Vijay Kumar Gupta vs The Zonal Grievance Redressal ...
2017 Latest Caselaw 7705 Bom

                                                                                               901-WP-2312-15.doc

Sharayu.


             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                ORDINARY ORIGINAL CIVIL JURISDICTION 

                             WRIT PETITION NO. 2312 OF 2015



      Vijay Kumar Gupta                                                                       ...Petitioner

              Versus

      The Zonal Grievance Redressal 
      Committee,
      Office of the concerned Zonal DMC, 
      Zone-I,
      Municipal Corporation of Greater 
      Mumbai,
      E Ward Office Building,                                                                 ...Respondents
      10, Sheikh Haffizuddin Marg,
      Byculla, Mumbai 400 008  And Ors.


                                                           ----------

      Ms. Reema Mishra, a/w Mr. Jitendra Jagtap, for the Petitioner.

      Mr. Sagar Patil, a/w Ms. Yamuna Parekh, for the Respondent-
      BMC.

      Mr. V.A. Thorat, Senior Counsel, a/w Mr. B.J. Joshi & Mr. Vilas
      Tiwari, i/b Mr. B.J. Joshi, for the Respondent Nos. 4 to 12.


                                                           ----------




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                                                        CORAM : ABHAY S. OKA AND
                                                                RIYAZ  I. CHAGLA, JJ.

DATE : 29 September 2017

ORAL JUDGMENT : (Per Abhay S. Oka, J)

1. As noted in the earlier order, as per the

administrative order passed by the Hon'ble the Chief Justice, this

Petition has been specially assigned to this Bench. Only in view

of the directions contained in the order dated 11 August 2017

passed by the Apex Court in the Petition for Special Leave to

Appeal (C) No. 17603-17604/2017, that we are giving out of

turn priority to the hearing of this Petition. The order dated 11

August 2017 passed by the Apex Court expects this Court to

decide this Petition by the end of this month.

2. The only substantive prayer made in this Petition

under Article 226 of the Constitution of India, is prayer clause

(a) which reads thus:-

"immediate action for demolition of the illegal 5th

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and 6th Floor of the Building be undertaken by the

Respondents by issuing appropriate writ in the

nature of a writ of mandamus or direction or

order."

3. The case made out in the Petition in brief is that he

is a resident of Gulmanor Building, Strand Road, Colaba,

Mumbai - 400 005. The case made out in the Petition is that

right from the year 1986, the Petitioner has been complaining

about illegal extensions/illegal constructions on 5th and 6th

floor of the said building. It is his case that the entire 5th and

6th floors of the building were illegally extended and

constructed without seeking permission of the Mumbai

Municipal Corporation. The Petitioner has referred to

correspondence made by him with the Mumbai Municipal

Corporation. The Petitioner has relied upon the order dated 1

October 1982 passed by the City Civil Court. The only

substantive prayer is prayer clause (a) which have quoted

above.

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4. In this Petition, the Petitioner has relied upon the

orders passed by the Mumbai Municipal Corporation (for short

"the Said Corporation") in relation to demolition of illegal

constructions associated with Flat Nos. 35, 39, 40 and 41 on the

5th floor of the said building. It is pointed out that as regards

Flat No. 36, a notice under Section 351 of the Mumbai

Municipal Corporation Act, 1888 (for short "the said Act") has

been issued.

5. Reliance is also placed on the order made by the

Deputy Commissioner (Zone I) on 7 August 2015 acting as

Zonal Grievances Redressal Committee (GRC) constituted under

Circular dated 4 June 2013. The relevant part of the directions

issued by GRC reads thus:-

"Deputy Commissioner (Zone-1) issued orders that,

1. Before taking further action as regards notice

under section 351 of the B.M.C. Act, in respect of

Flat No. 35, 36, 39, 40, 41, the Designated

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Officer And Asstt.Engineer (Building & Factories)

A ward should make correspondence with the

office-bearers of the housing Society for

submitting the original plan of the building.

Similarly, he should make correspondence with

the Building Proposal Department also. If the

original plan is received from the housing society,

then he should get the same verified from

Building Proposal Department. As the matter of

set back terrace enclosure falls under the rules of

FSI, he should prepare the original plan and

should get verified through the Building Proposal

Department as to whether there was a provision

for set back terrace enclosure in the said building

as per FSI rules in accordance of the rules

prevailing at the time of building construction.

Also, he should get verified the City Survey Plan

submitted by the Complainant Shri. Gputa, from

the Building Proposal Department.

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2. After verifying the original plan, if unauthorised

construction is found then the action should be

taken as per rules.

3. Copies of the documents for which approval has

been obtained from the Municipal Corporation in

respect of flat no. 36 by Shri. Waghela as well as

of the affidavit presented by the Municipal

Corporation in the Court, should be submitted to

the A Ward office. Affidavit therein should be sent

to the Legal Department for verification.

Thereafter necessary action should be taken in

accordance of the opinion of the Legal

Department.

4. Flat below the flat no. 32 should be inspected and

after comparing the same with the flat on the

lower floor, decision should be taken in respect of

additional changes in Flat No. 332.

5. Final orders are passed in respect of Flat no. 35,

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39, 40, 41. Further action in this regard should

be taken immediately.

6. Complainant should be apprised of the action

taken. Similarly, report should be submitted to

this office."

6. For the sake of completion of facts, we may note

here that from the file tendered across the bar by the learned

Counsel representing the Mumbai Municipal Corporation, we

find that clause (i) of the directions issued under the order

dated 7 August 2015 has been set aside by the Deputy Municipal

Commissioner (Zone - I). This order dated 10 July 2017 is not

the subject matter of challenge in this Petition.

7. The submission of the learned Counsel appearing for

the Petitioner is that before 10 July 2017, clause (i) was already

implemented. Her submission is that even in respect of Flat No.

36, the occupant/owner thereof is not in a position to produce

any document to show legality thereof. Her submission is that

no action is taken in respect of Flat No. 32 on the 5th Floor and

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other premises on 5th and 6th Floors which are completely

illegal. She has taken us through the Affidavits on record.

8. The learned Senior Counsel appearing for 4th to

12th Respondents, firstly contended that the Writ Petition under

Article 226 of the Constitution of India seeking prayer clause (a)

could not be entertained at the instance of the Petitioner. He

submitted that as the building is so old, even the co-operative

society is not in position to produce the sanctioned plan. On

instructions, he stated that the owners/occupants of Flat Nos.

35, 39, 40 and 41 have instituted Civil Suits in the City Civil

Court, Mumbai challenging the orders passed under Section 351

of the said Act as well as orders dated 7 August 2015 and 10

July 2017 passed by GRC. He states that till today, the

concerned Respondents who have filed the Suits have not

moved the learned Judge of City Civil Court for grant of any ad-

interim or interim relief. He submitted that the Petitioner who is

the resident of the same building for 30 years has belatedly filed

the present Petition, which should not be entertained.

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9. The learned Counsel appearing for the Mumbai

Municipal Corporation stated that the scrutiny of documents

submitted by the owner of the Flat No. 36 is in progress and

therefore, no order has been passed on the notice under Section

351 of the said Act issued to him. He also submitted that as

regards Flat No. 32, a notice dated 12 July 2017 under Section

351 of the said Act has been issued and further steps will be

taken on the basis of the said notice. He stated that there is

nothing on record to show that the Mumbai Municipal

Corporation has examined legality and validity of the other

premises on the 5th and 6th floors of the said building.

10. The learned Counsel appearing for the

Petitioner submitted that a direction be issued to the Mumbai

Municipal Corporation to initiate penal action against the

earning officer in accordance with Section 475 B of the said Act

as it is the obligation of Mumbai Municipal Corporation to do

so.

901-WP-2312-15.doc

11. We have given careful consideration to the

submissions. As of today, in relation to the Flat Nos. 35, 39, 40

and 41 on the 5th floor of the said building, there are orders of

removal of illegal construction passed under Section 351 of the

said Act. As stated by the learned Senior Counsel appearing for

the contesting Respondents, the said orders are the subject

matter of challenge in the Civil Suits filed by the said

Respondents. Even the orders of GRC dated 7 August 2015 and

10 July 2017 are the subject matter of challenge in the said

Suits. A copy of one of the four Suits filed by Parveen J. Irani is

tendered across the bar which shows that there is a challenge in

the said Suit to the said orders. The learned Counsel appearing

for the Petitioner submitted that the Suits have been belatedly

filed which ought not to be entertained. However, it is for the

concerned Court to go into the said aspect. Only order which

can be passed in respect of Flat Nos. 35, 39, 40 and 41 today is

that the order of demolition shall be implemented subject to the

right of the concerned persons to move the City Civil Court for

grant of ad-interim relief. If there is no ad-interim relief granted

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within the stipulated time, the orders of demolition will have to

be implemented.

12. As regards Flat No. 36, the owners/holder

thereof has submitted the documents claiming that the Flat is

authorised. The concerned officer of Mumbai Municipal

Corporation will have to be pass an appropriate order on the

notice issued under Section 351 of the said Act, after

considering the said documents. As regards Flat No. 32, a

notice under Section 351 of the said Act has been issued on 12

August 2017. Necessary order will have to be passed by the

Mumbai Municipal Corporation on the said notice as well.

13. The said Corporation has not considered the

issue whether there is any illegality associated with the other

parts of 5th and 6th floor of the said building. Therefore, the

Designated Officer will have to be inspect the said portion of the

building and will have to decide whether there is any illegality

associated with the construction. If he finds that there is any

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illegality, he will have to initiate immediate action of demolition

of illegal work/construction.

14. As far as the prayer for directing initiation of

action under Section 475 B of the Mumbai Municipal

Corporation Act is concerned, we permit the Petitioner to make

a representation to the concerned Authority of the Mumbai

Municipal Corporation, which is empowered to take action. If

such representation is made, it will have to be decided within

the time specified by this Court.

15. In view of above said discussion, we dispose of

the Petition by passing the following order :-

(i) The Orders passed in respect of Flat Nos. 35, 39,

40 and 41 under Section 351 of the said Act

shall not be implemented by the Corporation for

a period of six weeks from today to enable the

concerned parties to move the City Civil Court

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for grant of ad-interim/interim relief in the

pending Suits. We make it clear that if on expiry

of the period of six weeks from today, there is

no prohibitory order passed by any Competent

Court, the orders passed under Section 351 of

and 41 shall be forthwith implemented by the

Municipal Corporation;

(ii) We direct the appropriate Officer of the Mumbai

Municipal Corporation to pass an order on

notices issued under Section 351 of the said Act,

in relation to Flat Nos. 32 and 36 as

expeditiously as possible and in any event,

within a period of six weeks from today.

Needless to add that the orders shall be passed

in accordance with the law laid down in the

case of Sopan Maruti Thopte Vs. Pune

Municipal Corporation1;

 1    AIR 1996 Bom 304







                                                                                          901-WP-2312-15.doc

       (iii)        We   direct   the   Designated   Officer   of   the

concerned Ward to visit the building in question

after giving sufficient advance notice to the

Petitioner and the 4th Respondent Co-operative

Society. He will ascertain whether any other

portions of 5th and 6th Floors of the said

building (save and except Flat Nos. 32, 35, 36,

39, 40 and 41) are illegal or there is any legality

associated with the construction thereof;

(iv) The visit shall be made by the Designated

Officer within 15 days from the date on which

this Judgment and Order is uploaded;

(v) If the Designated Officer finds that there is any

illegality associated with any other premises on

5th and 6th floor, he shall be immediately

initiate necessary action for removal of illegal

construction in accordance with law;

(vi) We make it clear that no action as aforesaid

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shall be taken without giving an opportunity of

being heard all the persons affected by the

proposed action of demolition/removal;

(vii) It will be open for the Petitioner to make a

representation to the appropriate authority of

the said Corporation seeking a direction to

initiate action under Section 475 B of the said

Act against the earning Officers. If such a

representation is made, appropriate decision

shall be taken by the appropriate Officer of the

Mumbai Municipal Corporation on the said

representation within one month from the date

on which the said representation is filed. The

decision shall be communicated to the

Petitioner. We make it clear that there is no

adjudication made on the merits on the said

prayer;

(viii) The issue of legality and validity of the orders

under Section 351 of the said Act in respect of

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Flat Nos. 35, 39, 40 and 41 as well as the orders

passed by the GRC on 7 August 2015 and 10

July 2017 is expressly kept open;

(ix) All contentions of the parties on notices issued

in respect of Flat Nos. 32 and 36 are kept open;

(x) We make it clear that as far as the Suits filed in

relation to four flats are concerned, the City

Civil Court is free to decide the same on its own

merits in accordance with law and no

adjudication made by this Court on merits of the

said Suits;

(xi) Rule is made partly absolute on above terms;

(xii) All concerned to act upon an authenticated copy

of the Judgment and Order.

[RIYAZ I. CHAGLA J.] [ABHAY S. OKA, J.]