The court held that the Respondents' unauthorized amalgamation of flats violated statutory obligations, leading to contempt findings against them and the BMC for failing to enforce compliance with court orders.

JUDGMENT :

Kamal Khata, J.

1) By this Petition under Article 226 of the Constitution of India, the Petitioner seeks the following prayers:

“(a) that this Hon’ble Court may be please to issue a writ of mandamus/direction and/order of a like nature be issued against the Respondent Nos.3 and 4, after considering the legality and validity or otherwise thereof, directing the Respondent No.3 and 4 to demolish the unauthorized structure/shop as more particularly set out in “Exh-E”.

(b) that this Hon’ble Court direct the Respondent No.1 and 2 to restore the said flats No.1A and 2 in their original state.

(c) that a writ of mandamus/direction and/order of a like nature be issued against the Respondent No.3 and 4 to demolish all encroachment over the property of the Petitioner in violation of the provision of law.”

Brief facts that led to the Petition are as under:

2) The Petitioner is a Society situated at Peddar Road, an elite location in Mumbai. They complained to Respondent Nos.3 and 4 (BMC) that it’s member the Respondent Nos. 1 and 2 - owners of flat No. 2 (on the ground floor) have amalgamated the adjoining flat No.1A owned by a deceased member Dr. L Soneji. The illegalities they complained of were, that the Respondent Nos. 1 and 2 had (i) affixed a door usurping the common area leading to the two flats, (ii) installed a mild steel shutter to create an access of the flat to the main road and most importantly (iii) demolished the dividing walls of the flats endangering the structural stability of the building.

3) The Respondent Nos.1 & 2 retained their changes despite requests and written communications by the Society. Though called upon, the Respondent Nos.1 & 2 failed to produce the BMC permissions for the changes effected and their legal right to flat 1A. Following Society’s complaints, the BMC merely issued 3 notices warning the Respondent Nos.1 & 2 but failed to restore the flats to its original position. Concerned about the structural stability of their building, having waited for a considerable period of 18 months, the Society was compelled to file this Petition.

Contentions:

4) Mr. Kunal Patel, learned counsel for the Petitioner – Society asserts that, not only have the Respondent Nos.1 and 2 willfully deliberately and brazenly ignored the BMC. If that wasn’t enough, the BMC failed to comply with the Court orders dated 22^nd June, 2006 and 27^th September, 2007. Its been almost nineteen years since. He drew our attention to the two orders which are reproduced for ready reference.

5) Paragraph No.5 of Court Order dated 22^nd June 2006 passed in Appeal from Order No.315 of 2006 in Notice of Motion No.1443 of 2006 and Notice of Motion No.1406 of 2006 in S. C. Suit No.1511 of 2006 with Civil Application No. 401 of 2006 was as under:

“5. In the meantime, the parties are directed to maintain status quo with regard to the suit property in terms of possession as of today as well as to the structure which is standing on the site. This status quo order, however, will not preclude the corporation from proceeding with proposed action under section 351 of the Mumbai Municipal Corporation Act.”

(Emphasis supplied)

6) Order dated 27^th September, 2007 in the Present Writ Petition directed as under:

1. Heard the learned counsel for the petitioner and the learned counsel for respondent numbers 3 and 4. respondent No 1 is personally present before the court. We have perused the letter issued by the executive engineer building proposal, city-I dated 21st September 2007 wherein it is categorically mentioned that the earlier proposal of Mr nishant mahimtura submitted by architect shree Sachin Wairkar was rejected by the said executive engineer on 26th March 2007. It appears that there after there is no proposal pending before the set executive engineer building proposal, city-I.

2. Under these circumstances, rule. By way of interim relief we direct respondent numbers 3 and 4 to demolish all illegal encroachments and constructions which have been carried out in fl