IMPORTANT POINT
The court established that unauthorized constructions cannot be regularized and that compliance with municipal regulations is mandatory for legality.

JUDGMENT :

M.S. Sonak, J.

1. Heard Mr Bhushan Joshi, learned counsel for the Petitioner, Mr Rajshekhar Govilkar learned Senior Advocate with Ms Sujata Puri and Ms Shaba Khan, instructed by Mr S.K. Sonawane, learned counsel for BMC (1st and 2nd Respondents) and Mr Mandar Soman with Mr Divakar Rai for the 5th Respondent. The 3rd and 4th Respondents, though duly served, were absent.

2. Rule. The Rule is made returnable immediately at the request of and with the consent of the learned counsel for the parties.

3. The Petitioner challenges notice No.CE/4362/BSII/AH dated 12th June 2018 under Section 53 of the Maharashtra Regional and Town Planning Act, 1966 (“MRTP Act”) by the Brihanmumbai Municipal Corporation (“BMC”) for the removal of the structure viz. (i) work carried out beyond the approved plan, i.e. 4th floor to 8th floor, (ii) work carried out beyond the approved plan i.e. 2nd floor to 8th floor Phase 1.

4. The Petitioner, in the alternate, prays that the direction be issued to the BMC not to implement its above notices under Section 53 of the MRTP Act until the competent authority decides on the 5th Respondent’s application for regularisation in respect of the structures forming the subject matter of the impugned notices.

5. Mr Joshi submitted that the impugned notices, though served on the owner/developer and the 5th Respondent (Society), were not served upon each of the occupants of the premises, which are now ordered to be demolished and removed. He, therefore, submitted that this would amount to a breach of the principles of natural justice, and the impugned notices may be set aside on this ground.

6. Without prejudice, Mr Joshi submitted that the show cause notice dated 12th September 2017 referred only to the six specific but alleged illegalities listed in the Schedule to this notice. However, the impugned notice/speaking order dated 12th June 2018 inter alia refers to the structure/building from the 2nd to the 8th floor. He, therefore, submitted that the final order dated 12th June 2018 travels beyond the show cause notice dated 12th September 2017, and again, for this reason also, there is a breach of the principles of natural justice and fair play.

7. Finally, Mr Joshi submits that this Court, in its order dated 7th June 2017 disposing of Writ Petition No.56 of 2017 instituted by the 5th Respondent (Society), had only directed action against the V. C. Fitness Centre (as described in Exhibit “B” to this Petition) at the entrance of the building and some other structures specified in the said Writ Petition. Therefore, when the BMC officials inspected the building, they were required to focus only on the illegalities referred to in Exhibit “B” to the said Petition or other structures forming the subject matter of Writ Petition No.56 of 2017. He submitted that action against the 2nd to 8th floor of the building was neither sought nor formed the subject matter of Writ Petition No.56 of 2017. Therefore, he submitted that the BMC’s impugned action transgresses this Court’s order dated 7th June 2017 in Writ Petition No.56 of 2017.

8. Mr Joshi submitted that the impugned notices/speaking order must be set aside for all the above reasons.

9. Mr Soman, learned counsel for the 5th Respondent (Society), also strongly supported Mr Joshi’s contentions. He submitted that the Society’s Writ Petition No.56 of 2017 had no concern with the 2nd to 8th floor. This Petition only concerned V. C. Fitness Centre and possibly the other structures referred to in the show cause notice dated 12th September 2017 issued by the BMC. He submitted, therefore, that the impugned notices/speaking order, to the extent they directed the removal/demolition of the 2nd to 8th floor, was improper and even illegal.

10. Mr Soman submitted that the BMC had committed contempt of this Court by not faithfully implementing this Court’s order dated 7th June 2017 in Writ Petition No.56 of 2017 instituted by the 5th Respondent (Society) because no action was taken against the i