Bombay High Court
Asif Fazal Khan vs The Municipal Corporation Of Greater ... on 17 April, 2025
Author: A. S. Gadkari
Bench: A. S. Gadkari
2025:BHC-OS:6661-DB
11-oswp-3255-2023-Jfinal.doc
sbw/apn
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.3255 OF 2023
Asif Fazal Khan ]
Age:38 Years, Indian Inhabitant ]
residing at 11/1/16, Bell Heaven CHS, ]
Bhawani Nagar, Marol, Andheri East, ]
Mumbai - 400 059. ] ...Petitioner
V/s.
1. The Municipal Corporation of ]
Greater Mumbai, a Body Corporate ]
constituted under the B.M.C. Act, ]
1888 & having its Main Office at ]
Mahapalika Niketan, Mahapalika ]
Marg, Fort, Mumbai - 400 001. ]
2. Municipal Officer ]
K/East Ward, MCGM, Andheri (E), ]
Mumbai - 400 093. ]
3. Azam Akbar Khan ]
adult Indian Inhabitant of Mumbai ]
residing at B/507, Mayur Tower ]
Old Military Road, Near Richard ]
Garage, Marol, Andheri East, ]
Mumbai - 400 059. ] ...Respondents
______________________________________
Mr. Mahesh Rajpopat, a/w Mr. Akshit Kothari and Mr. Meet Rajpopat for the
Petitioner.
Ms. Dhruti Kapadia, a/w Ms. Meena Dhuri and Ms. Priyanka Sonawane,
i/by Ms. Komal Punjabi for Respondent Nos.1 and 2.
Mr. Dilip Shinde, a/w Mr. Vilas Sawant for Respondent No.3.
ASHWINI
GAJAKOSH Mr. Jagdish N. Jayale for Plaintiff in L.C. Suit No.429/2025 of City Civil
Digitally signed by
Court.
ASHWINI
GAJAKOSH Mr. Kaushar Khan Pathan, Sub. Eng. K/East Ward, present.
Date: 2025.04.21
15:05:14 +0530 _____________________________________________
1/27
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11-oswp-3255-2023-Jfinal.doc
CORAM :A. S. GADKARI AND
KAMAL KHATA, JJ.
RESERVED ON : 12th March, 2025.
PRONOUNCED ON : 17th April, 2025.
JUDGMENT (Per Kamal Khata, J) :
1) By this Petition under Article 226 of the Constitution of
India, the Petitioner seeks a Writ of Mandamus directing the
Brihanmumbai Municipal Corporation ('BMC'), Respondent No.1 to
discharge its statutory duties under the Brihanmumbai Municipal
Corporation Act, 1988 ('BMC Act') and demolish the illegal
construction carried out by Respondent No.3.
BRIEF FACTS:
2) A member of Manav Seva Dham Charitable Trust
('Charitable Trust') noticed an illegal construction being erected in an
open space bearing CTS No.1054, next to Lotus Apartment and
opposite Lokbharti Building, at Marol village, Andheri (East),
Mumbai-400059. On 2nd March 2021, the Charitable Trust made a
complaint about the illegal construction addressing a letter and
photographs (Exhibit 'B') to the Assistant Engineer Maintenance
Department. Another complaint was addressed to the Municipal
Officer, K/East Ward on 11th May 2022 with regard to the illegal
construction by Respondent No.3 - Azam Akbar Khan. No action was
taken and nor was there any response from the BMC. The Charitable
Trust asked the Petitioner to take over the cause. The Petitioner made
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an application under the Right to Information Act (RTI Act) on 2 nd
June 2022 regarding the said illegal construction. The grievance was
that, the illegal structure was being visited by antisocial elements
and thereby causing trouble to the occupants of the adjoining
residential premises. There are commercial activities also being
conducted from the said open space around the illegal structure. The
complaints made to the BMC by letters dated 19 th July 2022 and 20th
September 2022 have been of no avail. There was another letter
addressed by way of a complaint to the Deputy Municipal
Commissioner K/East Ward on 10th November 2022. This complaint
too went unheeded, and no action was taken by the BMC. It is in
these circumstances, that the Petition is filed, for the reliefs as noted
earlier.
3) Mr. Mahesh Rajpopat, learned Advocate for the
Petitioner submits that, this illegal construction ought to be
demolished as the same is patently illegal. He also draws our
attention to the photographs to submit that, this has been recently
constructed and despite complaints, no action has been taken by the
Respondent No.1.
4) Ms. Dhruti Kapadia for Respondent Nos.1 and 2-BMC,
submits that an Affidavit dated 13 th February 2025, of Mr. Vipin
Sharma, Additional Municipal Commissioner, Western Suburb, has
been filed. She took us through the Affidavit that begins with an
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unconditional apology for non-compliance of our earlier Orders
dated 29th August 2024 and 3rd February 2025 and explains the steps
taken by the BMC which are stated herein for reference.
4.1) That, pursuant to the site visit by the Junior Engineer of
Building and Factory Department, K/East Ward on 19 th and 20th
September 2024 BMC issued a notice to the Respondent No.3 on 20 th
September 2024. To that, a Reply was received from Respondent
No.3 on 23rd September 2024 stating that, there were no
irregularities in the construction of the said structure. Another site
visit was conducted on 3rd February 2025 and after noting the
description, on 5th February 2025 a Notice under Section 351 of BMC
Act was issued to the Respondent No.3. The Respondent No.3 in turn
tendered a Reply on 10th February 2025. After considering the Reply,
a speaking Order was passed on 12 th February 2025 whereby the
Respondent No.3 was directed to remove the notice structure within
15 days of receipt of the Order.
4.2) The explanation sought to be given in the Affidavit
regarding the erring officer was that, the staff of the concerned
Wards were on duty on account of the Ganpati festival and thereafter
on Assembly Election duty which caused the Officer to lose track of
the matter. The Affidavit states that, the error was inadvertent and
not a willful non-compliance of the Order or a willful intention to
disobey the Orders of this Court.
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5) There is an additional Affidavit filed by Mr. Vipin
Sharma, the Additional Municipal Commissioner, Western Suburb,
dated 1st March 2025. This Affidavit is filed to report compliance of
the Order dated 17th February 2025 in the Petition. The Affidavit
states that, a show cause notice has been issued to the Junior
Engineer Mr. Sunil Katre and to the Sub-Engineer Mr. Kaushar Khan
M. Pathan on 25th February 2025, as they were the officers in-charge
and were responsible to follow up and take appropriate action in
accordance with the directions issued by this Court by its Order
dated 29th August 2024. It is stated that, pursuant to such notices, an
inquiry process would be conducted in an expeditious manner. The
Affidavit also indicates that, the Respondent No.3 has filed a L.C. Suit
No. 429 of 2025 in the City Civil Court and that the City Civil Court
has directed the BMC to maintain status quo till the passing of the
Order. This Order is passed on 18 th February 2025. The Additional
Affidavit annexes the show cause notice and the Order passed by the
City Civil Court as well as the reply filed by the Respondent No.3
herein.
6) We have heard Mr. Mahesh Rajpopat, learned Advocate
appearing for Petitioner, Ms. Dhruti Kapadia for the BMC and
Mr. Jagdish Jayale for the Respondent No.3.
7) This is yet another case of illegal construction and
inaction by the BMC Authorities in stopping and removing these
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illegal constructions. On larger vacant lands illegal constructions
develop into what is popularly known as "slums" which consists of
both dwelling and commercial units and on smaller ones into
commercial establishments. Outstandingly, this case not only reveals
but vindicates the common belief about the unholy nexus amongst all
concerned. It would be pertinent to narrate the events that
transpired in this matter to analyze the conclusion we arrived at.
8) The Petition initially came up for hearing on 29 th August
2024 before the previous Bench of which one of us (Kamal Khata, J.)
was a member. Notice was issued to the 3 rd Respondent and in the
meanwhile the Respondent No.2 i.e. Municipal Officer, K/East Ward,
BMC, Andheri (East), was directed to visit the site and find out if
there was any prima facie merit in the allegations of the Petitioners.
The 2nd Respondent was directed to file a reply before the next date
on 25th September, 2024, which was the returnable date, the matter
could not be taken up on account of paucity of time. The matter then
came up for hearing on 3rd February 2025 before this Bench.
8.1) In our Order dated 3rd February 2025, we have recorded
that, the BMC Officers have disregarded the Court's direction to file
the Affidavit before the returnable date after the visit. Since the
directions as were not followed in several other matters as
experienced by this Court, the Additional Commissioner, Municipal
Corporation, Western Suburb was directed to file a detailed reply to
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the present Petition. The Additional Commissioner was also called
upon to explain why the Respondent No.2 had not complied with the
specific direction of this Court within the stipulated period. On 17 th
February 2025, the Additional Municipal Commissioner sought
further time to file an Affidavit. The same was granted and the
matter was stood over to 3rd March 2025.
9) The matter then came up for hearing on 3 rd March 2025
when it was brought to our notice that, the City Civil Court has
proceeded to pass an Order of status quo to be maintained by both
parties despite this Court being seized of the matter. In our Order it is
recorded that, the Respondent No.3 was duly served with the notice
with regard to the present Petition on 20 th September 2024. It was
therefore known to the Respondent No.3 that the present Petition is
pending in this Court.
9.1) By our Order dated 3rd March 2025, we had also
directed the Registrar, City Civil Court, Mumbai to forward all the
original records and proceedings of LC Suit No. 429 of 2025 to this
Court before 5th March and the matter was thus kept for 'Directions'
on 6th March, 2025. The matter was taken up and heard on 6 th, 7th
11th and heard finally on 12th March 2025.
10) After a careful perusal of the record, we noted that, the
illegal construction was carried out on or around 2nd March 2021. It
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was communicated to BMC on numerous occasions which are set out
hereinbelow:
2-3-21: to the Assistant Engineer, Maintenance
department BMC K-East Ward Andheri East, Mumbai
400059 with CC: to the Asst Commissioner BMC & The
Executive Eng. Maintenance Dept BMC - by a public
spirited individual through a charitable trust by the name
Manav Seva Dham.
9-8-21: to the Assistant Municipal Officer, in the same
office with CC to the Asst Commissioner BMC and DMC -
Zone;
11-5-22: to the Municipal Officer K/East Ward with CC to
the Asst Commissioner, BMC K-East Ward, & the DMC -
Zone
19-7-22: to the Municipal Officer K/East Ward, through
the Advocate;
3-10-22: to the Asst. Commissioner K/East Ward,
10-11-22: to the Dy. Municipal Commissioner K/East
Ward.
10.1) Since no action was taken by the concerned municipal
Authorities, this Petition is filed.
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11) We are exasperated by not only the inaction of the BMC
and all the above officers, but what exemplifies this case is the
complete lack of courtesy to the citizen by a Public Authority, non-
communication and stoic silence. A reading of the Petition itself
evokes annoyance. What emotional trauma citizens go through
patiently, is what we set aside for now - though a matter of great
concern. At least on the record, there was no revert from the BMC to
either the Petitioner or the Charitable Trust who complained. The
Respondent No. 3 is certainly not a law abiding citizen. He is a
person who knows how to play with the system.
12) Why has the Petitioner and not the Charitable Trust filed
this Petition is another question or another story - but let us also
leave that for now. We understand that, one needs to have the
courage and wherewithal not only to take up these issues against the
law breakers, who in some cases may also be anti-social elements,
but to continue following up the same till it meets with its logical
conclusion, against all odds. Does the State want to continue to
encourage the law abiders or the law breakers is a question that the
State Government needs to answer. At this point, we find it
otherwise.
13) The State Government must sensitise these thoroughly
insensitive persons in charge of the Public Authorities. They are the
ones who are solely responsible for the mushrooming illegalities and
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utter lawlessness. A lax attitude of the State Government in this
regard would only lead law abiding citizens to draw an inference
that persons abetting the law breakers/persons indulging in
illegalities, enjoy the benefits of these illicit gains from these
illegalities conducted by anti-social elements who care a tuppence for
the law.
14) The events that transpired after filing of this Petition
make a more telling story. It was only after the Court issued notices
that the Respondent - BMC even moved. The BMC failed to file reply
despite specific directions. Eventually, on 3 rd February 2025 a Show
Cause Notice under section 351(1A) of BMC Act, was followed by a
speaking Order dated 12th February 2025. The Designated Officer
had considered the reply of the Respondent No. 3 and consequently
directed him to remove his structure finding it unauthorised and
illegal. Co-incidentally, while the BMC's Advocate sought time to file
further Affidavit on 17th February 2025 in the High Court which led
to the matter not being heard and consequently adjourned. On the
same day i.e. on 17th February 2025, the Respondent No.3 filed a Suit
in the City Civil Court, Dindoshi, Goregaon, Mumbai for permanent
injunction and as an ad-interim relief, sought stay of the BMC's
Section 351 Notice dated 3rd February 2025.
15) Mr. Kaushar Khan who is instructing the BMC's Advocate
in the High Court and also in the City Civil Court does not inform
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their lawyer about the Division Bench of the High Court being seized
of the matter regarding very same Notice dated 3rd February 2025.
From the record before us, we found that he was present on both
days 17th February 2025 in the High Court and subsequently on 18 th
February 2025 in the City Civil Court.
16) Pertinently, the Order passed by the learned Judge of
City Civil Court directs maintaining a status quo amongst parties till
5th March 2025.
16.1) The matter came up before this Court on 3 rd March 2025
when we observed and expressed our utter displeasure about the
conduct of the BMC's Officers. The Officers instructing the BMC's
Advocate had failed to point out the provision under the BMC Act
viz. Section 515-A that clearly bars Courts from entertaining Suits for
stay of notices under Section 351 and 354 of the BMC Act. The
BMC's Advocate too failed to point out the judgement in the case of
Abdul Razzaq Sunesra vs Municipal Corporation of Greater Mumbai
and Others reported in 2013 SCC OnLine Bom 832 : (2014) 1 Mah
LJ 275 which upheld the constitutional validity of the said Section. It
is in these circumstances, we called upon our registry to call for the
original records of the said Suit from the City Civil Court.
17) Today i.e. on 12th March 2025 in furtherance of our
directions, Ms. Sonawane, learned Advocate for the Respondent
Corporation is personally present in Court. We put both
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Ms. Sonawane Advocate for BMC in City Civil Court and the Officer
Mr. Kaushar Khan through an examination that was recorded in open
Court.
18) On a question put by this Court, Ms. Sonawane
answered that, the Notice of Motion No.754 of 2025 in L.C. Suit
No.429 of 2025 was moved by Advocate Jayale on 18 th February
2025 at 2.45 pm before Smt. V. D. Ingle, Judge, City Civil Court at
Dindoshi, Borivali Division, Mumbai. That, till the ad-interim relief
was passed by the trial Court on 18 th February, 2025, Mr. Kaushar
Khan Pathan, Sub-Engineer of BMC did not give her instructions or
information regarding pendency of the present Petition dealing with
the same issue pending before this Court. That instructions in writing
were received from Mr. Kaushar Khan Pathan a week later intimating
her that present Petition is pending before this Court.
19) At this stage, we also deem it appropriate to record
statement of Mr. Kaushar Khan Pathan, Sub-Engineer of BMC. To the
questions put by this Court, he answered following:
Question : Whether you were present in this Court on 3rd February,
2025?
Answer : I was present in the Court on 3rd February, 2025 and my
appearance is recorded in the Farad Sheet.
Question : Whether you were present in Court on 17 th February,
2025?
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Answer : Yes, I was present in the Court on 17 th February, 2025.
That, I was also present on 3rd March 2025 in this Court.
Question : Are you regularly following the proceedings of this
Petition?
Answer : I am regularly following this Petition and giving
instructions to my Advocate.
Question : When did you get the knowledge regarding filing of
Petition for the first time?
Answer : About the notice/knowledge of filing of present Petition
somewhere on 20th September, 2024.
Question : On 18th February, 2025 before 2.45 pm whether you had
informed your Advocate on record before the trial Court
that this Petition is pending?
Answer : I had informed the Assistant law Officer, K/East Ward on
17th February, 2025 that pertaining to the same subject
matter his office has initiated action as per this Court's
Order in Writ Petition No.3255 of 2023. The papers
thereof were forwarded for filing Affidavit-in-Reply in
the said Suit. He tendered across the Bar a photocopy of
said communication dated 17th February, 2025.
Court : We have noticed that neither the Assistant Law Officer nor
Advocate Ms. Sonawane have endorsed their
acknowledgment of receipt. That the said document was
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forwarded to Dispatch Clerk for its onward transmission
to Assistant Law Officer.
Court : We also do not find any acknowledgment from the Dispatch
Clerk or any other authority on the said letter dated 17 th
February, 2025. The said fact is pointed out to Mr. Pathan
in Court.
20) At this stage, Advocate Mr. Jayale interjected and
submitted that a reply is not filed on record.
21) It appears to us that, Mr. Jayale is not aware of the fact
that, we have already called for the original record from the City
Civil Court. Perusal of original Affidavit-in-Reply to the Notice of
Motion duly affirmed by Mr. Kaushar Khan Pathan is on record at
page no.20. The said Reply is duly affirmed before Shri Rajkumar
Mohite a Notary Public on 18th February, 2025. It has Register no.1,
Sr. No.386 of page no.42 on 18th February, 2025.
21.1) The said original Reply was shown to Mr. Kaushar Khan
Pathan in Court. After perusing the said Reply minutely, he admitted
the fact that he has not stated the fact of pendency of present
Petition before us in the said Affidavit-in-Reply.
21.2) We therefore independently draw a safe inference that,
Mr. Kaushar Khan Pathan is making patently false statements before
this Court solely to camouflage his misdeed in failing to perform his
lawful duty and in not informing the trial Court regarding pendency
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of the present Petition.
22) At this stage, we sought Mr. Jayale's say in the matter.
Mr. Jayale submitted that on the basis of decision in the case of
Abdul Karim Ahmed Mansoori Vs. Municipal Corporation of Greater
Mumbai and Anr. reported in 2014 (1) Mh L.J. 227 which permits to
file such a Suit, he filed the present Suit before trial Court.
22.1) To our query as to whether he read the judgment in the
case of Abdul Razzaq Sunesra Vs. Municipal Corporation of Greater
Mumbai and Others, 2013 SCC OnLine Bom 832 : (2014) 1 Mah LJ
275 : (2013) 5 AIR Bom R 343 in Writ Petition (L) No.1709 of 2013
decided on 17th July, 2013, which precedes the decision in the case
of Abdul Karim Ahmed Mansoori (supra) which says that Suits are
barred before trial Court upholding the constitutional validity of the
said amendment? Mr. Jayale submitted that, he relied on a decision
in the case of Abdul Karim for filing said Suit. He had read the
judgment in the case of Abdul Razzaq Sunesra and despite the fact
he advised his client to file the said Suit impugning notice issued
under Section 351 of the BMC Act.
22.2) To our further query, whether he disclosed every fact
before the trial Court, he submitted that, he had pointed out each
and every document to the trial Court and also brought to the notice
of the trial Court that the present Petition is pending before us.
Despite the said fact the trial Court did not record the said
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submissions and only recorded that 'Heard Advocates for both sides'.
The trial Court thereafter directed both the parties to maintain status
quo till passing of Order.
22.3) Mr. Jayale submitted that, even after bringing on record
the said amendment to Section 515A numerous Suits have been filed
and are being filed and entertained by the City Civil Court
impugning/challenging notice under Section 351 and 354A of the
Mumbai Municipal Corporation Act, 1888. He drew our attention to
the LC Suit No.429 of 2025 filed in the Bombay City Civil Court,
Borivali Sub Division, Dindoshi (Goregaon), Mumbai and particularly
in paragraph nos. 18 and 19 that specifically mentions about
pendency of this Petition.
22.4) He further submitted that, during the pendency of
present Petition the Corporation issued notice under Section 351
which gave rise to a separate cause of action to file the said Suit.
22.5) Upon a query by this Court as to whether he did not
deem it appropriate to bring the said fact to the notice of this Court
i.e. issuance of notice under Section 351 of the said Act, he kept
blissful silence.
23) We have collated all the record and the Affidavits filed
by both the BMC's officers and the Respondent No. 3. We have been
informed about the application made by Respondent No. 3 to
withdraw the Suit in the City Civil Court. Unconditional apology has
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been tendered by Ms Priyanka Sonawane, Advocate representing the
BMC in the City Civil Court.
24) We are unable to accept excuses stated by the Additional
Municipal Commissioner Western Suburbs from Mr. Vipin Sharma
that, the Order dated 28th August, 2024 was not followed up on
account of the staff that was on duty due to Ganpati festival and
thereafter on Assembly Election duty and therefore the officers lost
track of the matter. This kind of casual approach to the Order of the
High Court is strictly deprecated. This inaction has protected and
continued the existence of illegal structures.
25) We find Mr. Kaushar Khan has been attending the matter
in the High Court since 3rd February 2025. He is clearly responsible
for suppressing material information that High Court was seized of
the very matter from the City Civil Court, leading to a status quo
order being granted by the learned Judge of the City Civil Court. The
status quo Order shielded the Respondent No. 3 from demolition of
the patently illegal structure built without any lawful permissions of
BMC. This in our view is clearly attempting to overreach this Court
and thereby lowering its dignity. According to us Mr. Kaushar Khan
Pathan's conduct is deplorable and we deprecate it. He has clearly
indulged into an act of suppression of facts from the trial Court,
thereby helping the Respondent No.3 to get a favourable Order.
According to us, the actions of Mr. Kaushar Khan Pathan have
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interfered with the judicial process. From Mr. Pathan's overall
conduct, it is apparent that, he was and is more interested in
protecting the illegal structure of Respondent No.3 than to take
action against it promptly.
26) We find that he has clearly helped Respondent No. 3 to
protect his illegal structure and has deliberatedly supressed true and
correct facts from the trial Court. According to us consequently he is
unfit to be in public service. We therefore direct the Commissioner of
BMC to conduct an indepth enquiry in accordance with the
prevailing laws including Section 64C of the BMC Act against Mr.
Kaushar Khan Pathan.
27) We having recorded Advocate Ms. Sonawane's
deposition in Court, find no fault with her for not having informed
the trial Court about the pending Writ Petition. She was not expected
to know. Mr. Pathan from BMC had to inform her but failed to do so,
as noted above. She has thus performed her duty lawfully while
representing BMC and no fault can be attributed to her.
28) We also are unable to accept the City Civil Court Judge's
lack of basic knowledge about Section 515-A of the BMC Act and the
judgements of this Court in the case of Abdul Razzaq Sunesra
(supra), Abdul Karim Ahmed Mansoori (supra) in and the judgement
of Mr Yogesh Megaji Gada vs MCGM reported in (2016) 2 Mah L.J
420 : 2015 SCC OnLine Bom 8351 on this issue.
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29) Taking into consideration the vital law point that arises
after amendment of Section 515-A of the M.M.C. Act, and the issue
as to whether a Suit can be entertained by the trial Court i.e. the
Court of competent jurisdiction, challenging a Notice or Final Order
under Section 351 or 354A of the M.M.C. Act, we deem it
appropriate to deal with it.
30) In the case of Abdul Razzaq Sunesra (supra), having
considered the provisions of Section 351 and 354A coupled with
Section 515A of the BMC Act, the Division Bench of this Court has
upheld the constitutional validity of Section 515A barring the
jurisdiction of the Civil Courts in entertaining Suits. It has held that
Section 351 and Section 354A are within themselves the due process
of law providing sufficient safeguards. This can be evinced in
paragraph 12 reproduced herein for ready reference:
"12. In the present case, there is an express bar on
the jurisdiction of the Civil Court in section 515 A to
entertain a suit calling into question any notice, order or
direction issued under sections 351 and 354-A. Hence, in
view of the law laid down in Dhulabhai (supra), an
examination of the scheme of the Act to find the
adequacy or the sufficiency of the remedies provided
may be relevant but is strictly speaking, not decisive. Be
that as it may, under section 351, sufficient safeguards
have been provided by the legislature to ensure that the
determination by the authority is subject to the
observance of statutory parameters. The statute
incorporates requirements to ensure that the procedure
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is fair and that the outcome of the inquiry is based on
objective considerations. The conditions which are
imposed by the statute ensure firstly that before action is
taken, a written notice must be issued to the person who
is erecting a building or executing a work. Following the
issuance of a notice, the statute secondly mandates that
an opportunity to show sufficient cause must be granted
in the form of a statement in writing. Thirdly the
designated officer is empowered in an appropriate case
to allow the person to whom the notice is issued, to show
cause in person or through an agent. Fourthly, the
designated officer is required to apply his mind whether
the person to whom a notice was issued, has or has not
failed to show sufficient cause to his satisfaction. The
satisfaction of the designated officer is not a subjective
satisfaction but is a satisfaction which has to be arrived
at objectively after appreciating the contents of the
defence and the cause which has been shown. The officer
must, in particular, apply his mind whether work of the
description which is mentioned in section 342 has been
commenced contrary to the provisions of section 342 or
section 347. The officer is thereupon vested with the
discretion on whether or not to demolish the structure.
This discretion is again a discretion which has to be
exercised judiciously and not arbitrarily. Reasons must be
recorded in the order of the designated officer. Reasons
provide an assurance against an arbitrary exercise of
power and allow the decision to be challenged and
scrutinized under Article 226 of the Constitution."
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31) Thus an aggrieved party is also permitted to take
recourse to remedy of a Petition under Article 226 of the Constitution
of India for challenging the Order passed under Section 351 or 354A.
The reasons for upholding the constitutional validity were elaborated
in paragraphs 17 & 19 that are extracted hereinbelow for ready
reference:
"17. The State of Maharashtra and more particularly
its urban areas are plagued by a menace of
unauthorized constructions. The object of introducing
section 515-A was to ensure that recourse to civil
remedies is not utilized with a view to abuse the
process as would generally result when those
responsible for unauthorized constructions use every
possible means to ensure that a delay takes place in
the disposal of proceedings, once a stay is obtained.
In this background, the legislative provision cannot be
regarded as being arbitrary.
19. Having regard to these well settled principles,
it is not possible to accede to the submission that the
bar of jurisdiction which has been enacted by section
515-A of Mumbai Municipal Corporation Act, 1888,
as amended, is arbitrary or unconstitutional. The
provisions of sections 351 and 354-A contain
adequate safeguards, both procedural and
substantive, to ensure due notice, an opportunity to
represent, the consideration of the cause shown and
an application of mind to relevant and germane
circumstances. A reasoned order must be passed. The
legislature was, in our view, acting in the public
interest in ensuring that the urgent need of taking
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expeditious action against unauthorized constructions
does not get lost in a maze of dilatory remedies in
Civil Courts."
32) We are in agreement and conur with the view expressed
and enumerated by the Division Bench in the case of Abdul Razzaq
(supra) as it does not require further elaboration. It has binding
effect on all the subsequent decisions of this Court.
33) In the case of Abdul Karim Ahmed Mansoori (supra), the
Division Bench in paragraph 10 has clarified the duty of the Court
which is quoted herein below for ready reference:
"10. At this stage, we must take note of the
apprehension expressed by Mr. Sakhare, learned
Senior Counsel appearing for the Municipal
Corporation. His submission is that if this process is
permitted in all matters, parties like the Petitioner
would request the Civil Court to brush aside the
bar under Section 515A or would not take any note
of it. We do not think that the Civil Court would be
influenced by our order and clarification given
today to this extent and as apprehended by Mr.
Sakhare. In every individual case depending upon
the pleadings, the issue of jurisdiction would have
to be decided by the Civil Court. The applicability
of Section 515A and the issue of jurisdiction must
be, therefore, gone into, dealt with and decided in
each case depending on the pleas raised by parties.
The law is well settled inasmuch as the learned
Judge will have to decide the issue of jurisdiction
by considering the averments in the plaint. If the
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averments in the plaint do not make out any case
which would enable the Court to apply the legal
principles set out above, he would then apply the
provision in question, namely, Section 515A and
return a appropriate finding on the point of
jurisdiction depending on the materials placed
before him. It is not as if by our clarification and
enabling parties to file a Civil Suit, that we have
observed that the bar should be ignored or should
not be taken note of. The Civil Court is obliged to
take note of the provision and the statutory bar
whenever that plea is raised by the Corporation
before it. In such circumstances, no further
clarification is needed. All that we state and
observe is that we have not expressed any opinion
on the rival contentions including on the point of
jurisdiction of the Civil Court in this matter. Even if
the Petitioner seeks to revive the Suit as it is still
pending and seek interim relief therein, the
Corporation can raise the plea of jurisdiction and
the learned Judge should consider and decide in
accordance with law."
33.1) It may be noted here that, the apprehension expressed
by the learned Senior Counsel for Corporation in Abdul Mansoori's
case is a practical reality of life even after a decade of Abdul Razzaq's
case. In our view, when a Civil Court receives a plaint and an
application for interim relief, such as for a stay or for status quo
Order, challenging Notices issued by the Municipal Corporation
under Sections 351 or 354 of the BMC Act, or under (pari materia)
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provisions of the MMC Act, it must first determine whether the
parties have exhausted the statutory remedies available to them
under the said Sections. This includes pursuing the appropriate
mechanisms under the said Act as enumerated in the case of Abdul
Razzaq Sunesra's case for grievance redressal before seeking judicial
intervention.
33.2) The trial Court must also address the issue of jurisdiction
by examining the averments in the plaint. If these do not warrant the
application of the legal principles in question, then provisions of
Section 515A of the BMC Act or Section 433A of the Maharashtra
Municipal Corporations Act, 1949, must be considered. Importantly,
the Civil Court is duty-bound to take cognizance of the statutory
provisions and any legal bar--whether or not such an objection is
raised by any party to the said Suit.
34) Finally, the Civil Court must keep in mind the principles
of law enumerated by the Division Bench of this Court in the case of
Abdul Razzaq Sunesra (supra).
35) With regard to Advocate Jagdish Narayan Jayale, we
find that, he has clearly failed in his duty as an officer of the Court.
He has misread and misinterpreted the Statute and the law to get a
favourable Order from the trial Court. He has admitted that he filed a
Suit as many others have been filing similar Suits. This is clearly a
pernicious practice - which we do not appreciate. We are unable to
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accept a simple apology from Mr. Jayale and permit the
misadventures of Respondent No.3 pass without a fitting order
against them. We feel that, accepting a written apology by Court's,
usually is perceived as its weakness and emboldens the wrong doer
and law breakers. However by showing magnanimity we acept his
apology by giving him a caution.
36) In view of the above, we pass the following order:
(i) Petition is made absolute in terms of prayer clause
(a) which reads as under:
"(a) that this Hon'ble Court be pleased to issue
Writ of Mandamus or such other appropriate
writ, order and direction in the nature of writ
of Mandamus thereby directing the
Respondent Nos.1 and 2 and concerned
officers to discharge their statutory duties
under the provisions of Mumbai Municipal
Corporation Act, 1888 and thereby demolish
the illegal constructions carried out by
respondent No.3."
(ii) We direct the Respondent Nos.1 and 2 to demolish
the illegal construction erected on open space bearing
CTS No.1054, next to Lotus Apartment and opposite
Lokbharti Building, at Marol village, Andheri (East),
Mumbai-400059 carried out by Respondent No.3 within
a period of two weeks from the date of uploading of the
present Judgment on the official website of the High
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Court of Bombay.
(iii) We call upon the Municipal Commissioner of BMC
to take appropriate action against Mr. Kaushar Khan
Pathan and other erring Officers who were responsible
for permitting the unauthorised construction and
continuance of the illegal structure after holding an
enquiry in the matter. The Municipal Commissioner to
file a compliance report in this Court within a period of
six months from the date of uploading of the present
Judgment on the official website of the High Court of
Bombay.
(iv) The Petition is accordingly allowed in the above
terms with no Order as to costs.
(KAMAL KHATA, J) (A. S. GADKARI, J.)
37) After pronouncement of Judgment, upon query put up to
Mr. Dilip Shinde, about the withdrawal of the Suit he submitted that,
the 3rd Respondent has already filed an application for withdrawal of
the Suit under Order XXIII Rule 1 (3)(b) of C.P.C. before the trial
Court on 10th March, 2025. However, the original record of the Suit is
with us as was called for by this Court. Therefore, the trial Court
could not pass an order on the withdrawal application. As
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Respondent No.3 has already filed application for withdrawal of the
Suit, we permit him to withdraw the Suit before us but
unconditionally and dispose off the same by exercising our
jurisdiction under Article 226 of the Constitution of India, to
subserve the ends of justice. Respondent No.3 is directed to produce
the present Order before the Registrar of the concerned Civil Court
who in turn will place this Order before the learned Judge of the said
Civil Court for noting in the register as 'Suit disposed off'.
(KAMAL KHATA, J) (A. S. GADKARI, J.)
