Bombay High Court
Sunip Kumar Sen And 3 Ors vs The Mumbai Municipal Corporation Of ... on 14 February, 2024
Author: G.S. Patel
Bench: G.S. Patel
916-OSWP-3496-2022.DOC
Amol
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 3496 OF 2022
Sunip Kumar Sen & Ors ...Petitioners
Versus
The Mumbai Municipal Corporation of Greater ...Respondents
Mumbai & Anr
Mr Aspi Chinoy, Senior Advocate, with Vishwajeet Sawant,
Senior Advocate, Kirti Munshi & Shehzad Najam-es-sani, i/b
Maneksha & Sethna, for the Petitioners.
Mr Kishor Walanju, with Kunal Waghmare & Pooja Yadav, for the
Respondent-MCGM.
CORAM G.S. Patel &
Kamal Khata, JJ.
AMOL DATED: 14th February 2024 PREMNATH JADHAV PC:- Digitally signed by AMOL PREMNATH JADHAV Date: 2024.02.15 11:12:29 +0530
1. This is one of the most astonishing cases that we have come across in a long time.
2. Rule. Respondents waive service. Rule returnable in the normal course.
3. There will have to be an interim order in terms of prayer clauses (c) and (d) which read thus:
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(d) That pending the hearing and final disposal of this Writ Petition the Petitioners be allowed to carry out repairs at their own costs, to the building known as Marian Terrace, situated at 68, Chapel Road, Bandra West, Mumbai-
400050;"
4. Our reasons follow.
5. The challenge in the Petition is to a Municipal Corporation of Greater Mumbai ("MCGM") notice dated 26th May 2022 under Section 351 of the Mumbai Municipal Corporation Act, 1888 ("MCGM Act") at Exhibit "B" (page 29) and the subsequent order of 13th June 2022 at Exhibit "D" (page 33). The schedule of the property in the notice speaks of a ground and two-floor structure known as Marian Terrace, at 68 Chapel Road, Opposite Lilavati Hospital, Bandra (West), Mumbai 400050. The notice says that this entire structure of stones and brick masonry load-bearing walls and ladi coba slabs at each floor level with a shed above the entire second floor created with mild steel angles and covered with AC sheet roofs is an "unauthorized dilapidated building".
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6. The consequential order at page 33 pasted on the building on 14th June 2022 refers to the notice and speaks of this entire structure again, alleging that no documents were received and therefore the structure is unauthorized.
7. To the Petition itself is, however, annexed at Exhibit "A" a speaking order of the MCGM passed by the Deputy Municipal Commissioner Zone-3. It is dated 19th April 1993. The copy annexed to the Petition is incomplete. A complete copy is to be found annexed to the further Affidavit of the Petitioners at Exhibit "D" page 93. This refers to an even earlier Section 351 notice dated 1st October 1992, but it is not on the basis that the entire structure is unauthorized but is in respect of an unauthorized demolition and reconstruction of the rear portion of the property. The property owners were heard. Their contentions are noted in the 19th April 1993 order. The resultant order which starts at page 94 and carries on to page 95 reflects a finding that the work was completed in accordance with a notice under Section 354 of the MCGM Act. The Deputy Municipal Commissioner Zone III concluded that the Section empowered the Commissioner to suggest remedial measures for securing a dangerous building and also to order that it be pulled down. The order reflects that an opinion was sought of the legal department and that opinion was that once an action is taken by the Corporation under Section 354, the issuance of a notice under Section 355 "will not be proper". In view of this, the Deputy Municipal Commissioner concluded that the notice under Section 351 issued to the landlords would not serve the purpose since there was already compliance with the Section 354 notice. He, therefore, ordered that the notice under Section 351 be dropped.
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8. Nothing has changed since. In particular, the MCGM Act has not changed. Once the Section 351 notice of 1993 was dropped, we do not see how the same could be resurrected in a completely different form 30 years later in 2022 with no reference at all to the 19th April 1993 order by the Deputy Municipal Commissioner.
9. The Affidavit of the MCGM says that the 1993 notice refers to a completely different structure. That is inconceivable because the address of the structure in the 1993 notice and the 2022 notice is identical and in the 1993 notice there is a sketch plan of the entire structure, that is to say ground and two floors.
10. The submission on behalf of the MCGM today is not one that can satisfy any Court. The only answer is that the MCGM does not have a record of its own order passed in 1993. That is an astonishing submission. It is then submitted that if this order copy is submitted to some officer in MCGM, some suitable action will be taken, and a speaking order will be passed. We fail to understand what this is supposed to mean. A complete copy of the 19th April 1993 order is already annexed in the papers (further Affidavit of the Petitioner filed on 19th October 2023) but to which there is not a response or even a reference by the MCGM by way of explanation. There is no question of the Petitioners now 'submitting' a copy of the MCGM's own order of 1993 to the MCGM -- that copy is already before the Court and the MCGM has failed to deal with it or address it. There is nothing to 'decide'. The MCGM cannot pass a speaking order on its own speaking order. It cannot disassociate itself from the 1993 speaking order. It cannot disavow that order.
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11. The entire submission seems to be that the MCGM does not have records or is remiss in its own record keeping, therefore there is an assumption that the structure is illegal and unauthorized and must be pulled down. This is some strange notion of the burden of proof. By this bizarre reasoning, the entire High Court building, the University building, the Institute of Science, the CSMVS museum, the CSM terminus and Churchgate station are all 'unauthorised' and liable to be pulled down -- simply because the MCGM has no 'records' of 'permissions' for these buildings.
12. Section 351 of the MCGM Act militates against the acceptance of any such proposition even at a prima facie stage. It reads thus:
"351. Proceedings to be taken in respect of buildings or work commenced contrary to section 347 (1) If the erection of any building or the execution of any such work as is described in section 342, is commenced contrary to the provisions of section 342 or 347, the Commissioner, unless he deems it necessary to take proceedings in respect of such building or work under section 354, shall--
(a) by written notice, require the person who is erecting such building or executing such work, or has erected such building or executed such work, or who is the owner for the time being of such building or work within seven days from the date of service of such notice, by a statement in writing subscribed by him or by an agent duly authorized by him in that behalf and addressed to the Commissioner, to show sufficient cause why such building or work shall not be removed, altered, or pulled down; or
(b) shall require the said person on such day and Page 5 of 7 14th February 2024 ::: Uploaded on - 15/02/2024 ::: Downloaded on - 15/02/2024 20:42:39 ::: 916-OSWP-3496-2022.DOC at such time and place as shall be specified in such notice to attend personally, or by an agent duly authorized by him in that behalf, and show sufficient cause why such building or work shall not be removed, altered or pulled down. (2) If such person shall fail to show sufficient cause, to the satisfaction of the Commissioner, why such building or work shall not be removed, altered or pulled down, the Commissioner may remove, alter or pull down the building or work and the expenses thereof shall be paid by the said person. In case of removal or pulling down of the building or the work by the Commissioner, the debris of such building or work together with other building material, if any, at the sight of the construction, belonging to such person, shall be seized and disposed of in the prescribed manner and after deducting from the receipts of such sale or disposal, the expenditure incurred for removal and sale of such debris and material, the surplus of the receipts shall be returned by the Commissioner to the person concerned. (3) No court shall stay the proceeding of any public notice including notice for eviction, demolition or removal from any land or property belonging to the State Government or the Corporation or any other local authority or any land which is required for any public project or civil amenities, without first giving the Commissioner reasonable opportunity of representing in the matter."
13. Obviously, there has to be a satisfaction that the execution of work or construction as described in Section 342 is contrary to the provisions of Sections 342 or 347. If so, the Commissioner is empowered to issue a notice, grant a hearing and to satisfy himself whether there is sufficient cause.
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14. But this entire exercise was completed in 1993 as we have just seen. Indeed, in 1993 the focus was not on the entire structure being unauthorized but on certain unauthorized demolitions and repair works being carried out at the rear of the building in question. The 2022 Section 351 notice proceeds instead on the assumption that the whole structure is unauthorized. But that has never been the case of the MCGM itself for the last three decades.
15. Hence, this interim relief.
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