'Construction Patently Illegal,' Says Bombay HC, Orders BMC To Demolish 7 Floors Of Khar's Shivanjali Society

Mumbai: The Bombay High Court has ordered the demolition of seven floors of an eight-storey residential building in Khar West, Shivanjali Co-operative Housing Society, and called the construction “patently illegal and unauthorised”.

The court has also imposed a cost of Rs 50,000 on the petitioner Rafique Kabani, who resides on the eighth floor, for “misleading the court and making selected disclosures” while acquiring an interim stay on the demolition order.

Observation Made By The Bombay HC

The court noted that the documents clearly showed that the commencement certificate (CC) issued for the building in May 1993 was only for the construction of the first floor. However, the building constructed by AG Developers and Rao & Associates comprised a basement, a ground floor, and eight upper floors.

“The construction of the building beyond the first floor is patently illegal and unauthorised. This is in addition to illegal constructions in the basement and on the ground and first floors,” a bench of Justices MS Sonak and Kamal Khata said on September 11.

About The Petition

The HC was hearing a petition by Kabani, who had challenged the demolition June 2018 notice issued by the BMC. Pending hearing in the petition, the HC had granted an interim stay on the notice and restrained the civic body. Kabani’s advocate Bhushan Joshi submitted that the BMC had issued a show cause notice to the society in September 2017, highlighting only six illegalities. However, in June 2018, the BMC directed the demolition of the seven top floors, which was not in the show cause notice. Hence, this was a “breach of natural justice”, Joshi argued.

Point Made By BMC Counsel Rajshekhar Govilkar

BMC counsel Rajshekhar Govilkar pointed out that the building approvals were only for the ground plus the first floor. Yet with impunity and complete disregard for law and regulations, the builders and developers constructed seven additional floors and inducted society members without any occupancy certificate, fire clearance, or other mandatory compliances, he argued. Govilkar further said that the authorities had rejected applications filed by the society for regularisation of illegal floors.

In the detailed order, the court noted that it asked the society, which supported Kabani’s petition, to produce documents to support its claim of necessary permissions.

“If there were any permissions or approvals, it would be the first document the petitioner would have produced on record,” the court added that no such document was produced.

The HC has asked the BMC to execute its June 2018 notice within three months and show compliance by January 6, 2025. The court emphasised that constructions brazenly made with impunity, disregarding all rules and regulations, should not be regularised.

“Regularisation is only an exception that can be resorted to in exceptional circumstances,” it added.