Case Note & Summary
The petitioner, Milind Dattatreya Sugavkar, a practicing advocate, filed a writ petition challenging a notice issued by the Municipal Corporation of Greater Mumbai under Section 351 of the Bombay Municipal Corporation Act, 1888, calling upon him to demolish an alleged unauthorized structure (front portion of hall admeasuring 12x4x9.6) on the ground floor of Flat No.1 in Shri Sai Niketan CHS Ltd. The petitioner's brother was the member of the society and the flat stood in his name. The petitioner contended that he was not the owner or occupier of the flat and that the notice was wrongly issued to him. The court examined the provisions of Section 351, which requires notice to be served on the person in occupation or the owner. Since the petitioner's brother was the member and the flat was in his name, the notice to the petitioner was invalid. The court also noted that respondent 2, the secretary of the society, was impleaded without any cause of action. The court allowed the petition, quashed the notice, and made the rule absolute with no order as to costs.
Headnote
A) Municipal Law - Section 351 of the Bombay Municipal Corporation Act, 1888 - Notice to demolish unauthorized structure - The court considered whether the petitioner, who is a member of the cooperative society but not the owner or occupier of the flat, could be served with a notice under Section 351. The court held that the notice must be served on the person in occupation or the owner, and since the petitioner's brother was the member and the flat was in his name, the notice to the petitioner was invalid. (Paras 1-5) B) Cooperative Housing Society - Liability of member for unauthorized construction - The court examined whether the petitioner, as a member of the society, could be held responsible for the alleged unauthorized construction in a flat owned by his brother. The court held that the petitioner cannot be held liable without being the owner or occupier, and the society's secretary cannot be impleaded as a respondent without proper cause. (Paras 3-5) C) Natural Justice - Opportunity of hearing - The court emphasized that before issuing a demolition notice, the authority must give an opportunity of hearing to the person concerned. Since the petitioner was not the owner or occupier, the notice was quashed. (Paras 4-5)
Issue of Consideration
Whether a notice under Section 351 of the Bombay Municipal Corporation Act, 1888, can be issued to a person who is not the owner or occupier of the property, and whether the petitioner, being a member of the cooperative society, is liable for the alleged unauthorized construction without being given an opportunity of hearing.
Final Decision
The petition is allowed. The notice dated 20th July, 2005, issued by the Municipal Corporation of Greater Mumbai under Section 351 of the Bombay Municipal Corporation Act, 1888, is quashed. Rule is made absolute. No order as to costs.
Law Points
- Section 351 of the Bombay Municipal Corporation Act
- 1888
- Notice to person in occupation
- Unauthorized construction
- Liability of member of cooperative society
- Natural justice
