Bombay High Court Slams BMC For Insensitivity, Directs Developer To Vacate Land Reserved For Nair Hospital Extension

The court also pulled up BMC for not showing any urgency in getting the premisses back from the developer.

"In a city like Mumbai, where space comes at a premium, the sheer apathy on the part of the MCGM to get back the premises and hand it over to Nair hospital is appalling", the court remarked.

A division bench of Chief Justice Dipankar Datta and Justice MS Karnik ordered the Developers to vacate the premises within a month in a PIL petition filed by one Imran Qureshi seeking that the land reserved for extension of the hospital be handed over to the hospital.

Despite the petition being filed in 2013, the court took suo moto cognizance of the matter in July 2022 as there was some doubt regarding the locus of the petitioner. The court appointed Advocate Aseem Naphade as amicus curiae in the case.

The land consisting of two godowns originally belonged to Hindustan Spinning and Weaving Mills Ltd. State government acquired the land for extension of Nair Hospital and handed it over to the BMC. One Nalini M. Amin occupied godowns adjacent to the Nair Hospital compound. The godowns were used to construct a hostel for nurses. Due to Nalini being a project affected person, BMC via a leave and licence agreement permitted her to occupy the premises obtained from Hindustan Spinning and Weaving Mills Ltd.

In 2003, Nalini gave the land to Rubberwala Developers through a tenancy agreement without written permission of the BMC as stipulated by the leave and licence agreement. The Developer immediately filed applications for repair of the premises. The Developer demolished the godowns without obtaining the Commencement Certificates.

The Additional Municipal Commissioner (WS), despite noting the irregularity of the demolition, recommended the proposal for repairs subject to the conditions that the Developer would restore the premises when MCGM wants them and that no permanent construction will be made.

The Dean of Nair hospital repeatedly requested that the portion allotted to Nalini was required for the hospital.

The court noted that plans for extension of Nair hospital were prepared and the BMC was expected to process the plans and proceed with the public purpose for which the land was acquired. The court said that the BMC's conduct gives the impression that it was just not interested in the interest of the public. The developer is virtually allowed to have his way by the MCGM, the court said.

"We are amazed at the insensitivity which is displayed in the present case as we find that one of the officers of the MCGM had the audacity to ask the Dean of Nair Hospital as to why Nair Hospital needs the Dharmashala, despite the fact that the land in question was acquired for Nair Hospital, and it is the Dean's views which should have received primal importance. We would have expected the MCGM, even now to have displayed a sense of urgency. Surprisingly there is none."

The court observed that the developer systematically legitimized his claim in the land meant for public purpose on the basis of a tenancy agreement entered with Nalini. BMC should have evicted the developer on noticing that Nalini had assigned the rights in the premises without written permission of the Municipal Commissioner, it said.

The court said that the decision-making authorities approached the matter from the point of view of the interest of a private developer instead of safeguarding public interest. Developer agreed to hand over the possession of land to the corporation if needed. The court said that MCGM conveniently overlooked the overwhelming public interest by allowing all the breaches committed by the developer to be regularised. The court observed that the breaches on the part of the developer were condoned at every stage. The court said that there has been gross abuse of powers at the cost of overwhelming public interest in the present case.

"It is disturbing to note that such gross irregularities in the matter of transfer of tenement, are sought to be regularized in a manner which has an effect of defeating public interest", the court stated.

The court noted that the developers have occupied the premises for more than 14 years but the BMC has not shown any urgency in getting the premises back since 2008 except for saying that the extension is proceeding in a phased manner and the developer will be asked to handover the premises at the appropriate time.

The court said that instead of taking action against Nalini for violating the terms of her tenancy, the BMC recognised the developer as a licensee. The court found the stance of the BMC "as cold as it can be".

"This is a classic case of how the Developer has got away with so many irregularities and yet the MCGM except for saying that at the appropriate stage they will recover the possession, nothing is done. The manner in which the officials in the higher echelons of the MCGM proceeded at the relevant time is not only shocking, against public interest, but to the detriment of Nair Hospital and ultimately the citizens for whom the land was acquired", the court observed.

The court however, noted that some authorities below the Additional Municipal Commissioner recommended that the developers should be evicted and the premises should be handed over to Nair Hospital. The court appreciated the efforts of the Deputy Municipal Commissioner and other officials "who made an attempt to put up the proposals in accordance with the law, but they unfortunately had to fall in line with the dictates of their superiors."

Case no. – Public Interest Litigation No. 65 of 2013

Case title – Imran Suleman Qureshi v. Municipal Corporation of Greater Mumbai

Citation: 2022 LiveLaw (Bom) 382