Court’s Decision:
The Bombay High Court dismissed the writ petition filed by Rafique Rahemtullah Kabani, challenging the demolition notice issued by the Brihanmumbai Municipal Corporation (BMC) under Section 53 of the Maharashtra Regional and Town Planning (MRTP) Act, 1966. The Court upheld BMC’s decision to demolish the unauthorized construction of the 2nd to 8th floors of the petitioner’s building and imposed a cost of ₹50,000 on the petitioner for misleading the Court.
Facts of the Case:
The petitioner, Rafique Rahemtullah Kabani, occupies a flat on the 8th floor of a building constructed by M/s. A.G. Developers and M/s. Rao & Associates in Mumbai. The BMC had approved the construction of the building only up to the 1st floor. However, the developers constructed floors up to the 8th floor without the necessary permissions and approvals. The petitioner challenged BMC’s demolition notice, arguing that the building’s illegal construction should be regularized.
The BMC issued a demolition notice in 2018, citing that the building beyond the 1st floor was constructed without approval. The petitioner and the housing society attempted to regularize the unauthorized floors but were unsuccessful.
Issues:
- Whether the petitioner could challenge the demolition notice despite the lack of permissions and approvals for the 2nd to 8th floors.
- Whether the unauthorized construction could be regularized under the MRTP Act.
Petitioner’s Arguments:
- The petitioner argued that the demolition notice violated principles of natural justice as the notice was not served to all occupants.
- The petitioner claimed that the BMC’s action was inconsistent with the Court’s earlier directions regarding other illegal structures in the building.
- It was argued that the construction could be regularized and that BMC had failed to act on previous illegalities related to other parts of the building.
Respondent’s Arguments (BMC):
- BMC contended that the building approvals were only for the basement and 1st floor, and the construction beyond the 1st floor was unauthorized.
- BMC argued that the petitioner’s defense lacked merit, as no permissions or approvals were ever obtained for the additional floors.
- BMC further stated that the petitioner and the housing society had failed to justify the unauthorized construction and had no occupancy certificate or fire safety clearance.
Court’s Analysis:
The Court found that the petitioner had failed to produce any evidence of approvals for the construction beyond the 1st floor. The Court noted that the unauthorized construction violated municipal regulations and could not be regularized, especially given the petitioner’s failure to comply with legal requirements for occupancy and fire safety.
The Court emphasized that unauthorized constructions could not be allowed to stand, particularly when carried out with impunity and in disregard of the law. The Court also rejected the petitioner’s arguments regarding natural justice, noting that the BMC had issued sufficient notice and given ample opportunity for the petitioner to present his case.
Conclusion:
The Bombay High Court dismissed the petition and directed BMC to proceed with the demolition of the unauthorized floors. The Court imposed a cost of ₹50,000 on the petitioner for misleading the Court and delaying the demolition. The BMC was ordered to complete the demolition within three months and submit a compliance report by January 2025.
