Pradnya IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 3616 OF 2018

1. RAFIQUE RAHEMTULLAH KABANI, An adult of Indian inhabitant Aged about 55 years, Occ: Retired Having address at, Flat No.801, 8^th floor, Shivanjali Co-operative Hsg Society Ltd., 35, Dr. Ambedkar Road, Khar (W)

Mumbai – 400 052 …PETITIONER ~ versus ~

1. THE ASSISTANT ENGINEER &

DESIGNATED OFFICER, H/west Ward, St. Martin Road, Bandra (West)

Mumbai 400 050.

2. MUNICIPAL CORPORATION OF GREATER MUMBAI, having office at Mahapalika Building, opp. CST, Mahapalika Marg, Mumbai – 400 001.

3. M/S. A. G. DEVELOPERS, A partnership firm registered under the Provisions of the Partnership Act, 1932 Having its office at Accost, 151, Pali-

Road, Bandra (W), Mumbai – 400 050.

4. M/S. RAO & ASSOCIATES, A partnership firm registered under the Provisions of the Partnership Act, 1932 Having its office at 18-C, Meadows-

House, 3^rd floor, Nagindas master Road, Fort, Mumbai – 400 001.

5. SHIVAJANLI CO-OPERATIVE HSG SOC LTD LIMITED, a Housing society Registered Under the Provisions of the Maharashtra Co-operative societies Act, 1960, having its address at 35, Dr. Ambedkar Road, Khar (W), Mumbai - 400052 …RESPONDENTS APPEARANCES FOR THE PETITIONER IN Mr Bhushan Joshi.

WP/3616/2018 FOR RESPONDENT NO.5 IN Mr Mandar Soman, a/w Mr WP/3616/2018 Divakar Rai, Mr Nitin Rai, Mr Raj Tamhankar and Mr Aditya Rai, i/b Mr Saurabh Tamhankar.

FOR RESPONDENT NOS.1 AND Mr Rajshekhar Govilkar, Senior 2-BMC Advocate, a/w Ms Sujata Puri a/w Ms Shaba N. Khan, i/b Mr S. K. Sonawane.

CORAM : M. S. Sonak &

Kamal Khata, JJ.

RESERVED ON : 30th August 2024 PRONOUNCED ON : 11th September 2024 JUDGMENT ( Per 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