Bombay High Court
Abdul Rehman Abrar Shaikh vs Municipal Corporation Of Greater ... on 17 January, 2024
Author: G.S. Patel
Bench: G.S. Patel
2024:BHC-OS:904-DB P4-OSWPL-1346-2024.DOC
Wadhwa
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 1346 OF 2024
Abdul Rehman Abrar Shaikh & Ors ...Petitioners
Versus
Municipal Corporation of Greater Mumbai & Ors ...Respondents
Mr Rakesh Kumar, with Vijendra Tabra, Aslam Shaikh, Akash Giri,
Vikash Giri, Tabrez B Khwaja & BM Shaikh, for the Petitioners.
Ms Pooja Yadav, for the Respondent-MCGM.
Ms Sayli Apte, for the Respondent-MHADA.
Mr Karl Tamboly (online), with Ryan D'Souza, Fatema Kachwalla,
Ahsan Allana Hozeta Saifee, i/b J Sagar Associates, for
Respondent No 5.
CORAM G.S. Patel &
Kamal Khata, JJ.
DATED: 17th January 2024
PC:-
1. Not on board. Mentioned. Taken on board.
2. Heard.
3. This is a most unfortunate application for production of
interim reliefs. Essentially, what the Petitioners now seek is that we
should pass an order that is directly contrary to a reasoned order and
judgment dated 3rd January 2024 in Writ Petition No 3463 of 2021
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P4-OSWPL-1346-2024.DOC
(delivered by a bench of which one of us, Justice GS Patel, was a
member, with Justice SC Chandak). In that matter too, the same
Petitioners sought protection against demolition of what we found
was a thoroughly dilapidated structure in a congested area of the
street. The Petitioners claimed, and this was disputed, that the
Petitioners had an undivided 20% share, right, title and interest in
that structure and that this part ownership, despite there being no
partition, was represented by a part of the ground floor of the
building. At that time, we were clearly told that the Petitioners had
no objection to the demolition of the upper floors but that the
ground floors should not be touched. We rejected that argument.
We set out our reasons. The Petitioners filed a Special Leave
Petition ("SLP"). This was summarily rejected on 12th January
2024.
4. Yesterday, the contesting Respondent No 5 mentioned the
disposed of Writ Petition for a clarification or a modification on the
basis that this Petitioner had, after the dismissal of the SLP, moved
the learned Single Judge in another Writ Petition (which we had
noted in paragraph 29 of our 3rd January 2024 order) and obtained
some form of a status quo order. We passed no order yesterday on
the basis that there was no proceeding in which we could pass any
such order and that the 5th Respondent was at liberty to make an
appropriate application to the learned Single Judge.
5. We are now told that, yesterday, the learned Single Judge
clarified that all that was stayed was the action under Section 95A
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P4-OSWPL-1346-2024.DOC
notice issued by the Maharashtra Housing And Area Development
Authority ("MHADA").
6. Now comes this fresh Writ Petition in which the prayers are
in respect of a notice dated 9th January 2024 (i.e., before the
dismissal of the SLP) issued by the Municipal Corporation of
Greater Mumbai ("MCGM") for demolition of the structure in
question. The argument advanced before us is that the MCGM "has
no jurisdiction" to order the demolition of a structure that is
admittedly dilapidated or is demonstrably dilapidated and has been
held to be so. The only ground for this submission is that since the
building is a cessed building, it is only MHADA that can order the
demolition of the building and not the MCGM.
7. The submission has only stated to be rejected. The statutory
powers, authority and jurisdiction of the MCGM are not ousted
because a building is cessed. That is plainly contrary to settled law.
The MCGM has a statutory duty to ensure that buildings are
assessed for structural safety and, if found dilapidated, are brought
down. MHADA is charged with repairs and, where permissible,
reconstruction (not re-development). But even for cessed buildings,
it is MCGM that grants building permissions. It is the MCGM that
has a Technical Advisory Committee or TAC to assess rival
structural assessment reports. When there is a re-development
project, MHADA grants a NOC to obtain various building
permission from the MCGM.
8. The entire Petition is without tenable foundation.
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9. Curiously, MHADA, which otherwise very jealously -- and
zealously -- guards its jurisdiction does not say that the MCGM
demolition notice is without jurisdiction. Therefore, both authorities
agree that the structure is to be brought down.
10. It is now our considered view that these Petitioners are
pursuing some private agenda. If they are co-owners or joint
ownership, their rights are unaffected by reconstruction or re-
development. If that fractional ownership is in dispute, that cannot
be the subject matter of a Writ Petition to begin with. It most
certainly cannot be the ulterior motive behind the Writ Petition. We
had noted in our previous judgment that there is massive cluster re-
development in a highly congested area of Mumbai being
undertaken by SBUT, the 5th Respondent. The densities here are
among the highest in the world. In illicit and motivated pursuit of
some private agenda, these Petitioners are adversely affecting re-
development intended to benefit thousands of others.
11. We decline to hear any further submissions because it appears
to us that this is nothing but an attempt not only to overreach the
orders of this court but even worse, orders of the Supreme Court.
We have refused to stay demolition by our order of 3rd January
2024. The Supreme Court has dismissed the SLP by these very
Petitioners. Now the attempt is to ferret out some new ground to
bypass those orders. There is no question of the ground floor
portion of this structure being retained any longer.
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12. Apart from anything else, in our order of 3rd January 2024 we
had clearly noted that the structure poses a significant public danger.
We had expressly set out that it is the duty of the MCGM to ensure
that there is no danger posed to the public. We had also held that
these Petitioners are seeking the stay orders without in any form
offering to provide even the most minimal security for any loss or
damage that may be caused to others, even though this opposition
clearly prejudices other third parties.
13. Mr Rakesh Kumar insists that he must be heard ad infinitum
on the same argument for the same purpose again and again on each
occasion filing a separate Petition taking some new ground. We
decline to interfere.
14. Enough is enough. The Writ Petition is rejected.
(Kamal Khata, J) (G. S. Patel, J)
17th January 2024
