Case Note & Summary
The Appellant/Plaintiff, original allottee of shop No.7 situated at building No.14, Bismillah Beef Shop, Hiranandani Akruti, Tata Nagar, Mankhurd(W), Mumbai, filed an Appeal from Order against the impugned order dated 16 May 2013 whereby the learned trial Judge refused to grant ad-interim relief. The Appellant challenged the action of Respondent No.1 (Mumbai Metropolitan Region Development Authority) in sealing the suit premises. There was no dispute that the Plaintiff was the original allottee and in occupation and possession since the date of allotment. As per policy/Regulation, such allottee cannot transfer or create third party rights without permission of Respondent No.1. Based on complaints, Respondent No.1's Officer visited the shop and noted that a third person was using the shop. A show cause notice was given only to the occupier and not to the Plaintiff/original allottee. The occupier appeared and stated that he was doing business on behalf of the Plaintiff pursuant to a Power of Attorney. Admittedly, no separate notice was served upon the original allottee. The Court held that once premises are allotted, any breach requires action in accordance with law. The principle of natural justice and fair opportunity cannot be overlooked while taking such drastic action. The nature of possession of the third person, based on a General Power of Attorney given by the Plaintiff (a senior citizen), cannot be overlooked. Whether such occupation is permissible is a matter of trial, but the sealing action is contrary to law and unsustainable. The Court allowed the appeal, set aside the impugned order, and directed that the seal be removed within two weeks, subject to the Appellant filing an undertaking to abide by the terms of allotment and not to create third party rights without permission.
Headnote
A) Administrative Law - Natural Justice - Show Cause Notice - Sealing of Premises - The action of sealing the suit premises by the development authority without serving any show cause notice upon the original allottee is contrary to law and unsustainable - The principle of natural justice and fair opportunity cannot be overlooked while taking such drastic action even if a third person is in possession of the allotted premises (Paras 2-3).
Issue of Consideration
Whether the action of sealing the suit premises by the Respondent No.1 without serving any show cause notice upon the original allottee (Appellant) is sustainable in law.
Final Decision
Appeal allowed. Impugned order set aside. Respondent No.1 directed to remove the seal of the suit premises within two weeks from the date of the order, subject to the Appellant filing an undertaking to abide by the terms of allotment and not to create third party rights without permission.
Law Points
- Natural justice
- fair opportunity
- show cause notice
- sealing of premises
- allotment conditions
- third party possession
- General Power of Attorney
