Sankraman Shibir Rahivashi Sangh vs State Government Of Maharashtra
2023 Latest Caselaw 3586 Bom

2023:BHC-OS:2709-DB                                                               10-OSWPL-3585-2023.DOC




                           Arun



                                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     ORDINARY ORIGINAL CIVIL JURISDICTION
                                           WRIT PETITION (L) NO. 3585 OF 2023


                           Sankraman Shibir Rahivashi Sangh Subhash                             ...Petitioner
                           Nagar (Chembur)
                                 Versus
                           State Government of Maharashtra                                   ...Respondent


                           Mr Yashodeep Deshmukh, with Pramod Dure, i/b MR Sherekar, for
                                the Petitioner.
                           Mr Hemant Haryan, AGP, for the State-Respondent No.1.
                           Dr Uday Warunjikar, with Aditya Kharkar, for Respondents Nos. 2
                                and 3.
                           Mr Sagar Patil, for the MCGM-Respondent No.4.


                                                         CORAM: G.S. Patel &
                                                                Neela Gokhale, JJ.

DATED: 11th April 2023 PC:-

1. In our view the Petition is misconceived. The challenge is to a ARUN RAMCHNDRA SANKPAL notice issued by the Maharashtra Housing Area and Development Digitally signed by ARUN Authority ("MHADA") at page 51 on 19th December 2022. It is RAMCHNDRA SANKPAL Date: 2023.04.12 09:38:31 +0530 addressed to an individual, one Damu Amar Singh Talsania, who does not seem to have approached the Court but we proceed on the basis that there are identical notices issued to others which they have chosen not to accept. The notice demands that the structures occupied by the Petitioners, which are transit accommodation

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constructed by MHADA, are to be vacated since these structures are in a dangerous and dilapidated condition.

2. Notably this is not an order under Section 354 of the Mumbai Municipal Corporation Act 1888 ("MMC Act"). As is well known, following a Division Bench judgment of this Court in Jayant Sunderdas Karia and Ors v Municipal Corporation of Greater Mumbai and Ors,1 in regard to Section 354 demolition notices for dilapidated structures, and regarding only those structures covered by the MMC Act, a separate protocol has been established requiring structural audit reports and in case of conflict between these reports, a reference to a Technical Advisory Committee ("TAC"). The Petitioners seek to import that entire edifice of regulations into the MHADA Act. But the MHADA Act stands on a completely different footing. That body collects a repair cess and is charged by the statute, clearly a piece of welfare legislation, with the ongoing repairs and maintenance of cessed buildings in Mumbai. This is why there is a repair cess to begin with, and MHADA has authority in law to repair, reconstruct, pull down, and to allow redevelopment of cessed structures.

3. This does not mean that MHADA's requirements can be second-guessed in such cases. The property in question is not privately owned. These are structures that have been put up by MHADA and the entire TAC-protocol was established to prevent private landlords from illicitly demolishing what were otherwise structurally sound buildings. That is a material distinction that the

1 2017 SCC OnLine Bom 83.

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Petitioners have lost sight of because they are dealing here not with a privately owned structure but with MHADA structures.

4. We see no reason to interfere and certainly not at the instance of an unregistered body. Whether or not the Petitioners are entitled to alternate accommodation or alternate transit accommodation will depend on their certification and verification by MHADA itself. That is a routine procedure contemplated under the MHADA Act. Under no circumstances will we interfere with the executive discretion properly exercised by MHADA in respect of MHADA's own property. We will most certainly not do so with those who are in transit accommodation and are clearly attempting to raise that transit accommodation to the level of absolute ownership of the premises they are permitted to occupy as transit accommodation, i.e., accommodation that is by its very nature temporary.

5. The Petition is rejected. There will be no order as to costs.

 (Neela Gokhale, J)                                        (G. S. Patel, J)





                               11th April 2023