for consideration is whether reference to the provisions of 1940 act found in article 3 of schedule i of the bombay court fees act can be said to include reference to the 1996 act. perusal of the provisions of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted. in the present case, it is common ground that the former enactment is the 1940 act, the new enactment is the 1996 act and any other enactment is the bombay court fees act, the only provision of the 1940 act referred to in article 3 of schedule 1 of the bombay court fees act is the provisions of section 33 of the 1940act and bare comparison of that provision with the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification. therefore, reference to the provisions of section 33 of the 1940 act in article 3 of schedule-i of the bombay court fees act has to be construed, in view of the provisions of section 8 of the general clauses act, as reference to the provisions of section 34 of the 1996 act. so far as an appeal filed under section 37 of the 1996 act is concerned, perusal of section 37 shows that an appeal is provided to the appellate court against an order setting aside an arbitral award or refusing to set aside an arbitral award under section 34. thus, as the provisions of article 3 of schedule-i do not apply to an application or petition filed under section 34 of the 1996 act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the arbitrator under the 1996 act. in other words nothing contained in article 3 of schedule-i of the bombay court fees act applies to an application, petition or memorandum of appeal to set aside or modify any award made under the 1996 act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an award made under the arbitration act, 1940. perusal of the provisions of section 8 of the general clauses act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. the different intention may appear either in the new enactment or in the other enactment. nothing was pointed out either in the 1996 act or in the bombay court fees act which can be construed as a different intention or which will show that it was not the intention of the maharashtra legislature to exclude an application or petition or memorandum of appeal filed in court to set aside or modify an award made under the 1996 act, from the provisions of article 3 of schedule-i of the bombay court fees act. it appears that the intention behind excluding an application made, challenging the award made under the 1940 act, from requirement of payment of ad valorem court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. nothing has been pointed out to show that ther4e is any change in that legislative policy. on the contrary, from the preamble of the 1996 act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. article 3 of schedule-i of the bombay court fees act does not apply to a petition, application or memorandum of appeal filed for challenging an award made under the 1996 act, and court fee on a petition filed under section 34 of the 1996 act challenging an award in high court is payable according to article 1(f)(iii) of schedule ii. section 37: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. schedule i, article 3 & schedule ii, article 1(f)(iii): [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the arbitration & conciliation act, 1996 - held, when a petition under section 34 is to be filed before a principal civil court of original jurisdiction which is not a high court, the question arises which article of either first schedule or second schedule would apply. in so far as the challenge to an award made under the 1940 act is concerned, an application under section 33 of that act could be made to a civil court and therefore, payment of court fee was governed by article 1(a) of schedule ii. this was so because the application was to be presented to the court of civil judge which was not a principal civil court of original jurisdiction. but now because of change of definition of term court in the 1996 act, a petition has to be presented, challenging an award made under the 1996 act in terms of the provisions of section 34 thereof, before the principal civil court of original jurisdiction. no entry either in the first schedule or in the second schedule was pointed out which applies to an application or petition to be made before the principal civil court of original jurisdiction, and therefore, when a litigant wants to file petition before a principal civil court having original jurisdiction which is not high court, challenging an award made under the 1996 act, no court fee under bombay court fees act is payable because of absence of a general or specific provision. therefore, it can be said that no court fee under the bombay court fees act is payable when a petition under section 34 challenging an award is filed before any principal civil court of original jurisdiction which is not high court. schedule ii, article 13: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. - the learned senior counsel further submitted that both the repair permission as well as the section 351 notice demonstrate the fact that the said structure was firstly permanent in nature and secondly, was a duly authorized and legal structure upto a height of 15 ft. by oral order dated 22.8.2007 held that the plaintiff in those cases have failed to make out any prima facie case to show that the construction in question is legal or authorized or that the notice issued by the municipal corporation of greater mumbai under section 55 of m. sooner the encroachment is removed when sighted, better would be the facilities or convenience for passing or repassing of the pedestrians on the pavements or footpaths facilitating free flow of regulated traffic on the road or use of public places. on the other hand, if the corporation allows settlement of encroachers for a long time for reasons best known to them, and reasons are not far to seek, then necessarily a modicum of reasonable notice for removal, say two weeks or 10 days, and personal service on the encroachers or substituted service by fixing notice on the property is necessary. 11. after hearing all the parties at length, it is clear that the appellants failed to produce even a single document to show that they have obtained any permission from the competent authority for constructing the suit premises. the appellants also failed to produce even a single document to show that they were authorized to carry out the said construction in compulsory open space.k.k. tated, j.1. in the present appeals, the appellants-original petitioners challenge common order dated 4.8.2008 passed by the single judge dismissing the appellant's writ petition. the appellant-original petitioner filed writ petition under article 226 of the constitution of india challenging notice under section 55 of the maharashtra regional town planning act, 1966 hereinafter referred to as m.r.t.p. act (for brevity sake) issued by the assistant commissioner, h/east municipal corporation, greater mumbai in respect of unauthorized construction being adjacent to the building no. 1, tata colony, b.k. road, bandra (e), mumbai-51. it is the case of the appellant that he is in possession of the suit premises for the last several years and not only that municipal corporation granted them permission to repair the said suit construction. it is the case of the appellant that the suit construction is not of a temporary nature but the same is constructed of bricks and rcc structure. it is the case of the appellant that previously the respondent issued notice to the secretary of building no. 1. the said notice was challenged in bombay city civil court by instituting the suit. in the said suit, bombay city civil court refused to grant any relief and therefore the appeal from order was preferred in this hon'ble court being appeal from order no. 145 of 2008 with civil application no. 184 of 2008. the said matter is decided by this hon'ble court by order dated 18.2.2008 holding that the occupants of the alleged unauthorized construction should be issued notice under m.r.t.p. act and in view of that this hon'ble court allowed the appeal from order no. 145 of 2008. at the time of allowing the said appeal from order, this hon'ble court made it clear that the said order will not prevent municipal corporation to take action by following due process of law. thereafter, the appellant received notice under section 55 of mrtp act from bombay municipal corporation. it is the case of the appellant that in the notice under section 55 of mrtp act, the corporation nowhere explained how the so called structure is of temporary nature. the learned senior counsel appearing on behalf of the appellant took us through section 55 of the mrtp act, 1966 and pointed out that the said section requires that corporation should have issued notice under section 55 of the mrtp act, 1966. it is the contention of the appellant that the notice issued by the respondent under section 55 is not as per law as the same does not disclose and point out how the structure could be called a structure of temporary nature.2. the learned senior counsel appearing on behalf of the appellant submitted that on 10th july, 1991, a notice was issued to the predecessor-in-title of the suit property under section 351 of the mumbai municipal corporation act alleging that they had carried out brick and masonary work exceeding 15 feet without obtaining a permission and calling upon the said predecessor-in-title to show cause as to why the said extension of brick and masonary work beyond 15 ft. should not be pulled down. he further submitted that pursuant to the said notice dated 10th april, 1991, the predecessor-in-title complied with the requisitions and actually pulled down the extension of brick and masonary work beyond 15 ft. in respect of the suit structure. the learned senior counsel further submitted that both the repair permission as well as the section 351 notice demonstrate the fact that the said structure was firstly permanent in nature and secondly, was a duly authorized and legal structure upto a height of 15 ft. the learned counsel further submitted that the respondents have not issued notices in respect of shop no. 1, which was owned by shri bajirao thorat and that the notices are in respect of the structure surrounding shop no. 1 which appears to have been transferred by shri bajirao thorat through some intermediary to the appellant. the learned senior counsel appearing on behalf of the appellant submitted that section 55 of m.r.t.p. act can be invoked only in respect of cases of unauthorized and temporary developments. he further submitted that the structure belonging to the appellant are neither unauthorized nor temporary in nature.3. the respondent-municipal corporation filed their affidavit in reply before the single judge and pointed out that the appellant carried out unauthorized construction in compulsory open space in front of the premises in their possession on the ground floor. paragraph 4 of the affidavit in reply dated 7.7.2008 filed by sanjay vijay pradhan on behalf of municipal corporation reads as under :4) i say that notice was issued to the secretary and chairman of the society and also to other occupants who had made unauthorized construction in tata colony. i say that there are in all 21 building and most of the occupants on the ground floor who have carried out unauthorized construction in the compulsory open space in front of the premises in their possession on the ground floor. i say that therefore, one common notice u/s 55 of m.r.t.p. act was issued to the secretary and chairman of the society, as also copy of the notice was pasted on conspicuous part of each of the structures in respect of notice. i crave leave to refer to and rely upon the said notice as and when produced.4. it is the case of the respondent corporation that as the structure has been put up in compulsory open space, it cannot be considered for regularization. learned senior counsel appearing on behalf of corporation pointed out section 3(sb) of the mumbai municipal corporation act, 1888. the definition of temporary building as per section 3(sb) of the mumbai municipal corporation act, 1888 reads as under:section 3(sb). 'temporary building' means any building which is constructed principally of mud, leaves, grass, cloth, thatch, wood, corrugated iron or asbestos cement sheets or such other material and includes a building of whatever size constructed of whatever material which the commissioner has allowed to be built as a temporary measure;5. it is the contention of learned senior counsel appearing on behalf of mumbai municipal corporation that temporary building includes the construction carried out using the corrugated iron or asbestos cement concrete or such other material. in view of that the structure of temporary nature constructed in compulsory open space of a building cannot be tolerated from any point of view.6. it is the submission of the learned advocate general appearing on behalf of respondent no. 3 that as the structure is constructed without any permission from the competent authority and is constructed in compulsory open space and, therefore, it cannot be tolerated at all. it is the contention of the learned advocate general that authority rightly issued notice under section 55 of the m.r.t.p. act, 1966 for removing the said structure. he pointed out that in similarly situated structures, this hon'ble court in appeal from order no. 630 of 2007 in notice of motion no. 2423 of 2007 in l.c. suit no. 2619 of 2007 babbar sher khan v. municipal corporation of brihanmumbai and ors. by oral order dated 22.8.2007 held that the plaintiff in those cases have failed to make out any prima facie case to show that the construction in question is legal or authorized or that the notice issued by the municipal corporation of greater mumbai under section 55 of m.r.t.p. act is not legal and valid.7. the learned advocate general appearing on behalf of the respondent no. 3 pointed out that shri. babbar sher khan filed the suit in city civil court bearing suit no. 2619 of 2007 challenging the notice under section 55 of the m.r.t.p. act. the said notice of motion no. 2423 of 2007 in the said suit was dismissed by the trial court by its order dated 1st august, 2007. the plaintiff in the said suit preferred an appeal against the said order dated 1st august, 2007 by filing an appeal from order bearing a.o.no.630 of 2007 which also came to be dismissed by the high court by its order and judgment dated 22nd august, 2007. he pointed out that this hon'ble high court in a.o.no.630 of 2007 has upheld the issuance of notice under section 55 of the m.r.t.p. act, estops the appellant from contending that the structure is authorized and/or is permanent nature. the learned advocate general submitted that in view of the provisions of section 55(2) of the m.r.t.p. act 'decision of the planning authority on the question of what is development of a temporary nature is final and the same cannot be challenged by filing suit as the same is not permitted by section-149 of the m.r.t.p. act'. he also canvassed before us that appellant have carried out the construction unauthorizedly around the original tenements and on a land which was in fact required to be kept open compulsorily. he also submitted that such unauthorized construction are in fact, creating great nuisance and hurdles in management of the property and providing basic civic amenities.8. the learned advocate general also relied on the apex court decision in the matter of ahmedabad municipal corporation v. nawab khan gulab khan and ors. reported in : air1997sc152 to show that removal of encroachment needs urgent action. if it is older than two weeks or 10 days, notice for removal of the unauthorized construction is sufficient. the learned advocate general relied on para 10 of the said judgment, which reads as under:10. the constitution does not put an absolute embargo on the deprivation of life or personal liberty but such a deprivation must be according to the procedure, in the given circumstances, fair and reasonable. to become fair, just and reasonable, it would not be enough that the procedure prescribed in law is a formality. it must be pragmatic and realistic to meet the given fact-situation. no inflexible rule of hearing and due application of mind can be insisted upon in every or all cases. each case depends upon its own backdrop. the removal of encroachment needs urgent action. but in this behalf what requires to be done by the competent authority is to ensure constant vigil on encroachment needs urgent action. but in this behalf what requires to be done by the competent authority is to ensure constant vigil on encroachment of the public places. sooner the encroachment is removed when sighted, better would be the facilities or convenience for passing or repassing of the pedestrians on the pavements or footpaths facilitating free flow of regulated traffic on the road or use of public places. on the contrary, the longer the delay, the greater will be the danger of permitting the encroachers claiming semblance of right to obstruct removal of the encroachment. if the encroachment is of a recent origin the need to follow the procedure of principle of natural justice could be obviated in that no one has a right to encroach upon the public property and claim the procedure of opportunity of hearing which would be a tedious and time-consuming process leading to putting a premium for high-handed and unauthorised acts of encroachment and unlawful squatting. on the other hand, if the corporation allows settlement of encroachers for a long time for reasons best known to them, and reasons are not far to seek, then necessarily a modicum of reasonable notice for removal, say two weeks or 10 days, and personal service on the encroachers or substituted service by fixing notice on the property is necessary. if the encroachment is not removed within the specified time, the competent authority would be at liberty to have it removed. that would meet the fairness of procedure and principle of giving opportunity to remove the encroachment voluntarily by the encroachers. on their resistance, necessarily appropriate and reasonable force can be used to have the encroachment removed. thus considered, we hold that the action taken by the appellant-corporation is not violative of the principle of natural justice.9. the learned advocate general appearing on behalf of respondent no. 3 pointed out that the vires of section 55 of the m.r.t.p. act, 1966 came to be challenged in writ petition no. 51 of 2008 in the case of fehmida abubakar varakaya v. the state of maharashtra and ors. before this hon'ble court at that time the division bench by order dated 4.9.2008 dismissed the said writ petition holding that:on bare reading of section 55, it is quite clear that the party is given 15 days notice to meet the case of the local planning authority on being served with the notice under section 55 as it specifically provided that if such a notice is served, the party should remove his unauthorized construction within 15 days of the receipt of notice and if thereafter the parties does not comply with the notice within the said period, the planning authority may request the district magistrate or the commissioner of police, as the case may be, without any notice as directed in the notice. therefore, we do not find that section 55 of the mrtp act when read in isolation or in conjunction with other provisions can be held to be ultra vires as within 15 days period the person who is served with such notice can always approach the competent authority (planning authority) and establish that the said construction is authorised.10. considering these facts, we agree with the submissions made by learned advocate general as above.11. after hearing all the parties at length, it is clear that the appellants failed to produce even a single document to show that they have obtained any permission from the competent authority for constructing the suit premises. the appellants also failed to produce even a single document to show that they were authorized to carry out the said construction in compulsory open space. if the construction is carried out in compulsory open space without obtaining any prior permission from the competent authority, the same cannot be tolerated as per provisions of bombay municipal corporation act and the maharashtra regional town planning act, 1966.12. considering these facts, we feel that there is no merit in the present appeals preferred by the appellants and the same deserve to be dismissed. hence, the following order:order(a) appeals preferred by the appellants against the common order dated 4.8.2008 passed by the single judge, are dismissed with costs.