Dr. B.P. SARAF, J.

The writ petitioner is the occupant of a portion of a building on premises No. CTS No. 1044 situated at Devehi Wadi, Versova village, Andheri (West). As the said premises in the petitioners occupation were in great disrepair, the Assistant Engineer (B&F), K-West Ward of Municipal Corporation of Greater Bombay ("Corporation") issued a notice dated 20-12-1986 to the petitioner calling upon him to carry out the repairs to the premises as mentioned in the said notice. In the above notice it was stated that the petitioner should replace the decayed wooden members of the said premises by new ones i.e. wooden posts, beams, joins and side walls, replace damaged C.I. sheets by new C.I. sheets and replace the broken A C sheets of roof by new ones. There was some delay on the part of the petitioner in carrying out the repair in terms of the said notice. However, the petitioner started the repair work in May 1988. While the repairs were going on, on 20-5-1988, some officers attached to K-West Ward of the Corporation came to the site and demolished a portion of the structure on the ground that it was not mentioned in the notice dated 20-12-1986 by which the petitioner had been called upon to carry out the repairs. According to the petitioner, there was no such deviation. He tried to convince the Assistant Engineer and other officers that he was doing exactly what he had been called upon to do. Despite all that, according to the petitioner, the Assistant Engineer called upon him to deposit a sum of Rs. 5,000/- in the office of the Ward Officer, K-West Ward towards faithful compliancce of his directions. The case of the petitioner is that he was threatened by the Assistant Engineer that if the amount of Rs. 5,000/- was not deposited, the entire structure would be demolished and in such a situation, scared of the threat, the petitioner deposited the sum as directed by the Assistant Engineer for which he was given a receipt which is Exhibit-B to the petition. In the said receipt, the receipt of the amount has been shown as a "deposit towards faithful compliance". The repair work was thereafter completed by the petitioner accordingly. Thereafter, on 4-8-1988 the Assistant Engineer attached to the K-West Ward again came to the site of the petitioner and demolished the roof. Faced with such action of the Assistant Engineer, the petitioner himself also removed with great difficulty some of the AC sheets as otherwise all those AC sheets would have been damaged beyond repair. No notice was given to the petitioner before taking up the above action of demolition.

2.The petitioner thereupon approached his advocate and through him wrote a letter dated 8-8-1988 to the Municipal Commissioner and the Executive Engineer (Vigilance) setting out the relevant facts including the fact of recovery of a sum of Rs. 5,000/- from the petitioner made earlier by the Assistant Commissioner in the guise of "deposit towards faithful compliance" without any authority of law. The demolition of the structure by the Assistant Engineer concerned without notice was also questioned. According to the petitioner, on receipt of the copy of the aforesaid letter, the Assistant Engineer met the petitioner and expressed his annoyance. He threatened the petitioner that he would see that the entire structure was completely demolished. Thereafter, the petitioner, through his advocate, worte another letter on 10-8-1988 demanding appropriate action. However, as no action whatsoever was taken by the concerned authorities the petitioner approached this Court by filing the present writ petition challenging the propriety and legality of the actions of the respondent. The petitioner also sought for a direction to the respondents to refund the amount of Rs. 5,000/- illegally collected from him by way of deposit. Prayer was also made for a direction to the respondent Corporation and its officers not to demolish the petitioners structure without issuing proper notice in accordance with law and without hearing the petitioner.

3.The Corporation has filed an affidavit in reply. From a perusal of the same, it appears that the material facts stated by the petitioner are not in dispute. It is not denied that on 20-5-1988 the office staff of the Corporation visited the site of the petitioner and removed some extended portion and demolished the back side structure admeasuring 10 x 18 completely as according to them it was unauthorised construction. It is also admitted that while they were in the process of domolishing the ladi coba admeasuring about 648 sq.ft., their action was resisted by the residents and the women folk of the area whereupon they stopped the demolition work and took an undertaking from the petitioner that he himself would remove the said ladi coba immediately. It is also admitted that the petitioner was directed to report to the office of the respondents and to deposit a sum of Rs. 5,000/- towards "faithful compliance". The deposit of the money and giving of undertaking are also not in dispute. The affidavit of the respondents, however, does not contain any categorical statement about the alleged demolition of some structure for the second time on 4-8-1988 by the Assistant Engineer; except bare denial in para 8 thereof. This para says :

"With reference to para 6 of the petition, I deny that what is stated in the said paragraph and put the petitioner to the strict proof thereof."

It may also be expedient to set out here the allegations made by the petitioner in the writ petition to which the above reply pertains. It reads :

"The petitioner completed the repair work. On 4-8-1988 the Assistant Engineer attached to K-West Ward came on the site and demolished the roof. Some of the AC sheets were removed by the petitioner as he had purchased the said AC sheets with great difficulty and they would have damaged the AC sheet roof if he would not have removed. The petitioner had not received any notice. The petitioner was in fact surprised how they came nearly after 2 to 3 months and started the demolition work."

It may be pertinent also to observe that the above affidavit has not been sworn by the Assistant Enginner who is alleged to have demolished the structure without notice on 4-8-1988. It is difficult to understand how in such a case the denial can come from a person who is stranger to the proceedings. Such a denial, if at all, can only come from the Assistant Engineer attached to K-West Ward who is alleged to have visited the site of the petitioner on 4-8-1988 and undertaken the demolition. The statement made in the affidavit evidently is a mechanical denial and cannot be given any credence. A conjoint reading of the allegation of the petitioner and the reply thereto in the affidavit in opposition clearly goes to show that the reply, on the face of it, is evasive. We cannot approve such an approach, more so in writ petitions where the legal controversies are decided on the basis of affidavits of the parties. Such affidavit, instead of assisting the Court in administering justice, obstructs the course of justice. In the instant case the allegation is very clear and categorical and directed against a particular officer and all relevant facts and details are also given. In such case, in our opinion, it was the duty of the respondent Corporation to ascertain the facts from the officer concerned and to get his affidavit stating his version instead of evading the reply. In situations like this, the only course that might be left with the Court is to draw an adverse inference against the party making such affidavit.

4.Be that as it may, the allegation of the writ petitioner regarding the demolition of the alleged extra construction on the earlier occasion on 20-5-1988 without any show cause notice to the petitioner and the direction to deposit a sum of Rs. 5,000/- "towards faithful compliance of the repair permission" and the payment of the same are not in dispute. It is nobodys case that the deposit was made voluntarily by the petitioner out of his own volition or sweet will. Admittedly it was made in pursuance of the direction given by the Assistant Engineer on the spot for bringing a stop to further demolition of the alleged unauthorised construction which had been started by the Assistant Engineer without any notice to the petitioner. Though the alleged demolition on 4-8-1988 is not admitted by the respondent, there is no dispute about the demolition on 20-5-1988. Situated thus, the questions that arise for consideration may be formulated as follows :

i)Whether the Corporation or its officers can demolish any structure without giving any notice and opportunity of hearing to the aggrieved person if it finds such structure as being constructed in excess of the permission or in other words, an unauthorised construction

ii)Whether the Corporation or its officers have the power to direct any owner or occupier of the premises to deposit any amount "for faithful compliance of its directions" in any case, particularly, under threat of demolition

These are the two basic issues that require determination. The learned Counsel for the petitioner submits that there is no provision in the Bombay Municipal Corporation Act authorising the Corporation or its officers to demand a deposit of any amount for faithful compliance of its orders. Nor is there any provision in the Act empowering any of the officers to undertake demolition of any structure alleged to be unauthorised construction without due notice. On the contrary, sections 351 and 354A of the Act specifically provide for proper notice and hearing to the person concerned before taking any action in cases where any work has been done contrary to the provisions of the Act or the Rules.

5.Learned Counsel for the respondent Corporation, on the other hand, relies on the provisions of section 354 of the Act which empowers the authorities in certain circumstances to remove the structures which are in ruins or likely to fall. So far as the power to ask for deposit is concerned, according to the Counsel, such power is inherent in the power conferred under section 354 of the Act.

6.So far as the demolition of the alleged unauthorised construction in the instant case by the officers of the Corporation without any notice is concerned, the submission of the counsel for the respondents is that on visit of the site having found that unauthorised construction had been undertaken by the petitioner, it would have served no purpose to serve a notice on the petitioner and to initiate proceedings. According to the learned Counsel in such a situation, service of notice before demolition will be a mere formality and non-service, therefore, would not vitiate the action.

7.For deciding the legal issues that arise in this case, it may be expedient to refer to some of the provisions of the Act, which have a material bearing. Section 354 deals with the power of the Commissioner to remove structures which are in ruins or likely to fall. It reads :

"Section 354. Removal of structures, etc., which are in ruins or likely to fall. -(1) If it shall at any time appear to the Commissioner that any structure (including under this expression any building, wall or other structure and anything affixed to or projecting from, any building, wall or other structure) is in a ruinous condition, or likely to fall, or in any way dangerous to any person occupying, resorting to or passing by such structure or any other structure or place in the neighbourhood thereof, the Commissioner may, by written notice, require the owner or occupier of such structure to pull down, secure or repair such structure, and to prevent all cause of danger therefrom.

(2)The Commissioner may also if he thinks fit, require the said owner or occupier, by the said notice, either forthwith or before proceeding to pull down, secure or repair the said structure, to set up a proper and sufficient hoard or fence for the protection of passers-by and other persons, with a convenient platform and hand-rail, if there be room enough for the same and the Commissioner shall think the same desirable, to serve as a footway for passengers outside of such hoard or fence."

From a reading of the above section is evident that even this section contemplates issue of a written notice to the owner or occupier of the structure requiring him to pull down, secure or repair such structure and to prevent all cause of danger therefrom.

Section 354A deals with the power of the Commissioner to stop erection of building or work commenced or carried on unlawfully. It provides :

"Section 354A. (1) If the Commissioner is satisfied that the erection of any building or the execution of any such work as is described in section 342 has been unlawfully commenced or is being unlawfully carried on upon any premises, the Commissioner may, by written notice, require the person erecting such building or executing such work to stop such erection or work within the period specified in the notice.

(2)If the erection of the building or execution of the work is not stopped within the period specified in the notice given under sub-section (1), the Commissioner may direct that any person directing or carrying on such erection or work shall be removed by any police officer from the place where the building is being erected or the work is being executed."

A plain reading of this section also clearly goes to show that before taking any action in exercise of the powers conferred under it, the Commissioner is required, by a written notice, to require the person erecting such building or executing such work to stop such erection or work within the period specified in the notice. It is only in the event of the failure of the person concerned to do so that he is empowered to take action for removing such person from the place of work. This section does not empower the Commissioner to demolish the construction.

Section 350 empowers the Commissioner to inspect any building at any time during the erection. This power can be exercised without giving previous notice. Section 351 deals with the proceedings that might be taken in respect of building or work commenced contrary to the approval given under section 347 of the Act. These sections read as follows :

"Section 350. The Commissioner may at any time during the erection of a building or the execution of any such work as is described in section 342 make an inspection thereof, without giving previous notice of his intention so to do.

Section 351(1) If the erection of any building or the execution of any such work as is described in section 342, is commenced contrary to the provisions of section 347, the Commissioner, unless he deems it necessary to take proceedings in respect of such building or work under section 354, shall -

(a)by written notice, require the person who is erecting such building or executing such work, or has erected such building or executed such work, or who is the owner for the time being of such building or work, on or before such day as shall be specified in such notice, by a statement in writing subscribed by him or by an agent duly authorized by him in that behalf and addressed to the Commissioner, to show sufficient cause why such building or work shall not be removed, altered or pulled down; or

(b)shall require the said person on such day and at such time and place as shall be specified in such notice to attend personally, or by an agent duly authorised by him in that behalf, and show sufficient cause why such building or work shall not be removed, altered or pulled down.

(2)If such person shall fail to show sufficient cause, to the satisfaction of the Commissioner, why such building or work shall not be removed, altered or pulled down, the Commissioner may remove, alter or pull down the building or work and the expenses thereof shall be paid by the said person."

From a conjoint reading of the provisions set out above, it is clear that the law clearly contemplates a notice in writing and opportunity of hearing to the affected person before any action is taken against him for carrying on any unauthorised construction. Elaborate procedure of notice and hearing has been laid down in sub-section (1) of section 351. It is only after such a hearing and only on the failure of the person concerned to show sufficient cause to the satisfaction of the Commissioner that the Commissioner can himself remove, alter or pull down such unauthorised construction. The only power that can be exercised by the Commissioner without any notice is the power under section 350 of the Act to make inspection of the construction or the work at any time during the erection of the building or the execution of the work.

8.The power of demolition of a structure is a drastic power. Such a power cannot be exercised by any officer, howsoever high he may be, without notice and without hearing. As has often been said notice and hearing are the minimum safeguards against abuse or misuse of power. Section 351, therefore, lays down the elaborate procedure of notice and hearing before taking any action. Even where no such provision is found in the law, the courts have often read the requirement of notice and hearing in the provisions to retain their validity. Action taken by any officer without complying with the above requirements will not only be violative of the requirements of section 351(1) of the Act but also arbitrary.

9.It is well-settled by now that where the rights of a person are adversely and prejudicially affected by an order made by an authority in a proceeding, such person is entitled to pre-decisional notice irrespective of the fact whether the proceeding is judicial, quasi-judicial or administrative in nature. No decision should be taken in such a proceeding without first giving the person adversely affected an opportunity of putting forward his case. This principle is applicable, as earlier indicated, even where the statute is silent on the point of pre-decisional notice or hearing because, as observed by Lord Diplock in OReilly v. Mackman, (1983) 2 A C 237 at 276, "the right of a man to be given a fair opportunity of hearing what is alleged against him and of presenting his own case is so fundamental to any civilised legal system that it is to be presumed that the Parliament intended that a failure to observe it shall render null and void any decision reached in breach of this requirement."

10.The right of hearing is aa valuable right. It is not an empty formality. As observed by Lord Denning in Konda v. Govt. of Malaya, 1962 A C 322;

"If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him; and then he must be given a fair opportunity to correct or contradict them."

A notice implies notice of all the relevant facts giving rise to the proposed action. If any enquiry is made, the substance of the information proposed to be utilised must be communicated to the person against whom action is proposed to be taken on the basis thereof. It is necessary in order to put the affected person in possession of full particulars of the case he is expected to meet. To put it differently, the requirement of notice and hearing to the affected person is not a mere formality or a ritual which the authority concerned has to observe before taking any action. It must be real and reasonable - not a pretence.

11.In the instant case the admitted position is that the requirement of notice and hearing which has been specifically laid down in the law itself was not observed even as a formality or a ritual. The respondents own case is that direction had been given by it to the petitioner under section 354 of the Act to undertake some repairs. The allegation is that while carrying out repairs the petitioner undertook construction of some additional structure. If that was so, the remedy was avaliable to the respondents against the petitioner to take action in accordance with law for removal of such structure. As stated above, elaborate machinery is laid down in the Act and the Rules for that purpose. There was no emergency of the nature which necessitated the officers of the respondents to take the law in their own hands and to give a go bye to the requirements of law and to undertake the demolition then and there without notice and hearing as contemplated by section 351(1) of the Act and under the threat of further demolition, also to direct the petitioner to deposit a sum of Rs. 5,000/- towards faithful compliance. The above actions are evidently arbitrary and contrary to the requirements of law and in gross violation of the various safeguards provided in section 351(1) of the Act. Such actions cannot be sustained. The admitted position is that there is no provision in the Act empowering the authorities either to demolish the additional structure (which was not a dangerous structure) without notice and hearing or to obtain a deposit under the threat of further demolition. Such action cannot be sustained. It must not be forgotten that we are living in a society governed by the rule of law and every action of the State or its agencies or functionaries should be within the bounds of the law. It is high time for all those who are entrusted with the task of administering the laws which affect a large section of the population including the poor and illiterate masses, to acquaint themselves not only with the bare provisions of the law but also with the developments in the field of law where arbitrariness is antithetic of Article 14 of the Constitution. "Whim" and "Caprice" are the most disapproved expressions and they have no place in State action under our Constitution. Considering the facts of the instant case in the light of the law set out above, the inevitable conclusion is that the actions of the officers of the respondents cannot be sustained. If they had found any unauthorised construction, they could have issued a notice, heard the petitioner and taken appropriate action thereafter. There is no justification, not to speak of legal sanction, whatsoever either for the arbitrary action of demolition of the construction without notice and hearing or for the recovery of Rs. 5,000/- by way of deposit.

12.I hope the respondent Corporation and its officers will be careful in future while taking drastic action against the citizens. They must know the law and comply with the requirements thereof. They must act within the limits of their powers. Like any other citizen, the officials performing statutory functions also cannot take the law in their own hands and if they do so, it is at their own risk and responsibility. In such a case, the courts may be compelled to hold such officers personally responsible for their action in addition to making the Corporation liable for the acts of its officers. For the present, I direct the respondent to immediately refund the sum of Rs. 5,000/- which it had arbitrarily recovered from the petitioner without any authority of law and retained long for five years with interest at the rate of 12% per annum. The refund must be made within two months from today. So far as the alleged unauthorised construction is concerned, it is made clear that the respondents shall be at liberty to take action in accordance with law after giving proper notice and reasonable opportunity of hearing to the petitioner. In the result, rule is made absolute to the extent indicated above. No order as to costs. Certified copy expedited.