Bombay High Court
Mohd. Hanif Abdul Rehman Jalori And 2 Ors vs A. H. Wadia Trust And 8 Ors on 25 July, 2024
Author: M.S. Sonak
Bench: M.S. Sonak
2024:BHC-OS:11380-DB 504-OSWPL-23290-2024(1)F.DOC
Wadhwa
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 23290 OF 2024
Mohd Hanif Abdul Rehman Jalori & Ors ...Petitioners
Versus
State of Maharashtra through the Chief Secretary ...Respondents
& Ors
AND
INTERIM APPLICATION (L) NO. 23293 OF 2024
IN
WRIT PETITION NO. 805 OF 2023
Mohd Hanif Abdul Rehman Jalori & Ors ...Applicants/
Petitioner
Versus
AH Wadia Trust & Ors ...Respondents
Ms Gayatri Singh, Senior Advocate, with Mr Hamza Lakdawala,
for the Petitioners/Applicants..
Ms Usha Rahi, AGP, for the Respondent-State.
Ms RM Hajare, i/b Sunil Sonawane, for the Respondent-BMC.
Mr Kirankumar Annamwar, Assistant Engineer (Building &
Factory) 'L' Ward-present.
CORAM M.S. Sonak &
Kamal Khata, JJ.
DATED: 25th July 2024
PC:-
Digitally signed
SANDHYA by SANDHYA
BHAGU
BHAGU WADHWA
WADHWA 10:57:23
Date: 2024.08.01
+0530
Page 1 of 7
25th July 2024
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504-OSWPL-23290-2024(1)F.DOC
1. Heard learned counsel for the parties.
2. This common order disposes of Interim Application No. 23293 of 2024 in Writ Petition No. 805 of 2023 and Writ Petition (L) No. 23290 OF 2024.
3. The three Applicants/Petitioners claim to be tenants of the building regarding which the Brihanmumbai Municipal Corporation (BMC) issued demolition orders on 10 November 2021 and 2 November 2022. Their grievance is that these demolition orders were ordered to be enforced by this Court vide order dated 5 July 2024 even though they were not impleaded in Writ Petition No. 805 of 2023, and therefore, the orders made by this Court on 5 July 2024 should be recalled. The same prayer is also made in Writ Petition (L) No. 23290 of 2024, along with additional prayers to quash the demolition orders dated 10 November 2021 and 2 November 2022. The Petition also challenges the notice dated 12 July 2024 issued by the BMC under Section 488 of the Mumbai Municipal Corporation Act (MMC Act).
4. In Writ Petition No. 805 of 2023, the Petitioner (Landlord) aggrieved that a wholly unauthorised construction was coming up on their property. Despite complaints, the construction did not stop. Finally, a demolition order was issued and executed. Still, the structure was reconstructed in the said place, and the BMC was not taking any action.
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5. Since there were some arguments about the identity of the constitutions, by our order dated 20 June 2024 in Writ Petition Nos. 805 of 2023 and 209 of 2024, we directed the BMC officials to hold a site inspection in the presence of the parties. Accordingly, the site inspection was held, and the report was produced before us and taken on record.
6. Our order dated 5 July 2024 records that a demolition order was issued under Section 354. Pursuant to the same, even demolition was carried out on 2 November 2023, demolishing a portion of the structure. However, even this portion was unauthorisedly reconstructed at the same place; therefore, to complete the demolitions, BMC addressed letters to the Chunabhatti Police Station to provide police protection. Such letters were issued in December 2022, January 2023, April 2023 and May 2023. However, the police station avoided providing police protection.
7. The learned counsel for the BMC submitted that demolitions were scheduled for 18 and 19 July 2024, and requisitions were made to the Chunabhatti Police Station to provide police protection and support. The learned counsel requested this Court to issue directions to the Police Station to provide police protection so that the demolition orders could be executed. In our order dated 5 July 2024, we directed the Chunabhatti Police Station to provide police protection so that the BMC could execute its demolition orders.
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8. Now, there is no clarity about the status of the three Petitioners before us. They claim to be tenants of the premises residing on the 3rd floor. They accept that the 5th floor of this building was demolished and has now been reconstructed. They submit that the fifth floor was wholly unauthorised. On further probe, Ms Gayatri Singh, the learned Senior Advocate for the Petitioners/Applicants, stated that the three Petitioners are claiming tenancy through the original lessee. Again, there is no clarity on this issue.
9. That apart, in this matter, we are not concerned with whether the Petitioners are tenants or sub-tenants. The issue is whether the construction in which they claim to reside was authorised construction. Again, Ms Singh, the learned Senior Advocate, states that these Petitioners are not aware of the legality or otherwise of this building. The material produced in Writ Petition No. 805 of 2023, including the photographs, shows that a new building was being reconstructed from the ground floor level. Learned counsel for BMC states that earlier, this structure was ground plus one, and despite demolition orders, the structure was increased to ground plus six storeys. All this was done without permission from any authorities, including the BMC.
10. Ms Singh disputes the above position but such disputation is not made good. At least the photographs on record and the BMC records do not support such disputation. From the photographs, it is difficult to accept that the three Petitioners were residing on the 3rd floor of this incomplete building. Apart from the fact that there Page 4 of 7 25th July 2024 ::: Uploaded on - 01/08/2024 ::: Downloaded on - 03/08/2024 06:57:42 ::: 504-OSWPL-23290-2024(1)F.DOC are no permissions, the BMC, after following the due process, issued demolition orders in 2010 and then in 2011. By simply submitting that the three Petitioners were unaware of such demolition orders, this Petition or Interim Application has been filed on the eve of the demolitions.
11. The original lessee, from whom the Petitioners claim some interest, is impleaded as a party, but he has not bothered to question the demolitions. The original Petition was filed by the landlord, i.e., the AH Wadia Trust, complaining that a patently illegal construction was being put up. The photographs show that a new construction was coming up from the ground floor level, and admittedly, no authorities granted permission for such construction.
12. In any event, considering that our order was only to direct the concerned Police Station to provide police protection to the BMC officials, we see no good reason to recall the same on the specious plea that three Petitioners were not impleaded as Respondents in the Petition. Though belatedly made, the challenge to the demolition notices also cannot be sustained because the Petitioners claim they do not know whether this construction was backed by any permissions or not. They do not claim to have carried out these constructions. In contrast, the original landlord had asserted on oath that there were no permissions for such constructions. The BMC, which is the authority to issue such permissions, has also stated that no such permissions were issued, and therefore, the demolition orders were made. In fact, BMC submitted that even after partial Page 5 of 7 25th July 2024 ::: Uploaded on - 01/08/2024 ::: Downloaded on - 03/08/2024 06:57:42 ::: 504-OSWPL-23290-2024(1)F.DOC demolitions were carried out, the structures were reconstructed without permission from any authorities.
13. In the Interim Application, the three Petitioners have come out with a case that around late 2021 and early 2022, the landlord made representations and assured the three Applicants and other tenants that the tenants would have to vacate their tenements since he would be repairing the building which was in a dilapidated state. By landlord, Ms Singh clarifies that it was Respondent No. 4, i.e., the original alleged lessee. The Applicant admits that the Applicants and others vacated their premises temporarily to pay off the way to repair the buildings. They claimed this was done without prejudice to their rights and contentions and on the so-called landlord's assurance that they would be put in possession of their tenancies once the repair was complete.
14. The Petitioners/Applicants pleaded that they were unaware if the so-called landlord had sought the requisite permissions that clearance is in accordance with law for such repair work. After that, they claimed to have moved into the premises after the repair work on the building had been completed.
15. From the photographs produced before us, an unauthorised construction has been put up from the ground floor to the 6th floor. Even assuming that the story about repairs is to be accepted, it is well settled that the so-called landlord was required to obtain permission from all the statutory authorities, including the BMC. In the guise of so-called repairs, it looks like a huge building Page 6 of 7 25th July 2024 ::: Uploaded on - 01/08/2024 ::: Downloaded on - 03/08/2024 06:57:42 ::: 504-OSWPL-23290-2024(1)F.DOC comprising ground plus six storeys was put up. After the demolition of a part, the demolished part was once again reconstructed without any permission and in breach of all rules and regulations.
16. In this Interim Application or in the Writ Petition, we have not examined the issue of Petitioner rights as alleged tenants, etc. If the Petitioners can establish such rights and, based on the same, if the Petitioners are entitled to certain benefits in the redeveloped building, etc., the Petitioners are always at liberty to agitate such issues before the appropriate Court. All contentions in this regard are explicitly kept open. But no case has been made to recall our order or to interfere with the demolition order on the grounds urged.
17. For all the above reasons, we see no good grounds to entertain the Interim Application or Writ Petition.
18. Accordingly, the Interim Application and the Writ Petition are dismissed without any order for costs.
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