Bombay High Court
Siesta Industrial And Trading ... vs The Municipal Corporation Of Greater ... on 23 January, 2024
Author: G.S. Patel
Bench: G.S. Patel
906-OSWP-3448-2023+-F.DOC
Ashwini
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 3448 OF 2023
Siesta Industrial and Trading Corporation ...Petitioner
Versus
The Municipal Corporation of Greater Mumbai ...Respondent
WITH
WRIT PETITION (L) NO. 7891 OF 2023
Omana Padmanabhan Nair ...Petitioner
Versus
The Municipal Corporation of Greater Mumbai ...Respondents
& Ors
WITH
WRIT PETITION (L) NO. 7905 OF 2023
Digitally
signed by
ASHWINI
ASHWINI
H GAJAKOSH
GAJAKOSH Date:
Quality Impex Pvt Ltd ...Petitioner
2024.01.24
10:24:41 Versus
+0530
The Municipal Corporation of Greater Mumbai ...Respondents
& Anr
WITH
WRIT PETITION (L) NO. 8165 OF 2023
Vincent Paul Benedict Peris ...Petitioner
Versus
The Municipal Corporation of Greater Mumbai ...Respondents
& Anr
Page 1 of 12
23rd January 2024
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WITH
WRIT PETITION (L) NO. 8166 OF 2023
Jayesh Shankar Desai ...Petitioner
Versus
The Municipal Corporation of Greater Mumbai ...Respondents
& Anr
WITH
WRIT PETITION (L) NO. 8196 OF 2023
Jayshankar Padmanabh Shetty ...Petitioner
Versus
The Municipal Corporation of Greater Mumbai ...Respondents
& Anr
WITH
WRIT PETITION (L) NO. 8214 OF 2023
Prema Sadashiv Shetty ...Petitioner
Versus
The Municipal Corporation of Greater Mumbai ...Respondents
& Anr
WITH
WRIT PETITION (L) NO. 8219 OF 2023
Ashok Shetty ...Petitioner
Versus
The Municipal Corporation of Greater Mumbai ...Respondents
& Anr
Page 2 of 12
23rd January 2024
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WITH
WRIT PETITION (L) NO. 12949 OF 2023
Jayashankar Padmanabh Shetty ...Petitioner
Versus
The Municipal Corporation of Greater Mumbai ...Respondents
& Anr
Mr SU Kamdar, Senior Advocate, with Pradeep Thorat, Chirag
Kamdar & Sakshi Agarwal, i/b Bipin Joshi, for the Petitioner in
WP/3448/2023.
Mr Dinyar Madon, Senior Advocate, with JS Kini & Om Kini, i/b
Sapna Krishnappa, for the Petitioner in WPL/7891/2023,
WPL/7905/2023, WPL/8165/2023, WPL/8166/2023,
WPL/8196/2023, WPL/8214/2023, WPL/8219/2023 &
WPL/12949/2023.
Mr Narendra V Walawalkar, Senior Advocate, with Shailesh Shah
& Pooja Yadav, i/b Sunil Sonawane, for the Respondent-MCGM
in WPL/9986/2023, WPL/7891/2023 & WPL/7905/2023.
Mr Shailesh Shah, Senior Advocate, with Pooja Yadav, i/b Sunil K
Sonawane, for the Respondent-MCGM in WPL/8165/2023 &
WPL/8214/2023.
Mr Joel Carlos, with Pooja Yadav, i/b Sunil K Sonawane, for the
Respondent-MCGM in WPL/8219/2023, WPL/8166/2023 &
WPL/8196/2023.
CORAM G.S. Patel &
Kamal Khata, JJ.
DATED: 23rd January 2024 PC:-
1. This order covers only the following Petitions in the group, namely Writ Petition (L) No 7891 of 2023, Writ Petition (L) No Page 3 of 12 23rd January 2024 ::: Uploaded on - 24/01/2024 ::: Downloaded on - 25/01/2024 03:38:50 ::: 906-OSWP-3448-2023+-F.DOC 7905 of 2023, Writ Petition (L) No 8165 of 2023, Writ Petition (L) No 8166 of 2023, Writ Petition (L) No 8196 of 2023, Writ Petition (L) No 8214 of 2023,Writ Petition (L) No 8219 of 2023 and Writ Petition (L) No 12949 of 2023. As the first order of business, all these Petitions are to be finally numbered by 2nd February 2024 with no possibility of an extension. If that is not done, these Petitions will stand summarily rejected and will then not be restored thereafter. This order today is subject therefore to removal of those office objections. The Registry will take up all these Petitions immediately for checking for filing defects.
2. These Petitioners stand on a slightly different footing from Writ Petition No 3448 of 2023. We are simply adjourning that Writ Petition to the next date when we will hear both sides.
3. The dispute in the batch of Writ Petitions pertains to a structure at Bharat Coal Compound, Kale Marg, Bail Bazar, Kurla (West), Mumbai 400 070.
4. The challenge in the Petitions, and we will take Writ Petition (L) No 7891 of 2023 as being typical, assails relatively recent notices of 2022 and consequential orders shortly thereafter of 2023 calling for or ordering a demolition of the entire structure. There are some photographs shown at Exhibit "G" at pages 104 to 106 but what we are really concerned with is the case of the Municipal Corporation of Greater Mumbai ("MCGM") which is in two parts. The first is that there have been entirely illicit and unauthorised horizontal extensions to the original structure. Second, that unauthorised Page 4 of 12 23rd January 2024 ::: Uploaded on - 24/01/2024 ::: Downloaded on - 25/01/2024 03:38:50 ::: 906-OSWP-3448-2023+-F.DOC internal changes have been made or, where changes have been made following applications for the grant of permissions, the actual changes are in deviation from what was permitted. Specifically, the second case is in regard to the installation of lofts or mezzanines and the alleged shifting of internal walls.
5. Our difficulty here was that it was impossible to find a common starting reference point for the original structures. This kind of factual ambivalence cannot lend itself to a resolution in our writ jurisdiction. At the same time, this is clearly a case of judicial review of administrative action and there is therefore no question of relegating anyone to a civil remedy.
6. To put this in perspective, we need to notice two paragraphs of the further Affidavit-in-Reply in Writ Petition (L) No 7891 of 2023. These are paragraphs 3 and 4 at page 156:
"3. I say that the notice structure/s are not reflected in the original tikka sheet of 1966. Hereto annexed and marked as EXHIBIT R1 is a copy of the tikka sheet issued by the City Survey Officer.
4. I further say that the office of the City Survey department has thereafter prepared a MR Plan in which the notice structures can clearly be seen in Red/Red Hatch. Hereto annexed and marked as EXHIBIT R2 is a copy of the MR plan of the City Survey Department."
7. The starting reference point is therefore Exhibit "R1" at page
160. This shows in a black external solid boundary line the structure in question. A soft copy of page 160 is annexed to this order and we Page 5 of 12 23rd January 2024 ::: Uploaded on - 24/01/2024 ::: Downloaded on - 25/01/2024 03:38:50 ::: 906-OSWP-3448-2023+-F.DOC have separately on this ourselves marked the relevant portion. This portion also shows certain internal black lines and these are presumably dividing internal walls.
8. Paragraph 4 has a reference to Exhibit "R2" which is at page
161. Again, a scan is annexed to this order. It shows the structure but now indicates two things. First, it shows alleged horizontal extensions and, second, within the black bounded box in red lines shows what are alleged to be internal shifting of walls or partitions.
9. Mr Madon, learned Senior Advocate for the Petitioners in Writ Petition (L) No 7891 of 2023, maintains that there are no horizontal extensions at all. If anything is found beyond the black solid line outer boundaries of the subject structure as shown at page 160, which is a tika sheet of 1966, then that may be demolished or the Petitioners undertake to remove it themselves. It is his case that there is in fact no such horizontal extension at all.
10. As regards the internal adaptations, he says nothing that has been installed is without permission where such permissions are in fact required. It is his case that for tenantable repairs and similar no permissions are in fact required and they are not subject to municipal action.
11. We have been shown documentation from a common compilation to indicate that the present Petitioner had sought permission for a loft and that the permission was granted subject to certain conditions including the materials to be used. Mr Madon Page 6 of 12 23rd January 2024 ::: Uploaded on - 24/01/2024 ::: Downloaded on - 25/01/2024 03:38:50 ::: 906-OSWP-3448-2023+-F.DOC maintains that those conditions are met and are in fact bettered because instead of using heavier materials such as teakwood and brick masonry, lighter composite materials are used. It is pointless, he says, and we think with some justification, to urge that a lighter material 'affects' structural stability; of course it does; but it not adversely. It lightens the load. It does not increase it. It is hardly reasonable to suggest that just because a lighter material is used therefore municipal action is warranted saying that the load is 'affected'. For 'affected' must mean 'adversely affected'. It is self- evident that a lighter material poses less structural load than heavier materials such as teakwood or brick masonry. This will of course depend on a factual determination of whether a lighter material was used.
12. Again, this puts the Writ Court at a significant disadvantage. We have no means of assessing any of this. It is for this reason that we have sought the assistance of Mr Amol Shetgiri and asked him to visit the site in question for the purpose of this batch of Writ Petitions. We request him to make a report in two parts. His only reference point will be Exhibit "R1" at page 160, the tika sheet of 1966. Part 1 of the report is to assess whether there are any horizontal extensions and if so their dimensions. Ideally, if found, these should be superimposed on a copy of Exhibit "R1" at page
160.
13. For part 2 of his report, we request him to visit each of the internal galas and note where there are in fact lofts or mezzanines, the area, the height above the mezzanine, the height below, the area Page 7 of 12 23rd January 2024 ::: Uploaded on - 24/01/2024 ::: Downloaded on - 25/01/2024 03:38:50 ::: 906-OSWP-3448-2023+-F.DOC of each mezzanine floor and also, if possible, the use to which it is being put. We do not know if it is possible to trace this and if it is not the report may say so, but Mr Shetgiri should endeavour to see if any internal walls have been shifted. Whether this has any consequence or not we will see on the next occasion.
14. We should not be misunderstood in this Petition to have accepted the correctness of the MCGM action. As we have pointed out to both Mr Walawalkar and to Mr Shah, we find it indeed extremely odd that the documentation that we are now being shown in support of the impugned notices and order are all of a vintage of two or three decades but there is no explanation for the inaction for all this period of time. Affidavits are filed telling us that there is a question of aviation safety and orders of this High Court and so on but these improvements (page 229) on the impugned notice either in the order or in the Affidavit are of limited assistance.
15. Particularly, the suggestion that the notice structure abuts the airport and is therefore a danger raises more questions than it answers. To begin with there is no vertical extension being spoken of. Second, it can hardly be suggested that this is the only structure that is abutting the airport. As everybody who has ever arrived in the city by air knows there are hundreds and thousands of structures about which almost nothing has been done for decades together. We also see that the use of the word 'abut' is more than somewhat generous because the Bharat Coal Compound is nowhere near the boundary walls of the airport.
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16. But these are all considerations for a later date after we have received Mr Shetgiri's report. Mr Shetgiri is present in court. Having seen some of the documents he estimates that the work will take roughly three weeks. He is to be provided with a compilation and also both clear, enlarged, and legible copies of Exhibits "R1" and Exhibit "R2". The compilation will be provided by the Petitioner's Advocates but Exhibits "R1" and Exhibit "R2" are to be provided by the MCGM's Advocates. This is to be done by Monday, 29th January 2024.
17. Copies of Mr Shetgiri's report are to be given in advance to the Advocates for the MCGM and Advocates for the Petitioners.
18. Mr Madon readily agrees that Mr Shetgiri's professional fees will be paid by the Petitioners.
19. Leaving all contentions open, list the matter on 28th February 2024.
20. Previous orders, if any, to continue until the next date.
WRIT PETITION NO. 3448 OF 2023:
21. List the Petition along with the others on 28th February 2024. All contentions are kept open.
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22. Previous orders, if any, to continue until the next date.
(Kamal Khata, J) (G. S. Patel, J) Page 10 of 12 23rd January 2024 ::: Uploaded on - 24/01/2024 ::: Downloaded on - 25/01/2024 03:38:50 ::: ANNEXURE R1 Page 11 of 12 ________________ 23rd January 2024 ::: Uploaded on - 24/01/2024 ::: Downloaded on - 25/01/2024 03:38:50 ::: ANNEXURE R2 Page 12 of 12 ________________ 23rd January 2024 ::: Uploaded on - 24/01/2024 ::: Downloaded on - 25/01/2024 03:38:50 :::