AI Structured Summary
Not yet generated for this judgment
Judgment
M.G. Chaudhari, J.—Admit. Notice waived. By consent appeal taken on board for final orders.
The Deputy Municipal Commissioner, Zone IV by order, dated 25-5-1991 in proceeding arising out of original notice issued u/s 351 Bombay Municipal Corporation Act by the Corporation to the appellants dated 11.7.1986 gave the following directions :
The plaintiff is directed to put up a proposal to regularise the stair case, electric cabin and servants'' toilet to the Executive Engineer (Bldg. Proposal) Western Suburbs within a fortnight without fail. The E.E. (B.P.) W.S. will work out the premium/penalty as approved by the Ch. E. (D.P.) and communicate to the party within one month. The action u/s 351 of the B. M.C. Act is dropped subject to the payment of the premium/penalty by the party within 15 days from the date of demand from the E.E. (B.P.) W.S.
Thereafter on 14.6.1993 the appellants received a letter-cum-notice, from the office of the Deputy Municipal Commissioner, Zone IV that the hearing in the matter Is fixed in the chamber of D.M.C. on 26-6-1993 and the appellants were called upon to remain present along with all the relevant proofs and documents. A copy of that communication was also sent to the present Respondent No. 2 The contents of the said letter cum notice have to be understood by reference to the subject mentioned there in as - "Unauthorised construction of mezzanine floor-L.C. Suit No. 820/89. That on the face of it gives the impression that the hearing was proposed to be held in connection with the original notice issued u/s 351 of the Bombay Municipal Corporation Act dated 11.7.1986.
Apprehending that by reopening the notice, the Corporation was trying to give a go-by to the regularisation contemplated by the order of the D.M.C. dated 21.5.1991, the appellants instituted the suit out of which this appeal arises in the City Civil Court, Bombay being suit No. 3421 of 1993. By a notice of motion they applied for ad-interim reliefs for restraining the D.M.C. Zone IV from conducting the hearing in pursuance of the letter dated 14.6.1993.
The learned Judge of the City Civil Court declined to grant ad-interim relief by order, dated 6-7-1993. The instant appeal is filed against that order.
After hearing the learned Counsel, I am of the opinion that prima facie the letter, dated 14-6-1993 gives the impression that the hearing was to be given to show cause in answer to the original notice u/s 35 ] of the Act and it does not indicate that before proceeding to deal with that matter the question will be considered as to whether the regularisation as contemplated by the order, dated 21.5.1991 in respect of stair case, servants'' toilet and electric cabin has been granted or not and whether consequently the order dropping the action u/s 351 B. M. C. Act became operative or not or whether it is necessary to give opportunity to the appellants to show that the direction contained in the order, dated 21.5.1991 have been complied with or can be complied with and it has become final.
Mr. Pandit, the learned Counsel for the Corporation submitted that it is implicit that at the hearing all the relevant circumstances including the compliance or otherwise and the effect of the order, dated 21.5.1991 will be duly taken into account by D.M.C. and that being entirely within his jurisdiction, the letter did not afford any cause of action to the appellants to file the suit and they are not entitled to any relief.
I find it difficult to agree with this submission because the notice dated 14-6-1993 atleast does not give that impression on reading it but it gives an impression that appellants are required to show cause against the original notice issued u/s 351 of the Act. In the circumstances, following order is passed :
(i) At the hearing to be held by D.M.C. Zone IV in pursuance of the letter/notice, dated 14-6-1993 the D.M.C. shall in the first instance decide by reference to order, dated 21-5-1991 whether there has been compliance on the part of the appellants in submitting regular proposal for regularisation of the stair case, electric cabin and servants'' toilet to the Executive Engineer (Building Proposal) within the time specified.
(ii) Thereafter he will determine whether the E.E. has worked out the amount of premium/penalty depending upon the regular proposal having been received and whether demand for payment of that amount is served upon the appellants.
(iii) The D.M.C. will next decide whether the regularisation proposal, determination of penalty and/or issuance of demand notice could not take place owing to reasons for which the appellants could not be held responsible if so far there is no compliance and whether further time should be granted for that purpose.
(iv) After considering the aforesaid points, the D.M.C. will determine whether the action shall be deemed to have stood dropped and regularisation granted in terms of the order, dated 21.5.1991.
(v) If in the light of the conclusion on the aforesaid points, the D.M.C. still holds that the action stood revived for want of regularisation for default in taking steps as contemplated by order, dated 21.5.1991, he may give an opportunity of showing cause to the appellants on merits in answer to the original notice u/s 351 of the Act if the appellants so desire.
(vi) After completing the hearing the D.M.C. will pass a speaking order and could there be any order made adversely to the appellants the said order shall not be given effect to for a period of six weeks from the date on which the copy of the order is supplied to the appellants.
(vii) The appellants will be at liberty to take appropriate steps in accordance with the law including filing fresh suit in the event of an adverse order being passed against them.
The appeal is disposed of in above terms.
No order as to costs.
Civil Application No. 3253 of 1993 disposed of with no order thereon.
Mr. Zaiwala, states that in view of this order, the appellants will withdraw the suit in the City Civil Court.