Order
1. This petition filed by Rajesh S. Parekh and three others against the order dated 29-4-2013 of the Division Bench of the Bombay High Court in Rajesh S. Parikh v. State of Maharashtra WP (Lodg.) No. 1076 of 2013 is another attempt by the owners/occupiers of flats in the buildings constructed in Campa Cola Compound, Worli to stall the action initiated by the officers and employees of Municipal Corporation of Mumbai (for short “the Corporation”) for demolition of the illegally constructed portions of the buildings.
2. Two of the petitioners are members of B.Y Apartments Cooperative Housing Society Ltd. and the other two are members of Esha Ekta Cooperative Housing Society Ltd. These two societies and Patel Apartments Cooperative Housing Society Ltd., Orchid Cooperative Housing Society Ltd., Midtown Apartments Cooperative Housing Society Ltd. and Shubh Apartment Cooperative Housing Society Ltd. and some of their members filed long cause suits for quashing notices dated 11-11-2005, 19-11-2005 and 5-12-2005 issued by the Corporation under Section 351 of the Mumbai Municipal Corporation Act, 1888 (for short “the 1888 Act”) and order dated 3-12-2005/8-12-2005 passed by the competent authority. They also filed applications for restraining the Corporation from demolishing the illegal portions of the building. The applications were dismissed by the trial court on the ground that the developers/builders had constructed many floors without obtaining permission from the Planning Authority. The trial court also observed that the members of the housing societies were very much aware of the illegal nature of the construction and they were not entitled to injunction.
3. The appeals filed by the housing societies and their members were dismissed by the learned Single Judge of the Bombay High Court. The special leave petitions filed by them, which were converted into Civil Appeals Nos. 7934-38 of 2012 were dismissed by this Court vide judgment dated 27-2-2013 (2013) 5 SCC 357. Writ Petition No. 6550 of 2010 filed by the Campa Cola Residents' Association, of which residents of the six housing societies are members, for regularisation of the illegal construction was transferred to this Court vide order dated 29-2-2012 (2012) 4 SCC 689 and was registered as Transferred Case (Civil) No. 55 of 2012. The same was also dismissed along with the civil appeals and it was declared that there is no impediment in the implementation of notices issued by the Corporation.
4. Paras 56 to 58 of judgment dated 27-2-2013 (2013) 5 SCC 357 are reproduced below:
“56. In view of the above discussion, we hold that the petitioners in the transferred case have failed to make out a case for directing the respondents to regularise the construction made in violation of the sanctioned plan. Rather, the ratio of the abovenoted judgments and, in particular, Royal Paradise Hotel (P) Ltd. v. State of Haryana (2006) 7 SCC 597 is clearly attracted in the present case. We would like to reiterate that no authority administering municipal laws and other similar laws can encourage violation of the sanctioned plan. The courts are also expected to refrain from exercising equitable jurisdiction for regularisation of illegal and unauthorised constructions else it would encourage violators of the planning laws and destroy the very idea and concept of planned development of urban as well as rural areas.
57. In the result, the appeals and the transferred case are dismissed and it is declared that there is no impediment in the implementation of notices issued by the Corporation under Section 351 of the 1888 Act and order dated 3-12-2005/8-12-2005 passed by the competent authority. The Corporation is expected to take action in the matter at the earliest.
58. We also direct that the State Government and its functionaries/officers as also the officers/employees of the Corporation shall not put any hurdle or obstacle in the implementation of notices issued under Section 351 of the 1888 Act.”
5. When the Corporation initiated action to demolish the illegal portions of the buildings, the petitioners herein filed Writ Petition No. 1076 of 2013. Some other members of the cooperative housing societies filed Writ Petition No. 1077 of 2013 with similar prayer. The Division Bench of the High Court referred to the judgment of this Court in Esha Ekta Appartments Coop. Housing Society Ltd. v. Municipal Corpn. of Mumbai (2013) 5 SCC 357, noticed the argument of the petitioners that the action taken by the Corporation is ultra vires the provision contained in Section 53(3) of the Maharashtra Regional and Town Planning Act, 1966 (for short “the 1966 Act”) and held that in view of the observations made by this Court, the High Court cannot interfere with the notices issued under Section 488 of the 1888 Act.
6. We have heard Shri F.S Nariman, learned Senior Counsel for the petitioners and Shri Goolam E. Vahanvati, learned Attorney General appearing for the Corporation and carefully perused the record. We have also gone through Section 53 of the 1966 Act relied upon by Shri Nariman in support of his argument that the Corporation is not entitled to carry out the demolition without giving notice to the occupiers under proviso to Section 53(3).
7. In our opinion, the petitioners are not entitled to invoke Section 53(3) of the 1966 Act in this round of litigation and seek protection of the construction which has been found to be illegal. While deciding Civil Appeal No. 7934 of 2012 and connected matters this Court considered all the contentions urged on behalf of the housing societies and their members and rejected the same by assigning detailed reasons. Therefore, the petitioners cannot be allowed to raise a new plea and frustrate the action being taken by the Corporation in furtherance of the notices issued earlier and the observations made by this Court.
8. Shri Nariman criticised the Corporation for giving only 48 hours notice to the occupiers of the illegal portions of the building, but we do not think that the officers and employees of the Corporation can be blamed for having taken action in the light of the notices issued in 2005 and the judgment of this Court.
9. The special leave petition is accordingly dismissed. However, keeping in view the fact that the occupants of the illegally constructed flats may not have got sufficient time to vacate the same, we allow five months' time to the petitioners and other occupiers of illegal portions of the buildings to vacate the same. This would be subject to the following conditions:
9.1 Within four weeks from today they shall file affidavits in this Court and give unequivocal undertaking that at the end of five months' period all of them will voluntarily vacate the disputed portions of the buildings and will not cause any hindrance in the action which may be taken by the Corporation in the light of the observations made by this Court in the judgment dated 27-2-2013 in Esha Ekta Appartments Coop. Housing Society Ltd. v. Municipal Corpn. of Mumbai (2013) 5 SCC 357.
9.2 During the period of five months, the petitioners and other occupiers shall not induct any other person in the disputed premises. They shall also not file litigation of any kind in the Bombay High Court or the courts subordinate to the High Court for frustrating the action already taken by the Corporation or which may be taken hereinafter.
10. Shri Nariman says that the Corporation has disconnected the amenities including the lift service to the buildings in question. Shri Vahanvati, learned Attorney General says that all the amenities which were available to the buildings till last week of April shall be continued for a further period of five months and if any service has been discontinued in the meantime, the same shall be restored immediately. It is made clear that at the end of five months' period the Corporation shall have to take action in the light of the observations made in the judgment dated 27-2-2013 (2013) 5 SCC 357.