Bombay High Court
Ashirwd Nice Developers vs Chhotelal Chunilal Yadav And 7 Ors on 20 August, 2024
Author: M.S.Sonak
Bench: M.S.Sonak
2024:BHC-OS:12695-DB Chhotelal Chunilal Yadav v Municipal Corporation
For Greater Mumbai and Ors.
DARSHAN 502-WPL-22434-2024 (F).docx
PRAKASH
PATIL
Darshan Patil
Digitally signed
by DARSHAN
PRAKASH PATIL
Date: 2024.08.20
19:02:14 +0530 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 22434 OF 2024
1. CHHOTELAL CHUNILAL YADAV,
Aged 71 years, Occ. Business
Residing at Room in Final Plot No. 717
at Village Shimpoli, TPS III, Dalvi
Nagar, Borivali (West), Mumbai - 400
092 ...PETITIONER
~ VERSUS ~
1. MUNICIPAL CORPORATION FOR GREATER
MUMBAI,
A Corporate Body duly incorporated
Under M.M.C. Act Through its
Principal Officer, Municipal
Commissioner at Mahapalika Bhavan,
Opp. C.S.T. Station Mahapalika Marg,
Fort, Mumbai - 400 001
2. ASSTT. MUNICIPAL COMMISSIONER,
Designated Officer II
R/Central Ward, MCGM, 1st Floor
Chandavarkar Road, Borivali (W),
Mumbai - 400 092
3. DHARMENDRA KANTHARIA,
Designated Officer/Assistant
Municipal Commissioner
R/Central Ward, MCGM
4. AVIKET CHOUDHARY,
Sub Engineer, R/Central Ward
MCGM, Borivali (West),
Mumbai : 400092
5. SIDDHARTH JADHAV MUKADDAM,
R/Central Ward, MCGM
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Chhotelal Chunilal Yadav v Municipal Corporation
For Greater Mumbai and Ors.
502-WPL-22434-2024 (F).docx
Borivali (West), Mumbai 400092
6. SAIFUDDIN BANGALI MUKADDAM,
R/Central Ward, MCGM
Borivali (West), Mumbai
7. STATE OF MAHARASHTRA,
through Urban Development
Department
Having its offices at Mantralaya
Nariman Point, Mumbai - 400 032 ...RESPONDENTS
WITH
INTERIM APPLICATION (L) NO. 22532 OF 2024
IN
WRIT PETITION (L) NO. 22434 OF 2024
1. ASHIRWAD NICE DEVELOPERS,
A registered partnership firm through
its partner Mr Ashokkumar Phootermal
Jain has its address at 42, Rajgir
Chambers, Opp. Old Custom House, ...APPLICANT/
Fort, Mumbai - 400 001 INTERVENER
~ IN THE MATTER BETWEEN ~
1. CHHOTELAL CHUNILAL YADAV, Aged 71
years, Occ. Business residing at Room
in Final Plot No. 717 at Village
Shimpoli, TPS III, Dalvi Nagar, Borivali
(West), Mumbai - 400 092 ...PETITIONER
~ VERSUS ~
1. MUNICIPAL CORPORATION FOR GREATER
MUMBAI, A Corporate Body duly
incorporated Under MMC Act through
its Principal Officer, Municipal
Commissioner having its office at
Mahapalika Bhuvan, Opp. C.S.T.
Station Mahapalika Marg, Fort,
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Chhotelal Chunilal Yadav v Municipal Corporation
For Greater Mumbai and Ors.
502-WPL-22434-2024 (F).docx
Mumbai - 400 001
2. THE ASSTT. MUNICIPAL COMMISSIONER /
Designated Officer II, R/Central Ward,
MCGM, 1st floor, Chandavarkar Road,
Borivali (W), Mumbai - 400 092
3. DHARMENDRA KANTHARIA, Designated
Officer/Assistant, Municipal
Commissioner, R/Central Ward,
Mumbai Municipal Corporation
4. AVIKET CHOUDHARY, Sub Engineer,
R/Central Ward, MCGM, Borivali
(West), Mumbai - 400092
5. SIDDHARTH JADHAV MUKADAM,
R/Central Ward, MCGM
Borivali (West), Mumbai 400092
6. SAIFUDDIN BANGALI MUKADAM,
R/Central Ward, MCGM, Borivali
(West), Mumbai
7. THE STATE OF MAHARASHTRA, through
Urban Development Department,
having its offices at Mantralaya,
Nariman Point, Mumbai - 400 032 ...RESPONDENTS
A PPEARANCES
FOR THE PETITIONER Mr Ramesh Soni, with Allen
Mathew, i/b R.V & Co.
FOR RESPONDENT-BMC Ms Priyanka Sonawane, i/b S K
Sonawane.
FOR RESPONDENT-STATE Mr Abhay L Patki, Addl GP.
CORAM : M.S.Sonak &
Kamal Khata, JJ.
DATED : 20th August 2024
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ORAL JUDGMENT (Per MS Sonak J):-
1. Not on board. Upon mentioning taken on board.
2. Rule. The rule is made returnable forthwith with the consent
of the learned counsel for the parties.
3. Heard learned counsel for the parties.
4. The petitioner, aggrieved by the BMC's order dated 14 June
2024, has appealed to the State Government, i.e. Secretary, Urban
Development Department, in terms of Section 47 of the
Maharashtra Regional and Town Planning Act, 1966 (MRTP Act).
The petitioner also applied for interim relief pending the disposal
of the appeal.
5. Mr Soni, learned counsel for the petitioner, submits that
several attempts were made to move the appellate authority to
take up and consider the petitioner's application for interim relief
because the petitioner apprehended the execution of the BMC's
impugned order dated 14 June 2024 if the same was not stayed by
the appellate authority. Mr Soni, however, submits that the
appellate authority neither took up the appeal for consideration
nor the application for interim relief.
6. Mr Soni submitted that some demolitions have been
commenced in the neighbouring plots. Therefore, the petitioner
apprehends that the BMC's impugned order dated 14 June 2024
would be implemented, and the petitioner's mezzanine floor would
be demolished even without the appellate authority disposing of
the petitioner's application for interim relief.
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For Greater Mumbai and Ors.
502-WPL-22434-2024 (F).docx
7. Mr Soni relies upon the BMC's policies, which allow vertical
extensions beyond the road line in certain categories. Mr Soni
submitted that construction of the mezzanine is regular, and given
the circumstances, the petitioner had to surrender some land for
road widening. The BMC cannot be justified in passing the
impugned order.
8. Since some arguable issues are raised, the appellate
authority should either dispose of the main appeal itself or at least
take up and dispose of the petitioner's application for interim
relief. The petitioner will face serious prejudice if the demolition
proceeds without the petitioner's interim application being
considered.
9. Therefore, we were inclined to protect the petitioner's
structure for about four weeks, when the appellate authority would
have to dispose of the petitioner's application for interim relief.
However, the learned AGP has correctly pointed out that the
appeal could be disposed of within six weeks.
10. Accordingly, instead of any duplication, we direct the
appellate authority to dispose of the petitioner's appeal against the
BMC's order dated 14 June 2024 within six weeks from today, i.e.
on or before 01 October 2024 on its own merits and per law
without being influenced by any observations in this order. All
parties' contentions are left open to be decided by the appellate
authority in the first instance.
11. Pending the disposal of the appeal, however, the BMC shall
not execute its order dated 14 June 2024 and demolish the
mezzanine floor and other structures referred to in the BMC's
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Chhotelal Chunilal Yadav v Municipal Corporation
For Greater Mumbai and Ors.
502-WPL-22434-2024 (F).docx
order. At the same time the petitioner will have to maintain status
quo and not to carry out any further constructions.
12. Further, Mr Soni, on instructions, states that the petitioner
will stop using the toilet on the Mezzanine floor, which the BMC
cites as a patently illegal construction. The statement is accepted.
The petitioner must comply with the same pending the disposal of
the appeal and further orders that will be passed in the appeal.
13. Since the restraint on demolition is to operate during the
pendency of the appeal before the appellate authority, The
petitioner, under no circumstances, should delay the disposal of
this appeal and seek any adjournments.
14. If the appellate authority dismisses the appeal, interim
directions granted by us will operate for two weeks from the date
of the communication of the appellate authority's order.
15. The rule is disposed of in the above terms without any cost
orders. The Interim Application does not survive, and the same is
disposed of.
16. All concerned to act on the authenticated copy of this order.
(Kamal Khata, J) (M. S. Sonak, J)
20th August 2024
