MUMBAI: Observing that the benefit of regularisation is never to be extended to parties who violate building or environmental regulations brazenly and with impunity, Bombay high court on Wednesday directed the demolition of seven floors of an eight-storey building in Khar (W). The HC said BMC had already rejected a plea to regularise floors two to eight and a “vague” plea that the society’s plea was still pending was “a little mischievous, if not misconceived”.
The HC directed BMC to undertake the demolition based on its June 2018 notice against the illegal top seven floors of Shivanjali Co-operative Housing Society within three months. A division bench of Justices M S Sonak and Kamal Khata said it was evident from documents that the commencement certificate (CC) issued for the structure, constructed by A G Developers and Rao & Associates, was only for the construction of the first floor, but the building comprised a basement, ground floor, and eight upper floors.
An eighth-floor resident had petitioned HC in 2018 seeking stay on a BMC notice of June 2018 to remove constructions from the second to eighth floors, carried beyond approved plans, till the society’s regularisation plea is decided.
The HC referred to various Supreme Court rulings that elaborated on how regularisation of illegalities ought to be kept to the minimum. The bench said Bombay HC itself in 2022 had held against showing any indulgence to “unlawful constructions that are brazenly put up. Only such deviations be condoned which are bona fide or attributable to some misunderstanding or where a demolition may cause more harm than good”.
After hearing advocates Bhushan Joshi, representing petitioner-resident Mandar Soman for the housing society, and R V Govilkar for BMC, the HC said the CC of 1994 authorised only the basement and first floor and in Aug 1994, BMC had issued a Section 354 (against unauthorised construction) notice for second to eighth floors. In April 2004, too, a notice was issued under the MRTP Act and in July 2004, a police complaint was filed as the builder failed to comply with the requisition to demolish construction beyond the first floor.
The HC, while dismissing the petition, imposed costs of Rs 50,000 on the petitioner to be paid to BMC since the “petitioner secured an interim order by misleading the court and making selected disclosures”.
Meanwhile, in 2017, the society had filed a civil contempt plea against BMC for allegedly flouting a 2017 HC order calling for an assistant commissioner to visit, verify, and take action about an alleged illegality by another person on the premises. The HC, in a separate order, disposed of this plea by accepting BMC’s apology and assurance of complying with court orders and to implement a “comprehensive demolition order dated June 12, 2018, within…four months”.
The HC sought a compliance report from BMC by Jan 20.
