Bombay High Court
Bharat H. Thakkar And 2 Ors vs Pravinsinh Pardeshi , The ... on 13 December, 2019
Bench: S.J. Kathawalla, B.P. Colabawalla
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
CONTEMPT PETITION (Lodging) No. 116 of 2019
IN
WRIT PETITION No. 757 OF 2017
Bharat H. Thakkar & Ors ..Petitioners.
Vs
Pravinsinh Pardeshi, the Commissioner, MCGM
& Ors ..Respondents.
WITH
WRIT PETITION (Lodging) No. 3535 OF 2019
Bharat H. Thakkar & Ors ..Petitioners.
Vs
The Commissioner, MCGB & Ors ..Respondents.
Mr. Suryajeet P. Chavan for Petitioners.
Mr. A. Y. Sakhare, Senior Advocate and Mr. Rajesh Patil and Ms. Yamuna Parekh &
Ms. Rupali Adate for Respondent-MCGM.
Dr. Abhinav Chandrachud i/by Mr. Shailendra Singh for Respondent Nos. 6 and 7.
Mr. Narendra Barde, Joint Commissioner, MCGB.
Mr. Marne, Executive Engineer F/N Ward - MCGB.
Mr. S.S. Kanetkar for Respondent Nos. 7 to 19 in W.P.(L) No.3535/2019
CORAM : S.J. KATHAWALLA, &
B.P. COLABAWALLA, JJ.
DATE : 12th /13th DECEMBER, 2019
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P.C. :
1. Though the Courts repeatedly witness the defant and at times even illegal conduct of some of the parties before it, in the instant case the Ofcials of the Municipal Corporation of Greater Mumbai ('MCGM') i.e. Shri Merai (Designated Ofcer), Shri Kishore Ubale (Assistant Municipal Commissioner) and Shri Narendra Barde (Deputy Municipal Commissioner) have fagrantly overstepped their duty, and shown scant regard to the orders passed by this Court. At the instance of some of the tenants/shopkeepers of "Velbai Velji Arogya Bhavan", located at 196, Koliwada, Sion (East), Mumbai-400 022 (for short "Subject Structure"), they have dared to virtually set aside the Order dated 10th March, 2017, passed by the Division Bench of this Court, comprising of Coram: Shri Naresh Patil and Shri M.S. Karnik, JJ., after a Review Petition being Review Petition (L) No. 15 of 2017 fled therefrom was dismissed on 27th April, 2017, and the Special Leave Petition No. 24762 of 2017 was withdrawn on 4th October, 2017.
2. The brief facts of the matter are as under:
2.1 Writ Petition (L) Nos. 3002 and 3011 of 2016 were fled by the original residents of the Subject Structure and Writ Petition (L) No. 2934 of 2016 was fled by the occupants of the shops on the ground foor of the Subject Structure, challenging the Notice of Eviction dated 19th October, 2017 issued by the Designated Ofcer, FN-
1, Assistant Engineer (Building and Factory), F/S North Ward of MCGM.
2.2 The said Notice of Eviction dated 19 th October, 2016, was issued by the
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Corporation after receiving the Reports from the Technical Advisory Committee ( for short "TAC") dated 20th August, 2015 and 2nd September, 2016, stating therein that the Subject Structure falls under C-1 category and is required to be forthwith demolished.
2.3 By a detailed Order dated 10th March, 2017, the Division Bench comprising of Coram Shri N.H. Patil and Shri M.S. Karnik, JJ., after considering all the Structural Audit Reports, TAC Reports and the photographs of the Subject Structure etc. declined to quash and set aside the TAC Reports and the Eviction Notices issued by the Corporation to the tenants, including the shopkeepers.
2.4 Dealing with the Petitioners' submission that the building is in good condition and the TAC Reports cannot be relied upon, the Division Bench in paragraph 23 of its Judgement dated 10th March, 2017 observed that, " The TAC took into consideration reports of six structural consultants appointed for the matter under reference. In the opinion of the TAC the structure is in bad condition and has outlived its life. Saging was observed and unauthorised extensions were noticed. Terrace and the toilets are in very bad condition. The TAC noticed structural cracks and saging at few locations. In the opinion of the TAC, the building is beyond repairs". In paragraph 24 of the order, the Learned Judges observed that " This Court in exercise of its writ jurisdiction would not sit over for reviewing the merits of the structural audit reports. It is the job of expert. The opinion of the experts reached with regard to the condition of the building being subjective opinion, this Court would not substitute its view, even if the opinion sufers from some errors here or there. ::: Uploaded on - 14/12/2019 ::: Downloaded on - 15/12/2019 03:12:42 :::
Ladda 4 / 13 916-conpwl-116-19 14.12.19 .doc ..." 2.5 Rejecting the submission of the Learned Counsel appearing for the shop
owners in Writ Petition (L) No. 2934 of 2016 that since the ground foor structure was in good condition, the same need not be demolished, the Division Bench observed as follows:
"26. Learned Counsel Shri Godbole appearing for petitioners/ shop owners submitted that the ground foor structure is in good condition and it need not be demolished. If required certain repairs will be carried out. We would not substitute our opinion to the view adopted by TAC in its report in respect of the subject structure. In the facts we are not inclined to accept the contentions advanced by learned Counsel Mr. Godbole."
2.6 Thereafter, some of the tenants/shopkeepers fled Review Petition (L) No. 15 of 2017, seeking review of the Order dated 10 th March, 2017 passed by the Division Bench of Shri Naresh H. Patil and Shri M.S. Karnik, JJ. At the time of hearing of the Review Petition, the said shopkeepers submitted before the Division Bench that the ground foor portion of the building need not be demolished, while the upper foor of the building being dilapidated could be demolished. It was submitted that the water supply and the electricity is now disconnected by the Corporation and necessary directions be given to MCGM to reconnect the water supply and electricity connections. The Review Petition was dismissed by the Division Bench by its Order dated 27 th April, 2017 on the ground that the Bench does not fnd any justifable reason or sufcient ground to entertain the said Review Petition. 2.7 Some of the tenants/shopkeepers fled a Special Leave Petition viz. Special Leave Petition (C ) Diary No. 24762 of 2017, in the Supreme Court of India. The said SLP was withdrawn on 4th October, 2017. The Order dated 4th October, 2017, passed by the Hon'ble ::: Uploaded on - 14/12/2019 ::: Downloaded on - 15/12/2019 03:12:42 ::: Ladda 5 / 13 916-conpwl-116-19 14.12.19 .doc Supreme Court is reproduced hereunder:
" Learned Counsel appearing for the petitioners submits that the petitioners would approach the Municipal Corporation for permitting the petitioners to allow them to continue to do the business till the issuance of IOD. He therefore, seeks permission to withdraw this petition. The petition stands dismissed as withdrawn.
We make it clear that as far as this Court is concerned no observations are passed on the merits of the request which the Petitioners are going to make to the Municipal Corporation".
The above Order shows that the Hon'ble Supreme Court has not given any direction to the tenants/occupants of the said Subject Structure to approach the Municipal Corporation and seek permission to allow them to continue to do business till the issuance of the IOD. 2.8 Despite the above specifc Orders of the Division Bench of this Court not allowing the shopkeepers on the ground foor of the Subject Structure to continue to be in occupation of the same, some of the occupants of the ground foor premises submitted an application to the Director of TAC seeking permission to continue remaining in occupation of the ground foor of the Subject Structure until an IOD is issued by the Municipal Corporation to the owners/developers.
2.9 Pursuant thereto, Shri Merai, Designated Ofcer FN-1 (Building and Factory)/ F/North Ward, in gross violation of the Orders passed by the Division Bench dated 10 th March, 2017 and 27th April, 2017, prepared a note/proposal dated 13 th October, 2017 and forwarded the same to the Deputy Municipal Commissioner ('DMC'). In the said note/proposal, Mr. Merai made an incorrect recording that, "In this regard, the Hon'ble Supreme Court of India in their Order of 4 th October, 2017 directed the Petitioners/shop owners to approach the Municipal Corporation to allow to continue to do the business till the issuance of ::: Uploaded on - 14/12/2019 ::: Downloaded on - 15/12/2019 03:12:42 ::: Ladda 6 / 13 916-conpwl-116-19 14.12.19 .doc IOD". On the said note/proposal, on 16th October, 2017, the then DMC made an endorsement to the efect that the proposal should be sent to TAC to consider the request and also whether the Subject Structure is safe.
2.10 The Director/Chairman of the TAC who was a signatory to the TAC Report, declined to consider the matter on the ground that there was no direction issued by the Supreme Court to the TAC.
2.11 Interestingly Mr. Merai did not stop at this. Instead, he along with Mr. Kishore Ubale, Assistant Municipal Commissioner, prepared another note/proposal which was addressed to Mr. Narendra Barde, Deputy Municipal Commissioner ('DMC'), once again with an incorrect recording that, " In this regard, the Hon'ble Supreme Court of India on their order dated 4 th October, 2017 directed the Petitioners (shop owners) to approch the Municipal Corporation for permitting to allow to continue to do the business till the issuance of IOD."
2.12 On 8th February, 2018, Mr. Narendra Barde, DMC, Zone-II in gross violation of the Orders passed by the Division Bench of this Court dated 10 th March, 2017 and 27th April, 2017, inter alia rejecting the request of the tenants/shopkeepers to continue in occupation of the ground foor of the Subject Structure, approved the proposal of Shri Merai and Shri Ubale and allowed the tenants/shopkeepers to use, occupy and carry on their business from the ground foor of the Subject Structure, even though the foors above the ground foor were demolished as per the directions ::: Uploaded on - 14/12/2019 ::: Downloaded on - 15/12/2019 03:12:42 ::: Ladda 7 / 13 916-conpwl-116-19 14.12.19 .doc of this Court.
2.13 In view of the aforestated contemptuous conduct, the Petitioners, who were residing on the foors above the ground foor of the Subject Structure, and whose premises have been demolished pursuant to the Orders of this Court, have fled the above Contempt Petition pointing out that the Ofcials of the MCGM, have in violation of the Orders passed by the Division Bench dated 10 th March, 2017 and 27th April, 2017, not proceeded to demolish the ground foor structure, but have in fact passed an Order dated 8th February, 2018, allowing the occupants of the ground foor to remain in possession of their respective shops/premises, and also to carry on their business until an IOD is received. The Petitioners, in the above Contempt Petition, have also fled the above Writ Petition impugning the Order dated 8 th February, 2018, passed by the MCGM in violation of the detailed Order passed by the Division Bench of this Court dated 10th March, 2017, with a prayer to quash and set aside the same.
3. Mr. Sakhare, the Learned Senior Advocate appearing for the Respondents, informed the Court that he is also instructed to represent Mr. Merai, Mr. Ubale and Mr. Narendra Barde in the above Contempt Petition.
4. As far as the above Writ Petition is concerned, the Learned Advocate appearing for the Petitioners is allowed to amend the same and join the tenants/occupants of the ground foor as party Respondents to the Writ Petition, in terms of the draft amendment tendered in Court, taken on record and marked "X" for identifcation. Amendment shall be carried out by 16th December, 2019. ::: Uploaded on - 14/12/2019 ::: Downloaded on - 15/12/2019 03:12:42 :::
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5. The Advocates for the parties have agreed that the Contempt Petition as well as the Writ Petition be taken up for fnal hearing.
6. From the above facts, it is clear that the challenge to the Eviction Notice issued by the Corporation dated 3rd May, 2014, along with the two TAC Reports dated 20th August, 2015 and 2nd September, 2016 was rejected by the Division Bench of this Court. Despite the specifc request / prayer of the ground foor occupants to allow them to continue their business on the ground foor on the submission that the Subject Structure is sound, the Court declined to substitute its views to that of an Expert Body i.e. the TAC and rejected the request. Review Petition (L) No. 15 of 2017 fled therefrom reiterating the request to continue being in occupation of the ground foor premises was also dismissed by the Division Bench of this Court on 27 th April, 2017. Some of the tenants/shopkeepers preferred a Special Leave Petition (SLP) before the Supreme Court of India challenging the Orders passed by the Division Bench of this Court dated 10th March, 2017 and 27th April, 2017. However, the Petitioners therein did not press the Special Leave Petition but only made a statement that they would withdraw the same, since they proposed to make an application before the Municipal Corporation for permitting them to continue to carry on their business on the ground foor premises till the issuance of IOD. A reading of the Order of the Hon'ble Supreme Court reproduced hereinabove, makes it clear that the Hon'ble Supreme Court has not given any direction to the Petitioners to approach the MCGM to allow them to continue to carry on their business till the issuance of IOD. ::: Uploaded on - 14/12/2019 ::: Downloaded on - 15/12/2019 03:12:42 :::
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7. Despite the above facts, the Petitioners/shopkeepers, in violation of the Orders passed by the Division Bench of this Court dated 10 th March, 2017 and 27th April, 2017, addressed an application to the Director, TAC, seeking permission to continue their business on the ground foor premises of the Subject Structure, which request was already rejected by the Division Bench of this Court in paragraph 26 of its Order dated 10th March, 2017 and the Review Petition fled therefrom was also dismissed by an Order dated 27th April, 2017.
8. Upon receipt of the said Application, Mr. Merai, Designated Ofcer of the Corporation forwarded his Note/Proposal dated 13th October, 2017, to the then DMC, wherein Mr. Merai made a misleading statement that the Hon'ble Supreme Court by its Order dated 4th October, 2017, has directed the Petitioners to approach the Municipal Corporation to allow them to continue to carry on their business till the issuance of IOD. The DMC directed that the said Application be forwarded to TAC. As stated above, TAC declined to interfere in the matter on the ground that there is no direction given by the Supreme Court to TAC. Mr. Merai, did not stop at this. He, along with the Assistant Municipal Commissioner, F/North Ward (Mr. Kishore Ubale), again submitted a representation to Mr. Narendra Barde, DMC, once again recording an incorrect statement therein that the Supreme Court of India had directed the Petitioners to approach the MCGM seeking permission to continue to carry on their business on the ground foor of the Subject Structure till the issuance of IOD. ::: Uploaded on - 14/12/2019 ::: Downloaded on - 15/12/2019 03:12:42 :::
Ladda 10 / 13 916-conpwl-116-19 14.12.19 .doc Mr. Barde, DMC, knowing full well that the TAC Reports were obtained and relied upon by the Corporation itself; that the TAC is an Expert Committee which had recommended the demolition of the entire building; that the Division Bench of this Court had accepted the TAC Reports and had rejected the submission made by the Petitioners to continue being in occupation of the ground foor premises; and the Review Petition fled therefrom was rejected and the SLP was withdrawn, proceeded to virtually set aside the Orders passed by the Division Bench of this Court by his Order dated 8th February, 2018, approving the proposal submitted by Mr. Merai and Mr. Kishore Ubale, thereby allowing the tenants/shopkeepers of the ground foor to continue to be in occupation and possession of their premises and consequently not demolishing the said structure. Mr. Merai, Mr. Kishore Ubale and Mr. Barde, in order to favour the Petitioners/shopkeepers, for reasons best known to them, by their aforestated Order not only substituted the decision of TAC but also proceeded to substitute the decision of this Court directing the Corporation to demolish the entire Subject Structure. We therefore hold that Shri Merai, Assistant Engineer, Mr. Kishore Ubale, Assistant Municipal Commissioner and Mr. Barde, Deputy Municipal Commissioner, by not demolishing the ground foor premises of the Subject Structure, but instead allowing its tenants/shopkeepers to continue to be in possession of the same, have breached the Orders passed by the Division Bench of this Court dated 10th March, 2017 and 27th April, 2017. They are therefore guilty of Contempt of Court.
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9. In view of the aforestated contumacious conduct of the said Ofcers of MCGM, we informed Mr. Sakhare that we are of the view that they need to be sentenced to civil prison. However, Mr. Sakhare, the Learned Senior Advocate appearing for the Respondents, including the three Ofcers, has submitted that the three Ofcers have expressed their sincere remorse with regard to their contumacious conduct; they have in the past never indulged in such conduct; they tender their unconditional apology to the Court and are willing to pay a fne, as ordered by the Court; the Corporation forthwith withdraws the Order dated 8 th February, 2018, passed by Mr. Barde (DMC); and the Corporation undertakes to forthwith demolish the ground foor of the Subject Structure.
10. The Learned Advocate appearing for the shopkeepers/tenants informed the Court that he has fled Vakalatnama only on behalf of three of the thirteen tenants/shopkeepers and that the tenants be given some time to vacate the premises and surrender the same for demolition. Despite the Orders of the Division Bench, rejecting the request of the tenants/shopkeepers to continue to be in occupation of the respective premises on the ground foor of the Subject Structure and despite the Review Petition fled by them reiterating their request, being rejected, they (the tenants/shopkeepers) in gross violation of the said Orders, made an application to the Corporation thereby virtually calling upon the Corporation to substitute the Orders of the Division Bench of this Court dated 10 th March, 2017 and 27th April, 2017. They have continued to illegally remain in possession of the premises for a period of almost ::: Uploaded on - 14/12/2019 ::: Downloaded on - 15/12/2019 03:12:42 ::: Ladda 12 / 13 916-conpwl-116-19 14.12.19 .doc two years, during which period the premises in occupation of all the other tenants have been demolished. They are therefore equal partners in crime and deserve no sympathy. However, this Court asked Advocate Kanatkar whether the tenants/shopkeepers are willing to give an undertaking to vacate the premises within a period of one week from the date of this Order. At his request, the matter was kept back and again called out on 12th December, 2019, at 3 p.m. Advocate Mr. Kanetkar informed the Court at 3.00 p.m. that 10 out of 13 tenants are present in Court and they are willing to give a written undertaking to the Court that they shall vacate the premises in their respective occupation within one week from today and hand over the same to the Corporation for the purpose of demolition. Mr. Kanetkar also informed the Court that though all the tenants are not present in Court, he is informed that the remaining three tenants have informed the other ten tenants who are present in Court that though they are unable to attend the Court, they should inform the Court that they too agree to submit written undertakings to the same efect. The tenants were therefore given 24 hours to submit their written undertakings. They have not tendered their written undertakings as promised/agreed. In view thereof, the following Order is passed.
(i) The statement made by MCGM through their Senior Advocate Mr. Sakhare that the Order dated 8th February, 2018 passed by Shri Barde, DMC stands forthwith withdrawn, is accepted.
(ii) The unconditional apology given by Shri Merai, Assistant Engineer, Mr.
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Kishore Ubale, Assistant Municipal Commissioner and Mr. Barde, DMC, through the Senior Advocate Mr. Sakhare, is accepted.
(iii) In addition to the acceptance of the unconditional apology, a fne of Rs. One lac each is imposed on the three Ofcers viz. Shri Merai, Assistant Engineer, Mr. Kishore Ubale, Assistant Municipal Commissioner and Mr. Barde, DMC. The fne amounts shall be donated to Tata Memorial Hospital. Shri Merai, Assistant Engineer, Mr. Kishore Ubale, Assistant Municipal Commissioner and Mr. Barde, DMC, undertake through Senior Advocate Mr. Sakhare, that they shall hand over demand drafts of Rs. One Lac each in favour of Tata Memorial Hospital, to the Associate of this Court on or before 19th December, 2019, which in turn will be forwarded by the Associate to the Tata Memorial Hospital.
(iv) The Corporation is directed to forthwith demolish the ground foor of the Subject Structure.
(v) The Commissioner of Police, Gr. Mumbai, shall provide adequate police protection to the Demolition Squad of MCGM to enable them to forthwith comply with this Order.
11. Contempt Petition (L) No. 116 of 2019 and the connected Writ Petition (L) No.3535 of 2019 are accordingly disposed of.
( B.P.COLABAWALLA, J. ) ( S.J.KATHAWALLA, J. )
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