Owners Court Co-Operative Housing Society Limited And 2 ORS v. Municipal Corporation Of Greater Mumbai And 4 ORS
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.193 OF 2018 IN WRIT PETITION (L) NO.595 OF 2018 Owners Court Co-operative Housing Society Limited And Others ...
Applicants/Petitioners
Versus
Municipal Corporation of Greater Mumbai And Others ...
Respondents .....
Mr. Satyan N. Vaishnav a/w Ms. Nupur J. Mukherjee I/b N.N. Vaishnawa & Co. for the Petitioners.
Ms. Dhruti Kapadia a/w Ms. Pooja Yadav for Respondents-MCGM. ....
CORAM : S.C.GUPTE, J.
DATE : 10 APRIL 2018 P.C. :
.
Heard learned Counsel for the parties.
This Notice of Motion is taken out for restoration of a structure, which was demolished by the Municipal Corporation of Greater Mumbai ("MCGM"), the Respondents herein, on 2 April 2018. The Petitioners have filed the present petition inter alia praying for quashing of an order passed by MCGM under Section 351 of Mumbai Municipal Corporation Act, 1888 for demolition of this very structure. The petition was pending admission before this Court and at that stage, an ad-interim order was passed on 5 March 2018 requiring MCGM not to take any coercive steps in pursuance of the impugned order till the next date. The writ petition was thereafter
2/3 adjourned to a further date on 27 March 2018 and the ad-interim relief was directed to continue till the next date. The next date was 10 April 2018. There is no contest that the structure in fact was demolished by MCGM on 2 April 2018. Learned Counsel for MCGM, however, brings to my notice an order passed by a Division Bench of this Court on 22 November 2018. This order was passed in an earlier writ petition filed by the Petitioners herein. By this order, the Division Bench disposed of the earlier petition with directions to MCGM to consider the Petitioners' documents, if any, submitted by them within stipulated time and take a decision. If the decision was adverse to the Petitioners, the Petitioners were given liberty to apply for regularization by making an appropriate on-line application through a licensed Architect.
Such application, if any, was directed to be decided by MCGM in accordance with law. Learned Counsel submits that since no application was made in accordance with this order till date, the concerned officer of MCGM went ahead with the demolition. It is submitted that at that stage, the officer was not mindful of the ad-interim order passed by this Court, requiring MCGM not to take any coercive steps in the matter. Learned Counsel for MCGM apologizes on behalf of MCGM for this inadvertent error. The apology is accepted and the Notice of Motion is made absolute in terms of prayer clause -(b) of the notice of motion.
It is made clear that the structure would be reconstructed by the Petitioners in accordance with prayer clause -(b) exactly as the same existed prior to its demolition and a notice of such reconstruction shall be given to MCGM to enable it to depute its officer for inspecting the work. It is also made clear that this order is passed only in view of inadvertent demolition of the suit structure in the face of a restraint order passed by this Court.
3/3 the legality or otherwise of the structure itself; that is a matter to be decided at the hearing of the petition.
Learned Counsel for MCGM seeks time to file a reply. Reply, if any, to be filed and served on the Petitioners within two weeks from today. The writ petition to appear on Board for admission on 27 April 2018. (S.C. GUPTE, J.)