Bombay High Court Stays Demolition Notice Against Senior Advocate, Flags 'Selective Approach' Of Mumbai Civic Body

The Bombay High Court recently stayed a notice by the Brihanmumbai Municipal Corporation (BMC) directing a practicing senior advocate at the HC - V Sridharan- to remove or demolish an alleged illegal merging of a niche area into his office space.

A division bench comprising Justice Gautam Patel and Kamal Khata noted neither was the advocate heard before the order was passed nor was any decision taken on the Society’s plea to regularize the construction.

The bench specifically made prima facie observations regarding the selective approach of the BMC wherein owners of large-scale illegal constructions were merely served notices and alleged minor illegalities were dealt with an iron hand.

“…for the most minor irregularity, the entire machinery of the Municipal Corporation of Greater Mumbai(MCGM( is thrown at it with considerable aggression, but for anything that is on a larger scale, other than a stop work notice, nothing at all happens.

The court said the BMC’s actions would have to be considered on Wednesbury’s principle of unreasonableness.

“Large scale illegalities directly affect the adherence to and implementation of planning law and generally of town planning. The merging of a niche area into an office is hardly comparable in a situation like this. At some point we will have to consider these actions on the basis of the doctrine of proportionality and Wednesbury unreasonableness — not merely in the context of a particular notice or case, but overall, about whether the highly selective implementation of notices and invocation of statutory powers can be said to meet the tests of either doctrine.”

The senior advocate approached the HC under Article 226 of the Constitution of India challenging a notice dated 23rd October 2023 passed by the Executive Engineer of the BMC under Section 351 of the Mumbai Municipal Corporation Act to restore, remove or demolish the supposedly “unauthorised” merging of a niche area into his office or chamber premises.

This was supposed to be done within 15 days, by November 15 2023. In default, the BMC threatened demolition, the court noted.

The petitioner claimed the notice was received on 31st October 2023 and demolition was apprehended by 14th November 2023.

The BMC sought time to file an affidavit in reply. The court directed it to be filed an served by December 4 and permitted a rejoinder by December 11. The bench said it intended to hear the petition finally on December 13, 2023.

“In the meantime, the impugned notification is stayed. The MCGM will not take further action against the niche in question and will send no further notices in that regard. It may proceed to decide the regularisation application, but if that application is rejected, no further action will be taken in respect of the niche in question until further orders,” the court said.

Appearances – Mr Prakash Shah, i/b PDS Legal, for the Petitioner. Mr Kunal Waghmare, for the Respondent – MCGM.

Case Title - V Sridharan Versus Brihanmumbai Municipal Corporation & Ors

Case No- WRIT PETITION (L) NO. 30813 OF 2023

Click Here To Read/Download Order