Bombay High Court
Shabbir Mulla Yusuf Ali Dahodwala vs The Commissioner Nashik Municipal … on 12 September, 2024
Author: Sharmila U. Deshmukh
Bench: Sharmila U. Deshmukh
2024:BHC-AS:36738
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 7079 OF 2023
1] Mr. Karansingh Shivsingh Gill ]
Age: 45 years, Occ: Business, ]
R/o I.D.Hospital Compound, Near Dwarka ]
Circle, Service Raod, Nashik. ] ...Petitioner.
Versus
1] Nashik Municipal Corporation, ]
Through its Municipal Commissioner, ]
Presently the Administrator, ]
Rajiv Gandhi Bhavan, ]
Sharanpur Road, Nashik. ]
2] The Deputy Commissioner, ]
Encroachment Department, ]
Nashik Municipal Corporation ]
having his office at : ]
Rajiv Gandhi Bhavan, ]
Sharanpur Road, Nashik. ]
3] The State of Maharashtra ] ...Respondents.
WITH
WRIT PETITION NO. 1750 OF 2023.
1] Mr. Mayuresh Shantaram Karad ]
Age: 35, Occ: Business ]
R/at:-Old Deolali Naka, I.D. Hospital ]
Pune Road, Nashik -422011 ] ...Petitioner.
Versus
1] Nashik Municipal Corporation, ]
Through its Municipal Commissioner, ]
Presently the Administrator, ]
Rajiv Gandhi Bhavan, ]
Sharanpur Road, Nashik. ]
2] The Deputy Commissioner, ]
Encroachment Department, ]
Nashik Municipal Corporation ]
having his office at : ]
Rajiv Gandhi Bhavan, ]
Sharanpur Road, Nashik. ]
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3] The State of Maharashtra ] ...Respondents.
WITH
WRIT PETITION NO. 1752 OF 2023 .
1] Mr. Prashant Shrikant Tayade ]
Age: 40, Occ: Business ]
R/at:- Old Deolali Naka, I.D. Hospital ]
Pune Road, Nashik - 422011 ] ...Petitioner.
Versus
1] Nashik Municipal Corporation, ]
Through its Municipal Commissioner, ]
Presently the Administrator, ]
Rajiv Gandhi Bhavan, ]
Sharanpur Road, Nashik. ]
2] The Deputy Commissioner, ]
Encroachment Department, ]
Nashik Municipal Corporation ]
having his office at : ]
Rajiv Gandhi Bhavan, ]
Sharanpur Road, Nashik. ] ...Respondents.
WITH
WRIT PETITION NO. 1762 OF 2023 .
1] Mr. Fakir Mohammad Akbar Patel ]
Age:29, Occ: Business ]
R/at:- Old Deolali Naka, I.D. Hospital ]
Pune Road, Nashik - 422011 ] ...Petitioner.
Versus
1] Nashik Municipal Corporation, ]
Through its Municipal Commissioner, ]
Presently the Administrator, ]
Rajiv Gandhi Bhavan, ]
Sharanpur Road, Nashik. ]
2] The Deputy Commissioner, ]
Encroachment Department, ]
Nashik Municipal Corporation ]
having his office at : ]
Rajiv Gandhi Bhavan, ]
Sharanpur Road, Nashik. ]
3 The State of Maharashtra ] ...Respondents.
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WITH
WRIT PETITION NO. 1751 OF 2023.
1] Mr. Ramlal Babulal Sakhare ]
Age: 60, Occ:Business ]
R/at:- Old Deolali Naka, I.D. Hospital ]
Pune Road, Nashik - 422011 ] ...Petitioner.
Versus
1] Nashik Municipal Corporation, ]
Through its Municipal Commissioner, ]
Presently the Administrator, ]
Rajiv Gandhi Bhavan, ]
Sharanpur Road, Nashik. ]
2] The Deputy Commissioner, ]
Encroachment Department, ]
Nashik Municipal Corporation ]
having his office at : ]
Rajiv Gandhi Bhavan, ]
Sharanpur Road, Nashik. ]
3 The State of Maharashtra ] ...Respondents.
WITH
WRIT PETITION NO. 1759 OF 2023.
1] Mr. Arun Pandurang Shelke ]
Age: 55, Occ: Business ]
R/at:- Old Deolali Naka, I.D. Hospital ]
Pune Raod, Nashik-422011 ] ...Petitioner.
Versus
1] Nashik Municipal Corporation, ]
Through its Municipal Commissioner, ]
Presently the Administrator, ]
Rajiv Gandhi Bhavan, ]
Sharanpur Road, Nashik. ]
2] The Deputy Commissioner, ]
Encroachment Department, ]
Nashik Municipal Corporation ]
having his office at : ]
Rajiv Gandhi Bhavan, ]
Sharanpur Road, Nashik. ]
3] The State of Maharashtra ] ...Respondents.
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WITH
WRIT PETITION NO. 1827 OF 2023.
1] Mr. Ravindra Abhimanyu Marathe ]
Age: 37, Occ: Business ]
R/at:- Old Deolali Naka, I.D. Hospital ]
Pune Road, Nashik - 422011 ] ...Petitioner.
Versus
1] Nashik Municipal Corporation, ]
Through its Municipal Commissioner, ]
Presently the Administrator, ]
Rajiv Gandhi Bhavan, ]
Sharanpur Road, Nashik. ]
2] The Deputy Commissioner, ]
Encroachment Department, ]
Nashik Municipal Corporation ]
having his office at : ]
Rajiv Gandhi Bhavan, ]
Sharanpur Road, Nashik. ]
3] The State of Maharashtra ] ...Respondents.
WITH
WRIT PETITION NO. 7102 OF 2023.
1] Mr. Shaikh Fattu Shaikh Chand ]
Age: 79 years, Occ:- Business, ]
R/o. I.D. Hospital Compound, ]
Near Dwarka Circle, Service Road, Nashik ] ...Petitioner.
Versus
1] Nashik Municipal Corporation, ]
Through its Municipal Commissioner, ]
Presently the Administrator, ]
Rajiv Gandhi Bhavan, ]
Sharanpur Road, Nashik. ]
2] The Deputy Commissioner, ]
Encroachment Department, ]
Nashik Municipal Corporation ]
having his office at : ]
Rajiv Gandhi Bhavan, ]
Sharanpur Road, Nashik. ]
3] The State of Maharashtra ] ...Respondents.
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WITH
WRIT PETITION NO. 7081 OF 2023.
1] Mr. Shivsingh Hazarasingh Gill ]
(Since deceased) through legal heir ]
Mr. Sharandevsingh Shivsingh Gill ]
Age:- 41 years, Occ:- Business, ] ...Petitioner.
R/o. Old Deolali Naka, Ideal Hospital, ]
Dwarka, Nashik. ]
Versus
1] Nashik Municipal Corporation, ]
Through its Municipal Commissioner, ]
Presently the Administrator, ]
Rajiv Gandhi Bhavan, ]
Sharanpur Road, Nashik. ]
2] The Deputy Commissioner, ]
Encroachment Department, ]
Nashik Municipal Corporation ]
having his office at : ]
Rajiv Gandhi Bhavan, ]
Sharanpur Road, Nashik. ]
3] State of Maharashtra ] ...Respondents.
WITH
WRIT PETITION NO. 7084 OF 2023.
1] Shabbir Mulla Yusuf Ali Dahodwala, ]
Age:- 57 years, Occ- Business, ]
R/o.Plot No.65, Golden Park, Singapur ]
Garden, Takali Road Nashik. ] ...Petitioner.
Versus
1] Nashik Municipal Corporation, ]
Through its Municipal Commissioner, ]
Presently the Administrator, ]
Rajiv Gandhi Bhavan, ]
Sharanpur Road, Nashik. ]
2] The Deputy Commissioner, ]
Encroachment Department, ]
Nashik Municipal Corporation ]
having his office at : ]
Rajiv Gandhi Bhavan, ]
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Sharanpur Road, Nashik. ]
3] The State of Maharashtra ] ...Respondents.
WITH
WRIT PETITION NO. 7082 OF 2023.
1] Mr. Shivsingh Hazarasingh Gill ]
(Since deceased) through legal heir ]
Mr. Sharandevsingh Shivsingh Gill ]
Age:- 41 years, Occ:-Business, ]
R/o. New Mohinder Punjab Hotel, ]
Old Deolali Naka, Ideal Hospital, ]
Dwarka, Nashik. ] ...Petitioner.
Versus
1] Nashik Municipal Corporation, ]
Through its Municipal Commissioner, ]
Presently the Administrator, ]
Rajiv Gandhi Bhavan, ]
Sharanpur Road, Nashik. ]
2] The Deputy Commissioner, ]
Encroachment Department, ]
Nashik Municipal Corporation ]
having his office at : ]
Rajiv Gandhi Bhavan, ]
Sharanpur Road, Nashik. ]
3] The State of Maharashtra ] ...Respondents.
WITH
WRIT PETITION NO. 7100 OF 2023.
1] Mr. Gulam Dastagir Abdul Gaffar ]
Age:- 57 years, Occ:- Business, ]
R/o. I.D. Hospital Compound, ]
Near Dwarka Circle, Service Road, ]
Nashik. ] ...Petitioner.
Versus
1] Nashik Municipal Corporation, ]
Through its Municipal Commissioner, ]
Presently the Administrator, ]
Rajiv Gandhi Bhavan, ]
Sharanpur Road, Nashik. ]
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2] The Deputy Commissioner, ]
Encroachment Department, ]
Nashik Municipal Corporation ]
having his office at : ]
Rajiv Gandhi Bhavan, ]
Sharanpur Road, Nashik. ]
3] State of Maharashtra ] ...Respondents.
WITH
WRIT PETITION NO. 7096 OF 2023.
1] Sukhmani Motors through its ]
Manager- Mr. Damanjit Singh Kanwarji ]
Singh Chadha, Age:-32 years, Occ-Business, ]
R/o. I.D. Hospital Compound, ]
Near Dwarka Circle, Service Road, ]
Nashik. ] ...Petitioner.
Versus
1] Nashik Municipal Corporation, ]
Through its Municipal Commissioner, ]
Presently the Administrator, ]
Rajiv Gandhi Bhavan, ]
Sharanpur Road, Nashik. ]
2] The Deputy Commissioner, ]
Encroachment Department, ]
Nashik Municipal Corporation ]
having his office at : ]
Rajiv Gandhi Bhavan, ]
Sharanpur Road, Nashik. ]
3] State of Maharashtra ] ...Respondents.
WITH
WRIT PETITION NO. 7091 OF 2023.
1] Mr. Dattatray Murlidhar Jadhav, ]
Age:-57 years, Occ-Business, ]
R/o.C-1 Lingayat Colony, ]
Shriram Setu Society, Behind Hotel ]
Siddharth, Pune Road, Nashik. ] ...Petitioner.
Versus
1] Nashik Municipal Corporation, ]
Through its Municipal Commissioner, ]
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Presently the Administrator, ]
Rajiv Gandhi Bhavan, ]
Sharanpur Road, Nashik. ]
2] The Deputy Commissioner, ]
Encroachment Department, ]
Nashik Municipal Corporation ]
having his office at : ]
Rajiv Gandhi Bhavan, ]
Sharanpur Road, Nashik. ]
3] The State of Maharashtra ] ...Respondents.
WITH
WRIT PETITION NO. 7099 OF 2023.
1] Mr. Karansingh Shivsingh Gill ]
Age: 45 years, Occ: Business, ]
R/o I.D. Hospital Compound, ]
Near Dwarka Circle, Service Road, ]
Nashik. ] ...Petitioner.
Versus
1] Nashik Municipal Corporation, ]
Through its Municipal Commissioner, ]
Presently the Administrator, ]
Rajiv Gandhi Bhavan, ]
Sharanpur Road, Nashik. ]
2] The Deputy Commissioner, ]
Encroachment Department, ]
Nashik Municipal Corporation ]
having his office at : ]
Rajiv Gandhi Bhavan, ]
Sharanpur Road, Nashik. ] ...Respondents.
WITH
WRIT PETITION NO. 7097 OF 2023.
1] Mr. Hazarsingh Sohansingh Nagi ]
(Since deceased through legal heir) ]
Mr. Kuldeepsingh Hazarsingh Nagi ]
Age:- 59 years, Occ:-Business, ]
R/o. KS Engineering Works, ]
Old Deolali Naka, Ideal Hospital, ]
Dwarka, Nashik. ] ...Petitioner.
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Versus
1] Nashik Municipal Corporation, ]
Through its Municipal Commissioner, ]
Presently the Administrator, ]
Rajiv Gandhi Bhavan, ]
Sharanpur Road, Nashik. ]
2] The Deputy Commissioner, ]
Encroachment Department, ]
Nashik Municipal Corporation ]
having his office at : ]
Rajiv Gandhi Bhavan, ]
Sharanpur Road, Nashik. ]
3] The State of Maharashtra ] ...Respondents.
WITH
WRIT PETITION NO. 7098 OF 2023.
1] Sukhmani Motors through its ]
Manager- ]
Mr. Damanjit Kanwarjit Chadha/ ]
Arvind Kaur Chandok ]
Age:- 32 years, Occ:-Business, ]
R/o. I.D. Hospital Compound, ]
Near Dwarka Circle, Service Road, ]
Nashik. ] ...Petitioner.
Versus
1] Nashik Municipal Corporation, ]
Through its Municipal Commissioner, ]
Presently the Administrator, ]
Rajiv Gandhi Bhavan, ]
Sharanpur Road, Nashik. ]
2] The Deputy Commissioner, ]
Encroachment Department, ]
Nashik Municipal Corporation ]
having his office at : ]
Rajiv Gandhi Bhavan, ]
Sharanpur Road, Nashik. ]
3] The State of Maharashtra ] ...Respondents.
WITH
WRIT PETITION NO. 7093 OF 2023.
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1] Mr. Tandeshwari Mununi Chandran ]
Age:- 62 years, Occ:- Business, ]
R/o. Laxmi Tyre Works, ]
Old Deolali Naka, Ideal Hospital, ]
Dwarka, Nashik ] ...Petitioner.
Versus
1] Nashik Municipal Corporation, ]
Through its Municipal Commissioner, ]
Presently the Administrator, ]
Rajiv Gandhi Bhavan, ]
Sharanpur Road, Nashik. ]
2] The Deputy Commissioner, ]
Encroachment Department, ]
Nashik Municipal Corporation ]
having his office at : ]
Rajiv Gandhi Bhavan, ]
Sharanpur Road, Nashik. ]
3] The State of Maharashtra ] ...Respondents.
WITH
WRIT PETITION NO. 7101 OF 2023.
1] Mr. Prashant Ramesh Ghayal ]
Age:- 50 years, Occ:- Business, ]
R/o I.D. Hospital Compound, ]
Near Dwarka Circle, Service Road, ]
Nashik. ] ...Petitioner.
Versus
1] Nashik Municipal Corporation, ]
Through its Municipal Commissioner, ]
Presently the Administrator, ]
Rajiv Gandhi Bhavan, ]
Sharanpur Road, Nashik. ]
2] The Deputy Commissioner, ]
Encroachment Department, ]
Nashik Municipal Corporation ]
having his office at : ]
Rajiv Gandhi Bhavan, ]
Sharanpur Road, Nashik. ]
3] The State of Maharashtra ] ...Respondents.
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WITH
WRIT PETITION NO. 7094 OF 2023.
1] Mr. Jaspalsingh Tarvindarsingh Chandok ]
Age:- 62 years, Occ:-Business, ]
R/o I.D. Hospital Compound, ]
Near Dwarka Circle, Service Road, ]
Nashik ] ...Petitioner.
Versus
1] Nashik Municipal Corporation, ]
Through its Municipal Commissioner, ]
Presently the Administrator, ]
Rajiv Gandhi Bhavan, ]
Sharanpur Road, Nashik. ]
2] The Deputy Commissioner, ]
Encroachment Department, ]
Nashik Municipal Corporation ]
having his office at : ]
Rajiv Gandhi Bhavan, ]
Sharanpur Road, Nashik. ]
3] The State of Maharashtra ] ...Respondents.
WITH
WRIT PETITION NO. 7085 OF 2023.
1] Akhlakh Jahiruddin Shaikh (deceased) ]
Through his legal heirs: ]
1] Shaikh Ifjul Rehman ]
Age:- 48 years, Occ:- Business, ]
R/o. Gausia Manzil, Vinay Nagar, ]
Near Dwarka Circle, Service Road, Nashik. ]
]
2] Shaikh Saida Firdaus Shakir ]
Age:-46 years, Occ:- Household, ]
R/o. Aurangabad. ]
]
3] Shaikh Noorjanha Rais ]
Age:- 44 years, Occ:-Household, ]
]
4] Shaikh Israt Amin ]
Age:- 42 years, Occ:- Household, ]
Sr.No. 3 & 4 R/o. Pipliya Mandi, ]
Mandsour, Madhya Pradesh. ]
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]
5] Shaikh Mohammad Ziyaur Rehman ]
Age:- 40 years, Occ:- Business, ]
]
6] Shaikh Mohammad Khalil Rehman ]
Age:- 37 years, Occ:- Business, ]
Sr.No. 5 & 6 R/o Gausia Manzil, ]
Vinay Nagar, Nashik. ]
]
7] Shaikh Shabana Hussain ]
Age:- 35 years, Occ:-Business, ]
R/o. Wadalgaon, Dist. Nashik ] ...Petitioner.
Versus
1] Nashik Municipal Corporation, ]
Through its Municipal Commissioner, ]
Presently the Administrator, ]
Rajiv Gandhi Bhavan, ]
Sharanpur Road, Nashik. ]
2] The Deputy Commissioner, ]
Encroachment Department, ]
Nashik Municipal Corporation ]
having his office at : ]
Rajiv Gandhi Bhavan, ]
Sharanpur Road, Nashik. ]
3] The State of Maharashtra ] ...Respondents.
WITH
WRIT PETITION NO. 1761 OF 2023.
1] Mr. Shrikant Khandu Dhinde ]
Age:- 49, Occ:-Business ]
R/at:- Old Deolali Naka, I.D. Hospital ]
Pune Road, Nashik 422011 ] ...Petitioner.
Versus
1] Nashik Municipal Corporation, ]
Through its Municipal Commissioner, ]
Presently the Administrator, ]
Rajiv Gandhi Bhavan, ]
Sharanpur Road, Nashik. ]
2] The Deputy Commissioner, ]
Encroachment Department, ]
Nashik Municipal Corporation ]
having his office at : ]
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Rajiv Gandhi Bhavan, ]
Sharanpur Road, Nashik. ]
3] The State of Maharashtra ] ...Respondents.
WITH
WRIT PETITION NO. 1753 OF 2023.
1] Mr. Shaikh Faridabi Mohammad ]
Age:- 66, Occ:- Business ]
R/at:- Old Deoli Naka, I.D. Hospital ]
Pune Road, Nashik 422011 ] ...Petitioner.
Versus
1] Nashik Municipal Corporation, ]
Through its Municipal Commissioner, ]
Presently the Administrator, ]
Rajiv Gandhi Bhavan, ]
Sharanpur Road, Nashik. ]
2] The Deputy Commissioner, ]
Encroachment Department, ]
Nashik Municipal Corporation ]
having his office at : ]
Rajiv Gandhi Bhavan, ]
Sharanpur Road, Nashik. ]
3] The State of Maharashtra ] ...Respondents.
WITH
WRIT PETITION NO. 1763 OF 2023.
1] Mr. Ramchandra Damodar Ghadge ]
Age:- 60, Occ:-Business, ]
R/at:- Old Deolali Naka, I.D. Hospital ]
Pune Road, Nashik 422011 ] ...Petitioner.
Versus
1] Nashik Municipal Corporation, ]
Through its Municipal Commissioner, ]
Presently the Administrator, ]
Rajiv Gandhi Bhavan, ]
Sharanpur Road, Nashik. ]
2] The Deputy Commissioner, ]
Encroachment Department, ]
Nashik Municipal Corporation ]
having his office at : ]
Patil-SR (ch) 13 of 67
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Rajiv Gandhi Bhavan, ]
Sharanpur Road, Nashik. ]
3] The State of Maharashtra ] ...Respondents.
WITH
WRIT PETITION NO. 7087 OF 2023.
1] Mr. Ratanlal Dagdu Sharma, ]
Age:-64 years, Occ- Business, ]
R/o. Parshuram Puriya, Ideal Hospital, ]
Pakhal Road, Dwarka, Nashik ] ...Petitioner.
Versus
1] Nashik Municipal Corporation, ]
Through its Municipal Commissioner, ]
Presently the Administrator, ]
Rajiv Gandhi Bhavan, ]
Sharanpur Road, Nashik. ]
2] The Deputy Commissioner, ]
Encroachment Department, ]
Nashik Municipal Corporation ]
having his office at : ]
Rajiv Gandhi Bhavan, ]
Sharanpur Road, Nashik. ]
3] The State of Maharashtra ] ...Respondents.
WITH
WRIT PETITION NO. 7092 OF 2023.
1] Mr. Shriram Pundlik Shinde ]
Age:- 63 years, Occ:- Business, ]
R/o. Shinde Motorcycle works, ]
Old Deolali Naka, Ideal Hospital, ]
Dwarka, Nashik. ] ...Petitioner.
Versus
1] Nashik Municipal Corporation, ]
Through its Municipal Commissioner, ]
Presently the Administrator, ]
Rajiv Gandhi Bhavan, ]
Sharanpur Road, Nashik. ]
2] The Deputy Commissioner, ]
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Encroachment Department, ]
Nashik Municipal Corporation ]
having his office at : ]
Rajiv Gandhi Bhavan, ]
Sharanpur Road, Nashik. ]
3] The State of Maharashtra ] ...Respondents.
WITH
WRIT PETITION NO. 1749 OF 2023.
1] Mr. Shantaram Govind Karad ]
Age: 66 Years, Occ: Business ]
R/at:- Old Deolali Naka, I.D. Hospital ]
Pune Road, Nashik 422011 ] ...Petitioner.
Versus
1] Nashik Municipal Corporation, ]
Through its Municipal Commissioner, ]
Presently the Administrator, ]
Rajiv Gandhi Bhavan, ]
Sharanpur Road, Nashik. ]
2] The Deputy Commissioner, ]
Encroachment Department, ]
Nashik Municipal Corporation ]
having his office at : ]
Rajiv Gandhi Bhavan, ]
Sharanpur Road, Nashik. ]
3] The State of Maharashtra ] ...Respondents.
WITH
WRIT PETITION NO. 7086 OF 2023.
1] Amarjeetsingh Kuldeepsing Baji, Since ]
(Deceased through Legal Heir) ]
Upkar Kaur Baji ]
Age: 50 years, Occ- ]
Room No. N-4 K-35 Old Cidco Nashik ] ...Petitioner.
Versus
1] Nashik Municipal Corporation, ]
Through its Municipal Commissioner, ]
Presently the Administrator, ]
Rajiv Gandhi Bhavan, ]
Sharanpur Road, Nashik. ]
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2] The State of Maharashtra ] ...Respondents.
WITH
WRIT PETITION NO. 7095 OF 2023.
1] Mr. Harpalsingh Amarjeetsingh ]
Age:- 81 years, Occ:-Business ]
R/o. Nashik Motors, ]
Old Deolali Naka, Ideal Hospital, ]
Dwarka, Nashik ] ...Petitioner.
Versus
1] Nashik Municipal Corporation, ]
Through its Municipal Commissioner, ]
Presently the Administrator, ]
Rajiv Gandhi Bhavan, ]
Sharanpur Road, Nashik. ]
2] The Deputy Commissioner, ]
Encroachment Department, ]
Nashik Municipal Corporation ]
having his office at : ]
Rajiv Gandhi Bhavan, ]
Sharanpur Road, Nashik. ]
3] The State of Maharashtra ] ...Respondents.
WITH
WRIT PETITION NO. 1760 OF 2023.
1] Mr. Vilas Daguji Mandlik ]
Age: 48, Occ:- Business, ]
R/at:- Old Deolali Naka, I.D. Hospital ]
Pune Road, Nashik 422011 ] ...Petitioner.
Versus
1] Nashik Municipal Corporation, ]
Through its Municipal Commissioner, ]
Presently the Administrator, ]
Rajiv Gandhi Bhavan, ]
Sharanpur Road, Nashik. ]
2] The Deputy Commissioner, ]
Encroachment Department, ]
Nashik Municipal Corporation ]
having his office at : ]
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Rajiv Gandhi Bhavan, ]
Sharanpur Road, Nashik. ]
3] The State of Maharashtra ] ...Respondents.
WITH
WRIT PETITION NO. 1757 OF 2023.
1] Mr. Suresh Haribhau Palekar ]
Age:- 59, Occ: Business ]
R/at:- Old Deolali Naka, I.D. Hospital Pune ]
Road, Nashik 422011 ] ...Petitioner.
Versus
1] Nashik Municipal Corporation, ]
Through its Municipal Commissioner, ]
Presently the Administrator, ]
Rajiv Gandhi Bhavan, ]
Sharanpur Road, Nashik. ]
2] The Deputy Commissioner, ]
Encroachment Department, ]
Nashik Municipal Corporation ]
having his office at : ]
Rajiv Gandhi Bhavan, ]
Sharanpur Road, Nashik. ]
3] The State of Maharashtra ] ...Respondents.
WITH
WRIT PETITION NO. 1755 OF 2023.
1] Mr. Mujahiddin Shaikh Mohammad ]
Age:- 38, Occ: Business ]
R/at:- Old Deolali Naka, I.D. Hospital Pune ]
Road, Nashik 422011 ] ...Petitioner.
Versus
1] Nashik Municipal Corporation, ]
Through its Municipal Commissioner, ]
Presently the Administrator, ]
Rajiv Gandhi Bhavan, ]
Sharanpur Road, Nashik. ]
2] The Deputy Commissioner, ]
Encroachment Department, ]
Nashik Municipal Corporation ]
having his office at : ]
Patil-SR (ch) 17 of 67
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Rajiv Gandhi Bhavan, ]
Sharanpur Road, Nashik. ]
3] The State of Maharashtra ] ...Respondents.
WITH
WRIT PETITION NO. 1756 OF 2023.
1] Mrs. Manjushree Hari Bhadke ]
Age:- 45, Occ: Business ]
R/at:- Old Deolali Naka, I.D. Hospital Pune ]
Road, Nashik 422011 ] ...Petitioner.
Versus
1] Nashik Municipal Corporation, ]
Through its Municipal Commissioner, ]
Presently the Administrator, ]
Rajiv Gandhi Bhavan, ]
Sharanpur Road, Nashik. ]
2] The Deputy Commissioner, ]
Encroachment Department, ]
Nashik Municipal Corporation ]
having his office at : ]
Rajiv Gandhi Bhavan, ]
Sharanpur Road, Nashik. ]
3] The State of Maharashtra ] ...Respondents.
WITH
WRIT PETITION NO. 1758 OF 2023.
1] Mr. Shashikant Polad Sonawane ]
Age:- 53, Occ: Business ]
R/at:- Old Deolali Naka, I.D. Hospital Pune ]
Road, Nashik 422011 ] ...Petitioner.
Versus
1] Nashik Municipal Corporation, ]
Through its Municipal Commissioner, ]
Presently the Administrator, ]
Rajiv Gandhi Bhavan, ]
Sharanpur Road, Nashik. ]
2] The Deputy Commissioner, ]
Encroachment Department, ]
Nashik Municipal Corporation ]
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having his office at : ]
Rajiv Gandhi Bhavan, ]
Sharanpur Road, Nashik. ]
3] The State of Maharashtra ] ...Respondents.
WITH
WRIT PETITION NO. 1754 OF 2023.
1] Mr. Dyaneshwar Pralhad Patil ]
Age:- 48, Occ: Business ]
R/at:- Old Deolali Naka, I.D. Hospital Pune ]
Road, Nashik 422011 ] ...Petitioner.
Versus
1] Nashik Municipal Corporation, ]
Through its Municipal Commissioner, ]
Presently the Administrator, ]
Rajiv Gandhi Bhavan, ]
Sharanpur Road, Nashik. ]
2] The Deputy Commissioner, ]
Encroachment Department, ]
Nashik Municipal Corporation ]
having his office at : ]
Rajiv Gandhi Bhavan, ]
Sharanpur Road, Nashik. ]
3] The State of Maharashtra ] ...Respondents.
WITH
WRIT PETITION NO. 7090 OF 2023.
1] Tejindarsing AmarjeetSingh Baji, ]
Age:35 years, Occ- Business, ]
Room No. N-4 K-35 Old Cidco ]
Nashik ] ...Petitioner.
Versus
1] Nashik Municipal Corporation, ]
Through its Municipal Commissioner, ]
Presently the Administrator, ]
Rajiv Gandhi Bhavan, ]
Sharanpur Road, Nashik. ]
2] The Deputy Commissioner, ]
Encroachment Department, ]
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Nashik Municipal Corporation ]
having his office at : ]
Rajiv Gandhi Bhavan, ]
Sharanpur Road, Nashik. ]
3] The State of Maharashtra ] ...Respondents.
WITH
WRIT PETITION NO. 7089 OF 2023.
1] Mr. Satpalsingh Gurubakshingh Chondok ]
Age:- 57, Occ: Business ]
R/at:- Old I.D. Hospital Compound, Near ]
Dwarka Circle, Service Road, Nashik. ] ...Petitioner.
Versus
1] Nashik Municipal Corporation, ]
Through its Municipal Commissioner, ]
Presently the Administrator, ]
Rajiv Gandhi Bhavan, ]
Sharanpur Road, Nashik. ]
2] The Deputy Commissioner, ]
Encroachment Department, ]
Nashik Municipal Corporation ]
having his office at : ]
Rajiv Gandhi Bhavan, ]
Sharanpur Road, Nashik. ] ...Respondents.
WITH
WRIT PETITION NO. 7091 OF 2023.
1] Mr. Surjitsingh Labhsingh Sethi (deceased) ]
Through his legal heirs: ]
1] Surnidrajit Kaur Sethi ]
Age: 70 years, Occ:-Household, ]
]
2] Rablin Kaur Sethi ]
Age 47 years, Occ:- Household, ]
Both R/o. Gumathi No.5, Kanpur (U.P) ]
]
3] Ramnitsingh Surjitsingh Sethi ]
Age:45 years, Occ:- Business ]
]
4] Harjitsingh Surjitsingh Sethi ]
Age: 42 years, Occ: Household, Sr.No. 1,3 & ]
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4 R/o. Bhavsar Bhavan, Govind Nagar, ]
Nashik ] ...Petitioner.
Versus
1] Nashik Municipal Corporation, ]
Through its Municipal Commissioner, ]
Presently the Administrator, ]
Rajiv Gandhi Bhavan, ]
Sharanpur Road, Nashik. ]
2] The Deputy Commissioner, ]
Encroachment Department, ]
Nashik Municipal Corporation ]
having his office at : ]
Rajiv Gandhi Bhavan, ]
Sharanpur Road, Nashik. ]
3] The State of Maharashtra ] ...Respondents.
WITH
WRIT PETITION NO. 7083 OF 2023.
1] Mr. Gangadhar Karbhari Karpe ]
Age:- 72, Occ: Business, ]
R/at:- Hotel Gajanan Maharaj, Old Deolali ]
Naka, I.D. Hospital Dwarka, Nashik 422011 ] ...Petitioner.
Versus
1] Nashik Municipal Corporation, ]
Through its Municipal Commissioner, ]
Presently the Administrator, ]
Rajiv Gandhi Bhavan, ]
Sharanpur Road, Nashik. ]
2] The Deputy Commissioner, ]
Encroachment Department, ]
Nashik Municipal Corporation ]
having his office at : ]
Rajiv Gandhi Bhavan, ]
Sharanpur Road, Nashik. ]
3] The State of Maharashtra ] ...Respondents.
WITH
WRIT PETITION NO. 7088 OF 2023.
1] Gurvindersingh Narendrsingh Baji, ]
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Age: 46 years, Occ:-Business, ]
R/o N-4, K-35, Old Cidco Nashik ] ...Petitioner.
Versus
1] Nashik Municipal Corporation, ]
Through its Municipal Commissioner, ]
Presently the Administrator, ]
Rajiv Gandhi Bhavan, ]
Sharanpur Road, Nashik. ]
2] The Deputy Commissioner, ]
Encroachment Department, ]
Nashik Municipal Corporation ]
having his office at : ]
Rajiv Gandhi Bhavan, ]
Sharanpur Road, Nashik. ]
3] The State of Maharashtra ] ...Respondents.
------------
Mr. G. S. Godbole, Senior Advocate along with Mr. Chetan R. Nagare for the Petitioners
in WP Nos. 1750, 1749, 1763, 1754, 1753, 1757, 1756, 1755, 1761, 1760, 1759, 1762,
1752, 1751, 1758 and 1827 of 2023.
Mr. Mahendra Agvekar, Shraddha Chavan i/b Sachin Gorwadkar for the Petitioners in
WP Nos. 7092, 7095, 7097, 7093, 7081, 7082, 7083 of 2023
Mr. Sanjeev M. Gorwadkar, Senior Advocate a/w Mr. Gurudas S. Gorwadkar for the
Petitioners in WP Nos. 7101, 7094, 7089, 7098, 7096, 7099, 7013, 7095, 7100, 7102,
and 1413 of 2023.
Mr. Sandeep Shinde i/b Ergo Juris for the Petitioner in WP Nos. 7079, 7087, 7084,
7086, 7088, 7090, 7091 of 2023.
Ms. M. P. Thakur, AGP for the State.
Mr. M.L. Patil for Respondents-Corporation.
------------
Coram : Sharmila U. Deshmukh, J.
Reserved on : July 8, 2024
Pronounced on : September 12, 2024.
Judgment :
1. Rule. Rule made returnable forthwith and by consent taken up
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2. This group of petitions challenges the Judgment dated 5 th
January, 2023 passed by the Appellate Court under Section 81-F of
the Maharashtra Municipal Corporation Act [for short “the
Corporation Act”] preferred against the order passed by the Deputy
Commissioner of Nashik Municipal Corporation under Section 81-B of
the Corporation Act. Though in some of the Petitions, the date of the
show cause notice issued by the Respondent Corporation is different
and in some other Petitions there were civil suits filed by the allottees
claiming injunction, the individual facts are not required to be taken
into consideration. The grounds on which the show cause notices
have been issued are identical and identical orders were passed by the
Respondent Corporation. Common submissions were advanced and
the Petitions are being disposed of by this common judgment.
3. By consent Writ Petition No.7079 of 2023 and Writ Petition No.
7099 of 2023 were taken up as lead Petitions and referred to during
the arguments.
FACTUAL MATRIX :
4. The Petitioners claim to be allottees and lessees of open plot of
land of differing sizes owned by Nashik Municipal Council, now Nashik
Municipal Corporation, situated at Survey No.489 having Final Plot
No.282 and are carrying on business since the year 1973 from the
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wp 7079-23 + Group.docshops constructed thereon. The Petitioners claim to be regularly
paying property taxes in respect of the said plots and are also having
individual electricity connections and the shop establishment license
etc.
5. In the year 1992 as there was an apprehension of demolition of
the suit premises at the hands of Nashik Municipal Corporation, some
of the Petitioners in these group of Petitions had instituted civil
proceedings seeking declaration of occupation and for perpetual
injunction and the plaint was rejected under Order 7 Rule 11 of CPC.
The suits came to be restored by the Appellate Court and the order of
restoration was challenged before this Court which was disposed of
vide order dated 30th June, 2016 in view of the pendency of the
challenge to the notices which were in the meantime issued by the
Corporation.
6. In or about the year 2015, the Respondent-Corporation issued
show-cause notices which in some cases were issued on 22 nd May,
2015 and in some cases on 2nd June, 2015 to the individual allottees
under Section 81-B,229,230,231,232 and 478 of the Corporation Act
directing the Petitioner to show cause against the proposed action of
eviction as the subject premises was required for road widening and
making available necessary development infrastructure in public
interest. The Petitioners submitted their individual explanations to
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the show-cause notice issued by the Respondent-Corporation inter
alia contending that the premises was not situated on the junction or
in the way of national highway but is located on service road and there
is no proposal for widening of service road.
7. The Respondents fixed the date of hearing and adjournment
was sought by the Petitioners and on the adjourned date the
Petitioners were absent. Vide order dated 4 th December, 2015, the
Respondents passed order of eviction for the reason stated in the
show cause notice.
8. The order of eviction came to be challenged by the Petitioners
under Section 81-F of the Corporation Act before the District Court,
Nashik. Vide judgment dated 30th May 2019, the District Court
allowed the Appeal holding that there was no documentary evidence
produced by the Corporation to support the reason stated in the show
cause notice and mere contention that the premises is required in
public interest is not sufficient. It further held that the notice dated
4th December, 2015 was illegal and invalid. It further held that there
was no reasoned order passed by the Commissioner recording his
satisfaction that the premises is required in public interest, that no
reasonable opportunity of being heard was given to the Petitioners
and remanded the matter to the Deputy Commissioner to give
appropriate opportunity to parties, to permit them to produce
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documentary evidence, hear the arguments and decide afresh.
9. After remand, hearing was conducted and vide order dated 29 th
February 2020, Respondent No.2 held that the explanation tendered
is not satisfactory and the premises is required by the Corporation in
public interest for development and passed the order directing the
Petitioners to vacate and hand over the premises within a period of 15
days.
10. Appeals under Section 81-F of the Corporation Act was filed by
the Petitioners before the District Judge. By the impugned Judgment
dated 5th January 2023, the District Judge rejected the appeals filed
by the Petitioners and confirmed the eviction orders passed by the
Respondent-Corporation.
SUBMISSIONS :
11. Mr. S. M. Gorwadkar, learned Senior Advocate appearing for
some of the Petitioners submits that after remand there was no fresh
show-cause notice issued. He submits that in the earlier round of
litigation, there is a specific finding of the District Judge that the
show-cause notice issued by the Municipal Commissioner is illegal and
invalid and therefore fresh proceedings based on the same show
cause notice could not have been initiated. He would further submit
that the Deputy Commissioner’s order of 29 th February 2020 merely
reproduced the contents of show-cause notice without recording any
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reasons. Drawing support from the decision of Apex Court in Mahabir
Prasad Santosh Kumar v. State of U.P. [1966 ALL LJ 173], he submits
that the Apex Court has elaborated on the significance of recording of
reasons while passing quasi judicial orders.
12. He submits that no regulations have been framed prescribing
the manner in which the inquiries are to be conducted under Section
81-I of the Corporation Act and under Section 81-B, the Deputy
Commissioner exercises quasi judicial powers and therefore recording
of reasons is necessary. He would further submit that the Appellate
Court has proceeded on completely erroneous ground of unlawful
occupation of the Petitioners. He submits that it is well settled that
the order cannot travel beyond the show-cause notice. He submits
that the Appellate Court has rendered factually incorrect finding of
the Petitioners being unlawful occupant without there being any such
case pleaded by the Respondent-Corporation. He submits that in
absence of any such case in the show cause notice, the Petitioners
could not have met the case of unauthorised occupation.
13. Mr. Godbole, learned Senior Advocate appearing for some of
the Petitioners would submit that the Appellate Court remanded the
matter for the reason that no documentary evidence was produced by
the Corporation and there was no reasoned order. He submits that no
fresh notice was issued after remand and the second order dated 29 th
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February, 2020 is ad verbatim reproduction of earlier order. He
submits that in the Affidavit in reply the Corporation for the first time
has supplemented the grounds of eviction which is impermissible.
14. Drawing attention of this Court to the judgment in RCA No.419
of 2015, Mr. Godbole submits that despite the findings in earlier
round of litigation about non production of documentary evidence by
Municipal Corporation to support the case in show cause notice, after
remand Municipal Corporation did not produce any documentary
evidence. He would further submit that the Appellate Court had
specifically held that the Commissioner is required to pass a reasoned
order and despite the finding there is no reasoned order passed by
Corporation. He submits that there was no fresh notice and no
material placed on record and as the same position existed even in the
second round of litigation, the order cannot be upheld by applying
principles of res judicata.
15. Pointing out to the order of Appellate Court after remand, he
submits that the Appellate Court has gone into the issue of
unauthorised occupation by considering the statutory provisions in
respect of lease agreements which is beyond the show cause notice.
In support, he relies upon following decisions:
[a] Canara Bank v. N.G. Subbaraya Setty [(2018) 16 SCC 228];
[b] M/s. M. P. S. Kumar v. State of U.P. [1970 (1) SCC 764] ;
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[c] Babubhai & Co. v. State of Gujarat [(1985) 2 SCC 732]; and
[d] Mohinder Singh Gill v. Chief Election Commr. [(1978) 1 SCC
405].
16. Mr. Shinde, learned counsel appearing for the Petitioner in Writ
Petition No. 7079 of 2023 would point out the reply filed to the show-
cause notice specifically stating that the land was not required for
traffic congestion but for building commercial complex and has
referred to the public notice inviting tenders. He submits that the
Corporation has passed the resolution annexed at page 74 of the
petition resolving to build commercial complex on BOTT basis at the
same place where the structures of Petitioners are erected. He would
further point out the affidavit-in-reply filed on behalf of the Municipal
Corporation where in paragraph 6 it is pleaded that the Corporation
proposes to construct the building to accommodate the Corporation’s
Nashik East Division office on the same plot No. 282 and for that the
Corporation needs possession of the plot. He submits that it is
therefore clear that the notices are malafidely issued giving reasons
of traffic congestion to demonstrate public purpose.
17. Mr. Mahendra Agvekar, learned counsel appearing for the
Petitioner in Writ Petition No.7092 of 2023 submits that the
Petitioner therein had filed a suit for permanent injunction where the
trial Court had come to a finding that the Corporation has accepted
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the right of Petitioner herein as lessee. He submits that finding of
the trial Court was that the Municipal Corporation had decided to
build a shopping complex at the place which in the first instance was
let to the Petitioner as it was a neglected area. He submits that the
trial Court has held that the suit property is in possession of plaintiff
since the last 15 to 20 years and after the expiration of lease the
Respondent-Corporation continued to accept different taxes from the
Petitioners and renewed their various licenses and therefore it cannot
be said that the occupation of Petitioners is unauthorised. He submits
that the suit was decreed restraining the Corporation from
obstructing the peaceful possession of Petitioners herein. He submits
that the appeal filed against the said judgment was modified however
the Corporation was restrained from dispossessing the Petitioners
except by procedure established by law. He submits that the
provisions of Section 81 of the Corporation Act is not applicable to
tenants. He further referred to the Google Map and would submit
that there is already a subway in existence and therefore there is no
question of any traffic congestion.
18. Per contra Mr. M. L. Patil, learned counsel appearing for the
Respondent-Corporation would submit that the undisputed fact is
that Final Plot No.282 belongs to and is under the ownership of
Corporation. He submits that the allotment was made by the Nashik
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Municipal Council and under Section 92 of Corporation Act, the lease
can be only for period of 9 years and the Petitioners continued in
possession even after expiry of lease. He submits that in relation to
public properties no party can enter upon, use or remain on the same
without authority of law and there is no concept of deemed renewal
in respect of the Corporation premises. He submits that there are no
valid and subsisting lease agreements in favour of occupiers. He
refers to Section 81-A which defines unauthorised occupation and
Section 81-B(1)(a) and (c) of Corporation Act and submits that
procedure is set out in Sub-Section 2 of Section 81-B. He submits that
the quit notice issued by the Deputy Commissioner upon reaching a
satisfaction that the possession of plot is required in public interest is
an administrative decision and thus there is no requirement of giving
reasons. He submits that the provisions of Chapter VIII-A cannot be
interpreted to mean that judicial or quasi judicial inquiry must be
followed before satisfaction is reached by the Commissioner. As an
alternative submission, Mr. Patil contends that that as the occupiers
have no legal right to remain in possession the only conclusion which
is possible is that the premises is required by Corporation in public
interest for development and it will be a useless formality to remand
the matter for fresh hearing.
19. He has taken this Court through the order dated 2 nd June 2015
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and would submit that the order specifically notes that the occupiers
are on temporary basis on daily licence fees and the finding that the
premises are required in public interest to decongest the traffic. He
submits that sufficient reasons are given in the said order which is an
administrative in nature. Pointing out to the order dated 4 th
December 2015 he submits that the same was final order and taking
into consideration the public purpose the order of eviction was
passed. He submits that after remand hearing was given to the
Petitioners and there is specific finding recorded by the Commissioner
that the explanation tendered by the Petitioners is not satisfactory
and as such the order of eviction has been passed.
20. He has taken this Court in detail through the findings of the
Appellate Court and would submit that the Appellate Court has rightly
noted that if the Deputy Commissioner is satisfied that the
occupation is in unauthorised occupation, then order of eviction is
required to be followed. He submits that it is nobody’s case that the
principles of natural justice were not followed and the occupiers were
fully aware of the case against them that the premises were required
by the Corporation for the reason stated in the notices and as such no
prejudice was suffered by the occupiers. He submits that the decision
of Commissioner being an administrative decision, cannot be
interfered with in exercise of power under Article 227 of the
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Constitution of India. He submits that the only requirement is of
subjective satisfaction that the premises is required for the purpose
of development. In support of his submissions, he relies upon
following decisions:
[a] Renuka Dhanrajgir Batlivala vs Municipal Corporation of
Greater Mumbai [(2019) 4 AIR (Bom) 250];
[b] Ramchandra vs Pune Municipal Corpn. [2013 (1) Mh.L.J.
245];
[c] Badrilal vs Municipal Corpn. Of Indore [(1973) 2 SCC 388];
[d] Bhagabandas Agarwalla vs Bhagwandas Kanu [(1977) 2
SCC 646];
[e] Ahmedabad Municipal Corpn. Vs Ramanlal Govindram
[(1975) 1 SCC 778];
[f] Maria Margarida Sequeira Fernandes vs Erasmo Jack De
Sequeira [(2012) 5 SCC 370];
[g] Province of Bombay vs Khushaldas S. Advani [(1950) SCC
551];
[h] Patel Gandalal Somnath vs State of Gujarat [(1962) SCC
OnLine Guj 64];
[i] Dr.Abraham Patani of Mumbai vs State of Maharashtra
[(2022) SCC OnLine SC 1143];
[j] V.T. Khanzode vs Reserve Bank of India [(1982) 2 SCC 7];
[k] Prabhudas vs M.C. Bhadrawati [2003 (1) Mh.L.J. 275];
[l] State Bank of Patiala vs S K Sharma [(1996) 3 SCC 364];
[m] M.C. Mehta vs Union of India [(1999) 6 SCC 237];
[n] Ashok Kumar Sonkar vs Union of India [(2007) 4 SCC 54];
[o] Canara Bank vs V.K. Awasthy [(2005) 6 SCC 321]; and
[p] M.J. Sivani vs State of Karnataka [(1995) 6 SCC 289]
21. In rejoinder, Mr. Sandeep Shinde, learned counsel appearing for
the Petitioners in Writ Petition No 7079 of 2024 submits that under
the provisions of Section 81-B of the Corporation Act, the inquiry is
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quasi judicial inquiry which requires reasons to be recorded before
passing of the order. He submits that the ground for eviction for
decongestion of traffic cannot co-exist with the ground of
development of property. He submits that for the first time before
this Court it is argued that the possession of Petitioners is illegal. He
submits that irrespective of whether the order is administrative or
quasi judicial order there is a requirement of giving reasons. He
submits that there is no finality attached to the order passed by the
Corporation as the remedy of appeal is available. He submits that the
same is a lis between the authority and the Petitioners. He submits
that the letters of National Highway Authority are not part of record
and for the first time the same have been produced.
REASONS AND ANALYSIS :
STATUTORY FRAMEW ORK:
22. The statutory provisions governing the eviction of persons from
Corporation premises is contained in Chapter VIII-A of the Corporation
Act which was introduced by Amendment Act 8 of 1970. Section 81-A
defines the expression “Commissioner”, “Corporation Premises”,
“Regulations” and “unauthorised occupation”. Section 81-B deals with
power to evict persons from Corporation premises and reads thus :
81-B. Power to evict persons from Corporation
premises. –
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wp 7079-23 + Group.doc(1) Where the Commissioner is satisfied, –
(a) that the person authorised to occupy any
Corporation premises has, whether before or after
the commencement of the Bombay Provincial
Municipal Corporations (Second Amendment) Act,
1969,-
(i) not paid for a period of more than two
months, the rent or taxes lawfully due from him in
respect of such premises; or
(ii) sub-let, contrary to the terms and conditions
of his occupation, the whole or any part of such
premises; or
(iii) committed, or is committing, such acts of
waste as are likely to diminish materially the value
of impair substantially the utility, of the premises;
or
(iv) otherwise acted in contravention of any of
the terms, express or implied, under which he is
authorised to occupy such premises;
(b) that any person is in unauthorised occupation
of any Corporation premises,
(c) that any Corporation premises in the
occupation of any person are required by the
Corporation in public interest,
the Commissioner may, by notice served by post, or by
affixing a copy of it on the outer door or some other
conspicuous part of such premises, or in such other
manner as may be provided for by regulations, order
that person, as well as any other person who may be in
occupation of the whole or any part of the premises,
shall vacate them within one month of the date of the
service of the notice.
(2) Before an order under sub-section (1) is made
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against any person, the Commissioner shall issue, in the
manner hereinafter provided, a notice in writing calling
upon all persons concerned to show cause why an order
of eviction should not be made.
The notice shall, –
(a) specify the grounds on which the order of
eviction is proposed to be made, and
(b) require all persons concerned, that is to say,
all persons who are or may be in occupation or, of
claim interest in, the Corporation premises, to
show cause against the proposed order, on or
before such date as is specified in the notice.
If such person makes an application to the Commissioner
for the extension of the period specified in the notice,
the Commissioner, may grant the same on such terms as
to payment and recovery of the amount claimed in the
notice, as he deems fit.
Any written statement put in by any person and
documents produced, in pursuance of the notice, shall
be filed with the record of the case, and such person
shall be entitled to appear before the Commissioner by
advocate, attorney or other legal practitioner.
The notice to be served under this sub-section shall be
served in the manner provided for the service of a notice
under sub-section (1); and thereupon, the notice shall be
deemed to have been duly given to all persons
concerned.
(3) If any person refuses or fails to comply with an
order made under subsection (1), the Commissioner may
evict that person and any other person who obstructs
him and take possession of the premises; and may for
that purpose use such force as may be necessary.
(4) The Commissioner may, after giving fourteen clear
days’ notice to the person from whom possession, of the
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Corporation premises has been taken under subsection
(3) and after publishing such notice in the Official
Gazette and in at least one newspaper circulating in the
locality, remove or cause to be removed, or dispose of by
public auction any property remaining on such premises.
Such notice shall be served in the manner provided for
the service of a notice under sub-section (1).
(5) Where the property is sold under sub-section (4),
the sale proceeds shall, after deducting the expenses of
sale, be paid to such person or persons as may appear to
the Commissioner to be entitled to the same :
Provided that, where the Commissioner is unable to
decide as to the person or persons to whom the balance
of the amount is payable or as to the apportionment of
the same, he shall refer such dispute to a Civil Court of
competent jurisdiction, and the decision of the Court
thereon shall be final.
(6) If a person, who has been ordered to vacate any
premises under sub-clause (i) to (iv) of clause (a) of sub-
section (1), within one month of the date of service of
the notice, or such longer time as the Commissioner may
allow, pays to the Commissioner the rent and taxes in
arrears, or as the case may be, carries out or otherwise
complies with the terms contravened by him to the
satisfaction of the Commissioner, the Commissioner
shall on such terms, if any (including the payment of any
sum by way of damages or compensation for the
contravention aforesaid), in lieu of evicting such person
under sub-section (3) cancel his order made under sub-
section (1); and thereupon such person shall continue to
hold the premises on the same terms on which he held
them immediately before such notice was served on him.
23. Section 81-C and Section 81-D deal with the recovery of rent or
damages as arrears of property tax. Section 81-E provides that the
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Commissioner for purpose of inquiry under this Chapter has the same
powers as vested in the Civil Court when trying the suit in respect of
summoning and enforcing attendance of persons and examination on
oath, discovery and production of documents and any other matter
prescribed by regulations under Section 81-I. Admittedly there are no
regulations framed under Section 81-I. Section 81-F provides for
Appeals to the District Judge and Section 81-G gives finality to the
orders except as provided in the Chapter.
24. The provisions of Chapter VIII-A are a complete code in itself
setting out the summary procedure for eviction of persons from
Corporation premises. The statutory scheme of Section 81-B of the
Corporation Act is that upon satisfaction of the Commissioner of the
existence of grounds stated in clauses (a), (b) and (c), the direction
can be passed for eviction of the person within a period of one month
from the date of service of notice. Before ordering eviction, Sub-
Section (2) of Section 81-B of the Corporation Act mandates issuance
of notice upon all persons concerned to show cause against the
proposed order of eviction. Significantly, the show cause notice is
required to specify the grounds of proposed eviction to which the
noticee is entitled to put in his written statement and produce
documents and be represented by legal counsel.
SHOW CAUSE NOTICE:
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25. The power to evict can be exercised on the grounds specified in
clauses (a), (b) and (c) of Section 81-B(1) which are separate and
distinct grounds. There was no fresh show cause notice issued by the
Corporation after remand of the matter by the Appellate Court. The
show cause notice of the year 2015 sets out that there are arrears of
license fee as of 31st March, 2015, that there is heavy congestion in
Dwarka area and for decongestion of traffic and to carry out further
development in the said area, it is necessary for the said area to be
vacated and that there would be increase in traffic and pedestrian
movement during the Kumbh Mela of 2015-2016.
26. The contents of the show cause notice would indicate two
grounds i.e. arrears of license fee as on 31 st March, 2015 and
requirement of the premises in public interest.
27. As far as the ground of Section 81-B(1)(a)(i) of non payment of
rent for more than two months is concerned, the reply to the show
cause notice filed by the Petitioners states that the license fees had
been subsequently paid and Mr. Patil appearing for the Corporation
has not disputed the said position. In view thereof, the only ground
subsisting for consideration is clause (c) of Sub Section (1) of Section
81-B i.e. requirement of premises in public interest.
ORDER OF DEPUTY COMMISSIONER DATED 29TH FEBRUARY, 2020:
28. The statutory scheme of Section 81-B places the burden upon
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the noticee to show cause against the proposed order of eviction.
Section 81-B refers to various grounds on which eviction can be
proposed. Where the eviction is proposed on ground (a) of Sub
Section (1) of Section 81-B, the burden will be upon the noticee to
necessarily produce the material to demonstrate that there is no
breach by the noticee. Similarly in case of ground (b), the burden will
be upon the noticee to show his authorisation to occupy the
Corporation premises. In such cases, it is open for the Corporation to
lead rebuttal evidence. However where ground (c ) is concerned, as
the requirement is shown of public interest, after the cause is shown
by the noticee by way of written statement and evidence if any, it is
for the Corporation to lead rebuttal evidence and produce material to
show the public interest. A literal interpretation of the statutory
provision that it is only for the noticee to show cause would lead to a
situation where in case of ground (c) of Sub Section (1) of Section 81-
B, the Corporation can simply direct eviction without producing any
material in support of the ground of eviction in public interest. The
facts necessitating the requirement in public interest is within the
knowledge of the Corporation and the burden to prove the negative
cannot be imposed on the noticee.
29. The show cause notice indicates that the public interest
involved in the requisition of the premises is the decongestion of the
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traffic, for road widening and for development of the premises by
providing necessary infrastructure. The cause shown by the
Petitioner in Writ Petition No 7099 of 2023 is that the Petitioner’s
premises is not situated at the junction of the area known as Dwarka
nor adjacent to the National Highway, that there is no traffic
congestion in the said area, there is no proposed development works
as per the DP Plan, that the premises is situated on service road and
there is no proposal for road widening of the service road, that there
is distance of about 20 feet between the premises and service road
which can be used for road widening. It was necessary for the
Corporation to bring material on record to dispute the cause shown by
the noticee against the proposed eviction.
30. In the order dated 29th February, 2020 there is no discussion on
the cause shown by the Petitioner. After reproducing the contents of
show cause notice, the Commissioner has in cryptic one paragraph
held that the explanation submitted is not satisfactory and the
premises is required in public interest. The order is a non speaking
order and there is no discussion or finding on the explanation
submitted by the Petitioners.
ORDER DATED 29TH FEBRUARY, 2020 IS ADMINISTRATIVE OR
QUASI JUDICIAL:
31. Mr. Patil would labour on the point that the inquiry
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contemplated under Chapter VIII-A is not a judicial or quasi judicial
inquiry and the order passed under Section 81-B being an
administrative order, there is no requirement of giving reasons and
mere recording of satisfaction meets the mandate of Section 81-B.
32. The issue whether the decision is judicial or administrative does
not present much difficulty where the lis is between two parties which
the authority is called upon to decide. However the absence of
contesting parties would not categorise the decision of the authority
as administrative if the provisions cast a duty to act judicially.
33. In Jaswant Sugar Mills Ltd Meerut v. Lakshmichand and
Others [1963 AIR SC 677] the Apex Court was considering the issue of
entertaining an appeal against direction passed by the Conciliation
Officer under U.P. Industrial Disputes Act, 1947. The Apex Court held
in paragraph 13 as under:
“To make a decision or an act judicial the following criteria must
be satisfied:
(1) it is in substance a determination upon investigation of a
question by the application of objective standards to facts found
in the light of preexisting legal rule.
(2) it declares right or imposes upon parties obligations affecting
their civil rights(3) that the investigating is subject to certain procedural
attributes contemplating an opportunity of presenting its case to
a party, ascertainment of facts by means of evidence if a dispute
be on questions of fact and if the dispute be on question of law on
the presentation of legal argument and a decision resulting in
disposal of the matter on findings based upon those questions of
fact and law.”
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34. In Indian National Congress (I) v. Institute of Social Welfare &
Ors (AIR 2002 S.C 2158), the Apex Court held thus:
“20…………….The dictionary meaning of the word quasi is ‘not
exactly’ and it is just in between a judicial and administrative
function. It is true, in many cases, the statutory authorities were
held to be quasi-judicial authorities and decisions rendered by
them were regarded as quasi judicial, where there were contest
between the two contending parties and the statutory authority
was required to adjudicate upon the rights of the parties. In
Cooper vs. Wilson (1937) 2 KB 309, it is stated that “the
definition of a quasi-judicial decision clearly suggests that there
must be two or more contending parties and an outside authority
to decide those disputes”. In view of the aforesaid statement of
law, where there are two or more parties contesting each other’s
claim and the statutory authority is required to adjudicate the
rival claims between the parties, such a statutory authority was
held to be quasi-judicial and decision rendered by it as a quasi-
judicial order. Thus, where there is a lis or two contesting parties
making rival claims and the statutory authority under the
statutory provision is required to decide such a dispute, in the
absence of any other attributes of a quasi-judicial authority, such
a statutory authority is quasi-judicial authority.
21. But there are cases where there is no lis or two
contending parties before a statutory authority yet such a
statutory authority has been held to be quasi-judicial and
decision rendered by it as quasi-judicial decision when such a
statutory authority is required to act judicially. In Queen vs.
Dublin Corporation (1878) 2 Ir. R. 371, it was held thus :
“In this connection the term judicial does not necessarily
mean acts of a Judge or legal tribunal sitting for the
determination of matters of law, but for purpose of this
question, a judicial act seems to be an act done by
competent authority upon consideration of facts and
circumstances and imposing liability or affecting the
rights. And if there be a body empowered by law to
enquire into facts, makes estimates to impose a rate on a
district, it would seem to me that the acts of such a body
involving such consequence would be judicial acts.”
22. Atkin L.J. as he then was, in Rex vs. Electricity
Commissioners (1924) 1 KB 171 stated that when any body of
persons having legal authority to determine questions affecting
the rights of subjects and having the duty to act judicially, such
body of persons is a quasi-judicial body and decision given by
them is a quasi-judicial decision. In the said decision, there was no
contest or lis between the two contending parties before the
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Commissioner. The Commissioner, after making an enquiry and
hearing the objections was required to pass order. In nutshell,
what was held in the aforesaid decision was, where a statutory
authority is empowered to take a decision which affects the
rights of persons and such an authority under the relevant law
required to make an enquiry and hear the parties, such authority
is quasi-judicial and decision rendered by it is a quasi-judicial act.
(Emphasis supplied)
23. In Province of Bombay vs. Kusaldas S Advani
[AIR 1950 SC 222], it was held thus :
“(i) that if a statute empowers an authority, not being a
Court in the ordinary sense, to decide disputes arising out of
a claim made by one party under the statute which claim is
opposed by another party and to determine the respective
rights of the contesting parties who are opposed to each
other, there is a lis and prima facie and in the absence of
anything in the statute to the contrary it is the duty of the
authority to act judicially and the decision of the authority
is a quasi-judicial act ; and
(ii) that if a statutory authority has power to do any act
which will prejudicially affect the subject, then, although
there are not two parties apart from the authority and the
contest is between the authority proposing to do the act
and the subject opposing it, the final determination of the
authority will yet be a quasi-judicial act provided the
authority is required by the statute to act judicially.
In other words, while the presence of two parties besides
the deciding authority will prima facie and in the absence
of any other factor impose upon the authority the duty to
act judicially, the absence of two such parties is not
decisive in taking the act of the authority out of the
category of quasi-judicial act if the authority is
nevertheless required by the statute to act judicially.”
24. The legal principles laying down when an act of
a statutory authority would be a quasi-judicial act, which
emerge from the aforestated decisions are these :
Where (a) a statutory authority empowered under a
statute to do any act (b) which would prejudicially affect
the subject (c) although there is no lis or two contending
parties and the contest is between the authority and the
subject and (d) the statutory authority is required to act
judicially under the statute, the decision of the said
authority is quasi-judicial.
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25. Applying the aforesaid principle, we are of the
view that the presence of a lis or contest between the
contending parties before a statutory authority, in the
absence of any other attributes of a quasi-judicial
authority is sufficient to hold that such a statutory
authority is quasi judicial authority. However, in the
absence of a lis before a statutory authority, the authority
would be quasi-judicial authority if it is required to act
judicially.”
35. In the case of A.K.Kraipak v. Union of India [AIR 1970 S.C. 150],
the Apex Court observed thus:
“13. The dividing line between an administrative power
and a quasi-judicial power is quite thin and is being gradually
obliterated. For determining whether a power is an
administrative power or a quasi-judicial power one has to look
to the nature of the power conferred, the person or persons on
whom it is conferred, the framework of the law conferring
that power, the consequences ensuing from the exercise of
that power and the manner in which that power is expected to
be exercised. Under our Constitution the rule of law pervades
over the entire field of administration. Every organ of the
State under our Constitution is regulated and controlled by
the rule of law. In a welfare State like ours it is inevitable that
the jurisdiction of the administrative bodies is increasing at a
rapid rate. The concept of rule of law would lose its vitality if
the instrumentalities of the State are not charged with the
duty of discharging their functions in a fair and just manner.
The requirement of acting judicially in essence is nothing but a
requirement to act justly and fairly and not arbitrarily or
capriciously. The procedures which are considered inherent in
the exercise of a judicial power are merely those which
facilitate if not ensure a just and fair decision. In recent years
the concept of quasi-judicial power has been undergoing a
radical change……..”
36. Applying the above tests laid by the Apex Court, if the
provisions contained in Chapter VIII-A are examined, the satisfaction
of the Deputy Commissioner is dependent upon the result of
investigation into questions of fact as to the breach of terms of the
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occupation, or the unauthorised occupation of the person where the
eviction is proposed on clause (a) and (b) of sub section (1) of Section
81-B and in case of clause (c) about the requirement of the premises
in public interest. Before arriving at the satisfaction, notice has to be
issued to specifically show cause against the proposed order of
eviction which show cause notice must set out the distinct ground on
which eviction is proposed. The satisfaction of the Deputy
Commissioner is based on the investigation of facts qua the grounds
specified in the show cause notice after giving an opportunity to the
noticee right of legal representation and an opportunity to file their
reply and produce documents. Section 81-E vests in the
Commissioner the power of Civil Court while holding an inquiry such
as summoning and enforcing attendance of any person and examining
him on oath and discovery and production of documents. The
satisfaction is not subjective satisfaction nor the personal opinion of
the Deputy Commissioner and the soundness of the satisfaction is
subject to being tested in appeal proceedings under Section 81-F.
37. The non acceptance of the cause shown by the noticee entails
the consequence of eviction of the noticee. Although no regulations
have been framed prescribing the manner of holding inquiry under
Chapter VIII-A, the fact that the noticee is entitled to put in his
explanation supported by documents and be represented by legal
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counsel indicates that the eviction cannot be at the ipsi dixit of the
Commissioner and he has to consider the material produced on record
before recording satisfaction that the person is required to be
evicted.
38. The procedure set out imposes a duty to act judicially while
examining the cause shown by the noticee against the proposed order
of eviction by considering the material produced on record by the
noticee and in my view, the power exercised is not purely an
administrative power but a quasi judicial power. Although the
provisions of Section 81 B does not expressly set out the obligation to
pass a reasoned order, the fact that the noticee is called upon to show
cause against the proposed action of eviction on the grounds stated in
the notice, the right to the noticee to place written statement and
documents implies that the duty is on the authority to record reasons
on the cause shown by the noticee.
39. A similarity can be drawn between the provisions of Chapter
VIII-A and provisions of The Public Premises (Eviction of Unauthorised
Occupants) Act, 1971 vesting the power in the Estate Officer to evict
unauthorised occupants from public premises if the Estate Officer has
reason to believe that any person is in unauthorised occupation of
public premises. The said Act provides for similar procedure of
issuance of show cause notice specifying the grounds of eviction and
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calling upon the noticee to show cause against the proposed eviction
and to produce evidence in support of his case. Section 5 of Public
Premises Act provides that if after considering the cause shown and
evidence produced the Estate Officer is satisfied that that public
premises are in unauthorised occupation the Estate Officer shall make
an order of eviction, for reasons to be recorded therein, directing that
the public premises shall be vacated. It is settled that the Estate
Officer exercises quasi judicial powers while adjudicating the cause
shown by the noticee.
40. In my view, considering the above, there is no doubt that under
Section 81-B the Deputy Commissioner exercises quasi judicial powers
as there is an implicit duty on the Deputy Commissioner to act
judicially while arriving at the satisfaction of the existence of the
conditions of clause (a) to (c) of sub section (1) of Section 81-B and to
conform to the rules of reason and justice.
DUTY TO RECORD REASONS:
41. Even if it is accepted that the Deputy Commissioner under
Section 81-B exercises administrative powers, the desirability to
record reasons cannot be wished away. The Hon’ble Supreme Court of
India in the case of Union of India v. E.G. Nambudiri [1991 (2) S.L.R.
675], while considering the desirability of administrative authorities
recording reasons held as under:-
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“Where an administrative authority is required to act judicially
it is also under an obligation to record reasons. But every
administrative authority is not under any legal obligation to
record reasons for its decision, although, it is always desirable
to record reasons to avoid any suspicion. Where a statute
requires an authority though acting administratively to record
reasons, it is mandatory for the authority to pass speaking
orders and in the absence of reasons the order would be
rendered illegal. But in the absence of any statutory or
administrative requirement to record reasons, the order of the
administrative authority is not rendered illegal for absence of
reasons. If any challenge is made to the validity of an order on
the ground of it being arbitrary or malafide, it is always open
to the authority concerned to place reasons before the Court
which may have persuaded it to pass the orders. Such reasons
must already exist on records as it is not permissible to the
authority to support the order by reasons not contained in the
records.
42. In M/s Kranti Associates Pvt Ltd vs Masood Ahmad Khan
[(2010) 9 SCC 496], the Apex Court in the context of dismissal of the
revision by the National Commission without recording any reason
under the Consumer Protection Act considered catena of decisions
and summarizing the discussion in paragraph 47 as under :
“a. In India the judicial trend has always been to record
reasons, even in administrative decisions, if such decisions
affect anyone prejudicially.
b. A quasi-judicial authority must record reasons in support
of its conclusions.
c. Insistence on recording of reasons is meant to serve the
wider principle of justice that justice must not only be done it
must also appear to be done as well.
d. Recording of reasons also operates as a valid restraint
on any possible arbitrary exercise of judicial and quasi-judicial
or even administrative power.
e. Reasons reassure that discretion has been exercised by
the decision maker on relevant grounds and by disregarding
extraneous considerations.
f. Reasons have virtually become as indispensable a
component of a decision making process as observing principlesPatil-SR (ch) 49 of 67
wp 7079-23 + Group.docof natural justice by judicial, quasi-judicial and even by
administrative bodies.
g. Reasons facilitate the process of judicial review by
superior Courts.
h. The ongoing judicial trend in all countries committed to
rule of law and constitutional governance is in favour of
reasoned decisions based on relevant facts. This is virtually the
life blood of judicial decision making justifying the principle
that reason is the soul of justice.
i. Judicial or even quasi-judicial opinions these days can be
as different as the judges and authorities who deliver them. All
these decisions serve one common purpose which is to
demonstrate by reason that the relevant factors have been
objectively considered. This is important for sustaining the
litigants’ faith in the justice delivery system.
j. Insistence on reason is a requirement for both judicial
accountability and transparency.
k. If a Judge or a quasi-judicial authority is not candid
enough about his/her decision making process then it is
impossible to know whether the person deciding is faithful to
the doctrine of precedent or to principles of incrementalism.
l. Reasons in support of decisions must be cogent, clear
and succinct. A pretence of reasons or `rubber-stamp reasons’ is
not to be equated with a valid decision making process.
m. It cannot be doubted that transparency is the sine qua
non of restraint on abuse of judicial powers. Transparency in
decision making not only makes the judges and decision makers
less prone to errors but also makes them subject to broader
scrutiny. (See David Shapiro in Defence of Judicial Candor
(1987) 100 Harward Law Review 731-737).
n. Since the requirement to record reasons emanates from
the broad doctrine of fairness in decision making, the said
requirement is now virtually a component of human rights and
was considered part of Strasbourg Jurisprudence. See (1994) 19
EHRR 553, at 562 para 29 and Anya vs. University of Oxford,
2001 EWCA Civ 405, wherein the Court referred to Article 6 of
European Convention of Human Rights which requires,
“adequate and intelligent reasons must be given for judicial
decisions”.
o. In all common law jurisdictions judgments play a vital
role in setting up precedents for the future. Therefore, for
development of law, requirement of giving reasons for the
decision is of the essence and is virtually a part of “Due
Process”.
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43. In Rajeev Suri v. Delhi Development Authority [2021 SCC
Online SC 7] the Apex Court held thus in paragraph 410 to 413:
“410. Had it been a case of any other administrative
committee required to adjudicate upon the rights of individuals,
merely because it is not mandatory to record reasons would not
absolve it of the requirement of objective consideration of the
proposal. The ultimate enquiry is of application of mind and a
reasoned order is merely one element in this enquiry. In a given
case, the Court can still advert to other elements of the
decision-making process to weigh the factum of application of
mind. The test to be applied in such a case would be of a
reasonable link between the material placed before the
decision-making body and the conclusion reached in
consideration thereof. The Court may decide in the context of
overall circumstances of the case and a sole element (of no
reasons or lack of elaborate reasons) cannot be enough to
make or break the decision as long as judicial mind is convinced
of substantial application of mind from other circumstances.
Even in common law jurisprudence, there is no absolute
requirement of reasoned order in all decisions. In R. V. Secy. Of
State for Trade & Industry, ex p Lonrho Plc., it was contended
that the decision is not based on convincing reasons and
therefore, must be declared as illegal. The House of Lords
refused to entertain this contention and noted that mere
absence of reasons would not render the decision as irrational.
Lord Keith, in his opinion, noted that the only significance of
absence of reasons would be that if circumstances
overwhelmingly point towards a different conclusion that the
one reached by the body, it would be fatal. He noted thus: (WLR
pp. 539-40)“The absence of reasons for a decision where there is no
duty to give them cannot of itself provide any support
for the suggested irrationality of the decision. The only
significance of the absence of reasons is that if all other
known facts and circumstances appear to point
overwhelmingly in favour of a different decision, the
decision-maker who has given no reasons cannot
complain if the court draws the inference that he had no
rational reason for his decision.”
411. In Administrative Law, P.P. Craig notes that it is
relevant to consider the context in which decision operates
thus:
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“The court will consider the nature of the decision maker,
the context in which it operates and whether the
provision of reasons is required on grounds of fairness.”
Mr. Craig also refers to R. v. Ministry of Defence, ex p. Murray
wherein certain principles relating to duty of reasons were
elaborated. Lord Bingham, C.J., in his opinion, observed that the
requirement of giving reasons may be outweighed by concerns
of public interest in certain cases, for instance, when it would
unduly burden the decision maker. We are not importing any
rider of public interest to negate the requirement of reasons;
however, the above exposition is useful to understand the
effect of absence of reasons on an otherwise legal, rational and
just decision.
412. Notably, this Court in Maharashtra State Board and
in Mahabir Jute Mills noted that if the function/decision of the
Government is administrative, in law, ordinarily there is no
requirement to be accompanied by a statement of reasons
unless there is an express statutory requirement in that regard.
Again, in Sarat Kumar Dash, the Court observed that in the field
of administrative action, the reasons are link between maker of
the order or the author of the decision and the order itself. The
record can be called to consider whether the author had given
due consideration to the facts placed before him before he
arrives at the decision.
413. Therefore, the requirement of reasons in cases which
do not demand it in an express manner is based on desirability
and the same is advised to the extent possible without
impinging upon the character of the decision-making body and
needs of administrative efficiency.
44. In National Highways Authority of India v. Madhukar Kumar
[2021 SCC Online SC 791], the Apex Court held in paragraphs 70 to 73
as under:
“70…………..It is, at this juncture, we may also notice that the
duty to give reasons, would arise even in the case of
administrative action, where legal rights are at stake and the
administrative action adversely affects legal rights. There may
be something in the nature or the context, under which, the
administrative action is taken, which may necessitate the
authority being forthcoming with rational reasons. There are
other decisions, which essentially belong more to the realm ofPatil-SR (ch) 52 of 67
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furnishing of reasons.
71. The advantages, undoubtedly, of introducing a
reasons driven regime, are as follows. Persons, who may have
a right or an interest, would know, what are the reasons which
impelled the Administrator to take a particular decision.
Judicial review, in India, which encompasses the wide contours
of public interest litigation as well, would receive
immeasurable assistance, if the reasons for particular
decisions, are articulated to the extent possible. The giving of
reasons also has a disciplining effect on the Administrator.
This is for the reason that the reasons would capture the
thought process, which culminated in the decision and it
would help the Administrator steer clear of the vices of
illegality, irrationality and also disproportionality. Reasons
could help establish application of mind. Conversely, the
absence of reasons may unerringly point to non-application of
mind. The duty to act fairly, may require reasons to be
recorded but the said duty, though there is a general duty on
all state players to act fairly, may have its underpinnings,
ultimately in legal rights.
72. It is one thing to say that there should be reasons,
which persuaded the Administrator to take a particular
decision and a different thing to find that the reasons must be
incorporated in a decision. The question, relating to duty to
communicate such a decision, would arise to be considered in
different situations, having regard to the impact, which it, in
law, produces. In fact, the second proviso to Rule 17 of the
Rules, provides not only for there being reasons, but the
reasons for refusal to permit barricades, must be
communicated. If the law provides for a duty to record reasons
in writing, undoubtedly, it must be followed and it would
amount to the violation of the Statute, if it were not followed.
Even if, there is no duty to record reasons or support an order
with reasons, there cannot be any doubt that, for every
decision, there would be and there must be, a reason.
73. The Constitution does not contemplate any Public
Authority, exercising power with caprice or without any
rationale. But here again, in the absence of the duty to record
reasons, the court is not to be clothed with power to strike
down administrative action for the mere reason that no
reasons are to be found recorded. In certain situations, the
reason for a particular decision, may be gleaned from the
pleadings of the Authority, when the matter is tested in a
court. From the materials, including the file noting’s, which
are made available, the court may conclude that there were
reasons and the action was not illegal or arbitrary. From
admitted facts, the court may conclude that there wasPatil-SR (ch) 53 of 67
wp 7079-23 + Group.docsufficient justification, and the mere absence of reasons,
would not be sufficient to invalidate the action of the Public
Authority. Thus, reasons may, in certain situations, have to be
recorded in the order. In other contexts, it would suffice that
the reasons are to be found in the files. The court may, when
there is no duty to record reasons, support an administrative
decision, with reference to the pleadings aided by materials.”
45. The decision of Lord Denning M.R. in Breen vs Amalgmated
Engg. Union (1971) 2 QB 175, which has shaped the judicial
pronouncements on the subject has held that “the giving of reasons is
one of the fundamentals of good administration”.
46. From the judicial pronouncements noted above, it is evident
that even though statute may not enjoin the administrative authority
to give reasons for its decision, it is desirable that the order should
contain reasons which disclose the application of mind by the
authority. In the present case, the Deputy Commissioner ordered
eviction of persons from the Corporation premises which as alleged
may be unauthorised in continuity but was authorised at the
inception. The consequences which would ensue is the removal of
person from the premises occupied by them for decades. To my mind,
upon reading of the Section 81-B(2), in the procedure set out therein
mandating the issuance of show cause notice specifying the ground
and permitting the noticee to object to the same by putting in written
statement, filing documents and being represented by legal counsel,
is implicit the duty on the administrative authority to record reasons
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for rejecting the cause shown by the noticee. The provision of Appeal
under Section 81-F strengthens the reading of an obligation of
recording reasons as it would fulfill the objective of assisting the
Appellate Authority while reviewing the decision.
47. Viewed in either case scenario, in event the order of Deputy
Commissioner is quasi judicial order, the recording of reasons is a
must. If the order is considered an administrative order, the statute
impliedly casts an obligation to record reasons and even if it does not
impose such an obligation, the judicial pronouncements makes it
imperative that the order should be indicative of the application of
mind. As legal rights of the noticee were at stake, it was necessary to
pass a reasoned order.
48. Accepting the case of the Corporation at the highest that the
order being administrative order there was no necessity of recording
reasons in the order, as held by Apex Court in National Highways
Authority of India & Ors vs Madhukar Kumar & Ors (supra) even if
there is no duty to record reasons or support an order with reasons,
there cannot be any doubt that, for every decision there would be and
must be, a reason. From the materials, including the file notings, which
are made available, the court may conclude that there were reasons
and the action was not illegal or arbitrary. Reasons may, in certain
situations, have to be recorded in the order. In other contexts, it
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would suffice that the reasons are to be found in the files. The court
may, when there is no duty to record reasons, support an
administrative decision with reference to pleadings aided by material.
49. In the Affidavit in reply filed by the Corporation, the order of
29th February, 2020 is sought to be substantiated by relying on the
communication issued by the Senior Police Inspector, the notice issued
by Highway Administrator and GM (T) and Project Director PIU-Nashik
of National Highway in the year 2019 to the occupiers and to the
Corporation proposing extension and seeking removal of the
unauthorised occupants. These documents are of the year 2019
whereas the show cause notice had been issued in the year 2015.
These documents are not shown to be part of the office record placed
for consideration before the Deputy Commissioner. No office notings
have been produced to demonstrate reasons and to substantiate the
action of eviction. In Mohinder Singh Gill vs Chief Election
Commr(supra), the Apex Court has held that when the statutory
functionary makes an order based on certain grounds, its validity must
be judged by the reasons mentioned and cannot be supplemented by
fresh reasons in the shape of affidavit or otherwise. In the present
case, it is clear case of the validity of the order being supplemented by
fresh reasons. In my opinion, the order dated 29 th February, 2020
being a non reasoned order and absent any material demonstrated
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from the office records to disclose the reasons to support the order of
eviction, is legally unsustainable.
VALIDITY OF THE IMPUGNED JUDGMENT DATED 5TH JANUARY, 2023:
50. The District Court has fallen in error by failing to notice that the
ground of proposed eviction was the requirement of premises in
public interest and not ground of unauthorised occupation. Where
the order of eviction is proposed on ground (a) or (b) of Sub Section
(1) of Section 81, then the noticee is required to discharge the burden
and thereafter the Corporation may lead evidence in rebuttal. The
District Court has upheld the ground of requirement of premises in
public interest on the basis of the unauthorised occupation of the
Petitioners. When the show cause notice did not specify any such
ground of unauthorised occupation, the District Court could not have
gone into the issue of lease, the period of lease etc and hold that in
absence of lease agreement the status of Petitioners cannot be lessee
or tenant and as there is no legal relationship the occupation of the
Petitioners is unauthorised.
51. The inquiry contemplated is whether the satisfaction has been
properly recorded by the Commissioner qua the order of eviction on
the specified ground. The District Court rendered the fallacious
finding on the foundation of unauthorised occupation which was
never the case in the show cause notice and therefore the Petitioners
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were not expected to show cause against the proposed order of
eviction on the basis of unauthorised occupation. Once the show-
cause notice proposes the order of eviction to be passed for the
reason that the premises is required for the public interest, no other
ground for eviction can be permitted to be set out. The whole
purpose of Sub Section (2) of Section 81-B is to make the noticee
known of the ground that he has to meet and the noticee must know
the specific particulars of the ground on which eviction is proposed to
effectively show cause. Where no such ground of unauthorised
occupation is specified in the show cause notice, the findings of the
District Court upholding the order of eviction for the reason that the
Petitioners are in unauthorised occupation and thereby supporting
the requirement of premises in public interest is clearly unsustainable.
52. It is not even the case of Respondent-Corporation as disclosed
from the show-cause notice or order that the eviction is proposed as
the Petitioners are in unauthorised occupation of corporation
premises. The entire tenor of Appellate Court’s judgment is that the
occupation of Petitioners is unauthorised and that merely depositing
of monthly licence fee or taxes in the absence of lease agreement do
not create any legal relationship. In paragraph 31 after holding so, the
Appellate Court has held that the Corporation is in need of
corporation premises for the public purpose and has therefore
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accepted the case of Corporation that the premises is required for
public interest. Perusal of the findings in paragraph 31 of the order of
District Judge would show that the findings are totally disjunctive.
What was required to be examined was wether the cause shown by
the Petitioners against their proposed eviction for the reason that the
corporation premises are required in public interest is valid or not. The
Appellate Court has come to a finding that the Petitioners are in
unauthorised occupation as they have exceeded the period of lease
and thus in the absence of any legal right of the Petitioners in the
premises, the requirement for public interest stands satisfied. The
reasons given by the Appellate Court are in respect of unauthorised
occupation and the finding is that the Corporation is in need of
premises in the public interest. It is therefore clear that the Appellate
Court has failed to notice the specific grounds of eviction and has in
the absence of any ground of unauthorised occupation dismissed the
appeal filed by the Petitioners.
53. The District Court has held that it is not necessary for the
Deputy Commissioner to have an elaborate discussion on all point and
pass an order on all the points in dispute. The finding is contrary to
the position of law discussed above.
APPLICABILITY OF PRINCIPLE OF RES JUDICATA:
54. The submission of Mr. Godbole is that earlier order passed by
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the Appellate Authority operates as res judicata as there was no fresh
show cause notice issued, no documentary evidence produced by the
Corporation and no reasoned order. The order of 29th February, 2020
when juxtaposed with the previous order of 4th December, 2015 would
indicate that the same is ad verbatim reproduction of the earlier order
of 4th December, 2015 reproducing the contents of the show cause
notice.
55. In the earlier round of litigation, the order of 4 th December,
2015 was under challenge. Specific issue was framed in RCA No 439
of 2015 on the legality and validity of notice issued under Section 81-
B without mentioning the date of notice. The Appellate Court
considered Section 81-B and held that after hearing the parties, the
Commissioner has to pass the order under sub section (1) of Section
81-B to vacate the premises within one month of date of service of
notice. The Appellate Court held that the final order passed on 4 th
December, 2015 directed the Petitioners to restore the possession
within 7 days from date of order and therefore held that the notice
dated 4th December, 2015 issued by Municipal Commissioner appears
to be illegal and invalid.
56. The basis on which the notice has been rendered invalid and
illegal is the time of seven days granted to restore possession. There
is specific reference to Section 81-B(1) and the time limit of one
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month mentioned in Section 81-B(1) with the observation that the
final order directs restoration of possession within 7 days. It is
therefore clear that the Appellate Court held the notice ordering
restoration of possession dated 4th December, 2015 as invalid and
illegal and not the show cause notice dated 2nd June, 2015.
57. The Apex Court in Canara Bank vs N.G. Subbaraya Setty
(supra), has held that one of the exception to the principle of res-
judicata is that an erroneous judgment on question of law, which
sanctions something that is illegal also cannot be allowed to operate
as res judicata. The Apex Court noted the decision in Mathura Prasad
Bajoo Jaiswal vs Dossibai N.B. Jeejeebhoy (1970) 1 SCC 613 where
the Apex Court has held that the previous decision on a matter in
issue alone is res judicata: the reasons for the decision are not res
judicata. The decision on the matter in issue alone being res judicata,
the reasons given by the Appellate Court in the earlier round of
litigation of the non production of documentary evidence and no
reasoned order to support the quashing and setting aside the order
dated 4th December, 2015 would not constitute res judicata.
JUDGMENTS CITED:
58. Coming to the decisions cited by Mr. Patil, the decisions of
Renuka Dhanrajgri Batlivala vs Municipal Corporation of Greater
Mumbai (supra), Ramchandra vs Pune Municipal Corporation (supra)
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and Badrilal vs Municipal Corporation of Indore (supra) were
rendered in the context of unauthorised occupation due to non
renewal of lease. As in the present case, the ground specified in the
show cause notice was requirement in public interest, the said
decisions are inapplicable to the facts of the instant case.
59. As far as decision of Bhagabandas Agarwalla vs Bhagwandas
Kanu (supra) is concerned, the decision is on the validity of notice to
quit given under Section 106 of Transfer of Property Act,1882. The
decision of The Ahmedabad Municipal Corporation v. Ramanlal
Govindram (supra) considers whether vires of statutory provisions of
Bombay Provincial Municipal Corporation (Gujarat Amendment) Act,
1963. The relevancy of the said decisions is not pointed out to this
Court.
60. Next comes the decision of Maria Magardia Sequiera
Fernandes (supra) which is rendered in different factual scenario as to
the rights under Specific Relief Act and is inapplicable to the present
case.
61. The decision of Province of Bombay vs Khushaldas (supra) was
in the context of challenge to order of requisition of certain premises.
The decision of Patel Gandalal Somnath (supra) was considering
whether the inquiry by a statutory body can be said to be quasi judicial
inquiry as opposed to an administrative inquiry in the context of Land
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Acquisition Act, 1894. The Apex Court in both decisions considered
the entire law on the subject of the tests to be applied to be
determine whether the order is quasi judicial or only administrative.
There is no quarrel with the proposition of law laid down by the Apex
Court. I have already dealt with the issue whether the Deputy
Commissioner exercises administrative or quasi judicial powers.
62. The decision in Dr. Abraham Patani of Mumbai (supra) held
public interest to override private interest. There is no dispute about
the proposition but its applicability in the present case depended
upon a reasoned order being passed by the Deputy Commissioner
which was not done and the decision does not assist the case of the
Petitioner.
63. The judgment in the case of V.T. Khanzode vs Reserve Bank of
India (supra) was on the issue of regulations required to be framed
governing the terms and conditions of bank staff. The relevancy of
the said decision is not shown to this Court especially when there was
no argument canvassed qua the absence of framing of regulations by
either of the parties.
64. The next decision is in the case of Prabhudas vs M.C.
Bhadrawati (supra) on the scope of powers of High Court under
Article 227 of the Constitution of India. The Apex Court has held that
the power under Article 227 of the Constitution can be exercised to
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correct the error of law that is manifest on the face of record. In that
context, it would be opposite to refer to the recent decision of the
Apex Court in the case of Garment Craft v. Prakash Chand Goyal
[2022 SCC Online SC 29] where the Apex Court has held that the
jurisdiction exercised under Article 227 of the Constitution is in the
nature of correctional jurisdiction to set right the grave dereliction of
duty or flagrant abuse and violation of the fundamental principles of
law or justice. The power under Article 227 of the Constitution needs
to be exercised sparingly and in appropriate cases like when there is
no evidence to justify the decision or the finding is so perverse that no
reasonable person can possibly come to such a conclusion that the
Court or Tribunal has come to. It is axiomatic that such discretionary
power must be exercised to ensure that there is no miscarriage of
justice. In the present case, in the light of discussion above this is a fit
case to exercise the jurisdiction under Article 227 of the Constitution
of India as the impugned order results in miscarriage of justice
inasmuch as the Petitioners are liable to be evicted from the premises
which they are occupying for decades by virtue of the order passed by
the Deputy Commissioner, which is completely devoid of reasons.
65. The decision in the case of State Bank of Patiala vs S K Sharma
(supra) was pressed into service by Mr. Patil to substantiate the
submission that unless there is prejudice shown, violation of principles
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of natural justice or any procedural provision does not vitiate the
order. In the present case, the violation is not of procedure, neither of
the principles of natural justice and therefore this decision is
inapplicable to the present case.
66. The next decisions are of M. C. Mehta v. Union of India (supra)
Ashok Kumar Sonkar v Union of India (supra) and Canara Bank v. V.K.
Awasthy (supra) which decisions are on the issue that remand of the
matter would be an useless formality. Since this Court is not inclined
to remand the matter as the order of Deputy Commissioner dated 29 th
February 2020 has been held to be unsustainable, there is no question
of remand.
67. The next decision relied upon by Mr. Patil is in the case of M.J.
Sivani v. State of Karnataka (supra), which in fact assists the case of
Petitioners as it holds that the administrative order may itself contain
the reasons or the file may disclose the reasons to arrive at the
decision showing application of mind to the facts in issue and that
appropriate brief reasons though not like a judgment is a necessary
concomitant for a valid order in support of action / decision taken by
the authority or the instrumentality of State. Even if it is held that the
order of Deputy Commissioner is an administrative order as the same
does not contain any reasons, neither the file record has been shown
to disclose the reasons for arriving at the decision, the observations in
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the case of M.J. Sivani vs State of Karnataka (supra) in fact assist the
case of Petitioners.
CONCLUSION:
68. The order of Deputy Commissioner dated 29th February, 2020
does not record any reason for ordering eviction of the Petitioners.
The power exercised by the authority under Chapter VIII-A of
Corporation Act is quasi judicial mandating reasons to be recorded.
Even if it is accepted that the power was purely administrative, the
order may not contain reasons but it is necessary to demonstrate
from the materials, including the file notings, that there were reasons
and the action was not illegal or arbitrary. As the same was not done,
the order dated 29th February, 2020 is not legal and valid.
69. The findings of the District Court, in the absence of any ground
of unauthorised occupation as ground of eviction specified in the
show cause notice, upholding the order of eviction for the reason that
the Petitioners are in unauthorised occupation and thereby
supporting the requirement of premises in public interest is legally
unsustainable. As the impugned judgment of the District Court and
the order dated 29th February 2020 passed by the Deputy
Commissioner have resulted in miscarriage of justice, in my opinion,
this is the fit case for exercise of jurisdiction under Article 227 of the
Constitution of India.
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70. In light of the above, the order dated 29 th February, 2020 and
the impugned judgment dated 5th January, 2023 are hereby quashed
and set aside. Petitions succeed. Rule is made absolute in the above
terms.
[Sharmila U. Deshmukh, J.]
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Signed by: Sachin R. Patil
Designation: PS To Honourable Judge
Date: 12/09/2024 18:49:56