Bombay High Court
The B. I. T. Blocks And Chawls Tenants ... vs Bombay Municipal Corpn. And Anr on 24 September, 2024
Author: M.S. Sonak
Bench: M.S. Sonak
2024:BHC-OS:14702-DB The BIT Blocks & Chawls Tenant's Association v
Bombay Municipal Corporation & Anr
2-oswp-829-2006-J (1).doc
Ashwini
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 829 OF 2006
The BIT Blocks & Chawls Tenant's
Association,
5/1, B.I.T. Block, Ibrahim Rehmatulla Road,
Mumbai 400 003. ...Petitioner
~ versus ~
1. Bombay Municipal Corporation,
a body incorporated under the
provisions of Bombay Municipal
Corporation Act, 1888 having its office
at Mahanagar Palika Nagar,
Opp. C.S.T. Station, Mumbai.
2. Yasmeen Mohammed Akhlaque
Ansari,
15/21, Mumtaz Manzil, 2nd floor,
Room No. 19, B.A. Virani Marg,
Nagpadh, Bombay 400 008. ...Respondents
Digitally
signed by
ASHWINI
A PPEARANCES
ASHWINI
H GAJAKOSH
GAJAKOSH Date:
2024.09.26
14:04:36
+0530
For the Petitioner Mr Pathi Desai, i/b MM Vashi.
For Respondent-BMC Ms KH Mastakar.
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The BIT Blocks & Chawls Tenant's Association v
Bombay Municipal Corporation & Anr
2-oswp-829-2006-J (1).doc
CORAM : M.S. Sonak &
Kamal Khata, JJ.
DATED : 24th September 2024
ORAL JUDGMENT (Per MS Sonak J):-
1. Heard Ms Patki Desai, learned Counsel for the Petitioner. Ms
Mastakar, learned Counsel for the BMC.
2. Rule. Rule made returnable forthwith.
3. The challenge in this Petition concerns the allotment of
room No. 1, BIT Block No. 6 Sydenham Compound, which is
admittedly municipal premises, to the 2nd Respondent as a staff
quarter for the residence.
4. Ms Desai states that the BMC operated a primary Hindi-
medium school, Ibrahim Rahimtulla Road Municipal Urdu
Primary School, on the premises for more than 60 years. However,
for a few years before the institution of the Petition, the school
closed down.
5. Ms Desai submits that the Petitioner, an association of
tenants, applied for the allotment of these premises so that the
association could use them for educational purposes, like
computer classes.
The BIT Blocks & Chawls Tenant's Association v
Bombay Municipal Corporation & Anr
2-oswp-829-2006-J (1).doc
6. Ms Desai states that the BMC, without considering the
Petitioner's application and only to favour the 2nd Respondent,
who was the municipal councillor's wife, allotted the premises to
her. Ms Desai submits that even the Affidavit admits that such
allotment was on the recommendation of the local MLA, Mr Yusuf
Abraham.
7. Ms Desai submits that the Affidavit also admits that the
allotment was by a treaty the case of the 2nd Respondent as a
"Special Case". He submits that meeting out such treatment to the
2nd Respondent violates Article 14 of the Constitution. She
submits that no compelling reasons have been given for not
considering the Petitioner's case.
8. Ms Desai submits that the impugned allotments favouring
the 2nd Respondent should, therefore, be set aside and the said
premises allotted to the Petitioner so that the Petitioner can use
them for educational purposes. She pointed out that the premises
were used for educational purposes for over 60 years. There was
no reason to allot such premises to the 2nd Respondent for
residential purposes.
9. Ms Mastakar, learned Counsel for the BMC, defends the
allotment favouring the 2nd Respondent based on what is set out
in the Affidavit filed on behalf of BMC. She submits that the 2nd
Respondent was admittedly a municipal employee and, in terms of
the policy, was eligible for allotment of staff quarter. However, the
impugned allotment was made since there was a shortage of staff
The BIT Blocks & Chawls Tenant's Association v
Bombay Municipal Corporation & Anr
2-oswp-829-2006-J (1).doc
quarters. She submits that all factors were duly considered, and
special sanction was granted for such allotment. She submitted
that this was not a case of any nepotism and the allegations are
vague and without impleading the party against whom malafide
urged. For all these reasons Ms Mastakar submitted this Petition
may be dismissed.
10. Rival contentions now fall for our consideration.
11. At the outset, the Petitioner has not explained the right, if
any, which they have the allotment of municipal premises. The
Petitioner has not relied upon any statute or policy governing such
allotments.
12. The Petitioner, apart from alleging that the allotment
favouring the 2nd Respondent was because the 2nd Respondent
was the wife of the municipal councillor, has not elaborated on
these allegations. The 2nd Respondent's husband or any other
politician at his instance allotment is allegedly made are also not
impleaded as Respondents in this Petition. Allegations are malafide,
have to be precise, and the persons against whom such allegations
are made have been impleaded as parties so that they can respond
to such allegations.
13. The BMC has filed an Affidavit in this Petition. Paragraph 6
of this Affidavit is relevant, and therefore, it is transcribed below
for convenience of reference.
"6. Briefly stated facts of the case are as under:-
The BIT Blocks & Chawls Tenant's Association v
Bombay Municipal Corporation & Anr
2-oswp-829-2006-J (1).doc
(a) I say that the B.I.T. Chawl situate at Sydnham
Compound is residential tenements belongs to these
respondents, however, due to necessity of primary school
in the vicinity, the room unde reference was initially
allotted for Municipal school. I say that after Municipal
School Authority has made alternative arrangement
elsewhere the possession of the vacant room was given
to Estate Department of M.C.G.M. for further allotment.
(b) I say that Mrs. Yasmin Akhlaque Ansari, the
School Teacher, Respondent No 2 herein, working in
Corporation since 1987 and at present posted in
Nagpada Municipal Urdu School had applied for
Municipal staff quarter. I say that in her application
addressed to Assistant Commissioner (Estates), it was
submitted that she is residing in room No. 19, 2nd floor,
15/27, Mumtaj Manzil, B.A. Virani Marg, Nagpada,
Mumbai 400008 and her aforesaid residence is a single
room admeasuring about 120 sq.ft. and as such there is
acute shortage or privacy as she is residing with her two
teenage daughters. I further say that it is stated that the
condition of the building where she was residing was
very dangerous and being dilapidated may collapse any
time. Thus she is living in dangerous situation and is
unable to purchase any new accommodation
considering the high prices. It was, therefore, requested
to allot her room No.1 in block No.6 at Sydneham
Compound i.e. subject room room. I say that
simultaneously, Mr Yusuf Abraham, M.L.A. also
recommended her case to Hon'ble Additional Municipal
Commissioner (P).
(c) I say that considering number of present staff
working in Class I, II, III and IV category and number of
The BIT Blocks & Chawls Tenant's Association v
Bombay Municipal Corporation & Anr
2-oswp-829-2006-J (1).doc
staff quarter, there are no sufficient staff quarters
available with Corporation and it is very difficult to
manage allotment of available vacant staff quarters to
the employees on service seniority basis special cases,
staff working in essential services etc. I say that as the
demand for staff quarter is increasing, rooms which are
falling vacant in Municipal properties are generally
reallotted as staff quarters to Municipal staff as per usual
practice to meet with burden of demands to some extent.
(d) I say that the request of Mrs.Yasmin Akhlaque
Ansari was considered in view of above facts and
considering the hardship, her case was considered as a
special case and with appropriate administrative
sanction, the allotment letter for the room under
reference was issued in favour of Mrs. Yasmin Akhlaque
Ansari vide No.AC/Estates/7235/SA dated 28.9.2005.
(e) I say that considering the fact that there is no
sufficient staff quarters available with the Corporation to
allot to the employees of the Corporation, the request of
the Petitioner to allot the said room for conducting
computer classes, i.e. the commercial activity has not
been considered by these respondents and the said room
has been allotted to Respondent No. 2 as staff quarter as
stated aforesaid."
14. The Petitioner has filed no Rejoinder. In any event, the
position that the 2nd Respondent was a municipal employee is not
disputed. The fact that there was a policy for allotment of staff
quarters to municipal employees as and when the same are
available also does not appear to be disputed. There is a statement
in the Affidavit that the 2nd Respondent's premises were
The BIT Blocks & Chawls Tenant's Association v
Bombay Municipal Corporation & Anr
2-oswp-829-2006-J (1).doc
dilapidated and collapse was imminent. Accordingly, considering
all these factors, coupled with the legal MLA recommendation, the
allotment was made after obtaining the necessary sanctions.
15. Therefore, this is not a case where the allotment was made
solely based on recommendation of the local MLA or because the
2nd Respondent's husband was a Municipal Council. There were
other factors. Therefore, even if recommendations were to be
excluded from the consideration, no case is made out to strike
down the BMC's action on the grounds of malafides or abuse of
discretion.
16. The Affidavit, however, referred to the allotment being
considered as a special case. Typically, the municipal premises
should never be allotted as a special case. The allotment of
municipal premises, which are public premises, should be based
upon some predetermined rules, regulations, guidelines or, in the
absence of the same, at least a policy. This is necessary to reduce
arbitrariness and promote transparency. To this extent, therefore,
we do not approve of allotments being made as special cases.
Unless any policy defines and predetermines the exceptional
circumstances in which such discretion can be exercised, no
allotments should be made by styling the same as a special case.
17. From the Affidavit of BMC, it is clear that the 2nd
Respondent was allotted the premises as staff quarters. There is no
information on whether the 2nd Respondent continues to be a
municipal staff or a municipal employee. On ceasing to be a
The BIT Blocks & Chawls Tenant's Association v
Bombay Municipal Corporation & Anr
2-oswp-829-2006-J (1).doc
municipal staff or municipal employee, the staff quarters must be
restored to the BMC. If this is not done, the BMC must take steps to
restore these premises so that the allotment can subsequently be
made following rules, regulations, guidelines and policies, if any,
governing such allotments.
18. Therefore, we dispose of this Petition by not interfering with
the allotment made to the 2nd Respondent of the municipal
premises as a staff quarter only. Hence, if the 2nd Respondent has
retired or otherwise ceased to be a municipal employee, the BMC
must take expeditious steps to recover these premises from the 2nd
Respondent within six months and, after that, allot such premises
following rules, regulations, guidelines and policy.
19. If the Petitioners apply for such allotment and their
applications meet the requirements of rules, regulations,
guidelines, and policy, such application, along with similar
applications, must be considered and disposed of in accordance
with law. The Rule is disposed of in the above terms without any
cost order.
20. All concerned to act on an authenticated copy of this order.
(Kamal Khata, J) (M.S. Sonak, J)
