Bombay High Court
Anjuman-E Fotowat Yazdian Trust And 7 ... vs The Municipal Corporation Of Greater ... on 17 October, 2019
Author: G.S. Patel
Bench: S.C. Dharmadhikari, G.S. Patel
902.OSWP2044.13.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 2044 OF 2013
Anjuman-e-Fotowat Yazdian Trust & Ors. ... Petitioners
Vs
1 Municipal Corpn. Of Gr. Mumbai & Ors. ... Respondents
WITH
NOTICE OF MOTION NO. 396 OF 2019
IN
WRIT PETITION NO. 2044 OF 2013
Anjuman-e-Fotowat Yazdian Trust & Ors. ... Applicants
In the matter between :
Anjuman-e-Fotowat Yazdian Trust & Ors. ... Petitioners
Vs
1 Municipal Corpn. Of Gr. Mumbai & Ors. ... Respondents
Mr. A.M. Kulkarni with Mr. Vaibhav Gaikwad for the
Petitioners/Applicants.
Mr. J.F. Reis with Ms. Rupali Adhate for the Respondent No.1-
MCGM.
Mr. P.J. Ramchandani for the Respondent No. 5.
Mr. Harshad Kale, Deputy Municipal Commissioner, Zone-1, Mr.
Rajesh Dholey, Executive Engineer, B&F 'B' Ward , Mr. Kiran
Dhas, Sub-Engineer, B&F 'B' Ward - present.
Mr. Anwar Khan, respondent No.5 present in person.
SRP 1/9
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902.OSWP2044.13.doc
CORAM : S.C. DHARMADHIKARI &
G.S. PATEL, JJ.
THURSDAY, 17TH OCTOBER, 2019 P.C. :
1 An affidavit of compliance is filed. A copy of the same is also served upon both, the petitioners and the respondent Nos.4 and 5.
2 This affidavit, in paragraphs 3 and 4 makes the following statements :
"3 I say that pursuant to the orders dated 08.08.2019 these Respondent Corporation have demolished the unauthorised construction which was constructed beyond the plans issued by Bombay Repairs and Reconstruction Board of MHADA. The Respondent Corporation had arranged demolition programme by issuing work order to M/s. Swati Constructions for demolishing the unauthorized construction on 23.08.2019 and thereafter the demolition work is continuously in progress. The entire unauthorized demolition process has been completed on 14.10.2019. Save and except the sloping roof which was converted into ladi-coba flooring as the people were living on that floor therefore the said was not demolished. The attic SRP 2/9 ::: Uploaded on - 18/10/2019 ::: Downloaded on - 19/10/2019 00:18:40 :::
902.OSWP2044.13.doc floor is shown as such in the repair plan of MHADA and therefore it was not demolished.
4 I say that the notice structure is a cessed property, therefore, the copy of plan was demanded from the MHADA authority by issuing office letter dated 25.09.2019. I say that to ascertain the authorized structure and to identify the unauthorized component of the said Petition property, the said plan was used to carry out the demolition of the structure beyond the MHADA plan. I say that in reply to the letter issued by BMC dated 25.09.2019 the MHADA authorises through their Ex. Engineer B-2 Division M.B.R. & R. Board, Mumbai replied vide letter dated 01.10.2019 wherein he stated that, as per the copy of plan of the Petition building clearly shows that the building is ground + 1 + attic floor. The said building was repaired in 2 phases i.e. in the year 1983 and in the year 2007 respectively. I say that the plan issued by MHADA shows the nature of the structure in existence prior to repairs as ground + 1 + attic floor."
3 After that, in paragraph 5, it is stated that as per the copy of the plan issued by the Maharashtra Housing and Area Development Authority, the height of the ridge is 4.57 meters and eaves level is 3.50 meters. In the absence of any records with the SRP 3/9 ::: Uploaded on - 18/10/2019 ::: Downloaded on - 19/10/2019 00:18:40 :::
902.OSWP2044.13.doc Municipal Corporation and on assistance being taken of the plan issued by MHADA at the time of demolition, which plan is stated to be of 1983, the Municipal Corporation says that it has identified the unauthorised structure. Whatever was beyond the plan issued by MHADA in terms of the horizontal and vertical dimensions was demolished, except the roof of the attic floor. The roof is shown as A.C. sheet roof with slope. The sloping roof has been converted into ladi-coba flat roof for which the Municipal Corporation issued a notice under section 53 (1) of the Maharashtra Regional & Town Planning Act, 1966. This conversion also was said to be impermissible and unauthorised. 4 This affidavit has been tendered today and when it was perused with the assistance of Mr. Kulkarni and Mr. Ramchandani, it is revealed that the respondent Nos.4 and 5 claim to be tenants of the structure. They admit that everything above the existing structure was unauthorised and has been removed and demolished. Both admit that the same was not part of the tenancy agreement or the lease in respect of the premises. The blame game is that the petitioners say that it is the respondent Nos.4 and 5 who have put up this attic floor and after SRP 4/9 ::: Uploaded on - 18/10/2019 ::: Downloaded on - 19/10/2019 00:18:40 :::
902.OSWP2044.13.doc that, they have converted this by flattening the sloping roof into a residential area. Mr. Ramchandani says that there is an internal staircase from the existing structure / the structure of first floor plus attic and from which this attic floor is accessed. Mr. Ramchandani has oral instructions to state that there are tenancy rights created in respect of this entire structure and the tenancy, therefore, cannot be said to be only of a ground and upper floor. He says that there is a proof of the existence of this attic floor. The rent receipts would evidence this fact as well. 5 We do not think that such oral versions of both sides, namely, petitioners and respondent Nos.4 and 5 should be accepted. While we close the matter, we direct the Municipal Corporation to peruse all the original documents in relation to this attic floor which shall be produced by both sides before the competent authority. If, on perusal of the same, and in comparison with the related records, there is no evidence of any existing attic floor, then, that portion which is known as attic or below the flattened roof will also have to be demolished. If there is proof produced or that there is evidence of both sides, colluding with each other at the time for construction of such attic floor, SRP 5/9 ::: Uploaded on - 18/10/2019 ::: Downloaded on - 19/10/2019 00:18:40 :::
902.OSWP2044.13.doc then, the Municipal official shall not enter that arena and we then leave open such remedies as are permissible in law to be taken resort to by the petitioners. However, we direct that the above exercise shall be completed within four (4) weeks from the date of scrutiny. The petitioners and respondent Nos.4 and 5 shall attend the office of the Deputy Municipal Commissioner of 'B' Ward, latest by 24th October, 2019. The concerned official shall then take the appropriate steps within four (4) weeks from 24th October, 2019. We direct that no development permission shall be issued for making any development or construction on the subject plot by the Municipal officials. They shall strictly abide by the plans which are on their record.
6 We have come to the conclusion that there is no development potential in the plot available any longer. Therefore, no development or construction beyond what is existing is permitted. Needless to clarify that if the Municipal officials are not satisfied about the existence of the attic floor or any authorisation in relation thereto, they shall proceed to demolish that portion as well after four weeks of its order. SRP 6/9 ::: Uploaded on - 18/10/2019 ::: Downloaded on - 19/10/2019 00:18:40 :::
902.OSWP2044.13.doc 7 This writ petition and the compliance reports have revealed very dismal and sorry state of affairs. They are unfolded right from the time this Court is taking up writ petitions challenging Notices under section 354 of the Mumbai Municipal Corporation Act, 1888. These Notices have been issued to old and dilapidated structures and those structures in which, after they were initially built, there are unauthorised and illegal alterations and additions. The whole of the area which is recognised by India Post as Mumbai 400 003 or 400 009 comprising of Pydhonie, Bhuleshwar, Kalbadevi, Mohammed Ali Road, has been witnessing every year collapse of buildings and innocents losing their lives. Those visiting the people residing in the structures as guests have unfortunately succumbed, but some of the family members have survived because they had either gone out for work or were not in Mumbai. Those visiting shops and other locations, parking vehicles or passers by have also lost their lives. In these areas there is rampant illegal and unauthorised construction. Every year one or the other structure collapses, either on the eve of monsoon or during the monsoon. In this year, there were two major mishaps/accidents and large casualties. If the Municipal Corporation has not learnt any lesson and the SRP 7/9 ::: Uploaded on - 18/10/2019 ::: Downloaded on - 19/10/2019 00:18:40 :::
902.OSWP2044.13.doc Government as well is trying to protect these structures and the occupants simply because they are registered as voters or have other documents such as a Pan card, Aadhar card, then, it is unfortunate that none are bothered about the future of this city. We do not think that we can afford more mishaps and accidents in this area. We expect that before the next monsoon, a survey of all the structures in these localities will be undertaken by MHADA, Municipal Corporation and the Government will render all assistance, particularly from the office of the Collector and Additional Collector, Mumbai City. This survey would reveal as to how many structures with proper dimensions and sizes were originally existing or constructed and have permissible improvements. The others may be categorized as additions and alterations without or with authorisation. If these exceed the permissible limits particularly the floor space index, then, they have necessarily to go. There cannot be any post-facto regularisation nor there can be any consideration of applications for regularisation for what is illegal can never be regularised. 8 We expect that this survey to be completed before the onset of monsoons (June 2020). We also expect the Municipal SRP 8/9 ::: Uploaded on - 18/10/2019 ::: Downloaded on - 19/10/2019 00:18:40 :::
902.OSWP2044.13.doc Corporation to insist on the structural audit to be carried out of the benchmark buildings, if already not carried out. That section 353B of the Mumbai Municipal Corporation Act, 1888, is existing, and from 2009, on the statute book is apparent to us, but possibly lost sight of by the Municipal officials. They must fully comply with the mandate of this section to avoid future accidents and mishaps.
9 Stand over to 1st July, 2020.
G.S. PATEL, J. S.C. DHARMADHIKARI, J. SRP 9/9 ::: Uploaded on - 18/10/2019 ::: Downloaded on - 19/10/2019 00:18:40 :::