MUMBAI: Supreme Court has stayed Bombay HC’s order that found the owners of a ground floor flat in a Pedder Road building guilty of contempt of court for illegally amalgamating an adjoining flat by removing the common wall. Both flats house a designer clothes store.
“We have not been able to understand on what basis the high court exercised its contempt jurisdiction and held the petitioners herein guilty of contempt and now to be heard on the point of sentence while deciding a writ petition under Article 226 of the Constitution,” said a bench of Justices J B Pardiwala and R Madhavan on Monday. It said “high court shall not proceed further with the passing of any order on the point of sentence”.
The apex court was hearing an appeal by design label Libas’s chairman, Nishant Mahimtura, and executive director and fashion designer Riyaz Gangji. HC’s Jan 21 judgment, passed by Justices Ajay Gadkari and Kamal Khata, held them “guilty of contempt, having brazenly, wilfully, and successfully violated and continue to violate” the court’s two orders passed nearly 19 years ago.
They were directed “to personally appear” on Feb 18 and reply explaining why they should not be sentenced under Contempt of Courts Act. Also, the HC registry was to issue them notice “to respond to the sentence term and fine” under the Act.
Sukhshanti CHSL had complained to BMC that its members, Mahimtura and Gangji, owners of a flat on the ground floor, amalgamated an adjoining flat owned by a deceased member. They affixed a door usurping the common area leading to the two flats, installed a mild steel shutter to create access to the flat to the main road, and demolished the dividing wall of the flats, thereby endangering the building’s structural stability. In June 2006, HC permitted BMC to proceed with the demolition notice. In 2007, it directed the civic body to demolish all illegal construction in both flats. BMC’s Nov 15, 2024, reply revealed that it removed only the door enclosing the common area.The appeal in SC said HC rendered findings of contempt without any contempt proceedings ever being initiated, without any notice, and “without any order/direction passed against the petitioners which is shown to have been disobeyed”. Also, “direction for prosecution and fine are without jurisdiction.”
The SC bench said, “Initially, we gathered an impression that the subject property is a residential apartment since everywhere (in HC’s order), we get to read the word flats.” But senior advocate Mukul Rohatgi, for the petitioners, “clarified it is not a residential apartment but a commercial apartment on the ground floor”. Rohatgi said the door in the common area and the shutter were removed. Further, the wall which HC is “talking about” was put up by BMC, he said.
“Prima facie, it appears that the wall was reconstructed at the instance of BMC with a view to provide structural stability to the building,” SC noted. Issuing notices to Sukhshanti Society and BMC, it directed: “Parties to maintain status quo as regards the nature, character and possession of the property in question.”
