MUMBAI: Supreme Court stayed BMC’s demolition of an unauthorised construction in Vakola, a day after the municipality assured Bombay high court that the “offending” structure would be demolished within a week.
Justices Vikram Nath and Prasanna Varale of SC took up the hearing on Thursday 3.55pm and noted that in a contempt petition, “some order was passed yesterday…apparently, permitting BMC to demolish the first floor of the building in respect to which the status quo order is operating”. Senior advocate D S Naidu, citing urgency, said HC’s order, “pursuant to which the demolition has started today, has not been uploaded as of now”. He showed photographs of the civic body’s demolition squad at the site. “If the demolition exercise is still going on, the same shall be stopped forthwith,” the SC judges directed.
They issued a notice to BMC, posted the hearing on Dec 5 and sought a report from HC registrar general “with regard to uploading of the [HC] order…”
The special leave petition was filed in SC by Rajendra Gomai and family, occupants of the 4,500 sq ft property, which has structures on it. In March 2016, L civic ward office issued a notice to Gomais to remove the unauthorised structures. They moved HC, which in May 2016, directed a status quo to be maintained – it was continued from time to time. In 2019, BMC filed a contempt petition that HC’s status quo order was violated by further illegal construction on the site, and in July 2018, it issued a stop-work notice.
Before the bench of Justices Ajay Gadkari and Kamal Khata on Wednesday, Gomais’ advocates Rajesh Kachare and Sachin Shetye said the status quo order was in respect of the first floor and further construction on the ground floor was not affected by it. But the judges rejected the submission, stating that by “misreading and misrepresenting” the May 2016 order, Gomais carried out further illegal construction and “this…is clearly taking advantage of the status quo order…which is unconscionable.” They noted Kachare failed to produce BMC permission when asked for. “…the respondents have certainly attempted to take the judicial system for a ride and for granted…It is one of the rare cases where the Corporation has initiated contempt proceedings…,” the judges said.
They further noted that BMC records revealed illegal construction of approximately 5,000 sq ft on the first floor as per the March 2016 notice, and 900 sq ft on the ground floor as per the July 2018 stop-work notice. Also, in their reply-affidavit, the Gomais had not proven existence/permissions prior to the datum line or as a tolerated structure, and as per their records, it is a residential structure.
The HC judges, from BMC officers’ “uncertain and unacceptable” answers, said they were led to “draw an inference that the officers… are in cahoots with respondents and/or more interested in protecting the illegal structure than its demolition”.