Bombay High Court
Shaikh Zoeb Bhai Ahmedali Bootwala And ... vs Maharashtra Housing And Area ... on 31 October, 2018
Author: A.K. Menon
Bench: A.K. Menon
sbw
29.wpl-3414.18.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO.3414 OF 2018
Shaikh Zoeb Bhai Ahmedali Bootwala & Ors. .. Petitioners
Vs.
Maharashtra Housing and Area Development
Authority & Ors. .. Respondents
Mr. Virag Tulzapurkar, Senior Advocate, a/w Denzil Arambhar, Nanki
Grewal, Shlok Bolar and Yogini Borade I/b. Wadia Ghandy & Co. for the
petitioner.
Ms. Sayli Apte for respondent nos.1 and 2.
Mr. Rohan Sawant and Mr. Ashif Husain for respondent nos.3 and 4.
Mr. Ruchir Tolat I/b. L.C. Tolat and Co. for respondent nos.8, 11 to 17, 19 to
20, 22 to 25.
CORAM : A.K. MENON, J.
DATED : 31ST OCTOBER, 2018.
P.C. :
1. The office report shows that pursuant to an order dated 23 rd October, 2018 notice has been served upon respondent nos.5 to 8, 11, 17, 18 and 21. Respondent nos.9 and 10 could not be served since they had shifted to some other place and no forwarding address was available.
In addition to Court notice, private notice was also permitted. Mr. Tulzapurkar, the learned Senior Counsel on behalf of the petitioners states that private service of notice has also been effected on all except respondent nos.9 and 10.
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2. The controversy in this petition arises as a result of an order dated 4 th July, 2018 issued by the office of Deputy Chief Engineer, Zone-1, MBRR Board, Mumbai, addressed to Rukhsana Yusuf Harianawala and Hanifa Turab Arsiwala informing them that since the building known as Vapra Chawl has not been conveyed to the name of the trust Saifee Burhani Upliftment Trust ("SBUT") due to non-cooperation of tenants/occupants and landlords (with the redevelopment project) and since the building required immediate repairs, the Repair Board of MHADA decided to undertake structural repairs to the building.
3. In the meanwhile, the petitioners being the trustees of SBUT are aggrieved since they are required to demolish several buildings under the proposed redevelopment in the Urban Renewal Scheme and amended D.C.R. 33(9) in the Bhendi Bazaar area and they are unable to demolish the building adjoining to Vapra Chawl in view of the fact that Vapra Chawl and the building to be demolished known as Furniturewala building shared a common wall.
4. In Writ Petition (L)no.1793 of 2018 filed by the present petitioners against MHADA, vide order dated 15 th June, 2018 (Exhibit Q) a Division Bench of this Court while disposing of the writ petition, directed respondent nos.1 and 2 to decide the issue raised in notice 2/5 ::: Uploaded on - 03/11/2018 ::: Downloaded on - 04/11/2018 00:33:37 :::
29.wpl-3414.18.odt dated 11th January, 2018 and the petitioners application dated 28 th May, 2018 and after hearing respondent nos.3 and 4 who are owners of the said Vapra Chawl.
5. It appears that while complying with the order of this Court dated 15 th June, 2018 the petitioners have not been heard. Meanwhile vide notices dated 10th January, 2018 issued under Section 77(b) of the MHADA Act the occupants of Furniturewala Building have been asked to vacate the building which was said to be in a dangerous condition, unfit for human habitation within seven days.
6. Mr. Tulzapurkar states that all tenants have vacated from the said Furniturewala Building but today they are unable to take over demolition of the said Furniturewala Building since it shares a common wall with Vapra Chawl. The tenants at Vapra Chawl have meanwhile complained to the Senior Inspector of Police, Sir J.J. Marg Police Station, Mumbai, protesting against the demolition proposed to be undertaken by the Furniturewala Building fearing damage on account of the common wall.
7. The petition is opposed by Mr. Sawant, the learned counsel appearing for respondent nos.3 and 4 who claim to be the owners of Vapra 3/5 ::: Uploaded on - 03/11/2018 ::: Downloaded on - 04/11/2018 00:33:37 :::
29.wpl-3414.18.odt Chawl and Mr. Tolat representing a majority of the tenants of Vapra Chawl. According to him, the action proposed to be taken by the petitioners in respect of Furniturewala building cannot prevent the respondent nos.3 and 4 from carrying out repairs to Vapra Chawl.
8. Having heard the learned counsel for the parties, it is apparent that the Deputy Chief Engineer of respondent no.1 ought to have, but has not heard the petitioners prior to passing the impugned order. Considering the fact that there is a common wall between Furniturewala building which is to be demolished and Vapra Chawl that is to be repaired, it is necessary that Deputy Chief Engineer hears both parties before passing an appropriate orders to ensure appropriate safeguards are taken before either or both the projects proceed.
9. Admittedly, the impugned order was passed after hearing the respondent landlords and since MHADA is competent authority dealing with the monitoring of demolition of one building and the repairs to the other, it is appropriate that the impugned order be set aside and the matter be remanded for fresh hearing before the competent authority of respondent no.1.
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10. On behalf of MHADA, the learned counsel submits that a hearing will be granted at the earliest opportunity considering the fact that respondents are concerned with the state of the building and the safety of the occupants. This petition therefore can be disposed by passing the following order;
(i) The impugned order dated 4 th July, 2018 is hereby set aside and the matter is remanded for fresh consideration to the office of Deputy Chief Engineer of respondent no.1.
(ii) Respondent no.1 will accordingly fix a date of hearing and given at least 72 hours notice to all concerned including the petitioners and after hearing the parties he shall pass a reasoned order within a period of four weeks.
(iii) All contentions of all parties are kept open.
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