Bombay High Court
Shivanjali Co-Op. Hsg. Ltd vs Mumbai Municipal Corporation Of ... on 11 September, 2024
Author: M S Sonak
Bench: M. S. Sonak
Shivanjali Co-operative Housing Society Limited v
2024:BHC-OS:14047-DB
Ajoy Mehta, Municipal Commissioner, Mumbai
Municipal Corporation and ors.
conpw.68-2017 & anr(F).doc
Pradnya
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
CONTEMPT PETITION NO. 68 OF 2017
IN
WRIT PETITION NO. 56 OF 2017
1. SHIVANJALI CO-OPERATIVE HOUSING
SOCIETY LIMITED,
a Housing society Registered
Under the Provisions of the
Maharashtra Co-operative societies
Act, 1960, having its address at 35,
Dr. Ambedkar Road, Khar (W),
Mumbai - 400 052. ...PETITIONER
~ versus ~
1. AJOY MEHTA,
Municipal Commissioner
Mumbai Municipal Corporation
Having its head office at Mahapalika
Building, opp. CST Station, ...RESPONDENT
Mumbai -001 NO.1/CONTEMNOR
2. SHARAD N. UGHADE,
Assistant Municipal Commissioner
Mumbai Municipal Corporation,
H/west ward office, St. Martin Road,
near Bandra Police station, ...RESPONDENT
Mumbai - 400050. NO.2/CONTEMNOR
3. Laxmikant Kolekar,
Assistant Engineer (Bldg & Factory)
Mumbai Municipal Corporation,
Page 1 of 12
Shivanjali Co-operative Housing Society Limited v
Ajoy Mehta, Municipal Commissioner, Mumbai
Municipal Corporation and ors.
conpw.68-2017 & anr(F).doc
H/west ward office, St. Martin Road,
near Bandra Police station, ...RESPONDENT
Mumbai - 400050. NO.3/CONTEMNOR
4. Gul Kachharam Achhra,
Having address and carrying on
Business in the name and style of
M/s. V. C. Fitness at 35, Dr. Ambedkar
Road, Khar (W) Mumbai - 400 052.
And
Residential address at 2403/4, Silver-
Arch, Shastri Nagar, Andheri (W)
Mumbai-400 053.
And also at
C/o. M/s. G.K. Solutions Pvt. Ltd.
710/711, crystal Plaza, B-wing, 7 th
floor, New Link Road, infinity mall,
Andheri (W), Mumbai - 400 053. ...RESPONDENT NO.4
WITH
CONTEMPT PETITION NO. 69 OF 2017
IN
WRIT PETITION NO. 1645 OF 2013
1. SHIVANJALI CO-OPERATIVE HOUSING
SOCIETY LIMITED,
a Housing society Registered
Under the Provisions of the
Maharashtra Co-operative societies
Act, 1960, having its address at 35,
Dr. Ambedkar Road, Khar (W),
Mumbai - 400 052. ...PETITIONER
~ versus ~
Page 2 of 12
Shivanjali Co-operative Housing Society Limited v
Ajoy Mehta, Municipal Commissioner, Mumbai
Municipal Corporation and ors.
conpw.68-2017 & anr(F).doc
1. MR. AJOY MEHTA,
Municipal Commissioner
Mumbai Municipal Corporation
Having its head office at Mahapalika
Building, opp. CST Station, ...RESPONDENT
Mumbai -001 NO.1/CONTEMNOR
2. MR. SHARAD N. UGHADE,
Assistant Municipal Commissioner
Mumbai Municipal Corporation,
H/west ward office, St. Martin
Road, near Bandra Police station, ...RESPONDENT
Mumbai - 400050. NO.2/CONTEMNOR
3. M/S. A. G. DEVELOPERS,
Accost, 151, Pali Road, Bandra
Mumbai - 400050. ...RESPONDENT NO.3
4. MOHAMMED SHARIF KHAN,
(dropped vide order dated
01.08.2013) ...RESPONDENT NO.4
5. THE STATE OF MAHARASHTRA,
Through Govt. Pleader, Ground
Floor, PWD Building, High Court,
Mumbai - 32 ...RESPONDENT NO.5
6. IMAMUDDIN I CHUHAN,
Shop No. 7 and 8, Beauty furnishing
Shivanjali Co-operative Hsg Society
Ltd., Dr. Ambedkar Road, Khar (W),
Mumbai - 400 052. ...RESPONDENT NO.6
A PPEARANCES
FOR THE PETITIONER IN Mr Mandar Soman, a/w Mr
CONPW/68/2017 AND Divakar Rai, Mr Nitin Rai,
CONPW/69/2017 Mr Raj Tamhankar and Mr
Aditya Rai, i/b Mr Saurabh
Tamhankar.
Page 3 of 12
Shivanjali Co-operative Housing Society Limited v
Ajoy Mehta, Municipal Commissioner, Mumbai
Municipal Corporation and ors.
conpw.68-2017 & anr(F).doc
FOR RESPONDENT NO.1 & 2- Mr Rajshekhar Govilkar, Senior
BMC Advocate, a/w Ms Sujata L.
Puri a/w Ms Shaba N. Khan,
i/b Mr S. K. Sonawane.
FOR RESPONDENT-STATE IN Ms Manisha Gawade, AGP.
CONPW/69/2017
CORAM : M. S. Sonak &
Kamal Khata, JJ.
RESERVED ON : 30th August 2024
PRONOUNCED ON : 11th September 2024
JUDGMENT (Per M S Sonak J):
-
1. Heard learned counsel for the parties.
2. Learned counsel for the parties agree that both these
Contempt Petitions can be disposed of by a common order.
3. Contempt Petition No.68 of 2017 alleges the contempt
of this Court's order dated 7th June 2017 in Writ Petition
No.56 of 2017. The Petitioner-Society alleges that no action
was taken against Mr Gul Achhra who was carrying on
business through an illegal construction put up in the Society's
building.
4. This Court's order dated 7th June 2017 reads as
follows : -
Shivanjali Co-operative Housing Society Limited v
Ajoy Mehta, Municipal Commissioner, Mumbai
Municipal Corporation and ors.
conpw.68-2017 & anr(F).doc
"1 Heard the learned counsel appearing for the petitioner,
the learned counsel appearing for the first and second
respondents. The substantive prayer in this Petition under
Article 226 of the Constitution of India is prayer clause (A)
which reads thus :
"(A) That this Hon'ble Court may be pleased to
issue Writ of certiorari or a Writ in the nature of
certiorari or any other appropriate Writ, order or
direction under Articles 226 of the Constitution of
India directing the Respondent Nos.1 to 3 to
demolish and/or take appropriate legal action
under Mumbai Municipal Corporation Act, 1888
and MRTP Act, 1966 against the illegal and
unauthorized construction, being V.C. Fitness or
any other name, (as described in Exhibit "B")
carried out by the Respondent No.4 at the
entrance of binding of the society;"
2 The grievance of the petitioner is that notwithstanding
the representations made by the petitioner to the Municipal
Officers, steps have not been taken by the Municipal
Corporation in respect of the illegalities pointed out in the
representations and in particular in various legal notices
which are annexed to the Petition. The learned counsel
appearing for the first to third respondents has no
instructions.
3 Considering the narrow controversy involved in the
Petition, the same is disposed of by passing the following
order :
ORDER
(i) We direct the Assistant Commissioner in-charge of
H/West Ward of the Mumbai Municipal Corporation to visit
the premises subject matter of the Petition after notice to the
petitioner and the fourth respondent;
(ii) If the Assistant Commissioner finds any illegality
associated with the structures subject matter of this Petition,
he shall forthwith initiate action including an action of
demolition in accordance with law. Necessary action shall be
initiated by him within a period of one month from the date
of his visit;
Shivanjali Co-operative Housing Society Limited v
Ajoy Mehta, Municipal Commissioner, Mumbai
Municipal Corporation and ors.
conpw.68-2017 & anr(F).doc
(iii) We must clarify here that no action of demolition shall
be taken by the Municipal Corporation without giving an
opportunity of being heard to all affected parties.
(iv) We make it clear that we have made no adjudication
on the merits of the controversy and all questions are left
open to be decided by the concerned officer of the Mumbai
Municipal Corporation;
(v) The Assistant Commissioner shall visit the property in
question within two weeks from the date on which this order
is uploaded;
(vi) The Petition is disposed of on above terms;
(vii) All concerned to act upon an authenticated copy of
this order."
5. A detailed affidavit has been filed by Sharad Ughade,
Assistant Commissioner and on perusing the same, though we
are not quite clear as to whether the illegal construction made
by the 4th Respondent, i.e. Gul Achhra has been demolished
or not still, we do not think that a case is made out for
initiating any action under the Contempt of Courts Act for
reasons that we shall discuss hereafter in this order and also
for reasons that emerge from our judgment and order
disposing of connected Writ Petition No.3616 of 2018.
6. Contempt Petition No.69 of 2017 alleges disobedience of
our order dated 5th June 2017 made in Writ Petition No.1645
of 2013.
7. Our order dated 5th June 2017, of which the contempt
is alleged, reads as follows: -
Shivanjali Co-operative Housing Society Limited v
Ajoy Mehta, Municipal Commissioner, Mumbai
Municipal Corporation and ors.
conpw.68-2017 & anr(F).doc
"1 Heard the learned counsel appearing for the petitioner,
the learned counsel appearing for the first and second
respondents, the learned AGP for the fifth respondent and the
learned counsel appearing for the sixth respondent. The
substantive prayer in this Petition under Article 226 of the
Constitution of India is prayer clause (a) which reads thus :
"(a) That this Hon'ble Court may be pleased to
issue Writ of Mandamus or any other appropriate
Writ in the nature of Mandamus or any other
appropriate Writ, order or direction directing the
Respondent Nos.1 and 2.
i. To prevent the Respondent Nos.3 and 4 or
any of them from carrying out any commercial
activities from the said illegal and unauthorized
structure in the basement and to convert the
basement for the use of car parking as per the
approved plan of basement for the building
Shivanjali situated at 70-B, Dr. Ambedkar Road,
Khar (W), Mumbai - 400 052.
ii. To demolish the wall illegally erected in the
basement by the Respondent No.3 and 4 causing
water logging resulting in spreading in malaria,
dangue and other dangerous diseases to the
members of the Petitioner society.
iii. To demolish the two illegal and
unauthorized structures erected by the
Respondent No.3 and 4."
2 Order dated 1st August, 2013 passed by this Court
records a submission of the learned counsel appearing for the
fourth respondent that the said respondent is not concerned
in any manner with the alleged illegal structure. Accordingly,
the sixth respondent was ordered to be impleaded as a party
respondent.
3 The grievance of the petitioner is that notwithstanding
the representations made by the petitioner to the Municipal
Officers, steps have not been taken by the Municipal
Corporation in respect of the illegalities pointed out in the
representations and in particular various legal notices which
are annexed to the Petition. The learned counsel appearing
Shivanjali Co-operative Housing Society Limited v
Ajoy Mehta, Municipal Commissioner, Mumbai
Municipal Corporation and ors.
conpw.68-2017 & anr(F).doc
for the sixth respondent states that the said respondent has
not committed any illegality. The learned counsel appearing
for the first and second respondents has no instructions.
4 Considering the narrow controversy involved in the
Petition, the same is disposed of by passing the following
order :
ORDER
(i) We direct the Assistant Commissioner in-charge of
H/West Ward of the Mumbai Municipal Corporation to visit
the premises subject matter of the Petition after notice to the
petitioner and the sixth respondent;
(ii) If the Assistant Commissioner finds any illegality
associated with the structures subject matter of this Petition,
he shall forthwith initiate action including an action of
demolition in accordance with law. Necessary action shall be
initiated by him within a period of one month from the date
of his visit;
(iii) We must clarify here that no action of demolition shall
be taken by the Municipal Corporation without giving an
opportunity of being heard to all affected parties including
the sixth respondent;
(iv) We make it clear that we have made no adjudication
on the merits of the controversy and all questions are left
open to be decided by the concerned officer of the Mumbai
Municipal Corporation;
(v) The Assistant Commissioner shall visit the property in
question within two weeks from the date on which this order
is uploaded;
(vi) The Petition is disposed of on above terms;
(vii) All concerned to act upon an authenticated copy of
this order."
8. Again, though no affidavit is filed in this Contempt
Petition, considering the detailed affidavit filed in Contempt
Petition No.68 of 2017, which covers the issues raised in this
Shivanjali Co-operative Housing Society Limited v
Ajoy Mehta, Municipal Commissioner, Mumbai
Municipal Corporation and ors.
conpw.68-2017 & anr(F).doc
Contempt Petition and also the reasons which emerge from
our judgment and order disposing of connected Writ Petition
No.3616 of 2018, we are satisfied that no case is made out for
initiating any action against the Respondents under the
Contempt of Courts Act.
9. The record shows that in compliance with the directions
issued by this Court in the above two orders, the affiant
Sharad Ughade, along with other staff of the BMC, visited the
site. During the site visit, they not only inspected the
constructions which were the subject matter of the two Writ
Petitions but also the entire building and found several
unauthorised and illegal constructions. In particular, they
found that the construction from the 2nd to the 8th floor was
wholly illegal and unauthorised. They discovered that notices
had already been issued for demolition after following the due
procedure, but the requisitions in such notices had not been
complied with. Accordingly, consolidated action was proposed
against all the illegal constructions that plague this building.
The affidavit also states that the user of some of the illegal
construction was stopped, and some parties claimed they had
nothing to do with the illegal constructions.
10. Mr Govilkar, Senior Advocate for BMC, explained that
BMC was in a position to demolish all the illegal constructions
in the said building, including the construction from the 2nd
floor to the 8th floor and the unauthorised constructions in
the basement and on the ground floor within some reasonable
Shivanjali Co-operative Housing Society Limited v
Ajoy Mehta, Municipal Commissioner, Mumbai
Municipal Corporation and ors.
conpw.68-2017 & anr(F).doc
period of say three to four months. Mr Govilkar submitted
that this consolidated action could not be taken given the
interim order dated 25th June 2018 in Writ Petition No.3616
of 2018. He submitted that under this interim order, the BMC
was restrained from implementing its impugned order dated
12th June 2018. This was a comprehensive order including all
the illegalities in the said building.
11. The BMC, in this case, could have been more vigilant
and placed all the facts in Writ Petition No.3616 of 2018 as
soon as possible and perhaps urged the vacation of the said
order. However, a detailed affidavit was filed in Contempt
Petition No.68 of 2017, and another affidavit was also filed in
Writ Petition No.3616 of 2018. Therefore, though there is a
delay or the BMC could have been more vigilant, this does not
appear to be a case of any willful or deliberate disobedience of
our orders.
12. Besides, Mr Govilkar, on instructions, has stated that all
the demolition orders, including the comprehensive
demolition order dated 12th June 2018, would be
implemented by the BMC within three to four months from
today. He submitted that this much time is required as illegal
constructions are not restricted to the basement or the ground
floor, but the 2nd floor to the 8th floor of this building are
wholly illegal and unauthorised.
Shivanjali Co-operative Housing Society Limited v
Ajoy Mehta, Municipal Commissioner, Mumbai
Municipal Corporation and ors.
conpw.68-2017 & anr(F).doc
13. Mr Govilkar submitted that the Petitioner (Society)
members occupied these premises despite no occupancy
certificate or fire safety clearance. He submitted that police
protection will have to be applied for and obtained. For all
these reasons, he submitted that no action under the
Contempt of Courts Act may be initiated, and the BMC should
be granted three to four months to comply with this Court's
directions.
14. As noted above, this does not appear to be a case where
the BMC has intentionally or deliberately violated this Court's
orders. The impact on the interim order dated 25th June 2018
in Writ Petition No.3616 of 2018 also cannot be ignored.
Though the BMC could have been more diligent, the lack of
diligence does not, in this case, constitute any intention to
willfully or deliberately disobey the orders of which the
contempt is alleged. An apology has also been tendered, and
in the facts of the present case, such an apology deserves to be
accepted.
15. Therefore, by accepting the apology and also the
statement made on behalf of BMC that there would be full
compliance with our orders and action would be initiated to
implement the demolition orders, including the
comprehensive demolition order dated 12th June 2018,
within a maximum of four months from today, we dispose of
these Contempt Petitions. If the BMC applies for any police
protection, the concerned police station must provide for the
Shivanjali Co-operative Housing Society Limited v
Ajoy Mehta, Municipal Commissioner, Mumbai
Municipal Corporation and ors.
conpw.68-2017 & anr(F).doc
same. The BMC must file and serve the compliance report by
20th January 2025.
16. The Contempt Petitions are disposed of in the above
terms without any order for costs. List these matters on 27th
January 2025 to consider the compliance report.
(Kamal Khata, J) (M. S. Sonak, J)
Signed by: Pradnya Bhogale
Date: 11/09/2024 18:57:11
