Enterprises Vs. Brihanmumbai Municipal Corporation & Ors  INSC 1754
(16 October 2008)
JURISDICTION CIVIL APPEAL NO. 5414 OF 2002 Venus Housing Enterprises .......
Appellant (s) Brihanmumbai Municipal Corporation & Ors....... Respondent
O R D E R
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 2 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.
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).
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 3 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.
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
Corporation in its counter has given detailed reasons as to why it withdrew the
notice after considering the representation/objections filed by respondents 5
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.
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
notice which was wrongly issued had to be withdrawn.
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.
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 6 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.
is, therefore, dismissed.
[R. V. Raveendran]
[Aftab Alam] New Delhi;