Case Note & Summary
The petitioners, who are tenants of various shops in a building owned by the respondent no. 3 (since deceased), challenged a notice dated 05.03.2021 issued by the Nagpur Municipal Corporation under Section 264(1) of the Maharashtra Municipal Corporations Act, 1949. The notice directed the owner to remove alleged unauthorized construction within seven days, failing which the corporation would demolish it at the owner's cost. The petitioners contended that the notice was not served on them, and they were not given any opportunity of hearing before the demolition order. They argued that they are in lawful possession of the shops and would be directly affected by the demolition. The respondents, including the corporation and the legal heirs of the owner, opposed the petition, stating that the construction was unauthorized and the notice was validly served on the owner. The court examined the provisions of Section 264(1) of the Act, which empowers the commissioner to require removal of unauthorized construction but mandates that notice be given to the person responsible. The court held that the term 'person responsible' includes not only the owner but also any occupant in possession. Since the petitioners were tenants in occupation, they were entitled to notice and an opportunity to be heard. The court found that the notice was served only on the owner and not on the tenants, thereby violating principles of natural justice. Consequently, the court quashed the notice and directed the corporation to issue a fresh notice to all occupants, including the petitioners, after giving them a reasonable opportunity to show cause. The court also directed that no coercive action be taken until the fresh notice is disposed of. The petition was allowed with no order as to costs.
Headnote
A) Municipal Law - Demolition Notice - Principles of Natural Justice - Section 264(1) Maharashtra Municipal Corporations Act, 1949 - The petitioners, tenants of the property, challenged a demolition notice issued by the Nagpur Municipal Corporation under Section 264(1) of the Act. The notice was served only on the owner and not on the tenants. The court held that the notice must be served on all persons in occupation, as they are likely to be affected by the demolition. Failure to do so violates principles of natural justice. The court quashed the notice and directed the corporation to issue fresh notice to all occupants. (Paras 2-5) B) Municipal Law - Unauthorized Construction - Right of Tenants - Section 264(1) Maharashtra Municipal Corporations Act, 1949 - The court observed that the tenants have a right to be heard before any demolition order is passed, as they are in possession and would suffer loss of business and property. The notice must specify the nature of unauthorized construction and give an opportunity to show cause. (Paras 3-5)
Issue of Consideration
Whether a notice issued under Section 264(1) of the Maharashtra Municipal Corporations Act, 1949 for demolition of alleged unauthorized construction is valid when it was not served upon the occupants/tenants of the property.
Final Decision
The writ petition is allowed. The notice dated 05.03.2021 is quashed. The Nagpur Municipal Corporation is directed to issue a fresh notice to all occupants, including the petitioners, after giving them a reasonable opportunity to show cause. No coercive action shall be taken until the fresh notice is disposed of. Rule made absolute. No order as to costs.
Law Points
- Principles of natural justice
- Right to be heard
- Section 264(1) Maharashtra Municipal Corporations Act
- 1949
- Notice to occupants
- Demolition of unauthorized construction
