The Bombay High Court addressed a writ petition filed by the petitioner, Rafique Rahemtullah Kabani, challenging the demolition notices issued by the BMC. The notices were directed against unauthorized constructions from the 2nd to the 8th floor of the Shivanjali Cooperative Housing Society, exceeding the approved building plans. Kabani argued that these notices violated principles of natural justice as they were not served individually to each occupant, and that previous court orders had limited the scope of action to certain structures, not the upper floors.

The court found that the petitioner and the housing society had failed to provide any evidence of permissions for constructing the illegal floors and rejected the plea for regularization. The court emphasized that unauthorized construction cannot be legalized post-facto without valid grounds and imposed a fine of ₹50,000 on the petitioner for misleading the court through selective disclosures. The court also instructed the BMC to demolish the illegal floors within three months.

1. Parties Involved:

   • Petitioner: Rafique Rahemtullah Kabani, a resident of the 8th floor in the Shivanjali Cooperative Housing Society, Mumbai.
   • Respondents:
     • The Assistant Engineer & Designated Officer, BMC.
     • Municipal Corporation of Greater Mumbai (BMC).
     • Developers (M/S. A.G. Developers).
     • Shivanjali Co-operative Housing Society.

2. Issue:

   • The BMC issued a notice under Section 53 of the Maharashtra Regional and Town Planning Act, 1966 (MRTP Act) for unauthorized construction from the 2nd to the 8th floor of the building. The petitioner challenged the notice on the grounds of violation of natural justice and improper scope of action.

3. Court’s Findings:

   • The court found that the constructions from the 2nd to the 8th floors were unauthorized and violated the approved building plans, which only allowed construction up to the 1st floor.
   • The petitioner and the housing society failed to produce any permissions or approvals for the upper floors.
   • Previous court orders limited to action on specific structures did not prevent the BMC from taking notice of the illegalities related to the upper floors.
   • The court rejected the claim of natural justice violation, ruling that there was no real prejudice caused by the notices as the construction was patently illegal.

4. Decision:

   • The court dismissed the writ petition and imposed a fine of ₹50,000 on the petitioner for misleading the court.
   • The BMC was directed to demolish the unauthorized floors within three months and file a compliance report.

Legal Provisions Discussed:

• Maharashtra Regional and Town Planning Act, 1966 (MRTP Act) – Section 53: Relates to unauthorized construction and action to be taken by the planning authority for removal of such illegal structures.
• Mumbai Municipal Corporation Act, 1888 – Section 354A: Deals with the power of the corporation to take action against unlawful construction activities.

Ratio Decidendi:

The court held that unauthorized constructions cannot be protected or regularized under the law, especially when they are made with clear disregard for building rules and regulations. It is the duty of the municipal authority to ensure adherence to building laws, and failure to do so cannot be excused under technicalities of notice or delayed action. Regularization is an exception, not a right, and must not be used to condone deliberate violations.

Subject and Tags:

#Demolition notices #Building law violations #MRTP Act compliance #UnauthorizedConstruction #BuildingRegulations #BMC #Demolition #NaturalJustice