Case Note & Summary
The appellant, Shubh Apartments CHS Ltd., a cooperative housing society, filed an appeal against an order vacating the status quo granted in its favour in a suit challenging a demolition notice issued by the Municipal Corporation of Greater Mumbai (MMC) under Section 351 of the MMC Act dated 19th November 2005 for unauthorised construction of the 6th and 7th floors of its building. The society was one of several buildings constructed under a single sanctioned plan dated 8th June 1981 in a layout. Other societies in the same layout had also constructed unauthorised floors and filed suits, but their interim applications were dismissed, and appeals and SLPs were also dismissed. The Supreme Court, in a transferred writ petition, rejected the prayer for regularisation of the unauthorised construction and directed demolition of all construction in excess of the sanctioned plan. The appellant society, however, continued to enjoy a status quo order. The MMC applied to vacate the status quo, which was allowed by the trial court, leading to this appeal. The appellant argued that its case was different because it had more FSI than its construction, so the 6th and 7th floors could be regularised. The court noted that the same architect, Mr. Tipnis, had applied for regularisation for all societies, and the Supreme Court had rejected it. The court found no merit in the appeal and dismissed it, holding that the appellant's case was not distinguishable from the other societies. The judgment was pronounced on 24th July 2013 by Justice Roshan Dalvi.
Headnote
A) Municipal Law - Unauthorised Construction - Section 351 of the Mumbai Municipal Corporation Act, 1888 - Demolition Notice - The appellant society challenged a demolition notice for 6th and 7th floors constructed without sanction. The court held that the society's case was not distinguishable from other societies in the same layout whose regularisation was rejected by the Supreme Court, and the status quo order was rightly vacated. (Paras 1-6) B) Civil Procedure - Interim Orders - Status Quo - The court considered that the appellant had obtained status quo which was extended until suit hearing. However, in light of the Supreme Court's order directing demolition of similar unauthorised constructions, the interim protection could not continue. (Paras 2, 5) C) Property Law - Regularisation of Construction - The appellant claimed additional FSI justified regularisation, but the court found that the same architect had applied for regularisation for all societies, and the Supreme Court had rejected it. The appellant's claim of distinction was not accepted. (Paras 4, 6)
Issue of Consideration
Whether the appellant society is entitled to maintain status quo order protecting unauthorised construction when the Supreme Court has already directed demolition of similar unauthorised constructions in the same layout and rejected regularisation.
Final Decision
Appeal dismissed. Impugned order vacating status quo upheld.
Law Points
- Section 351 of the Mumbai Municipal Corporation Act
- 1888
- Regularisation of unauthorised construction
- Res judicata
- Binding nature of Supreme Court orders
