Bombay High Court Stays Demolition Notice Against Senior Advocate V Sridharan, Says BMC Is Highly Selective In Sending Notices

The bench was of the opinion that observing the cases in the past, BMC has considerable aggression for minor irregularities while does nothing than merely issuing stop work notices for large scale irregularities. Indicating towards BMC’s action to be tested on two parameters viz., the doctrine of proportionality and Wednesbury principle, it observed, “…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”.

Accordingly, while staying the impugned notification a bench of Justice G.S. Patel and Justice Kamal Khata ordered, “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”.

Advocate Prakash Shah, PDS Legal appeared for the petitioner, and Advocate Kunal Waghmare appeared for the respondent.

The petitioner challenged a notice passed by the Executive Engineer of the Municipal Corporation of Greater Mumbai (MCGM) under Section 351 of the Mumbai Municipal Corporation Act, 1888 (MMC Act) directing to restore, remove or demolish. The MCGM issued the notice on October 23, 2023, according to which the action had to be taken within 15 days and in default, demolition was threatened by it. Since the notice was received on October 31 2023, the demolition was apprehended by November 14, 2023.

The grounds of challenge inter alia included that the order was passed without any notice or opportunity of being heard to the petitioner. Further, it was contended that it was a non-speaking order that did not address the merits of the case.

Additionally, it was argued that the MCGM had previously examined and inspected the building at least three times, however, no objection was raised then. There is also a regularisation application by the Society of which the Petitioner is a member. This application covers the work in question. It has never been decided.

Accordingly, noting the area that became an issue, the bench on ‘selectivity’ thus further observed, “…for the most minor irregularity, the entire machinery of the 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. 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…Here, we are not concerned with a building, a structure or many thousand of square feet. We are confronted with a niche. It is probably no more than a reasonable closet-sized space. In context: hundreds of thousands of square feet being constructed openly — stop work notice. A tiny niche incorporated into one of Mumbai’s notoriously cramped workspaces — demolish”.

The bench will now take up the petition on December 13, 2023.

Cause Title: V Sridharan v. Brihanmumbai Municipal Corporation & Ors