Case Note & Summary
The petitioner, Mohd. Sayed Mohd. Salim Nagori Rizvi, a person with 100% hearing disability, filed a writ petition seeking reconstruction of his stall/shop which was allegedly demolished by the Municipal Corporation of Greater Mumbai (BMC) on 16th December 2016 without following due process. The subject premises, admeasuring 9.24 sq. mtrs, was located at Abdul House, John Baptista Road, Bandra (West), Mumbai. The petitioner claimed that his predecessor, Shri Ankush Salgaonkar, had been carrying on business from the premises prior to 1986, and that the BMC had permitted construction and repairs. The petitioner purchased the premises under an Agreement for Sale dated 30th June 2012. The BMC contended that the structure was unauthorized and had been constructed on public land, and that a license under Section 394 of the Mumbai Municipal Corporation Act, 1888 did not authorize the structure. The court examined the legality of the demolition and the validity of clause (v) of the BMC Circular dated 5th October 2015, which stated that a license under Section 394 would not be considered to treat the structure as authorized. The court held that the demolition was illegal as no prior notice was given to the petitioner, violating principles of natural justice. The court also held that the Circular could not override the provisions of the MMC Act and was ultra vires to the extent it contradicted the Act. Considering the petitioner's disability, the court directed the BMC to provide alternate premises of equivalent area in the nearby vicinity within a specified period. The petition was disposed of with these directions.
Headnote
A) Municipal Law - Demolition of Structure - License under Section 394 of MMC Act, 1888 - The court considered whether a license issued under Section 394 of the Mumbai Municipal Corporation Act, 1888 can be treated as authorization for a structure on public land. Held that such a license does not confer any right to occupy public land and the structure remains unauthorized. (Paras 1-27) B) Municipal Law - Natural Justice - Demolition without Notice - The court examined whether demolition of the petitioner's stall without prior notice violated principles of natural justice. Held that the demolition was illegal as no notice was given to the petitioner before the action. (Paras 1-27) C) Municipal Law - Circular - Validity of Clause (v) of Circular dated 5th October, 2015 - The court considered the challenge to clause (v) of the Circular which stated that a license under Section 394 would not be considered to treat the structure as authorized. Held that the Circular cannot override the provisions of the MMC Act and is ultra vires to the extent it contradicts the Act. (Paras 1-27) D) Disability Rights - Special Consideration - Person with 100% Hearing Disability - The court considered the petitioner's disability and the need for special consideration. Held that the petitioner, being a person with disability, is entitled to sympathetic consideration and the respondents should provide alternate premises. (Paras 1-27)
Issue of Consideration
Whether the demolition of the petitioner's stall without prior notice was illegal, and whether the petitioner is entitled to reconstruction or alternate premises.
Final Decision
The court held that the demolition was illegal for want of notice. The court directed the BMC to provide alternate premises of equivalent area in the nearby vicinity to the petitioner within a specified period. The petition was disposed of accordingly.
Law Points
- License under Section 394 of MMC Act does not confer right to occupy public land
- Demolition without notice violates natural justice
- Circular cannot override statutory provisions
- Person with disability entitled to special consideration
