Bombay High CourtOmprakash Sawalram Agrawal vs The Nagpur Municipal Corporation on 19 July, 2010Author:B.P.  DharmadhikariBench:B.P.  Dharmadhikari1




                                                                                  
                IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                          
                          NAGPUR BENCH, NAGPUR.




                                                         
             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.




                                           
                                           -----------
                          
    (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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                                      3




                                                                                 
                                         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::: Downloaded on - 09/06/2013 16:10:48 :::17JUDGEMENT.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 ofCity of 
                          
    Nagpur Corporation Act, 1948(hereinafter referred to as "the NMC Act"for short).    It is also a planing authority for Nagpur underMaharashtra 

    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::: Downloaded on - 09/06/2013 16:10:48 :::18to   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 ofSection 76Bof 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 underSection 76-Bis 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::: Downloaded on - 09/06/2013 16:10:48 :::19cause   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::: Downloaded on - 09/06/2013 16:10:48 :::20of 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  bySection  76Bmust 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::: Downloaded on - 09/06/2013 16:10:48 :::21then 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 atAIR 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::: Downloaded on - 09/06/2013 16:10:48 :::22citesAIR 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 withSection  76Balso 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::: Downloaded on - 09/06/2013 16:10:48 :::23alleging 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 toArticle   21of 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.::: Downloaded on - 09/06/2013 16:10:48 :::24Such eviction by illegal action is therefore alleged to be unconstitutional.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 "theSlum   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 andSection 3Zof 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::: Downloaded on - 09/06/2013 16:10:48 :::25that 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   underSection   76Bhas   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 ofSection 76Gconfer finality on such orders andSection 76Halso bars the jurisdiction 

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





    regulated either by eitherSection 59(5)or Section 59-C or thenSection 

    387of 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 "theBMC Act" for short) is referred::: Downloaded on - 09/06/2013 16:10:48 :::26by him to show that by very same amendment by which Section  105A or 




                                                                              
    105B are added,Section 68permitting 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 59or 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::: Downloaded on - 09/06/2013 16:10:48 :::27contract 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 ofSection  26of the Slum 
                          
    Act, it is not applicable to NMC and as the petitioners have no photo-passes as per itsSection  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 ofArticle 
   



    21or 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::: Downloaded on - 09/06/2013 16:10:48 :::28adhered to and in  view of mandate  ofArt.   14of 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   likeSlum   Actto 
                           
    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   ofSection     68of   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::: Downloaded on - 09/06/2013 16:10:48 :::29which   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::: Downloaded on - 09/06/2013 16:10:48 :::30delegation   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::: Downloaded on - 09/06/2013 16:10:48 :::31amounts   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   underSection     105Bof   the   Act.Words "Any of the powers, duties or functions conferred or imposed upon or  





    vested in the Commissioner" used inSection 68of 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 68of 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::: Downloaded on - 09/06/2013 16:10:48 :::32be delegated.    It therefore follows that simultaneous addition of Section 




                                                                                
    68 inBMC Actby 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 underSection  76Bby 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 
   



    76Bpermits 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   underSection   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::: Downloaded on - 09/06/2013 16:10:48 :::33order 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::: Downloaded on - 09/06/2013 16:10:48 :::34that 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 inSection  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::: Downloaded on - 09/06/2013 16:10:48 :::35grievance   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 byMaharashtra  Act45 of 2005 and its purpose is to empower NMC to evict persons from 

    corporation   premises.     It   containsSection     76Ato   76J.Section   76Adefines 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   underSection   76B(1)is 

    unauthorized   occupation.     Provisions   ofSection   76Bare   already 

    discussed   at   necessary   length   above.     That   section   also   contains 

    procedure enabling Commissioner to sell movables in properties taken in 

    possession underSection 76Band to credit surplus after deducting sale::: Downloaded on - 09/06/2013 16:10:48 :::36expenditure 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 underCPCto 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   underSection 76Bor 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::: Downloaded on - 09/06/2013 16:10:48 :::37chapter.   Section 76G prescribes penalty for any person who obstructs 




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




                                                         
    underSection 76Bcan 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 underSection 76Bcan be resorted 

    to.  Satisfaction of Commissioner underSection 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::: Downloaded on - 09/06/2013 16:10:48 :::38that 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   ofSection     76Benvisages   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::: Downloaded on - 09/06/2013 16:10:48 :::39hence, 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 16:10:48 :::4016.         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 underSection  
              4all   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::: Downloaded on - 09/06/2013 16:10:48 :::41its   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   underSection   4of 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::: Downloaded on - 09/06/2013 16:10:48 :::42base.     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.InShreeji 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::: Downloaded on - 09/06/2013 16:10:48 :::43only reference toSec.  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 underSection 
                          
    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 16:10:48 :::44The 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 inNasir Ahmed, v.  Assistant Custodian General, Evacuee Property, 

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


    Property Act(31 of 1950).   The notice underSection 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) ofSection 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 underSection 7has to be a valid notice and an inquiry which 

    travels beyond the  bounds of the notice  is declared impermissible and::: Downloaded on - 09/06/2013 16:10:49 :::45without 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::: Downloaded on - 09/06/2013 16:10:49 :::46which   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.InBarium Chemicals Ltd.   and another,   v.   Company Law Board and 




                                                           
    Others, Hon'ble  Apex Court considersSection  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::: Downloaded on - 09/06/2013 16:10:49 :::47seeks 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 ofSection  152orSection  114of the Civil Procedure Code 

    or, in very exceptional cases, underSection   151of 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::: Downloaded on - 09/06/2013 16:10:49 :::48not 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 underSection 238of the Punjab Municipal::: Downloaded on - 09/06/2013 16:10:49 :::49Act 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 inSection 76Bhas 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::: Downloaded on - 09/06/2013 16:10:49 :::50objections   now   raised   are   by   way   of   afterthought   and   liable   to   be 




                                                                                    
    rejected.21.           Rampratap  Jaidayal  v.    Dominion  of  India, (AIR  1953  Bom170) 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 theRent Actcannot 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 Bom170) (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::: Downloaded on - 09/06/2013 16:10:49 :::51petitioners 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::: Downloaded on - 09/06/2013 16:10:49 :::52hike   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::: Downloaded on - 09/06/2013 16:10:49 :::53extremes.   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 byArticle 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 16:10:49 :::5422.         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 26of the Slum Act clarifies that nothing contained in 

    Chapter VI of that Act i.e.   commencing fromSection  22toSection  25applies 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 thenSection 26grants 

    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::: Downloaded on - 09/06/2013 16:10:49 :::55buildings 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) toSection 6quoted 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::: Downloaded on - 09/06/2013 16:10:49 :::56interest 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::: Downloaded on - 09/06/2013 16:10:49 :::57person 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 underSlum 

    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::: Downloaded on - 09/06/2013 16:10:49 :::58warrants 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 21also 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 byArticle   21includes 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.::: Downloaded on - 09/06/2013 16:10:49 :::591806     (Secretary,   State   of   Karnataka   v.     Umadevi)  has   rejected   the 




                                                                                 
    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 violatingArticle  21in 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::: Downloaded on - 09/06/2013 16:10:49 :::60can 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::: Downloaded on - 09/06/2013 16:10:49 :::61invoke 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 16:10:49 :::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::: Downloaded on - 09/06/2013 16:10:49 :::63citizen,   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 orSlum Actto::: Downloaded on - 09/06/2013 16:10:49 :::64work 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 16:10:49 :::6528.          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.::: Downloaded on - 09/06/2013 16:10:49 :::