Bombay High Court
Hiroo Tuljaram Shahani And Anr vs The State Of Maharashtra And Anr on 20 June, 2025
Author: A. S. Gadkari
Bench: A. S. Gadkari
2025:BHC-OS:9092-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.3602 OF 2022
1. Hiroo Tuljaram Shahani ]
Aged: 74 years, Occ.: retired. ]
2. Jyoti Hiroo Shahani, ]
Aged: 67 years, Occ. Retired, ]
Both residing at 14/A, Ground Floor, ]
New Hindustan CHSL, Plot No.272, 36th ]
Road, Bandra (West), Mumbai 400 050. ] ...Petitioners.
V/s.
1. The State of Maharashtra ]
represented through Government ]
Pleader, OS, High Court, Bombay. ]
2. The Municipal Corporation of ]
Greater Mumbai, a statutory ]
authority having its headquarters at ]
MCGM Headquarters, Opp. CSMT, ]
Mahapalika Marg, Mumbai 400 001 ]
and Ward Office at H/W Ward Office ]
Bldg., 2nd Hasnabad Lane, Khar ]
(West), Mumbai 400 052. ] ... Respondents.
WITH
SHOW CAUSE NOTICE NO.3 OF 2025
IN
WRIT PETITION NO.3602 OF 2022
1. Hiroo Tuljaram Shahani ]
Aged: 74 years, Occ.: retired. ]
2. Jyoti Hiroo Shahani, ]
Aged: 67 years, Occ. Retired,
Both residing at 14/A, Ground Floor, ]
New Hindustan CHSL, Plot No.272, 36th ]
Road, Bandra (West), Mumbai 400 050. ] ...Petitioners.
Digitally
signed by
SUMEDH
SUMEDH NAMDEO
NAMDEO SONAWANE
SONAWANE Date: 1/14
2025.06.20
20:06:56
+0530
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V/s.
1. The State of Maharashtra ]
represented through Government ]
Pleader, OS, High Court, Bombay. ]
2. The Municipal Corporation of ]
Greater Mumbai, a statutory ]
authority having its headquarters at ]
MCGM Headquarters, Opp. CSMT, ]
Mahapalika Marg, Mumbai 400 001 ]
and Ward Office at H/W Ward Office ]
Bldg., 2nd Hasnabad Lane, Khar ]
(West), Mumbai 400 052. ]
3. Charulata Lulla, ]
1st Floor, 14/A, New Hindustan CHSL, ]
Plot No.272, 36th Road, Bandra (W), ]
Mumbai 400 050. ] ... Respondents.
WITH
INTERIM APPLICATION NO.234 OF 2023
IN
WRIT PETITION NO.3602 OF 2022
Charulata Lulla, ]
Aged 73 years, Occ.: Housewife, ]
1st Floor, 14/A, New Hindustan CHSL, ]
Plot No.272, 36th Road, Bandra, ]
(West), Mumbai - 400 050. ] ... Applicant.
IN THE MATTER OF:
1. Hiroo Tuljaram Shahani ]
Aged: 74 years, Occ.: retired. ]
2. Jyoti Hiroo Shahani, ]
Aged: 67 years, Occ. Retired,
Both residing at 14/A, Ground Floor, ]
New Hindustan CHSL, Plot No.272, 36th ]
Road, Bandra (West), Mumbai 400 050. ] ...Petitioners.
V/s.
2/14
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1. The State of Maharashtra ]
represented through Government ]
Pleader, OS, High Court, Bombay. ]
2. The Municipal Corporation of ]
Greater Mumbai, a statutory ]
authority having its headquarters at ]
MCGM Headquarters, Opp. CSMT, ]
Mahapalika Marg, Mumbai 400 001 ]
and Ward Office at H/W Ward Office ]
Bldg., 2nd Hasnabad Lane, Khar ]
(West), Mumbai 400 052. ]
3. Charulata Lulla, ]
Aged 73 years, Occ.: Housewife, ]
1st Floor, 14/A, New Hindustan CHSL, ]
Plot No.272, 36th Road, Bandra, ]
(West), Mumbai - 400 050. ] ... Respondents
WITH
INTERIM APPLICATION (L) NO.28860 OF 2024
IN
WRIT PETITION NO.3602 OF 2022
Jyoti Hiroo Shahani, ]
Aged: 69 years, Occ. Retired residing at ]
14/A, Ground Floor, New Hindustan ]
CHSL, Plot No.272, 36th Road, Bandra ]
(West), Mumbai 400 050. ] ... Applicants.
IN THE MATTER OF:
1. Hiroo Tuljaram Shahani ]
Aged: 74 years, Occ.: retired. ]
2. Jyoti Hiroo Shahani, ]
Aged: 67 years, Occ. Retired, ]
Both residing at 14/A, Ground Floor, ]
New Hindustan CHSL, Plot No.272, 36th ]
Road, Bandra (West), Mumbai 400 050. ] ...Petitioners.
V/s.
3/14
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1. The State of Maharashtra ]
represented through Government ]
Pleader, OS, High Court, Bombay. ]
2. The Municipal Corporation of ]
Greater Mumbai, a statutory ]
authority having its headquarters at ]
MCGM Headquarters, Opp. CSMT, ]
Mahapalika Marg, Mumbai 400 001 ]
and Ward Office at H/W Ward Office ]
Bldg., 2nd Hasnabad Lane, Khar ]
(West), Mumbai 400 052. ]
3. Charulata Lulla, ]
1st Floor, 14/A, New Hindustan CHSL, ]
Plot No.272, 36th Road, Bandra, ]
(West), Mumbai - 400 050. ] ... Respondents
______________________________________
Mr. Aseem Naphade i/by Adv. Omar Khaiyam Shaikh for the Petitioners.
Ms. Poonam Mittal, AGP for Respondent No.1-State.
Ms. S.V. Tondwalkar i/by Adv. Komal Punjabi for Respondent No.2-BMC.
Mr. Rajiv Narula a/w. Adv. Sushil Chaurasia i/by SKC Legal for Respondent
No.3.
Mr. Kishor Pawar, Jr. Engg. (B&F) H/W Ward, present.
_____________________________________________
CORAM : A. S. GADKARI AND
KAMAL KHATA, JJ.
RESERVED ON : 23rd April, 2025.
PRONOUNCED ON : 20th June, 2025
Judgment (Per : Kamal Khata, J) :-
1) The Petitioners are occupants of ground floor of the premises
bearing No.14/A, New Hindustan CHS Ltd situated on Plot No.272, 36th
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Road, Bandra (West), Mumbai 400050 ('writ premises'). By this Petition,
the Petitioners challenge the Notice dated 14 th March, 2020 issued under
Section 53(1) of the Maharashtra Regional Town Planning Act 1966 ('MRTP
Act') as well as the speaking Order dated 29 th April 2022 passed by the
Brihanmumbai Municipal Corporation ('BMC'). The speaking Order
identifies seven violations, which are in contravention of the approved plan
dated 5th January 1967.
2) The nine grounds listed at pages 18 to 20 highlight three
principal grievances:
a) that, the Petitioners were not granted an opportunity of being
heard,
b) that, the Petitioners have not carried out any unauthorised
construction and whatever renovations they had carried out were
long ago with the permission of the society, and
c) that, it is Respondent No. 3 who is attempting to evict the
Petitioners by instigating the BMC to act against them.
3) By an Order dated 25th November, 2024, this Court directed the
Executive Engineer of the BMC to conduct an inspection of the writ
premises, as well as the 1st floor residence of Respondent No.3, and to
submit a report. The Designated Officer of BMC subsequently filed his
report dated 5th December, 2024, identifying seven instances of
unauthorized work within the writ premises occupied by the Petitioners and
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five instances of unauthorized work on the 1 st floor premises occupied by
Respondent No.3.
4) On 12th December, 2024, during the hearing, the Petitioners
gave an undertaking to this Court, to adopt all necessary remedial measures
to restore the ground floor of the writ premises to its original position by
removing and/or demolishing the unauthorised construction within a
period of two weeks, i.e., by 26 th December, 2024. The matter was then
adjourned to 9th January, 2025 for compliance.
5) On 9th January, 2025, Mr. Aseem Naphade, the learned
Advocate for the Petitioners, attempted to explain the reasons for their non-
compliance with the undertaking. He submitted that, certain unauthorized
works could not be removed as doing so posed a risk of the floor above
caving in. He further contended that, being lay persons, the Petitioners
were unaware of these potential consequences and technicalities at the time
of giving the undertaking.
6) However, Ms. Tondwalkar, learned Advocate for the
Respondent No.2-BMC, countered this assertion, stating that, as per the
Engineer's opinion, the unauthorised work could indeed be removed. She
further confirmed and reiterated this position after obtaining instructions
from the Executive Engineer who was present in Court.
7) Upon hearing both learned Counsel and upon perusal of the
report and photographs, we find that there has been a willful and deliberate
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breach of the undertaking given to this Court during the hearing on 12 th
December, 2024 wherein it was assured that all remedial measures would
be undertaken to restore the ground floor to its original condition. Notably,
the Petitioners had initially denied any illegality; however following the
BMC's report highlighting the irregularities, they agreed to remove the
unauthorised works and restore the premises to its original condition as per
the sanctioned plan.
8) Accordingly, a show cause notice was issued to the Petitioners
on 9th January 2025. Additionally, we directed the BMC to submit a report
accounting for both compliances and non-compliances, and the matter was
adjourned.
9) BMC filed yet another report dated 23 rd January 2025,
indicating non-compliance with five out of the seven unauthorised works,
partial compliance with one, and complete compliance with only one. The
Petitioners requested time to comply, which was granted. By 5 th March
2025, only one item remained to be restored. Upon a query posed by this
Court, the Advocate for the BMC sought additional time to obtain
instructions from the BMC's engineer. On 21 st April 2025, BMC furnished a
report dated 5th March 2025 categorically stating that the unauthorised
construction could be removed and the area restored in accordance with
the approved plan.
10) Despite the passage of almost five months, as evident from this
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Court's Orders dated 25th November 2024, 12th December 2024, 9th January
2025 and 18th February 2025, during which the Court provided multiple
opportunities to restore the premises to its original position, they have
failed to remove one of the unauthorised constructions. This failure is based
on a broad contention that restoration is not feasible, relying on an
Architect's report.
11) The relevant paragraphs of the Architect's report read as
under:
"In order to commence with the requirement /compliance of the
aforesaid order, I shall be required to obtain the proper and necessary
documents from the Corporation such as O.C Plan of the said building
and structural drawing.
"Further in terms of removal/ demolition of the
alleged unauthorised alteration addition's etc. it shall
become necessary to conduct/ carry-out structural
audit structural stability tests in order to assess the
integrity and/or stability of the ground floor, first floor
and terrace along with any other or further structure
erected/ constructed on upon the terrace, considering
the age of the building.
It is also pertinent to record that internal structural
audit and stability test shall also be required to be
carried out of the 1st floor to assess the strength and
structural integrity of the said premises in order to
examine and assess whether there is any
possibility/chances of a cave in or failure of the 1 st
floor premises upon removal/demolition of the alleged
unauthorised extension as stated in the interim order
referred to herein above."
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12) The report, to say the least, is devoid of any justification or
factual foundation. The remaining unauthorised work as described by the
Notice and speaking Order is: "Unauthorize addition, alteration in Bath,
W.C and W.P." which involves the conversion of the area beneath the
staircase into a bathroom. The BMC engineer's report dated 5 th March 2025
clearly states that the area can be restored and specifies the manner in
which it can be done.
13) Mr. Rajiv Narula Advocate for Respondent No. 3 on
instructions has also expressed willingness to co-operate and permit the
BMC Engineers to remove the bathroom and restore the area. However, the
Petitioners continue to refuse permission for either the BMC or Respondent
No.3 to undertake the necessary restoration.
14) In the case of Celir LLP vs. Sumati Prasad Bafna reported in
2024 SCC OnLine SC 3727 the Apex Court observed as under:
"197. Contempt jurisdiction exists to preserve the
majesty and sanctity of the law. Courts are the
guardians of justice, and their decisions must
command respect and compliance to ensure the
proper functioning of society. When individuals or
entities challenge the authority of courts through
wilful disobedience or obstructive behaviour, they
undermine the rule of law and create the risk of
anarchy. Contempt serves as a mechanism to protect
the integrity of the courts, ensuring that they remain
a symbol of fairness, impartiality, and accountability.
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198. When judicial orders are openly flouted or court
proceedings are disrespected, it sends a signal that
the rule of law is ineffective, leading to a loss of trust
in the system. Judicial decisions must remain
unimpaired, free from external pressures,
manipulation, or circumvention. Acts that attempt to
mislead the court, obstruct its functioning or frustrate
its decisions distort the process of justice and would
amount to contempt.
199. The contempt jurisdiction of this court cannot be
construed by any formulaic or rigid approach. Merely
because there is no prohibitory order or no specific
direction issued the same would not mean that the
parties cannot be held guilty of contempt. The
Contempt jurisdiction of the court extends beyond
the mere direct disobedience of explicit orders or
prohibitory directions issued by the court. Even in the
absence of such specific mandates, the deliberate
conduct of parties aimed at frustrating court
proceedings or circumventing its eventual decision
may amount to contempt. This is because such
actions strike at the heart of the judicial process,
undermining its authority and obstructing its ability
to deliver justice effectively. The authority of courts
must be respected not only in the letter of their
orders but also in the broader spirit of the
proceedings before them.
200. Any contumacious conduct of the parties to
bypass or nullify the decision of the court or render it
ineffective, or to frustrate the proceedings of the
court, or to enure any undue advantage therefrom
would amount to contempt. Attempts to sidestep the
court's jurisdiction or manipulate the course of
litigation through dishonest or obstructive conduct or
malign or distort the decision of the courts would
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inevitably tantamount to contempt sans any
prohibitory order or direction to such effect.
201. Thus, the mere conduct of parties aimed at
frustrating the court proceedings or circumventing its
decisions, even without an explicit prohibitory order,
constitutes contempt. Such actions interfere with the
administration of justice, undermine the respect and
authority of the judiciary, and threaten the rule of
law."
[Emphasis Supplied]
15) In the present case, the conduct of the Petitioners' is obstinate
and reflects a willful disregard of their obligations and of the authority of
this Court. Such conduct cannot be condoned. Over a period of five months,
it is evident that the Petitioners have willfully and with the mala fide intent,
sought to delay these proceedings, thereby perpetuating the illegalities they
committed. Through wilful disobedience and obstructive behaviour, the
Petitioners have undermined the rule of law and flagrantly breached the
undertaking given to this Court on 12th December 2024, sending a signal
that the rule of law is ineffective and thereby eroding public trust in the
judicial system.
16) Initially, we were inclined to exercise restraint, considering the
age of the Petitioners. However, they have demonstrated obstinacy and
complete lack of respect for their own solemn undertaking given to this
Court. This willful and deliberate breach of their own undertaking to the
Court is unacceptable. The Petitioners actions strike at the very core of the
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judicial process, undermining its authority and obstructing its ability to
deliver justice effectively.
17) In these circumstances, we find the Petitioners guilty of
contempt. We observe that the contemnors have shown no remorse, and the
apology tendered by the learned counsel for the Petitioners appears to be a
mere formality lacking genuine contrition.
18) In view thereof, we impose a sentence of two weeks simple
imprisonment and a fine of Rs.2,000/- on the contemnors.
18.1) The fine shall be deposited in the Registry of the Court within a
period of one week from the date of uploading of the present Judgment on
the Official website of High Court, Bombay.
18.2) In the event of failure to deposit the fine within stipulated
period, the contemnors shall undergo a further sentence of one week of
simple imprisonment.
18.3) We direct the Respondent 1 to secure the presence of the
contemnor to undergo imprisonment imposed upon them.
18.4) Needless to say, the Authorities or instrumentalities of the State
shall comply with the directions issued by this Court with due diligence and
utmost expediency.
18.5) A compliance report shall be filed in the Registry of this Court
within three months from the date of this Order.
19) We direct the Respondent Nos.1 and 2 to remove all the
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illegalities and unauthorized constructions carried out by Petitioners and
restore the writ premises as per the approved plan within a period of one
week from the date of this Order. The cost of removal and restoration shall
be borne by the Petitioners. In the event that, the Petitioners fail to pay the
costs, the said amounts shall be recovered by taking appropriate proceeding
against the Petitioners as per the law.
20) In view of the above, nothing further survives in the Writ
Petition.
20.1) Show Cause Notice is accordingly made absolute.
20.2) Interim Application No.234 of 2023 and Interim Application
(L) No.28860 of 2024 are accordingly stand disposed off.
(KAMAL KHATA, J.) (A.S. GADKARI, J.)
21) At this stage, learned counsel appearing for the Petitioners
submits that, considering the advanced age of the Petitioners, the operation
and implementation of the Judgment directing imprisonment may be
suspended for a period of 4 weeks from today.
22) He submitted that the Petitioners will deposit the fine amount,
under protest, in the registry of this Court within a period of one week from
today.
22.1) The said statement is accepted.
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23) In view of the above and at the request of the learned counsel
for the Petitioners, the direction to surrender and undergo sentence is
hereby suspended for a period of 4 weeks from today.
(KAMAL KHATA, J.) (A.S. GADKARI, J.).
