Mumbai Municipal Act | Notice U/S 314 Can't Be Issued Mechanically; Commissioner's Satisfaction Of Specific Contravention Is A Must: High Court

The Bombay High Court has held that a notice issued under Section 314 of the Mumbai Municipal Corporation Act, 1888 (MMC Act), cannot be sustained if it is issued mechanically and without disclosing which specific statutory provisions have been contravened. The Court observed that the power under Section 314 can be exercised only upon the Commissioner recording satisfaction that there is a contravention of Sections 312, 313 or 313A of the MMC Act, and such satisfaction must be reflected on the face of the notice itself. Justice Jitendra Jain was hearing a First Appeal filed challenging the order dated 23 February 2011 passed by the City Civil Court, which had upheld a notice dated 28 April 2008 issued by the Municipal Corporation of Greater Mumbai under Section 314 of the MMC Act. The appellant had instituted a suit contending that the impugned notice was illegal, bad in law, null and void. While the City Civil Court had held that the structure was situated on a dumping ground belonging to the Corporation and validated the notice, the High Court noted that the Corporation had not filed any written statement before the Trial Court to justify the nature of the contravention.The Court examined the impugned notice and the statutory scheme of Sections 312, 313, 313A and 314 of the MMC Act. The Court noted that the impugned notice did not specify whether the alleged contravention was of Section 312 (obstruction in streets), Section 313 (deposit or projection causing obstruction), or Section 313A (unauthorised sale in public places).The Court observed that Section 314 is not a standalone provision and can be invoked only upon a prior satisfaction that the encroachment or structure is in contravention of one or more of the enabling provisions. The notice, therefore, failed to disclose the jurisdictional conditions necessary to invoke Section 314.“Before issuing notice under Section 314, the Commissioner has to satisfy himself as to whether there is contravention of Sections 312, 313 or 313A of the MMC Act for exercising his powers under Section 314 of the MMC Act. The said satisfaction has to be reflected in the notice which is issued,” the Court observed. The Court further observed that the notice appeared to have been issued "mechanically and without application of mind". It noted that since the Corporation failed to justify the nature of the contravention in the written statement, it failed to satisfy the jurisdictional condition for issuance of notice under Section 314 of the MMC Act.On the contentions raised on merits and on the nature of proceedings under Section 314 of the MMC Act, the Court declined to give any findings, as the notice under Section 314 of the MMC Act dated 28 April 2008 was unsustainable on jurisdictional grounds.Similarly, the Court offered no finding on the appellant's application for additional evidence regarding the property card.Accordingly, the High Court quashed and set aside the notice dated 28 April 2008 issued under Section 314 of the MMC Act, as well as the impugned order of the City Civil Court dated 23 February 2011. The appeal was allowed, and the suit was decreed in terms of prayer clauses (a) and (b). However, the Court clarified that this would not preclude the respondent-Corporation from issuing a fresh notice in accordance with law.Case Title: Sailappan Sodali Muthu v. The Municipal Corporation of Greater Mumbai [FIRST APPEAL NO.653 OF 2011 WITH CIVIL APPLICATION NO.2893 OF 2011]Click Here To Read/Download Order

Mumbai Municipal Act | Notice U/S 314 Can't Be Issued Mechanically; Commissioner's Satisfaction Of Specific Contravention Is A Must: High Court

Saksham Vaishya

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