Bombay High Court
Rashikbhai Karshan Satra vs Municipal Corporation Of Greater ... on 21 March, 2023
Author: R. N. Laddha
Bench: G. S. Kulkarni, R. N. Laddha
907-wpl 3831-23.odt
Prajakta Vartak
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L.) NO. 3831 OF 2023
Rashikbhai Karshan Satra & Ors. .Petitioners
Vs.
Municipal Corporation of Gr. Mumbai & Ors. .Respondents
__________
Mr. D. D. Singh with Mr. D. K. Shukla for Petitioner.
Ms. Pooja Yadav for MCGM.
__________
CORAM : G. S. KULKARNI &
R. N. LADDHA, JJ.
DATE : MARCH 21, 2023
P.C.:
1. Leave to implead two additional petitioners. Amendment be
carried out on or before 24 March, 2023. Re-verification is dispensed with. Amended copy of the petition be served on the Municipal Corporation.
2. Heard learned counsel for the petitioner and learned counsel for the Municipal Corporation. Respondent no.4-Malad Apartment Co-operative Housing Society Ltd. who is the owner of the building in question, was represented by advocate Mr. Jackie Jain yesterday, however, respondent no.4 is not represented today.
Page 1 of 6
-------------------------
21 March, 2023 ::: Uploaded on - 21/03/2023 ::: Downloaded on - 22/03/2023 16:33:18 ::: 907-wpl 3831-23.odt
3. It is not in dispute that the building in question belonging to respondent no.4 had become dilapidated. Accordingly, a notice dated 23 May, 2022 was issued by the respondent/Municipal Corporation of Greater Mumbai (for short, "the MCGM") under Section 354 of the Mumbai Municipal Corporation Act. The building in question consists of ground plus six floors. It appears that the occupants of the first to six floors have already vacated their respective tenements.
4. In so far as the petitioners are concerned, they are the occupants of shops on the ground floor. They are 20 in number who have not vacated their tenements. It appears that the MCGM had commenced an action inter alia against the petitioners in pursuance of the Section 354 notice. However, as the same was resisted by the petitioners the action could not be completed. It is in these circumstances, the present petition was filed praying for the following reliefs:-
"(a) That this Hon'ble Court be pleased to issue writ of certiorari, writ in the nature of certiorari or any other writ, order or direction in the nature thereof partially setting aside and quashing the impugned notice u/s 354 of MMC Act bearing no. PN/DO1PN/046/354-
MMC ACT/PN464NO1/23-05-2022, issued by Designated Officer- IV and Asst. Engineer ( B & F), P/North Ward, which is at Exhibit-"C" to the petition and TAC report which is at Exhibit-"G" as being Arbitrary, illegal and void with respect to the shops premises of these petitioners;
(b) that this Hon'ble Court be pleased to issue writ of certiorari, writ in the nature of certiorari or any other writ, order or direction in the nature thereof to demolish to first to Fifth floor of 4 th respondent society building as per the Impugned notice u/s 354 of MMC Act bearing no. PN/DO1PN/046/354-MMC ACT/PN464NO1/23-05- 2022, issued by Designated Officer-IV and Asst. Engineer ( B & F), P/North Ward, , which is at Exhibit-"C" to the petition, leaving aside Page 2 of 6
-------------------------
21 March, 2023 ::: Uploaded on - 21/03/2023 ::: Downloaded on - 22/03/2023 16:33:18 ::: 907-wpl 3831-23.odt the shops on the ground floor of the 4th respondent society building;
(c) That this Hon'ble Court be pleased to issue writ of mandamus, writ in the nature of mandamus or any other writ, order and direction, directing Designated Officer & Asst. Engineer ( B&F), P/North Ward or any other concerned officer of P/North Ward directing to restore the Utility Services being electricity connection and water services to the shops premises of the petitioners existing on the ground floor of the 4th respondent society on the ground floor of 4th respondent society building ;
(d) that this Hon'ble Court be pleased to issue writ of certiorari, writ in the nature of certiorari or any other writ, order or direction in the nature thereof directing the respondents no.1 to 3 to take adequate precaution so as not to damage the shops premises of the petitioners lying and existing on the ground floor of 4 th respondent society building ;
(e) That pending the hearing and final disposal of the present Writ Petition, this Hon'ble Court be pleased to direct Respondents no.1 to 3 not to take any coercive steps in respect of shops of the petitioners on ground floor of 4th respondent society building, which shall not be demolished in lieu of the Impugned Notice u/s 354 of MMC Act bearing no. PN/DO1PN/046/354-MMC ACT/PN464NO1/23-05-2022, issued by Designated Officer-IV and Asst. Engineer ( B & F), P/North Ward, which is at Exhibit-"C" to the petition ;
(f) that pending the hearing and final disposal of the present Writ Petition, this Hon'ble Court be pleased to direct Designated Officer & Asst. Engineer ( B&F), P/North Ward or any other concerned officer of P/North Ward directing to restore the Utility Services being electricity connection and water services to the shops premises of the petitioners existing on the ground floor of the 4 th respondent society on the ground floor of 4th respondent society building
(g) ad-interim and interim reliefs in terms of prayer (b), (c), (d),
(e) & (f) be granted;
(h) cost of the Petition be provided for;
(i) such other and further reliefs as this Hon'ble Court may deem
fit and proper, looking to the circumstances of the case."
5. This petition was moved before this Court on 08 February, 2023 when a Co-ordinate Bench of this Court passed the following order:- Page 3 of 6
-------------------------
21 March, 2023 ::: Uploaded on - 21/03/2023 ::: Downloaded on - 22/03/2023 16:33:18 ::: 907-wpl 3831-23.odt ". Not on board. Upon mentioning, taken on board.
2. According to the Petitioners, notice under Section 354 of the Mumbai Municipal Corporation Act, 1888 ( for short 'MMC' Act ) was issued on 23.05.2022. Thereafter, report of the Technical Advisory Committee ( for short 'TAC' ) dated 06.10.2022 has been prepared which categorizes the subject building in "C-1" category. The Petitioners claim to occupy ground foor shop premises and according to them, they are not aware, if any, fresh notice under Section 354 of the MMC Act, 1888 has been issued pursuant to such report of the TAC. It is further stated that the earlier notice under Section 354 of the MMC Act, 1888 is being acted upon.
3. Put up the matter on 10.02.2023 to enable the learned counsel appearing for the Municipal Corporation to obtain necessary instructions. The Petitioners shall serve Respondent No. 4 - Society by all permissible modes.
The position as of today at 05.05 p. m. insofar as the Petitioners are concerned shall be maintained. It is made clear that occupation of the Petitioners of the subject premises is at their own risk and consequences."
6. Thereafter on 10 February, 2023, the following order came to be passed by the coordinate Bench of this Court:-
". It is submitted by the learned counsel for the Petitioners that with regard to the same building structure, some occupants have filed Writ Petition No. 3327 of 2023, raising the challenge to the notice under Section 354 of the Mumbai Municipal Corporation Act, 1888. In that Writ Petition, notice was issued on 2nd February, 2023, and the said matter has been kept on 23rd February, 2023.
2. To enable the learned counsel for the Municipal Corporation verify the aforesaid, stand over to 23rd February, 2023.
3. Interim order granted earlier to continue till the returnable date."
7. It is on the above backdrop, the parties are before us today.
8. We have heard Mr. Singh, learned counsel for the petitioners as also Ms. Yadav, learned counsel for the MCGM. We have also perused the record.
Page 4 of 6
-------------------------
21 March, 2023 ::: Uploaded on - 21/03/2023 ::: Downloaded on - 22/03/2023 16:33:18 ::: 907-wpl 3831-23.odt
9. After the proceedings were heard for some time, learned counsel for the petitioners, on instructions, makes a statement that the petitioners shall vacate their respective tenements on or before 20 April, 2023 without asking for a further extension. He submits that such extended time would be utilized by the petitioners to take away their belongings/materials of their garment business being undertaken by the petitioners from the same premises.
10. As the petitioners have taken a fair stand to vacate the premises, in our opinion, further adjudication of the petition is not called for. We accordingly permit the petitioners to vacate their respective tenements on or before 20 April, 2023, which shall however, be subject to the petitioners placing an unconditional undertaking on record of this Court on an affidavit, to be filed by each of the petitioners, within one week from today, that the petitioners shall vacate their respective tenements on or before 20 April, 2023. Let a copy of the undertaking also be furnished to the advocate for the MCGM.
11. It is clarified that till the petitioners vacate their respective tenements, they shall occupy their respective tenements at their own risk and consequences and in the event of any untoward incident of collapse, they shall not hold the MCGM, respondent no.4-society and/or any third Page 5 of 6
-------------------------
21 March, 2023 ::: Uploaded on - 21/03/2023 ::: Downloaded on - 22/03/2023 16:33:18 ::: 907-wpl 3831-23.odt party responsible for the same.
12. As the petitioners are concerned only with regard to the ground floor tenements, we permit the MCGM to carry on with the demolition work of the upper floors as it is informed that the 4 th, 5th and 6th floor are already removed and the balance floors would now be required to be removed. Such work being undertaken shall continue.
13. It is clarified that in the event the petitioners are removing their belongings/articles, neither the officer of the MCGM, nor any contractor appointed by the MCGM, shall obstruct the petitioners while removing their respective belongings/articles.
14. The petition is disposed of in the above terms. No costs.
[R. N. LADDHA, J.] [G. S. KULKARNI, J.] Page 6 of 6 ------------------------- 21 March, 2023 ::: Uploaded on - 21/03/2023 ::: Downloaded on - 22/03/2023 16:33:18 :::