Omprakash Sawalram Agrawal vs The Nagpur Municipal Corporation

WRIT PETITION NOS. 4564, 4565, 4650, 4651, 4975, 4976,

4977, 4978, 4979, 4980, 4981, 4982, 4983, 4985, 4986, 4990, 4991, 4992, 4993, 5300, 5301 & 5631 OF 2007.

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(1) WRIT PETITION No. 4564/2007

1.Omprakash Sawalram Agrawal,

aged about 50 years, Occ.: Business, r/o Corporation Chawl, Sitabuldi Super Market. Nagpur.

2.Uttam Hajarilal Chawariya, aged about 39 years, Occ.: Business,

r/o Corporation Chawl, Sitabuldi Super Market. Nagpur

3.Hiralal Jiwanlal Sawal aged about 68 years, Occ.: Business,

r/o Corporation Chawl, Sitabuldi Super Market. Nagpur.

4.Indrachand Banwarilal Agrawal (Mehadia), aged about 62 years, Occ.: Business,

r/o Corporation Chawl, Sitabuldi Super Market. Nagpur.

5.Venichand Premchand Dhruv, aged about 68 years, Occ.: Business, r/o Corporation Chawl, Sitabuldi Super Market.

6.Vasantchand Premchand Dhruva, aged about 58 years, Occ.: Business, r/o Corporation Chawl, Sitabuldi Super Market.

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7.Suvarna Kau Marras, aged about 42 years, Occ.: Business,

r/o Corporation Chawl, Sitabuldi Super Market. Nagpur.

8.Shyamlal Zanaklal Chawariya through Prop. Smt. Nirmala Shyamlal Chawariya,

aged about 62 years, Occ.: Business, r/o Corporation Chawl, Sitabuldi Super Market. Nagpur.

9.Purshottam s/o Hajarilal Chouria

aged about 33 years, Occ.: Business, r/o Corporation Chawl, Sitabuldi Super Market. Nagpur

10. Hajarilal Zanaklal Chouria,

aged about 63 years, Occ.: Business, r/o Corporation Chawl, Sitabuldi Super Market. Nagpur

11.Dinesh Mulchand Bhaiya,

aged about 37 years, Occ.: Business, r/o Corporation Chawl,

Sitabuldi Super Market. Nagpur.

12.Shri Fazalbhai Badruddin, aged about 79 years, Occ.: Business, c/o Shop No.1

Super Market, Temple Bazar, New Chawl, Sitabuldi. Nagpur.

13.Jugal Kishore s/o Radhakisan Chandak aged about 63 years, Occ.: Business, c/o Shop No.1 Super Market, Temple Bazar, New Chawl,

Sitabuldi. Nagpur.

14.Smt. Gayatridevi Gulabchand Gupta aged about 54 years, Occ.: Business, c/o Shop No.1 Super Market, Temple Bazar, New Chawl, Sitabuldi. Nagpur.

15.Amrutlal Jiwanlal Sawal aged about 57 years, Occ.: Business, c/o Shop No.1 Super Market, Temple Bazar, New Chawl, Sitabuldi. Nagpur. ... PETITIONERS.

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VERSUS

1. The Nagpur Municipal Corporation, through its Commissioner, Civil Lines, Nagpur.

2. The Additional Municipal Commissioner, Civil Lines, Nagpur.

3. The Market Superintendent, Nagpur Municipal Corporation,

Civil Lines, Nagpur. ... RESPONDENTS.

..... Mr. Masood Shareef Advocate for the Petitioners. Mr. S.M. Puranik Advocate for Respondents.

.............

(2) WRIT PETITION No. 4565/2007

Maharashtra State Cooperative Consumers

Federation Limited, having its House at Super Market, Sitabuldi, Nagpur through' its Divisional Manager Shri Babarao s/o Gulabrao Choudhari, aged about 52 years. ... PETITIONER.

- VERSUS -

1. The Nagpur Municipal Corporation,

through its Commissioner, Civil Lines, Nagpur.

2. The Additional Municipal Commissioner, Nagpur Municipal Corporation, Civil Lines, Nagpur ... RESPONDENTS.

..... Mr.B.B. Mehadia Advocate for the Petitioner. Mr. S.M. Puranik Advocate for Respondents. ....

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(3) WRIT PETITION No. 4650/2007

M/s. D.H. Enterprises, through its Proprietor, Shri Hiralal s/o Ghanshyamdas Jaswani, aged about 57 years, Occupation Business, r/o. 35, Red cross Road, Sadar, Nagpur. ... PETITIONER.

- VERSUS -

1. The Nagpur Municipal Corporation, through its Commissioner,

Nagpur.

2. The Additional Deputy Municipal Commissioner,

Nagpur Municipal Corporation, Civil Lines, Nagpur .... RESPONDENTS.

..... Mr.B.B. Mehadia Advocate for the Petitioner.

Mr. S.M. Puranik Advocate for Respondents. ....

(4) WRIT PETITION No. 4651/2007

Hiralal s/o Ghanshyamdas Jaswani, aged about 57 years, Occupation Business, r/o. 35, Red cross Road, Sadar, Nagpur. ... PETITIONER.

- VERSUS -

1. The Nagpur Municipal Corporation, through its Commissioner, Nagpur.

2. The Additional Deputy Municipal Commissioner, Nagpur Municipal Corporation, Civil Lines, Nagpur ... RESPONDENTS.

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.....

Mr.B.B. Mehadia Advocate for the Petitioner. Mr. S.M. Puranik Advocate for Respondents.

....

(5) WRIT PETITION No. 4975/2007

Hiralal Jiwanlal Sawal aged about 68 years, Occ.: Business, r/o Corporation Chawl, Sitabuldi Super Market. Nagpur. ... PETITIONER.

- VERSUS -

1. The Nagpur Municipal Corporation,

through its Commissioner, Civil Lines, Nagpur.

2. The Additional Municipal Commissioner, Civil Lines, Nagpur.

3. The Market Superintendent,

Nagpur Municipal Corporation, Civil Lines, Nagpur. ... RESPONDENTS.

.....

Mr. Masood Shareef Advocate for the Petitioner. Mr. S.M. Puranik Advocate for Respondents. ....

(6) WRIT PETITION No. 4976/2007

Omprakash Sawalram Agrawal, aged about 50 years, Occ.: Business, at Shop No.3, Super Market, Sitabuldi, resident of 147, Lendra Park, Nagpur. ... PETITIONER.

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VERSUS -

-

1. The Nagpur Municipal Corporation, through its Commissioner, Civil Lines, Nagpur.

2. The Additional Municipal Commissioner,

Civil Lines, Nagpur.

3. The Market Superintendent, Nagpur Municipal Corporation, Civil Lines, Nagpur. ... RESPONDENTS.

.....

Mr. Anand Parchure and Mr. Masood Shareef Advocates for the Petitioner. Mr. S.M. Puranik Advocate for Respondents. ....

(7) WRIT PETITION No. 4977/2007

Uttam Hajarilal Chawariya,

aged about 39 years, Occ.: Business, r/o Corporation Chawl,

Sitabuldi Super Market. Nagpur. ... PETITIONER.

- VERSUS -

1. The Nagpur Municipal Corporation, through its Commissioner, Civil Lines, Nagpur.

2. The Additional Municipal Commissioner,

Civil Lines, Nagpur.

3. The Market Superintendent, Nagpur Municipal Corporation, Civil Lines, Nagpur. ... RESPONDENTS.

..... Mr. Masood Shareef Advocate for the Petitioner. Mr. S.M. Puranik Advocate for Respondents. ....

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(8) WRIT PETITION No. 4978/2007

Vasantchand Premchand Dhruva, aged about 58 years, Occ.: Business, r/o Corporation Chawl,

Sitabuldi Super Market. ... PETITIONER.

VERSUS

1. The Nagpur Municipal Corporation, through its Commissioner,

Civil Lines, Nagpur.

2. The Additional Municipal Commissioner,

Civil Lines, Nagpur.

3. The Market Superintendent, Nagpur Municipal Corporation, Civil Lines, Nagpur. ... RESPONDENTS.

.....

Mr. Masood Shareef Advocate for the Petitioner. Mr. S.M. Puranik Advocate for Respondents. ....

(9) WRIT PETITION No. 4979/2007.

Jugal Kishore s/o Radhakisan Chandak aged about 63 years, Occ.: Business, c/o Shop No.1

Super Market, Temple Bazar, New Chawl, Sitabuldi. Nagpur. ... PETITIONER.

VERSUS

1. The Nagpur Municipal Corporation, through its Commissioner, Civil Lines, Nagpur.

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2. The Additional Municipal Commissioner,

Civil Lines, Nagpur.

3. The Market Superintendent, Nagpur Municipal Corporation, Civil Lines, Nagpur. ... RESPONDENTS.

.....

Mr. Masood Shareef Advocate for the Petitioner. Mr. S.M. Puranik Advocate for Respondents. ....

(10) WRIT PETITION No. 4980/2007.

Amrutlal Jiwanlal Sawal aged about 57 years, Occ.: Business, c/o Shop No.1 Super Market, Temple Bazar, New Chawl, Sitabuldi. Nagpur. ... PETITIONER.

- VERSUS -

1. The Nagpur Municipal Corporation, through its Commissioner,

Civil Lines, Nagpur.

2. The Additional Municipal Commissioner, Civil Lines, Nagpur.

3. The Market Superintendent,

Nagpur Municipal Corporation, Civil Lines, Nagpur. ... RESPONDENTS.

..... Mr. Masood Shareef Advocate for the Petitioners. Mr. S.M. Puranik Advocate for Respondents. ....

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(11 ) WRIT PETITION No. 4981/2007.

Shyamlal Zanaklal Chawariya through Prop. Smt. Nirmala Shyamlal Chawariya, aged about 62 years, Occ.: Business, r/o Corporation Chawl,

Sitabuldi Super Market. Nagpur. ... PETITIONER.

- VERSUS -

1. The Nagpur Municipal Corporation,

through its Commissioner, Civil Lines, Nagpur.

2. The Additional Municipal Commissioner, Civil Lines, Nagpur.

3. The Market Superintendent, Nagpur Municipal Corporation,

Civil Lines, Nagpur. ... RESPONDENTS.

..... Mr. Masood Shareef Advocate for the Petitioners. Mr. S.M. Puranik Advocate for Respondents.

....

(12) WRIT PETITION No. 4982/2007.

Purshottam Hajarilal Chouria

aged about 33 years, Occ.: Business, r/o Corporation Chawl, Sitabuldi Super Market. Nagpur. ... PETITIONER.

- VERSUS -

1. The Nagpur Municipal Corporation, through its Commissioner, Civil Lines, Nagpur.

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2. The Additional Municipal Commissioner, Civil Lines, Nagpur.

3. The Market Superintendent, Nagpur Municipal Corporation, Civil Lines, Nagpur. ... RESPONDENTS.

..... Mr. Masood Shareef Advocate for the Petitioner. Mr. S.M. Puranik Advocate for Respondents. ....

(13) WRIT PETITION No. 4983/2007.

Smt. Gayatridevi Gulabchand Gupta aged about 54 years, Occ.: Business, c/o Shop No.1 Super Market, Temple Bazar, New Chawl, Sitabuldi. Nagpur. ... PETITIONER.

- VERSUS -

1. The Nagpur Municipal Corporation,

through its Commissioner, Civil Lines, Nagpur.

2. The Additional Municipal Commissioner, Civil Lines, Nagpur.

3. The Market Superintendent, Nagpur Municipal Corporation, Civil Lines, Nagpur. ... RESPONDENTS.

..... Mr. Masood Shareef Advocate for the Petitioner. Mr. S.M. Puranik Advocate for Respondents. ....

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(14) WRIT PETITION No. 4985/2007.

Shri Fazalbhai Badruddin, aged about 79 years, Occ.: Business, c/o Shop No.1 Super Market, Temple Bazar, New Chawl, Sitabuldi. Nagpur. ... PETITIONER.

- VERSUS -

1. The Nagpur Municipal Corporation,

through its Commissioner, Civil Lines, Nagpur.

2. The Additional Municipal Commissioner, Civil Lines, Nagpur.

3. The Market Superintendent, Nagpur Municipal Corporation, Civil Lines, Nagpur. ... RESPONDENTS.

..... Mr. Masood Shareef Advocate for the Petitioner.

Mr. S.M. Puranik Advocate for Respondents. ....

( 15 ) WRIT PETITION No. 4986/2007

Venichand Premchand Dhruv, aged about 68 years, Occ.: Business, r/o Corporation Chawl, Sitabuldi Super Market. ... PETITIONER.

- VERSUS -

1. The Nagpur Municipal Corporation, through its Commissioner, Civil Lines, Nagpur.

2. The Additional Municipal Commissioner, Civil Lines, Nagpur.

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3. The Market Superintendent, Nagpur Municipal Corporation,

Civil Lines, Nagpur. ... RESPONDENTS.

..... Mr. Masood Shareef Advocate for the Petitioners.

Mr. S.M. Puranik Advocate for Respondents. ....

(16 ) WRIT PETITION No. 4990/2007.

Suvarna Kaur Marras,

Partner vinodkumar Shyamlal Chouria,

aged a bout 40 years, Occ.: Business, r/o Corporation Chawl, Sitabuldi Super Market. Nagpur. ... PETITIONER.

- VERSUS -

1. The Nagpur Municipal Corporation, through its Commissioner, Civil Lines, Nagpur.

2. The Additional Municipal Commissioner, Civil Lines, Nagpur.

3. The Market Superintendent, Nagpur Municipal Corporation,

Civil Lines, Nagpur. ... RESPONDENTS.

..... Mr. Masood Shareef Advocate for the Petitioners. Mr. S.M. Puranik Advocate for Respondents. ....

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(17 ) WRIT PETITION No. 4991/2007.

Indrachand Banwarilal Agrawal (Mehadia),

aged about 62 years, Occ.: Business, r/o Corporation Chawl, Sitabuldi Super Market. Nagpur. ... PETITIONER.

- VERSUS -

1. The Nagpur Municipal Corporation, through its Commissioner,

Civil Lines, Nagpur.

2. The Additional Municipal Commissioner, Civil Lines, Nagpur.

3. The Market Superintendent, Nagpur Municipal Corporation, Civil Lines, Nagpur. ... RESPONDENTS.

.....

Mr. Masood Shareef Advocate for the Petitioners. Mr. S.M. Puranik Advocate for Respondents.

....

(18 ) WRIT PETITION No. 4992/2007.

Hajarilal Zanaklal Chouria, aged about 63 years, Occ.: Business, r/o Corporation Chawl, Sitabuldi Super Market. Nagpur. ... PETITIONER.

- VERSUS -

1. The Nagpur Municipal Corporation, through its Commissioner, Civil Lines, Nagpur.

2. The Additional Municipal Commissioner, Civil Lines, Nagpur.

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3. The Market Superintendent,

Nagpur Municipal Corporation, Civil Lines, Nagpur. ... RESPONDENTS.

..... Mr. Masood Shareef Advocate for the Petitioners. Mr. S.M. Puranik Advocate for Respondents.

....

(19 ) WRIT PETITION No. 4993/2007.

Dinesh Mulchand Bhaiya, aged about 37 years, Occ.: Business,

r/o Corporation Chawl, Sitabuldi Super Market. Nagpur. ... PETITIONER.

- VERSUS -

1. The Nagpur Municipal Corporation, through its Commissioner,

Civil Lines, Nagpur.

2. The Additional Municipal Commissioner, Civil Lines, Nagpur.

3. The Market Superintendent,

Nagpur Municipal Corporation, Civil Lines, Nagpur. ... RESPONDENTS.

..... Mr. Masood Shareef Advocate for the Petitioners. Mr. S.M. Puranik Advocate for Respondents.

....

(20) WRIT PETITION No. 5300/2007

Vasant Champaklal Mehta, aged about 71 years, Occ.: Doctor, Shopt No.11 and 12 Super Market Mahatama Gandhi Bazar, Sitabuldi Nagpur. ... PETITIONER.

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VERSUS

1. The Nagpur Municipal Corporation, through its Commissioner, Civil Lines, Nagpur.

2. The Additional Municipal Commissioner, Civil Lines, Nagpur.

3. The Market Superintendent, Nagpur Municipal Corporation,

Civil Lines, Nagpur. ... RESPONDENTS.

..... Mr. Neeraj Patil, Advocate for the Petitioner. Mr. S.M. Puranik Advocate for Respondents.

....

(21 ) WRIT PETITION . No. 5301/2007

Shri Ashok V. Mudholkar, aged about 37 years, Occ.: Business, Shopt No.10 Super Market Mahatama Gandhi Bazar, Sitabuldi

Nagpur. ... PETITIONER.

VERSUS

1. The Nagpur Municipal Corporation,

through its Commissioner, Civil Lines, Nagpur.

2. The Additional Municipal Commissioner, Civil Lines, Nagpur.

3. The Market Superintendent, Nagpur Municipal Corporation, Civil Lines, Nagpur. ... RESPONDENTS.

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.....

Mr. Neeraj Patil, Advocate for the Petitioner. Mr. S.M. Puranik Advocate for Respondents.

....

(22 ) WRIT PETITION No. 5631/2007

Purushottam Motilal Sahu (deceased) through legal representative Shri Ramanlal s/o Purshottam Sahu,

aged about 44 years, Shop No.1 Super Marketig Mahatama Gandhi Bazar, Sitabuldi Nagpur. ... PETITIONER.

VERSUS

1. The Nagpur Municipal Corporation, through its Commissioner,

Civil Lines, Nagpur.

2. The Additional Municipal Commissioner, Civil Lines, Nagpur.

3. The Market Superintendent,

Nagpur Municipal Corporation, Civil Lines, Nagpur. ... RESPONDENTS.

..... Mr. Neeraj Patil, Advocate for the Petitioner. Mr. S.M. Puranik Advocate for Respondents.

....

CORAM : B.P. DHARMADHIKARI, J.

Date of reserving the Judgment. - 2nd JULY, 2010 Date of Pronouncement. - 19th JULY, 2010

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JUDGEMENT.

1. All petitioners before this Court occupy as tenants the shops in

a Supermarket situated in busy crowded market area known as Sitabuldi

in Nagpur. The supermarket is owned by Respondents i.e. Nagpur

Municipal Corporation (NMC) is a local authority constituted for

municipal administration of Nagpur City under the provisions of City of

Nagpur Corporation Act, 1948 (hereinafter referred to as "the NMC Act"

for short). It is also a planing authority for Nagpur under Maharashtra

Regional and Town Planing Act,1961. The NMC wants to replace the

said supermarket by a modern shopping mall with a view to remove

traffic problems or parking difficulties. Its Standing Committee has

resolved accordingly NMC then issued show cause notices under

Section 76B(2) of the NMC Act to the petitioners who filed their replies

to it. Respondent no. 2 heard them and rejected their objections on

16/3/2007. Rejection was communicated to petitioners by the market

superintendent of the NMC on 20/3/2007. They then filed appeal as

provided for under Section 76F of NMC Act before the District Judge and

DJ-3 dismissed their appeals by common order dated 3/10/2007. All

these writ petitions question this order in appeal as also earlier order of

ADMC dated 16/3/2007. The matters cane to be adjourned from time

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to time as efforts were being made to dispose of them finally at

admission stage. Previous Bench fixed the matters at 2.30 PM and then

the matters were placed before me. I have heard Shri B.B. Mehadia, Shri

Masood Sharif, Shri Neeraj Patil, Shri Anand Parchure, learned Counsel

for respective petitioners and Shri S.M. Puranik, learned Counsel for

NMC finally by making Rule returnable forthwith by consent.

2.

Shri B.B. Mehadia, learned counsel for the petitioner in

W.P.No.4565/2007 has tendered synopsis and invited attention to

events stated therein to urge that a ready format is used mechanically to

issue show cause notices (SCN) in the matter without bothering to find

out requirements of Section 76B of the City of Nagpur Corporation Act,

1948. He advanced the lead arguments which are adopted by other

learned Counsel who then made additional submissions. Other learned

Counsel include Shri Anand Parchure, Shri Masood Sharif and Shri

Neeraj Patil.

3. According to Shri Mehadia, learned counsel the notice under

Section 76-B is vague as it does not specify grounds for satisfaction of the

Commissioner, no public interest is apparent or mentioned and as

proforma of SCN is used, the model clauses not necessary in the facts of

present matters are retained. Thus, the grounds on which the show

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cause is based are not communicated to the noticee at all. The law

contemplates an effective opportunity of hearing that too, before the

decision to evict is taken. Because of these lacunae said hearing is

denied to the petitioners. Support is being taken from the judgment of

the Hon'ble Apex Court reported at (1980) 3 SCC 1--AIR 1980 SC.

1157 "Nasir Ahmed v. Assistant Custodian General, Evacuee Property,

U.P., Lucknow". The SCN and consequential order are therefore bad.

(2001) 1 SCC 291--AIR 2001 SC. 250 "Food Corporation of India v.

State of Punjab" is being relied upon by him. The final order after

hearing passed by the Additional Municipal commissioner (ADMC) is

stated to be containing grounds even beyond SCN. The judgment of

Hon'ble Apex Court reported at (1994) 4 SCC 269--1994 AIR SCW 2923

"Indian Nut Products v. Union of India" and of Hon'ble Gujrat High

Court at AIR 2003 Guj. 332--Shreeji Mailing Service, Ahmedabad v.

Govt. of India and others, are pressed into service to highlight the

importance of the requirement of satisfaction to be recorded and

relevance of material then looked into. AIR 1967 SC 295-"Barium

Chemicals Ltd. v. Company Law Board" is also cited to drive home the

point. Not giving of one month time to vacate in his order by ADMC is

also given as an instance of non-application of mind. The learned

Counsel states that later on in appeal proceedings before the District

Court a pursis came to be filed on 21/4/2007 giving that time from date

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of the pursis. Adv. Sharif for petitioner in WP 4975/2007 has relied

upon AIR 1988 SC 371--"Vinod Kumar Singh v. Banaras Hindu

University" to contend that by such pursis the order of ADMC is not

validated. He shows SCN received therein to urge that there the

relevant clauses are tick-marked but then the grounds 5A and 5B do

not survive. The reply filed to SCN is not considered by ADMC.

According to him the subjective satisfaction of the Commissioner

envisaged by Section 76B must be seen on record with application of

mind to the relevant material. Here no such subjective satisfaction is

recorded or apparent, and the same can not be substantiated on the

strength of subsequent events. The list of 38 shops stated to be reserved

for allotment to petitioners at concessional rates is not prepared and

though effort was made to bring this omission on record in appeal

proceedings before the District Court, the leaned Court has not taken its

due cognizance. The application seeking production of list, location map

and area, reply of NMC thereto and order as upon it are relied upon.

4. Shri Mehadia, learned Counsel has also contended that the

law contemplates opportunity of hearing before the decision is recorded

and in present matter actions to be initiated on all important issues were

already pre-decided. General Body of the NMC had already resolved to

develop the area in particular manner, to construct a shopping mall and

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then tenders were also invited as if the site is vacant. The work order

was also issued and the concerned contractor then also demolished part

of the super market building. Because of these steps of superiors,

irreversible for subordinate authority which heard the petitioners, the

fate of hearing on SCN was already sealed and opportunity of hearing

was an empty formality. He banks upon the judgment of the Hon'ble

Apex Court reported at AIR 1989 SC 568--"H. L. Trehan v. Union of

India".

Shri Sharif, learned Counssel has elaborated this position

further by pointing out that the authority subordinate to Commissioner

has passed the order on 16/3/2007 which has been communicated on

20/3/2007. NMC had then already advertised the scheme on 3/3/2007

extending time to apply till 21/3/2007 and by giving letter on

20/3/2007 only, petitioner in Writ Petition No. 4975/2007 has given a

letter to pay the deposit if accepted without prejudice to his rights. As

per clause 12 of the conditions of allotment, such deposit does not confer

any right on petitioner and he paid that amount of Rs. 50,000/- on

21/3/2007 i.e. within time. All these dates and developments

according to him show that hearing offered was only a farce.

5. Shri Mehadia, learned Counsel further urged that the eviction

of the petitioners is not in public interest or for public purpose at all. He

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cites AIR 1956 All 594-- "Mohd. Raihan v. State of U.P." to argue that

proposed work has to be in the interest of the visitors/customers of

supermarket. The basis of allotment in proposed complex is stated to be

commercial with a view to earn huge profits when a public body has to

act fairly and in the interest of all. The amount of interest free deposit

is being worked out on present market value of property. This attitude is

compared with private landlords' motive to state that the very purpose of

exempting such local body from rent control legislation is being breached

thereby. AIR 1953 Bom. 170 (Rampratap Jaidayal v. Dominion of

India), AIR 1954 SC 153-- (Baburao Shantaram More v. Bombay

Housing Board), AIR 2004 SC 1815-- (Jamshed Hormusji Wadia, v.

Board of Trustees, Port of Mumbai) and AIR 1989 SC 1642--(M/s.

Dwarkadas Marfatia and Sons v. Board of Trustees of the Port of

Bombay), are shown to point out the reasons for which such exemption is

held valid. Real design of NMC is to evict poor petitioners and to induct

wealthy persons. Project as designed is of international standards and

does not take care of small businessmen like petitioners. As such it is not

for a common man and also not in public interest at all. The mode and

manner of attempted compliance with Section 76B also shows malafides

and dishonesty. Facts considered by the District Court are mostly not

appearing in SCN and hence it overlooked the deprivation of opportunity

of effective hearing. Shri Sharif, learned Counsel furthers this line by

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alleging that the decision was to have 7 such malls in City and work on

remaining Shopping Malls has come to standstill. The present project

also can not be therefore reasonably completed and as alleged public

purpose for which eviction of petitioners is being sought does not survive

now, the SCN and consequential orders passed have become

meaningless.

6.

Shri Mehadia, learned counsel points out judgment of Hon'ble

Apex Court at AIR 1993 SC 1601-- (Food Corporation of India v. M/s.

Kamdhenu Cattle Feed Industries) and states that being tenants of a

public body like NMC the petitioners legitimately expected to be treated

fairlyand equally in the matter. They expected adherence to the lawand

not a high handed arbitrary action throwing them on street after a farce

of hearing. The supermarket is located in notified slum area and thereby

confers additional protection on petitioners. They all expected a

reasonable approach by public body and allotment in new premises at a

reasonable rent consistence with object of rent control legislation.

Attention is invited to Article 21 of the Constitution of India and AIR

1986 SC 180-- (Olga Tellis v. Bombay Municipal Corporation) with stand

that livelihood or future of petitioners, their families and of small

employees with them, of other hawkers and persons doing incidental

jobs depend on their established businesses since last about 40 years.

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Reservation of 38 shops in the scheme for petitioners is an eyewash

because their location is on backside ie. not on Sitabuldi main road but

on Temple bazar road where the business prospects are substantially

diminished. 50% discount being given to petitioners is also on that

account only. They can not be allowed to be left to earn on street and till

the project is complete, an alternate arrangement needs to be made for

them to carry on the business.

7. Learned Counsel also contends that though notification dated

23/8/2006 removes the supermarket from slum area, still the action

initiated is in violation of The Maharashtra Slum areas (improvement,

clearance and re-development) Act, 1971 (hereinafter referred to as "the

Slum Act" hereafter). Section 3X(c) defining protected occupier,

Section 3X(o)-dwelling structure are pressed into service to urge that

under Section 3Z(1) no eviction is permitted and under Section 3Z(2)

decision whether to evict or not is to be taken by State Government only,

that too in larger public interest. Notification dated 23/8/2006 is issued

to defeat Section 3Y and Section 3Z of the Slum Act and reason behind

grant thereof is incorrect as the property is for commercial purpose

throughout. The exemption is to defeat the orders of the Division Bench

of this Court passed on 5/12/2005 in WP 5647/2005. He also maintains

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that dwelling structure also includes commercial structure. Judgments

reported at AIR 1957 SC 521-- (Lila Vati Bai v. State of Bombay)and AIR

1998 Bom. 216-- (Smt. Sugandha Manik Kane and others v. The

Conservator of Forests, with his Office at Panaji, Goa and others.) are

relied upon.

8. Shri Neeraj Patil, learned counsel for the petitioners has

urged that satisfaction envisaged under Section 76B has to be of

Municipal Commissioner only and consideration of reply or objections to

SCN also must be by him personally. Section 76E of the NMC Act

expressly gives powers of civil court only to Municipal Commissioner and

his order is also made subject to appeal. The provisions of Section 76G

confer finality on such orders and Section 76H also bars the jurisdiction

of civil court. This power therefore can not be delegated and not

regulated either by either Section 59(5) or Section 59-C or then Section

387 of NMC ACT. According to him there was earlier no section and

even today no other provision in NMC Act conferring such quasi-judicial

obligations on any officer or authority. He relies upon 1972 Mah.L.J.

661 (Ganeshrao Deshmukh vs. Devisingh Venkatsingh) and AIR 1965 SC

1486--(Bombay Municipal Corporation v. Dhondu Narayan Chowdhary)"

to buttress his stand. Chapter VA of the Bombay Municipal Corporation

Act,1961 (hereinafter referred to as "the BMC Act" for short) is referred

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by him to show that by very same amendment by which Section 105A or

105B are added, Section 68 permitting delegation of powers conferred

thereby also came to be inserted. Thus BMC Act expressly contemplates

delegation by Municipal Commissioner of such quasi-judicial powers. But

then in absence of similar simultaneous amendment in NMC Act, he

draws an inference that legislature never intended delegation of these

powers in framework of the NMC Act. Section 59 or 59-C at the most

permits delegation of administrative functions by the Municipal

Commissioner.

9. Shri Puranik, learned counsel for the respondent NMC and its

ADMC states that on 15/3/2003, Standing Committee of NMC passed a

resolution to have complex of 106 shops in place of existing supermarket

and out of it, reserved 38 shops for existing licensees like present 18

petitioners. Petitioners have booked their respective shops at

concessional rates and deposited the amount. On 30/9/2005 there was

a meeting between Municipal Commissioner, Maharashtra State

Cooperative Consumers Federation Ltd. (petitioner in WP 4565/2005)

and other petitioners which failed to evolve any solution. On 5/10/2005

detailed scheme of development was published and on 10/10/2005,

audio visual demonstration was conducted. Since then all details are

within knowledge of the petitioners. On 6/10/2006 the construction

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contract came to be awarded . Thereafter on 12/12/2006 notices under

Section 76B of NMC Act came to be issued and the same were replied to

on 26/12/2006. Thus all necessary details were with the petitioners and

they have not suffered any prejudice. Their replies reveal their

knowledge. The supermarket area is excluded from slum by a valid

exercise of power and that exercise has not been questioned before the

competent forum till date. In any case because of Section 26 of the Slum

Act, it is not applicable to NMC and as the petitioners have no photo-

passes as per its Section 22, they are not entitled to any protection. Shri

Puranik, learned counsel urged that none of the petitioners are averse to

the scheme and most of them have also acted upon the concession

offered by depositing that amount. The shelter or arguments of Article

21 or legitimate expectation are misconceived as petitioners are getting

the shops in accordance with the scheme. He also states that ADMC is

the officer of same rank as that of Municipal Commissioner and hence,

grievance about delegation does not hold any water. All steps taken by

the respondents are within knowledge of the petitioners and after taking

them into confidence. Those who have deposited concessional amount

can not now approbate and reprobate. Others have no right to stall the

scheme which is in public interest as it is being implemented as per law.

The right of petitioners to occupy has been terminated as per Section 76B

and hence, they have to vacate. As the legal provisions are being

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adhered to and in view of mandate of Art. 14 of the Constitution of

India, open process for allotment is being followed, this Court should

maintain the concurrent orders.

10. Shri Mehadia, learned counsel states that in Sitabuldi area

no photo-passes are issued at any time and hence that can not be the

reason to deny the protection of welfare measure like Slum Act to

petitioners. As payment is not made by all and most of the petitioners

who deposited have done it without prejudice, their rights are not

affected at all. Petitioners have yet not obtained any benefit and hence

no question of estoppel arises. The area of respective tenements is being

reduced by 83% and hence petitioners can always make the grievance.

In any case, petitioners have no choice but to act safe to protect their

bread and butter.

11. Perusal of Ganeshrao Deshmukh vs. Devisingh Venkatsingh-

(supra) and Bombay Municipal Corporation v. Dhondu Narayan

Chowdhary (supra) relied upon by Shri Patil, learned counsel show that

normally a power to adjudicate can not be delegated. In judgment of

Hon'ble Apex Court, the provisions of Section 68 of BMC Act are

considered. Said section is similar to Section 59(5) of the NMC Act.

In any case in 1998, Section 59C has been inserted by amendment in it

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which again permits Municipal Commissioner to delegate his powers,

duties and functions. Section 387 of the NMC Act also enables aggrieved

person to challenge the order of delegate in an appeal before the

delegate officer appointed as appellate authority by the Municipal

Commissioner. That appellate order can then be challenged in revision

before the Municipal Commissioner. In the scheme of the act the

questions regarding un-authorized or dilapidated structures or

constructions need to be looked into by these delegates. Hence it can not

be accepted that before introduction of Chapter VIA in it the NMC Act

contained no provision requiring exercise of quasi-judicial powers.

Section 287 thereof also bars jurisdiction of the civil court in matters

specified therein. Thus delegation of quasi-judicial powers or of power to

hear appeal from an order passed in exercise of that authority is

permissible in NMC Act. Section 76A in chapter VIA also provides for an

appeal to the District Court. Following observations of Hon'ble Apex

Court therefore apply even in relation to Section 59(5) or Section 59-C

of the NMC Act.

"3. No question has been raised that any of the amendments is ultra vires so the words of Section 68 must be reasonably construed. It goes without saying that judicial power cannot ordinarily be delegated unless the law expressly or by clear implication permits it. In the present case the amendment of Section 68 by inclusion of

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delegation of the functions of the Commissioner under

Sections 105B to 105E does indicate the intention that the

judicial or quasi-judicial powers contained in Chapter VIA were expressly intended to be delegated. To the delegation as such there can be no objection. What is objected to is

the provision, both in the section as well as in the order of delegation, that the exercise of the function is to be under "the Commissioner's control" and "subject to his revision."

These words are really appropriate to a delegation of

administrative functions where the control may be deeper then in judicial matters. In respect of judicial or quasi-

judicial functions these words cannot of course bear the meaning which they bear in the delegation of administrative functions. When the Commissioner stated

that his functions were delegated subject to his control and

revision it did not mean that he reserved to himself the right to intervene to impose his own decision upon his delegate. What those words meant was that the

Commissioner could control the exercise administratively as to the kinds of cases in which the delegate could take action or the period or time during which the power might be

exercised and so on and so forth. In other words. the administrative side of the delegate's duties was to be the subject of control and revision but not the essential power to decide whether to take action or not in a particular case. This is also the intention of Section 68 as interpreted in the context of the several delegated powers. This is apparent from the fact that the order of the delegate

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amounts to an order by the Commissioner and is

appealable as such. If it were not so the appeal to the

Bombay City Civil Court would be incompetent and the order could not be assailed. The order of the delegate was the order of the Commissioner and the control envisaged

both in Section 68 and the order of delegation was not control over the decision as such but over the administrative aspects of cased and their disposal. No.

allegation has been made that the Commissioner intervened

in the decision of the case or improperly influenced it. In these circumstances, the order impugned in the appeal

cannot be sustained."

Hon'ble Apex Court therefore allowed the appeal of Corporation and

set aside the order of the Bombay City Civil Court and restored the order

of the officer who exercised powers under Section 105B of the Act.

Words "Any of the powers, duties or functions conferred or imposed upon or

vested in the Commissioner" used in Section 68 of the BMC Act also appear

in Section 59(5) of NMC Act. Section 59-C uses the words "Any of the

powers, duties and functions conferred upon or assigned to or vested in the

Mayor, the Deputy Mayor and the Commissioner". Section 68 of BMC Act

contemplates powers flowing from various sections specified in its sub-

section (2) while both these Sections specify "by this Act" and "by or

under this Act" respectively. Thus entire Act as such stands covered and

powers, functions or duties cast upon the Commissioner thereunder can

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be delegated. It therefore follows that simultaneous addition of Section

68 in BMC Act by itself is not sufficient to take other view here due to

scheme of the NMC Act. It is also shown to this Court that the Municipal

Commissioner and ADMC are the officers of same rank. The objection to

the exercise of power under Section 76B by the delegate therefore has to

fail.

12.

Other contention on merits need to be looked into in the light

of legal rights and obligations of the parties, specially Section 76B of the

NMC Act. Here the respondents do not come with the case that

petitioners are in unauthorized occupation of corporation premises. The

case is corporation premises are required by it in public interest. Section

76B permits Municipal Commissioner to issue notice of eviction if he is

satisfied that the premises are required in public interest. According to

respondents notice is served as petitioners were in arrears of rent and as

premises are required in public interest. Section 76B(6) confers

discretion upon the Commissioner not to evict even after order/notice

under sub-section (1) if the tenant clears the arrears in time as stipulated

there. Hence, need for public purpose is the only relevant ground here.

Person on whom the notice/order under Section 76B(1) is served is

under obligation to vacate within one month of its receipt. Sub-section

(2) mandates that Commissioner shall issue notice to show cause why an

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order of eviction under sub-section (1) should not be made. Such SCN

has to specify the grounds on which the eviction is proposed and call

upon persons concerned to show cause why it should not be so made. If

such person applies for extension of time to vacate, Commissioner may

grant it on appropriate terms and conditions. Any application or reply of

such person together with the documents is to be kept on record and

that person is entitled to be heard through an advocate before the

Commissioner. Sub section (3) permits Commissioner to use necessary

force to secure possession from person whose eviction is ordered under

sub-section (1). Hence before issuing notice under sub-section (2), the

Commissioner need not record any satisfaction on need to proceed

under sub-section (1) thereof. The satisfaction warranted by sub-section

(1) is to be recorded in final notice for eviction. It is not the case of any

of the petitioners that such satisfaction is not reached by the ADMC here.

Only contention that it was inevitable because of the events like

resolution of Standing Committee, of inviting tenders for construction of

Shopping Mall or awarding that contact. The petitioners therefore urge

that before the public interest is noticed and acted upon, they must be

heard. I do not find any substance in this contention. The

democratically elected representatives of citizens of Nagpur in NMC are

entitled to decide which particular development is essential in particular

area. In fact need for such development is being disputed by pointing out

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that to be in public interest, it must be for those who use the facility.

Reasons disclosed by NMC as necessitating such development are not

even alleged to be false. Consideration of public purpose in "Mohd.

Raihan v. State of U.P." (supra) by Allahabad High Court is relied on for

that purpose. There the phrase "public interest" used in Section 47(1) of

the Motor Vehicles Act,1939 has been construed because of the nature of

obligation to grant or refuse stage carriage permit on RTA and Court has

found that it mean the interest of the people using that stage carriage

and not public in general. Order of ADMC passed on objection of

petitioner mentions that existing Supermarket is constructed in 1964

when commercial activities were limited. Now there is manifold increase

and area has become congested. Then adequate parking was not

provided and the public has to face serious inconvenience. Maintenance

of cleanliness in the premises and surrounding area is also found a

problem. Thus respondent NMC being local authority as also planning

authority thought it fit to construct a Shopping Mall with modern

facilities and enough parking place for public convenience. The project is

as per Development Control Rules and building bye-laws. It is stated that

it will face-lift the area and remove traffic congestion in surroundings.

The present 1+1 storied building is occupied by several as licensees or

sub-licenses, or even unauthorizedly. These facts are not in dispute

before me. Petitioners can not be allowed to place their individual

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grievance when larger public interest is involved. Allegations of

favouring rich affluent class at their costs are not substantiated at all.

Applications for allotment were invited and open fair process has been or

is to be followed by the NMC and any private motives are therefore ruled

out. Petitioners are also given an equally fair chance. Once law permits

development in particular manner and a policy decision is taken by

planning authority, procedure prescribed is to be followed and

individual grievances have to yield to public good normally. Facts show

that in present matter sufficient number of shops are being reserved for

petitioners and their interests are adequately protected.

13. Chapter VIA has been added to NMC Act by Maharashtra Act

45 of 2005 and its purpose is to empower NMC to evict persons from

corporation premises. It contains Section 76A to 76J. Section 76A

defines corporation premises, regulations and unauthorized occupation.

There is no dispute between parties that the supermarket involved

constitutes corporation premises and continuing in occupation thereof

after the determination of their authority under Section 76B(1) is

unauthorized occupation. Provisions of Section 76B are already

discussed at necessary length above. That section also contains

procedure enabling Commissioner to sell movables in properties taken in

possession under Section 76B and to credit surplus after deducting sale

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expenditure to the person/s entitled to it. In case, the entitlement is in

dispute the Commissioner can refer that dispute to civil court. Section

76C confers power upon Commissioner to recover rent or damages as

arrears of property tax and lays down procedure therefor. Section 76D

enables recovery through deductions from salary if occupant is a

corporation employee. Section 76E gives Commissioner powers of civil

court under CPC to summon and enforce attendance of any person and

examine him on oath, require the discovery and production of documents

and for any other purpose prescribed by regulations framed under

Section 76I. Section 76F contemplates an appeal from orders under

Section 76B or Section 76C to the District Judge and enables appellate

court to stay the impugned orders. Section 76G makes orders passed

under above provisions final and save as otherwise provided, it can not

be assailed in any original suit, application or execution proceedings.

Section 76H takes away the jurisdiction of civil court in relation to

evictions or recovery under chapter VIA. Section 76I gives power to

Commissioner to frame regulations with approval of Standing Committee

on matters stipulated therein. Regulations can be on the form of notices

under Section 76Band 76C, holding of inquiries, procedure for taking

possession of corporation premises, manner of assessing the damages

and principles therefor, manner of preferring the appeal and procedure

therein, any other matter which has to be or may be prescribed under the

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chapter. Section 76G prescribes penalty for any person who obstructs

lawful exercise of any power under chapter VIA of NMC Act. Powers

under Section 76B can be exercised notwithstanding anything contained

in any law for the the time being in force. Thus a special procedure not

till then in existence has been made available to NMC and that is with

particular purpose. That object and purpose permits eviction of

authorized occupants in public interest. It is therefore apparent that once

public interest is available, the power under Section 76B can be resorted

to. Satisfaction of Commissioner under Section 76B(1) is required to be

reached after hearing the occupant as per Subsection (2) thereof. The

speedy remedy is deliberately provided as public interest in such matters

is found paramount by State Legislature.

14. No document of allotment of shops to petitioners is on record.

However, it is apparent that their contract to occupy is subject to chapter

VIA of the NMC Act. Petitioners have not raised any objection or

contention to the contrary. The above scheme of Chapter VIA indicates

that objections available to them may therefore be like (i) the purpose

disclosed is not genuinely in public interest; (ii) the site notified is not

suitable for the purpose notified; (iii) it is not so well suited as compared

to any other site; (iv) the area proposed is excessive; (v) the objector's

shop has been selected maliciously or vexatiously. Except for contending

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that purpose is not public purpose and alleging malafides, the petitioners

have not raised any other ground. Their attempts to supersede the

public interest are obviously without any merit.

15. The scheme of Section 76B envisages reaching of the

subjective satisfaction by municipal commissioner only after the

hearing under its subsection (2) is over. Admittedly that satisfaction is

reached here only after hearing the petitioners accordingly. No such

satisfaction is contemplated when a SCN under subsection (2) is being

issued. I therefore do not find any substance in their contention that

hearing was an empty formality. The municipal commissioner and

petitioners can not dictate what is in public interest and also can not

prohibit the Standing committee from considering a particular subject or

resolving in particular manner. AIR 1989 SC. 568 "H. L. Trehan v.

Union of India" is relied upon to show that post decisional hearing is not

legal. There the Caltex Oil Refining Co. was nationalized and its

chairman issued a circular rationalizing the service conditions which

came to be challenged. It was urged that circular was issued without

hearing the employees and in that background the Hon'ble Apex Court

has observed that grant of post decisional hearing would be an empty

formality as authority hearing would be doing so with closed mind. The

representation of employees would not be properly considered and

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hence, there would be no compliance with principles of natural justice.

Thus before the Hon'ble Apex Court question was of affecting the existing

service conditions and thus of a violation of right. The petitioners here

are in occupation subject to Chapter VIA of NMC Act and hence, have no

such vested right. Moreover, their rights, if any, are sought to be

terminated as per law and not in its violation. I find that they have failed

to establish that it is post decisional hearing. Contention of Shri Sharif,

learned counsel that impugned order of ADMC dated 16/3/2007 was

passed in the background of public advertisement dated 3/3/2007 and

was a decision taken under compulsion also can not be accepted. By that

advertisement, the license holders like petitioners were informed that

inspite of commencement of booking for them since October, 2005, they

had not taken advantage and hence for them only the last date was

extended till 21/3/2007. Petitioners were communicated passing of

final orders by ADMC on 20/3/2007 and they also wrote to Market

Superintendent of NMC inquiring whether the NMC would accept their

applications without prejudice to their legal rights to challenge the

validity of the scheme. Clause 12 of the scheme provides that mere

deposit of the amount did not create any legal right in person so

depositing to claim any allotment and hence, it is clear that by depositing

the amount, petitioners do not stand to lose anything.

::: Downloaded on - 09/06/2013 16:10:33 ::: 40 16. Documents filed by Petitioner association in Writ Petition

No.4565/2007 show that decision to have shopping mall on Sitabuldi

main road was made known through paper advertisement on 8/10/2005.

It reveals that vide earlier advertisement applications for booking were

invited and last date therefor was extended to 21/10/2005. Interested

persons were also informed about holding of audio video show on

10/10/2005. Other advertisement dated 5/10/2005 invites pre-

qualification bids for construction of a shopping mall in place of

supermarket by 20/10/2005 and discloses value of project to be 33

Crores. The Respondents contend that said show was attended by the

petitioners while petitioners deny it. However, that debate is not very

relevant as material discloses that the petitioners were aware and could

have collected any data needed by them. Following observations of

Hon'ble Apex Court in paragraph 8 of AIR 1973 SC. 1150 (Munshi

Singh v. Union of India) are helpful here:--

"8. As already noticed, in the notifications under Section 4 all that was stated was that the land was required--------------------------- in a specified way. If the Master Plan which came to be sanctioned on September 4, 1962 had been available for inspection by the persons interested in filing objections or even if the knowledge of

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its existence on the part of the appellants had been

satisfactorily proved the position may have been

different. In that situation the appellants could not claim that they were unable to file objections owing to the lack of any indication in the notification under

Section 4 of the nature of development for which the area was being requisitioned. On behalf of the State----------------- required to enable this Court to

pronounce judgment."

It therefore can not be said that while filing reply to SCN petitioners were

not in position to procure necessary material to effectively defend

themselves. SCN i.e. Show Cause Notice here is issued on 12/12/2006

and thus more than one year after the audio video demonstration or

public invitation for pre-qualification bid. Reply to it by petitioners is

22/12/2006. Thus argument of Shri Sharif, learned Counsel that

subjective satisfaction reached by Respondent Municipal Commissioner is

not based on any material or then was justified before ADMC or

Appellate Court on the strength of material which became available

subsequently can not be accepted. Learned Counsel has pointed out

that an application was moved on 24/9/2007 in Appellate Court calling

upon the NMC to give details of 38 shops reserved for licensees and with

location map and area as also names of those 38 persons. I find that on

26/9/2007, NMC filed reply and pointed out its futility and lack of legal

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base. The Appellate Court considered that controversy and passed

common order in all Appeals pending before it holding that such

direction was unnecessary and effect of non-production can be

considered only at final hearing stage. It is apparent that list of 38

allottees or map/area was not relevant at all before the Appellate Court

as Chapter VIA does not require it and only a concession was being

extended to 38 legal occupiers by Respondents. No legal right of the

petitioners is affected because of its non-filing. Consideration above also

shows that petitioners were under wrong conception about their legal

rights and entitlement. They only raised roving objections asserting

rights not available to them. They perhaps wanted to delay the

commencement of development. Their say that it was a post decisional

hearing is without any merit.

17. In Shreeji Mailing Service, Ahmedabad v. Govt. of India and

others (supra) when certain grounds mentioned or which formed the

basis of the impugned order were not reflected in the show-cause notice,

it has been held that no opportunity is given to petitioner to meet such

grounds before final decision is taken by the authority. Principles of

natural justice required all the grounds to be intimated to the party

concerned if the same were to be used for an adverse order. Indian Nut

Products v. Union of India (supra) reveals that in the notice, there was

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only reference to Sec. 3(1) of the Kerala Cashew Factories (Acquisition)

Act (29 of 1974), without disclosing whether the Government was

satisfied in respect of the existence of any of the situations under clause

(a), (b) or (c) thereof. No details had been mentioned in the said notice.

Towards the end of the said notice, under the heading "Grounds" it was

stated that the factory was lying closed and that there was no possibility

of its functioning within a period of ten days or in the immediate future

and, therefore, the Government was of the opinion that the said situation

"will lead to a large scale unemployment........" An order under Section

3(1) on the ground specified in clause (c) of sub-section (1) can be

issued by the State Government only when the State Government is

satisfied that "there has been large scale unemployment, other than by

way of layoff or retrenchment, of the workers of a cashew nut factory".

The grounds did not even state that there had been any unemployment

much less large scale unemployment. No details like the date from which

each of the 36 factories was lying closed were mentioned. Hon'ble Apex

Court finds that by a common notice all the 36 cashew factories could not

be summoned to show cause without giving particulars of conditions

existing in different factories. Hon'ble Apex Court observes that if a

statute requires an authority to exercise power, when such authority is

satisfied that conditions exist for exercise of that power, the satisfaction

has to be based on the existence of grounds mentioned in the statute.

::: Downloaded on - 09/06/2013 16:10:33 ::: 44 The grounds must be made out on the basis of the relevant material. If

the existence of the conditions required for the exercise of the power is

challenged, the Courts are entitled to examine whether those conditions

existed when the order was made. A person aggrieved by such action can

question the satisfaction by showing that it was wholly based on

irrelevant grounds and hence amounted to no satisfaction at all. In other

words, the existence of the circumstances in question is open to judicial

review. I find the reliance misconceived as such individual scrutiny of

each shop occupier is not necessary in present matter. Hon'ble Apex

Court in Nasir Ahmed, v. Assistant Custodian General, Evacuee Property,

U.P., Lucknow and another, (supra) considers Administration of Evacuee

Property Act (31 of 1950). The notice under Section 7 (1) of that Act

called upon the appellant and his brother to show cause why they should

not be declared evacuees under clause (iii) of Section 2 (d) of the Act

and the ground mentioned in the notice was also based on that clause.

The notice that was issued merely reproduced the form without

mentioning the particulars on which the case against the appellant was

based. The authorities concerned declared them evacuees under clauses

(i) and (ii) as well. Hon'ble Apex Court held that the notice and the

declaration that followed were both invalid. The foundation of a

proceeding under Section 7 has to be a valid notice and an inquiry which

travels beyond the bounds of the notice is declared impermissible and

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without jurisdiction to that extent. Food Corporation of India, v. State of

Punjab and others, (supra) is judgment of Hon'ble Apex Court on

Sections. 66, 67 and 68A of Punjab Municipal Act (3 of 1911). Hon'ble

Apex Court there finds that while vesting the power in the Committee to

amend an assessment list, the Legislature has taken care to specify the

circumstances in and the grounds on which such amendment may be

made, it has also laid down the manner in which such amendment or

revision of the assessment list is to be made. Care has also been taken to

comply with the principle of natural justice by making the provision for

giving to the person who is likely to be affected by the proposed

amendment not less than a month's time to tender objection, if any to the

Committee and allowing him an opportunity of being heard in support of

the objections raised. Notice to the affected person mandated in the

section is not an empty formality; it is meant for a purpose. Apex Court

states that a vague and unspecific notice will not provide reasonable

opportunity to the noticee to file objection meeting the reasons/grounds

on which the amendment of the assessment list is proposed to be made.

Such a notice cannot be taken as complying with the statutory

requirement. The notice issued to the Food Corporation, merely stated

that property has been wrongly left out from assessment list. It neither

gave the reason for/or the ground on which the amendment was

proposed to be made nor did it indicate any material on the basis of

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which the revision as stated in the notice was proposed to be made.

Such a notice not only was held not complying with the statutory

requirements,and defeating the very purpose of the statutory provisions.

In Barium Chemicals Ltd. and another, v. Company Law Board and

Others, Hon'ble Apex Court considers Section 237(b) of the Companies

Act and states that words 'If in the opinion of Central Government'

imply that formation of opinion is subjective process but existence of

circumstances suggesting inference of what has been set out in sub-

clauses (i), (ii) or (iii) must be made out. In paragraph 60 it is further

observed that though an order passed in exercise of power under a

statute cannot be challenged on the ground of propriety or sufficiency, it

is liable to be quashed on the ground of malafides, dishonesty or corrupt

purpose. Even if it is passed in good faith and with the best of intention

to further the purpose of the legislation which confers the power, since

the Authority has to act in accordance with and within the limits of that

legislation, its order can also be challenged if it is beyond those limits or

is passed on grounds extraneous to the legislation or if there are no

grounds at all for passing it or if the grounds are such that no one can

reasonably arrive at the opinion or satisfaction requisite under the

legislation. In any one of these situations, Hon'ble Court states that it

can wel1 be said that the authority did not honestly form its opinion or

that in forming it, it did not apply its mind to the relevant facts. NMC

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seeks the eviction of petitioners before this Court in public interest and

that ground is applicable universally to all and upheld by ADMC as also

District Judge-3, Nagpur. These rulings therefore are not germane here.

18. Vinod Kumar Singh v. Banaras Hindu University (supra)

pressed into service by Shri Sharif, learned Counsel states that Rule 3

of 0rder 20, Civil P.C. permits alternation or additions to a judgment so

long as it is not signed. It is only after the judgment is both pronounced

and signed that alterations or additions are not permissible, except under

the provisions of Section 152 or Section 114 of the Civil Procedure Code

or, in very exceptional cases, under Section 151 of the Civil Procedure

Code. But, while the Court has undoubted power to alter or modify a

judgment, delivered but not signed, such power should be exercised

judicially, sparingly and for adequate reasons. When a judgment is

pronounced in open Court, parties act on the basis that it is the judgment

of the Court and that the signing is a formality to follow. When the

judgment is pronounced, parties present in the Court know the

conclusion in the matter and often on the basis of such pronouncement,

they proceed to conduct their affairs. If what is pronounced in Court is

not acted upon, certainly litigants would be prejudiced. Confidence of

the litigants in the judicial process would be shaken. The filing of Pursis

on 21/4/2007 before the District Court in appeal under Section 76F does

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not in any way constitute such an exercise to the prejudice of petitioners

and reliance on this judgment for said purpose is bad. In any case period

for eviction is statutorily prescribed and steps to be taken for recovery of

possession upon such failure to vacate are also enacted. No prejudice is

therefore caused to the petitioners in any way.

19. (1980) 4 SCC 374 = AIR 1981 SC. 136 (S.L. Kapoor v.

Jagmohan) has been relied upon by Shri Mehadia, learned counsel to

urge that violation of principles of natural justice ipso facto renders the

impugned order bad and no proof or plea of prejudice is necessary.

Facts there show that the observations have been made in the matter of

supersession of a municipal committee. The observations that

requirements of natural justice are met only if opportunity to represent is

given in view of proposed action and the demands of nature justice are

not met even if the very person proceeded against has furnished the

information on which the action is based, if it is furnished in a casual way

or for some other purpose. The person proceeded against must know

that he is being required to meet the allegations which might lead to a

certain action being taken against him. If that is made known the

requirements are met. But then these observations are due to findings

that the New Delhi Municipal Committee was never put on notice of any

action proposed to be taken under Section 238 of the Punjab Municipal

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Act and no opportunity was given to the Municipal Committee to explain

any fact or circumstance on the basis of which that action was proposed.

Hon'ble Apex Court notes that if there was any correspondence between

the New Delhi Municipal Committee and any other authority about the

subject matter or any of the allegations, if information was given and

gathered it was for entirely different purposes.

20.

In present matter as already noted above, there was earlier

round of litigation in WP 5647/2005 and on 5/12/2005 in its order, this

Court has noted intention of NMC to have a shopping complex at place of

existing supermarket. The order passed and earlier public advertisement

clearly bring on record the purpose for which eviction of the petitioners

was sought. In some matters, petitioners have accepted that relevant

clause in SCN served upon them was pointed out by applying "tick-mark"

while according to others it was not so. It is not the contention of any of

the petitioners that ADMC did not hear him or then inspection of NMC

records was denied to them. Even in appeal no such grievance has been

made. Thus reasonable opportunity to show cause and of hearing as

envisaged in Section 76B has been extended to all of them. Argument

that findings in paragraph 13and 16 of the impugned order by District

Court in appeal are beyond the SCN is erroneous as that part only notices

the need for development as felt in public interest. The technical

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objections now raised are by way of afterthought and liable to be

rejected.

21. Rampratap Jaidayal v. Dominion of India, (AIR 1953 Bom

170) is considered later in AIR 2001 Bom. 26 (Board of Trustees, Port of

Bombay v. Jayantilal Dharamsey) where the Division Bench has

observed:-- " 49. By a series of judgments of this Court as well as of the

Supreme Court, it has been held that the Government and its agencies which

are exempted from the rigours of the Rent Act cannot themselves practise

where by the legislation, the landlords are prevented from doing. The

following judgments were cited : 1. (1952) 54 Bom LR 927 : (AIR 1953 Bom

170) (Rampratap Jaidayal v. Dominion of India).2. 1954 SCR 572 : (AIR

1954 SC 153).3. AIR 1989 SC 1642 Dwarkadas Marfatia v. Board of

Trustees of the Port of Bombay. 4. 1992 Mad LJ 1356." In present matter,

it is clear that the enjoyment of their rights by the petitioners is subject to

provisions of Chapter VIA and NMC is exercising its rights under that

Chapter only. Not only this but it has reserved shops for allotment to

petitioners at concessional rate as part of its project. The interest free

deposit is half of what is being charged in open market. The rent per

month to be paid by them after such allotment in new mall is to be

divided into two equal parts. 50% thereof is to be appropriated towards

rent while remaining 50% towards the amount to be deposited by

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petitioners as interest free deposit. Thus NMC is not seeking eviction of

the petitioners but it is only a temporary vacation to enable it to

construct a shopping mall and to accommodate them back in it at

reasonable rates. This is attempt by it to balance public interest with

individual needs. Petitioners therefore can not insist for any other

concession or favour and can not urge that the location of their shops in

proposed complex must be shown to them in advance or then the

location is convenient. Law does not confer any such right on them. The

NMC has acted fairly enough and it can not be even compared with

private landlords. There is no requirement of any no objection from

them before the project is conceived or undertaken. AIR 1954 SC 153

and AIR 1989 SC 1642 cited by the petitioners are already considered by

the Division Bench (supra) of this High Court and hence, it is not

necessary to go into its details. AIR 2004 SC. 1815-- "Jamshed Hormusji

Wadia, v. Board of Trustees, Port of Mumbai" considers Major Port Trust

Act (38 of 1963), Section 49and lays down that actions of State and its

instrumentalities in field of landlord-tenant relationship should be tested

not under rent control legislation but under Constitution. Observations

in paragraph 20 show that steps taken were reasonable and accepting

current market rents as worked out by consultant would be profiteering.

But in facts before me, there are no such allegations of exorbitant rent .or

then threat to evict because of any refusal by petitioners to a demand to

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hike rent. On the contrary, substantial concessions are given to

petitioners by NMC. In fact,here, the findings in paragraphs 18 and 19

by the Hon'ble Apex Court go against them. Those observations are :--

" 18. In our opinion, in the field of contracts the State and its instrumentalities ought to so design their activities as would ensure fair competition and non-

discrimination. They can augment their resources but

the object should be to serve the public cause and to do public good by resorting to fair and reasonable methods.

The State and its instrumentalities, as the landlords, have the liberty of revising the rates of rent so as to compensate themselves against loss caused by

inflationary tendencies. They can -and rather must -

also save themselves from negative balances caused by the cost of maintenance, and payment of taxes and costs of administration. The State, as landlord, need not

necessarily be a benevolent and good charitable Samaritan. The felt need for expanding or stimulating its own activities or other activities in the public interest

having once arisen the State need not hold its hands from seeking eviction of its lessees. However, the State cannot be seen to be indulging in rack-renting, profiteering and indulging in whimsical or unreasonable evictions or bargains.

19. A balance has to be struck between the two

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extremes. Having been exempted from the operation of

rent control legislation the courts cannot hold them tied

to the same shackles from which the State and its instrumentalities have been freed by the legislature in their wisdom and thereby requiring them to be ruled

indirectly or by analogy by the same law from which they are exempt. Otherwise, it would tantamount to defeating the exemption clause consciously enacted by

the Legislature. At the same time the liberty given to the

State and its instrumentalities by the statute enacted under the Constitution does not exempt them from

honouring the Constitution itself. They continue to be ruled by Article 14. The validity of their actions in the field of landlord-tenant relationship is available to be

tested not under the rent control legislation but under

the Constitution. The rent control legislations are temporary, if not seasonal; the Constitution is permanent and all time law."

It can not be said that project is designed only for rich and influential

tenants. The decision is by the legally competent body and process

adopted by the Respondents is an open procedure with sympathetic view

for petitioners. This concession is neither mandated by the law nor by

Constitution of India. Hence, I, do not find any private landlord like

attitude here.

::: Downloaded on - 09/06/2013 16:10:33 ::: 54 22. It is not in dispute that competent authority has on 23/8/2006

issued a notification and commercial area has been excluded from the

slum area. Section 26 of the Slum Act clarifies that nothing contained in

Chapter VI of that Act i.e. commencing from Section 22 to Section 25

applies to eviction of tenants like petitioners from buildings belonging to

State Government or local authorities. The Appellate Court has thus

rightly found that argument of protection of possession till permission of

competent authority is therefore erroneous. But then Section 26 grants

exemption only from Chapter VI and not from Chapter IB. Section 3Z

thereof does not permit eviction of a tenant and only State Government

can allow it in larger public interest. Purpose of this Chapter can be seen

from Section 3Y and Section 3X(C) grants protection to occupiers of a

dwelling structure who holds photo-pass and not to others. But then

Section 3X(a) which defines dwelling structure to mean a structure used

as a dwelling or otherwise. Its inclusive part also does not expand it to

commercial or non-residential structures. The definition thus confines its

operation to structures used for residential purpose or then, at the most

to mixed user i.e. for both . Residential and commercial purpose. Any

other interpretation will render the design of legislature behind using the

word "dwelling" to qualify the word "structure". If any structure in slum

area was to be regulated, word "dwelling" would not have been

employed. Chapter IB therefore does not apply to purely commercial

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buildings like the one in use and occupation of the petitioners. Words

"otherwise" used in the definition do not expand its meaning to cover

activities sought to be excluded by legislature by employing the word

"dwelling" in it. Word "otherwise" is not used in that provision to defeat

the limitations flowing from use of word " dwelling". Supermarket

constructed by NMC for commercial user is definitely not covered

thereunder. The petitioners have not challenged the notification of

exemption dated 23/8/2006 before the competent forum and it can not

be assailed in these proceedings. The contention that since its

construction the supermarket in year 1966 the petitioners occupy the

shop-blocks and are being used for commercial purposes and still it was

recognized as slum in 1976, and now with oblique motive it is being

excluded from the slum area is therefore not only misplaced but also

misconceived. Bare perusal of this chapter clearly shows that its

intention is only to protect the residential occupancies. In AIR 1957 SC

521--"Lila Vati Bai v. State of Bombay" in paragraph 11 Hon'ble Apex

Court has after appreciating the context in which the words "or

otherwise" are use found that principles of ejusdem generis did not apply.

It was contended on behalf of the petitioner before Hon'ble Apex Court

that Explanation (a) to Section 6 quoted above contemplates a vacancy

when a tenant "ceases to be in occupation upon termination of his

tenancy, eviction, or assignment or transfer in any other manner of his

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interest in the premises or otherwise". The argument further advanced

was to the effect that admittedly there was no termination, eviction,

assignment or transfer and that the words "or otherwise" must be

construed as ejusdem generis with the words immediately preceding them:

and that therefore on the facts as admitted even in the affidavit filed on

behalf of the Government there was in law no vacancy. Hon'ble Court

found that it could not go behind the declaration made by the

Government that there was a vacancy. Rule of ejusdem generis was found

to have no application. The Legislature was held cautious and thorough-

going enough to bar all avenues of escape by using the words "or

otherwise." Those words were not the words of limitation but of

extension so as to cover all possible ways in which a vacancy may occur.

Legislature used those words in an all inclusive sense. As observed by

the Hon'ble Apex Court little later, here also I can say that no decided

case of any court, holding that the words "otherwise" have ever been used

in the sense contended for on behalf of the petitioner, has been brought

to my notice. AIR 1998 Bom. 216-- (Smt. Sugandha Manik Kane and

others v. The Conservator of Forests, with his Office at Panaji, Goa and

others.) now need consideration. Section 96 in Chapter VIII of Goa,

Daman and Diu Land Revenue Code (1968), is found to speak about

acquisition of rights only and not about existing right or obligation of any

person to inform about such existing rights to the Talathi. Only when a

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person acquires right, by way of succession, survivor ship, inheritance of

partition, purchase, mortgage, gift, lease or otherwise, any right as

holder, occupant, mortgagee, landlord, tenant or Government Lessee of

any land that such person has to inform about the acquisition of such

right. Section 96 does provide that the person acquiring any right in the

manner specified thereunder, as well as 'otherwise' has to inform about

the same to the Talathi. Rule of 'ejusdem generis' is resorted to hold that

the word 'otherwise' has to be understood, as mode of acquisition of

right. Again the words have been interpreted in the context used and

hence, this judgment is also of no help to the petitioners here.

23. This notification dated 23/8/2006 can also not be labeled as

an attempt to get over the Division Bench order dated 5/12/2005 in Writ

Petition No.5647/2005. High Court disposed of that writ petition after

recording submission of the NMC there that it would not dispossess the

occupants before it summarily and by directing it to not to dispossess

them without following due process of law and such eviction would be

undertaken after taking permission from competent authority under Slum

Act, 1971, if required in the law. The order therefore does not adjudicate

necessity of such permission and leaves it open. It also does not bar

issuance of any exemption notification like dated 23/8/2006. In view of

findings on Section 26and "dwelling structure" above, this line of defense

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warrants nothing but rejection.

24. Loss of a source of earning livelihood not only for themselves

and families but also to several others indulging in incidental or co-

lateral businesses can also not be relevant when scheme of Chapter VIA

of NMC Act is taken note of. The petitioners can not here try to

demonstrate any more right than available to them under that Chapter.

Article 21 also permits deprivation of life and liberty in accordance with

the procedure established by law. AIR 1986 SC 180 (Olga Tellis v.

Bombay Municipal Corporation) relied upon by the petitioners does not

consider a relationship regulated by contract or statutory provisions.

Hon'ble Apex Court has stated while summing up the petitioners' case

before it, that the main plank of their argument was that the right to life

which is guaranteed by Article 21 includes the right to livelihood and

since, they will be deprived of their livelihood if they are evicted from

their slum and pavement dwellings, their eviction is tantamount to

deprivation of their life and is hence unconstitutional. Thus right to

reside in slums on footpath was co-related with livelihood earned. The

observations and findings that right to life include right to earn livelihood

there are therefore not relevant in case of present petitioners as they do

not reside their and their right is being terminated as per law. Later

Constitution Bench judgment of Hon'ble Apex Court in AIR 2006 SC.

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argument that right to employment is part of right to life. The

consideration there clearly shows that primacy needs to be given to Rule

of Law and to general public good. Here NMC has proposed a project

for benefit of not only traders or businessmen but also for members of

general public visiting the shops or establishments and also required to

use the public roads or facilities in vicinity. The project therefore is

aimed at making better provisions for customers, for commuters etc. At

the same time it also attempts to accommodate petitioners. It can not be

viewed as violating Article 21 in any manner.

25. Legitimate expectation is also looked into by Hon'ble Apex

Court in "Secretary, State of Karnataka v. Umadevi"(supra). The

employees there contended that because of long continuation as

temporaries or casuals and past regularization of similar employees by

the State, they also deserved same treatment. The following observations

are important in present context :-

"The doctrine of legitimate expectation can be invoked if the decisions of the Administrative Authority affect the person by depriving him of some benefit or advantage which either (i) he had in the past been permitted by the decision-maker to enjoy and which he

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can legitimately expect to be permitted to continue to

do until there have been communicated to him some

rational grounds for withdrawing it on which he has been given an opportunity to comment; or (ii) he has received assurance from the decision-maker that they

will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn. Though, there is a case

that the State had made regularizations in the past of

similarly situated employees, the fact remains that such regularizations were done only pursuant to

judicial directions, either of the Administrative Tribunal or of the High Court and in some case by this Court. Moreover, the invocation of the doctrine of

legitimate expectation cannot enable the employees to

claim that they must be made permanent or they must be regularized in the service though they had not been selected in terms of the rules for appointment. The fact

that in certain cases the Court had directed regularization of the employees involved in those cases cannot be made use of to found a claim based on

legitimate expectation. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot

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invoke the theory of legitimate expectation for being

confirmed in the post when an appointment to the post

could be made only by following a proper procedure for selection and in concerned cases, in consultation with the Public Service Commission. Therefore, the theory

of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has

held out any promise while engaging these persons

either to continue them where they are or to make them permanent. The State cannot constitutionally

make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post."

Present petitioners have not pleaded any such concession or assurance by

NMC to them and parties together can not do anything to defeat the

object and purpose of Chapter VIA of the NMC Act. General public

interest is bound to be supreme.

26. Judgment of Hon'ble Apex Court at AIR 1993 SC 1601 (Food

Corporation of India v. M/s. Kamdhenu Cattle Feed Industries) relied

upon by Shri Mehadia, learned counsel also shows significant and

determinative role of general public interest even in contractual matter.

Following two paragraphs cull down the law :-

::: Downloaded on - 09/06/2013 16:10:33 ::: 62 "7. In contractual sphere as in all other State actions,

the State and all its instrumentalities have to conform to Art, 14 of the Constitution of which non-

arbitrariness is a significant facet. There is no

unfettered discretion in public law: A public authority possesses powers only to use them for public good. This imposes the duty to act fairly and to adopt a procedure

which is 'fair play in action'. Due observance of this

obligation as a part of good administration raises a reasonable or legitimate expectation in every citizen to

be treated fairly in his interaction with the State and its instrumentalities, with this element forming a necessary component of the decision-making process in

all State actions. To satisfy this requirement of non-

arbitrariness in a State action, it is, therefore, necessary to consider and give due weight to the reasonable or legitimate expectations of the persons

likely to be affected by the decision or else that unfairness in the exercise of the power may amount to an abuse or excess of power apart from affecting the

bonafides of the decision in a given case. The decision so made would be exposed to challenge on the ground of arbitrariness. Rule of law does not completely eliminate discretion in the exercise of power, as it is unrealistic, but provides for control of its exercise by judicial review.

8. The mere reasonable or legitimate expectation of a

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citizen, in such a situation, may not by itself be a

distinct enforceable right, but failure to consider and

give due weight to it may render the decision arbitrary, and this is how the requirement of due consideration of a legitimate expectation forms part of the principle of

non-arbitrariness, a necessary concomitant of the rule of law. Every legitimate expectation is a relevant factor requiring due consideration in a fair decision-

making process. Whether the expectation of the

claimant is reasonable or legitimate in the context is a question of fact in each case. Whenever the question

arises, it is to be determined not according to the claimant's perception but in larger public interest wherein other more important considerations may

outweigh what would otherwise have been the

legitimate expectation of the claimant. A bona fide decision of the public authority reached in this manner would satisfy the requirement of non-arbitrariness and

withstand judicial scrutiny. The doctrine of legitimate expectation gets assimilated in the rule of law and operates in our legal system in this manner and to this

extent. -"

It can not therefore be accepted that petitioners could have any

legitimate expectation here to continue as tenants for ever particularly

when provisions of Chapter VIA also govern their contract of tenancy.

The reliance upon provisions of Rent Control legislations or Slum Act to

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work out any expectation is ill founded. They can not here contend that

their proposed eviction in accordance with said Chapter VIA of NMC Act

is arbitrary or unfair. They can not complain of any abuse of position by

the NMC when it is offering them shops in new Mall at 50% of the rates

applicable to others. The argument that till the new accommodation

becomes available for occupation, they should be given some alternate

site is not supported by any contractual or statutory obligation on

respondents.

27. With the result, I do not find any jurisdictional error or

perversity in the order passed by the District Judge-3, Nagpur or ADMC.

The authority of petitioners to continue to occupy the shop blocks in

Supermarket has been terminated as per law and they are also asked to

vacate accordingly. There is no abuse of power by NMC and petitioners

have been treated fairly and as per law. No case is therefore made out

warranting any interference in writ jurisdiction. All Writ Petitions are

therefore dismissed. Rule discharged. No order as to costs.

JUDGE

dragon.

::: Downloaded on - 09/06/2013 16:10:33 ::: 65 28. At this stage, respective counsel for petitioners pray that

orders protecting their possession till today should be continued for

further period of 6 weeks so at to enable them to take further

appropriate steps in the matter. In the interest of justice, possession of

petitioners is accordingly protected till 30th August, 2010 and the said

arrangement and protection shall cease to operate automatically

thereafter.

JUDGE

Rgd.

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