Bombay High Court
Prema Sadashiv Shetty vs The Municipal Corporation Of Gr.Mumbai on 24 August, 2023
Author: G.S. Patel
Bench: G.S. Patel
909-OSWPL-9986-2023+.DOC
Talwalkar
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 9986 OF 2023
Siesta Industrial & Trading Corporation & Ors ...Petitioners
Versus
The Municipal Corporation of Greater Mumbai ...Respondents
& Anr
WITH
WRIT PETITION (L) NO. 7891 OF 2023
Omana Padmanabhan Nair ...Petitioner
Versus
The Municipal Corporation of Greater Mumbai ...Respondents
& Anr
WITH
WRIT PETITION (L) NO. 7905 OF 2023
Quality Impex Pvt Ltd ...Petitioner
Versus
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
WITH
WRIT PETITION (L) NO. 8166 OF 2023
Jayesh Shankar Desai ...Petitioner
Versus
The Municipal Corporation of Greater Mumbai ...Respondents
Page 1 of 7
24th August 2023
909-OSWPL-9986-2023+.DOC
& 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
Mr Pradeep Thorat, with Chirag Kamdar i/b Bipin Joshi, for
Petitioner in WP(L) 9986/2023.
Mr Dinyar Madon, Senior Advocate, with JS Kini, Arun Kini i/b
Sapna Krishnappa for Petitioner in WPL 7891/2023.
Mr JS Kini, Arun Kini i/b Sapna Krishnappa for Petitioner in WPL
7905/2023, WPL8165/2023, WPL8166/2023, WPL8196/2023,
WPL8214/2023, WPL8219/2023 & WPL12949/2023.
Mr Narendra V Walawalkar, Senior Counsel, with Shailesh Shah
and Pooja Yadav i/b Sunil K Sonawane, for Respondents-BMC in
WPL9986/2023, WPL7891/2023 & WPL7905/2023.
Mr Shailesh Shah, Senior Counsel, with Pooja Yadav i/b Sunil K
Sonawane, for Respondents-BMC in WPL8165/2023 &
WPL8212/2023.
Mr Joel Carlos, with Pooja Yadav i/b Sunil K Sonawane, for
Page 2 of 7
24th August 2023
909-OSWPL-9986-2023+.DOC
Respondents-BMC in WPL8219/2023, WPL8166/2023 &
WPL8196/2023.
CORAM G.S. Patel &
Kamal Khata, JJ.
DATED: 24th August 2023 PC:-
1. We have before us a very large group of matters. The facts appear to be contentious in all of these. They all refer to various constructed premises, also known as sheds at what is called the Bharat Coal Compound in Kurla, Mumbai 400 070. Assailed in these Petitions are notices under Section 351(1)(a) of the Mumbai Municipal Corporation Act, 1888 ("MMC Act").
2. The case of the Municipal Corporation of Greater Mumbai ("MCGM") represents notices as also the consequential orders passed. The case of the MCGM represented by Mr Walawalkar and Mr Shah is that the original structures that once stood have now virtually been eradicated from the site. There are considerable expansions. A reversion to the old status is no longer possible. Very shortly put, the present constructions are said to be without authorisations or permissions. Over time, some or perhaps even many, of these persons have applied for permissions of different kinds such as repairs or to construct mezzanine floors or lofts. That permissions have been granted periodically in some cases does not seem to be disputed. But as Mr. Walawalkar says, it is one thing to apply for a certain permission but quite another thing to obtain that permission and do some altogether different work. This is where the Page 3 of 7 24th August 2023 909-OSWPL-9986-2023+.DOC MCGM complains that the permission was sought on one basis but the work that has been done is totally different and has radically altered the situation on the ground. Entire walls have been moved. Sometimes entire walls have been replaced and original structures shown in the records of about 700 sq ft are now said to admeasure around 2000 sq ft
3. Mr Madon for the Petitioner in Writ Petition (L) No. 7891 of 2023 says that the MCGM has official records called 'tikka sheets' which show in black that which is authorised and that which is unauthorised in red. This is what the MCGM affidavit says. On instructions, he disputes the red portions but states, and this is more than somewhat confusing, that if the MCGM can "find anything in red" it is welcome to demolish that portion. Now this tells us that there is being raised by the Petitioners, quite impermissible in writ jurisdiction, a factual dispute as to the correctness of a tikka sheet. Therefore, this suggestion from Mr Madon will really be of very little assistance in resolving the matter.
4. Mr Walawalkar and Mr Shah are quite happy to accept a proposition that they may be permitted to demolish everything in accordance with the 351 notices and then nothing else will remain in these Petitions. But Mr Madon proposes to canvass, as do the other petitioners namely, Mr Thorat and Mr Kini, that not only are there permissions and authorisations but some of the structures are so old and prior to the datum line of 1962 that they are protected and saved from the 351 notices in the first place .
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5. Necessarily, all this now turns on a factual determination of what exists at the site. We do not believe that the question of law needs to occupy very much of the Court's time because there is no controversy between the party on the ambit of Section 351 of the MMC Actor, for that matter Sections 342 and 347 or the powers that are vested in the MCGM for implementation. We will not be entertaining any arguments based on mala fides and we make this abundantly clear at the outset.
6. The task for the Petitioners is therefore now clear. They must show unambiguously from the documents that cannot be controverted or documents that must necessarily be accepted by the Court that the structures that they respectively occupy and which they say are protected from Section 351 notices are permitted, authorised, legal and have or in law must be deemed to have received the necessary sanctions. Nothing short of this will do.
7. We need to make our position abundantly plain even at this stage when these matters are listed today only for directions. We are concerned here with the judicial review of administrative action. This does not permit us to act as a civil court of first instance nor a court in a regular civil first appeal. We will address the decision- making process or the administrative action along well-settled principles and no further. We will not permit under any circumstances an exploration of disputed questions of fact.
8. Therefore, while addressing the Court on whatever date is found convenient to all sides, the Petitioners must prepare their Page 5 of 7 24th August 2023 909-OSWPL-9986-2023+.DOC material in one common place in a consolidated compilation (the kind that is often mischievously styled as a 'convenience' compilation) that shows in a table form what each of the Petitioners actually has on ground and, going by the template at page 215 of Mr Madon's Petition also show the name of the party, the existing area, what is the area shown in the 351 notice and the relevant pages from the record in relation to the notice and the speaking orders passed. Unless this is compiled and put together, it would be impossible for a writ court to address the Petitions on merits. It simply cannot be that a writ court is asked to determine whether the structure of a particular petitioner is, say, 700.68 sq ft or 2368.123 sq ft. That is not the remit of the writ court and we will not permit any of the Petitioners to attempt to lead us down that path.
9. In addition, while this may not yet be on record, since many of the Petitioners claim to have applied for permissions of various kinds and the grant of these permissions is not disputed by the MCGM, we will require from the Petitioners copies of the applications that they made. If those applications are not available, there will have to be a sworn statement to that effect that those applications are unavailable with the Petitioners in question.
10. This compiled material must be circulated at least 48 hours in advance in hard copy and properly indexed and paginated soft copies both.
11. List the matter on 11th September 2023 and 12th September 2023 at 2.30 pm. Page 6 of 7 24th August 2023 909-OSWPL-9986-2023+.DOC
12. Ad-interim relief granted earlier, if any, to continue till the next date.
(Kamal Khata, J) (G. S. Patel, J)
Signed by: A.S.Talwalkar Page 7 of 7
Designation: PS To Honourable Judge 24th August 2023
Date: 25/08/2023 15:10:06