Mumbai: The officers of the Brihanmumbai Municipal Corporation (BMC) cannot be silent spectators to illegalities being committed by persons who construct structures without approvals, said the Bombay High Court. The HC directed demolition of three structures in two weeks and action against concerned civic officials who patently failed to act despite non-compliance of a 30-year-old undertaking by their late owner to raze them herself.
The HC two-judge bench of Justices AS Gadkari and Kamal Khata said the facts of the case were “disturbing”. It said the BMC has a “solemn duty” to demolish illegal construction even on private lands, once it is pointed out to them. The BMC officials must act, even though “they themselves are not interested in removing it,” the HC underscored in a Nov 21 order made available on Thu.
Once a citizen points out an illegality, the BMC is duty-bound to take action, the HC directed. Such action would even resolve most disputes and reduce caseload, it said. Solitaire Builders & Developers filed a contempt petition against the BMC, this year. The contempt plea is “one amongst several” such it routinely deals with against BMC, the HC said.
The builder, through lawyer Manish Gala, said one Jamunabai Pawar had encroached and built three small structures, claiming ownership through “adverse possession,” on the Kurla plot. Despite multiple complaints, BMC failed to act. In 1994, Pawar gave an undertaking to BMC to demolish her structures in three months. She failed to comply, and BMC failed to act, the HC noted. “We can’t have two sets of laws, one for law abiders and one for non-abiders,” the HC said, noting owner’s inaction mandated BMC demolition within a week. The builders built ‘Oxford Chambers’ on the plot and sought an Occupancy Certificate in April 2000. The BMC granted partial OC. For complete OC, the HC observed that BMC set “unwarranted conditions” to clear illegal structures and rehabilitate occupants of the illegal structures — four heirs of Pawar.
With no OC, the builder in 2018 moved the HC. In 2020, the HC directed BMC to verify claims, and if found illegal, to take action against structures in four weeks. With no action despite the HC order, the builder filed for contempt and also for inquiry against civic and police officials.
The HC rejected BMC lawyer Anoop Patil’s claim that the structures “could not be identified” hence couldn’t be demolished. To a court query about verifying other structures, Patil said they were on private land, beyond BMC’s jurisdiction. The HC found his submission “contrary to the basics of law”.
“Every property owner can’t be thrust with a compulsion to have security guards to protect their property,” the HC said, and added that civic chief must act not only against illegal structures but against recalcitrant officers. It directed L ward officer to oversee demolition personally and file compliance in two weeks.
HC also directed civic chief Bhushan Gagrani and Joint CP (L&O) to file affidavits to show cause why they and their predecessors (disclosing the names of all concerned), who were tasked to comply with the 2020 HC order, should not be held responsible for wilful disobedience.
