Bombay High Court
Devansh Corporation vs Brihan Mumbai Municipal Corporation on 15 March, 2023
Bench: G. S. Kulkarni, R. N. Laddha
2023:BHC-OS:1838-DB
911-wpl-7022-2023.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION LODGING NO. 7022 OF 2023
Devansh Corporation ...Petitioner
Versus
Brihan Mumbai Municipal Corporation & Anr. ...Respondents
....
Mr. Ankit Lohia a/w Mr. Chetan Shah a/w Darpan Jain i/b Mr. Rakesh
Agarwal, Advocate for the Petitioner.
Ms. Vandana Mahadik, Advocate for MCGM.
Mr. Swapnil Joshi, Field officer, B & E, BMC.
CORAM : G. S. KULKARNI, &
R. N. LADDHA, JJ.
DATE : March 15, 2023
P.C.
1. The petitioner is aggrieved by an action initiated by the respondent/ Mumbai Municipal Corporation of a notice dated 8 February 2023 issued under Section 351 (1A) of the Mumbai Municipal Corporation Act, 1888 ( for short "MMC Act"). The petitioner had responded to such notice by its reply dated 13 February 2023 which was received by Municipal Corporation on 15 February 2023. The Petitioner has submitted necessary documents contending that the unauthorized construction as objected by the Municipal Corporation in the schedule as contained in the show cause notice, ought not to be held unauthorized. The designated officer of the Municipal Corporation, considering the reply as Kiran Kawre 1 of 4 ::: Uploaded on - 25/03/2023 ::: Downloaded on - 10/06/2023 17:22:05 ::: 911-wpl-7022-2023.doc submitted by the petitioners, has passed a speaking order dated 1 March 2023. A copy of the said order is annexed at Exhibit-A in the paper book. The designated officer of the Municipal Corporation after considering the documents as submitted by the petitioner has come to a conclusion that the petitioner has failed to submit any conclusive document to prove that a notice structure is authorized and/or the same was constructed as per the plans approved by the Executive Engineer (Building Proposal) City. Accordingly, the following order was passed:
"Your are hereby directed to remove/demolish the notice structure i.e. unauthorized extension of existing of mezzanine floor adm. 23.75m X 8.59, 1.54m X 5.81m and 5.41m X 5.33m upon office space situated at North East side using R.C.C. having height 2.92m & 2.36m for sloping roof and removal of internal staircase connecting mezzanine floor at Unit No. 3A & 4A, construction of unauthorized bathroom and toilet units on unauthorized extension of mezzanine floor having width 2.54m upon toilet block of 3A and construction of pantry in place of Gents Toilet adm. 1.5m X 2.50m, Removal of one W. C. adm.
2.05 X 1.5m and Wash Basin Area from Gents & Ladies Toilets at Unit No.3A, construction of 14.4m wall on mezzanine floor, unauthorized entrance created to access mezzanine floor adm. 1.2m X 2.0m at M/s. Devansh Ventures LLP, M/s. GBCA & Asso. LLP C. A., Unit No.3A & 4A, Benefice House, Mathuradas Mill Compound, N. M. Joshi Marg, Lower Parel, Mumbai, Maharashtra 400013, India within 15 days from the receipt of this order, failing which the same will be demolished by this office entirely at our risk & cost & the cost of demolition will be recovered from you as arrears of the property tax. Further, you shall be prosecuted under Section 475 A of the MMC Act. You shall further note that, on conviction, this offence is punishable with an imprisonment for a term which shall not be less than one month but which may extend to one year and with a fine which shall not be less than Rs.5000/- (Rupees Five Thousand only) but which may extend to Rs.25,000/- (Rupees Twenty Five Thousand only) and in case of continuous offence with a further daily fine which may extend to Rs.500/- (Rupees Five Hundred only)."
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2. Being aggrieved by the speaking orders, the petitioners are before the Court in the present proceedings filed under Article 226 of the Constitution praying for the following reliefs:-
"(a) This Hon'ble Court is pleased to issue a Writ of Certiorari or any other Writ, order, or direction, in the nature thereof quashing and setting aside the notice dated 08.02.2023 and purported speaking order dated 01.03.2023 annexed as Exhibit D and Exhibit F respectively hereto passed by the Respondent No. 2 under section 351 of the Mumbai Municipal Corporation Act,
(b) That pending the hearing and final disposal of the present Petition, this Hon'ble Court be pleased to pass an order of injunction staying the effect and operation of said notice dated 8.2.2023 and order dated 01.03.2023 passed by the Respondent No.2 under section 351 of the Mumbai Municipal Corporation Act,
(c) Ad-interim reliefs in terms of prayer clause (b) be granted;
(d) That the cost of this Petition be provided for,
(e) Such other and further reliefs may be granted as this Hon'ble Court may deem fit and proper to grant in the present circumstance."
3. We have heard Mr. Lohia learned counsel for the petitioner also Ms. Mahadik, learned counsel for the Respondent/MCGM for sometime. After the hearing progressed for some time, Mr. Lohia learned counsel for the petitioner has submitted that a regularization application has already been moved on behalf of the petitioner with the Municipal Corporation. The status of the regularization application which is submitted online, is also placed on record. It appears that there was some deficiency in the documents submitted by the petitioner and the same was called upon to be rectified by such online method on 15 March 2023. It is Kiran Kawre 3 of 4 ::: Uploaded on - 25/03/2023 ::: Downloaded on - 10/06/2023 17:22:05 ::: 911-wpl-7022-2023.doc the petitioners case that the deficiencies have been complied as the deficient documents were uploaded at 2.00 p.m. today, after we have heard the parties in the morning session.
4. It thus appears that the regularization application is pending consideration of the MCGM. Let the same be decided in accordance with law as expeditiously as possible and within a period of four weeks from today, provided the petitioners comply with all the deficiencies in the application by 28 March 2023, as suggested by Mr. Lohia. It is clarified that there shall be no further extension to submit any deficiencies in the documents. All contentions of the parties on the regularization application are expressly kept open.
5. Petition is accordingly disposed of with a direction to the Municipal Corporation to decide the regularization application in accordance with law. No costs.
6. Needless to observed that till the regularization application is decided, no coercive action be taken against the suit structure as per the speaking order. Ordered accordingly.
(R. N. LADDHA, J.) (G. S. KULKARNI, J.)
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