BMC’s Action At Kangana Ranaut’s Residence In Bandra Prima Facie Does Not Appear To Be Bona Fide And Smacks Of Mala Fides: Bombay HC

   In a well-worded, well-analysed, well-justified and well-reasoned judgment titled Kangana Ranaut vs Municipal Corporation of Gr. Mumbai & Ors in Writ Petition (L) No. 3011 of 2020, a two Judge Division Bench of the Bombay High Court comprising of Justice SJ Kathawalla and Justice RI Chagla remarkably and rightly while restraining the Municipal Corporation of Greater Mumbai from carrying out any further demolition at Kangana Ranaut’s residence in Bandra could not restrain themselves from observing that if the Corporation acted with similar swiftness about the numerous unauthorized constructions in the city, this city would have been a completely different place to live in. Bombay High Court was absolutely shell shocked to see the astronomical speed with which the demolition work was carried out. It also noted that the civic body started the demolition work within 24 hours of giving the notice seeking a reply when the 33 year old actor Kangana Ranaut was not even in the State.

In this context, the former Maharashtra Chief Minister Devendra Fadnavis too jumped in the fray and did not hesitate to come out in full support of Kangana Ranaut who he felt was being selectively witch hunted because of her taking a strong stand against the Shiv Sena led State government in Maharashtra on a host of issues including the Sushant Singh Rajput death case. Fadnavis minced no words to condemn BMC’s move to demolish parts of Kangana’s office and raised serious question marks about why the Maharashtra government was not demolishing underworld don Dawood Ibrahim ‘s house located in Mumbai who is absconding ever since the March 12, 1993 serial bomb blasts in Mumbai which left about 257 dead and about 800 injured? Fadnavis further said that the Maharashtra government feels that our fight is not with Corona but with Kangana!

While narrating the key points and brief background of this notable case, the ball is set rolling by first and foremost observing in para 1 that, “The above Writ Petition is not on Board. The Associate of this Court has today at 11.30 a.m., placed before us a Praecipe along with an unaffirmed copy of the Writ Petition on behalf of the Petitioner, stating therein that as a result of a fall-out with certain influential people operating in the Administration and the Government, she has received a Notice dated 7th September, 2020 under Section 354A of the Mumbai Municipal Corporation Act, 1888 (‘the Act’) from the Executive Engineer, H/West Ward of the Municipal Corporation of Greater Mumbai (‘MCGM’) claiming that he has been satisfied that the Petitioner has unlawfully commenced, undertaken or carried out erection of building/erection of work, as described in the Schedule to the said notice. The said Notice further calls upon the Petitioner to produce documentary evidence proving authorization of the unauthorized work mentioned in the Notice; to stop the erection of the said building/execution of the said work forthwith and to produce permission, if any, obtained from the MCGM, within 24 hours from the service of the Notice. The Notice also provides that if the Petitioner fails to produce within 24 hours, the permission of MCGM to carry out the said works, MCGM shall under Section 354A of the Act, without any further notice, cause the said building or work to be pulled down at the risks and cost of the Petitioner.”

Furthermore, para 2 then says that, “It is further stated in the Praecipe that since 24 hours have elapsed, the Corporation is seeking to demolish the Petitioner’s residence today itself and therefore, the Court should restrain the Corporation from demolishing the premises of the Petitioner, who is currently out of Maharashtra and is expected to be in Mumbai today.”

As it turned out, it is then stated in para 3 that, “In view of the urgency and also in view of the fact that the Corporation has filed a caveat in this Court, the matter was directed to be placed at 12.30 p.m. today and the Advocate for the petitioner was asked to give notice to the MCGM.”

To put things in perspective, it is then pointed out in para 4 that, “Before we record as to what transpired before us at 12.30 p.m., we feel it necessary to set out a few facts in the matter:

4.1 The Petitioner is in use, occupation and possession of Bungalow No. 5, Chetak Row House, 41, Nargis Dutt Road, Pali Hill, Bandra (W), Mumbai – 400050 (‘the said Premises’).

4.2 On 8th September, 2020 at 10.03 a.m., MCGM pasted a Notice dated 7th September, 2020 on the outer door of the said Premises. The Notice under Section 354A of the Act, was addressed to the Petitioner by the Executive Engineer, H/W Ward, stating that the Executive Engineer is satisfied that the Petitioner has unlawfully commenced/is carrying out the erection of work described in the Schedule to the said Notice at the said Premises.”

Briefly stated, para 4.3 then mentions a long list of works observed “beyond approved” BCC Plan bearing No. CE/4349/BSIL/AH/dated 07.03.1979. It also directs petitioner to produce documentary evidence showing authorization of above mentioned works. It also directs petitioner to stop the erection of the said building/execution of the said work forthwith. It also further directs petitioner to produce permission approved by the competent authority in favour of erection of the building or execution of the work within 24 hours from the service of this notice and then warns that if petitioner fails to stop the execution of work forthwith or if stopped and fail to produce permission within 24 hours, then under Section 354(A) and in exercise of powers and function conferred upon me as aforesaid without any further notice cause the said building or work to be removed or pull down at petitioner’s risk and cost. It also pointed out that further note that you and /or any person directing/carrying out such erection/work shall be removed by Police Officer from the place where the building is being erected or work is being executed. It then noted: “And that any material, machinery, equipment, device or articles used in process of erection of building or execution of work will be caused to be removed without any further notice at your risk and cost. Lastly observed that, “Sketch (Not to the Scale).”

As a corollary, it is then stated in para 4.4 that, “The sketch shown in the Notice is extremely unclear and the ‘unauthorized’ works cannot at all be seen in this sketch.” This is a very important observation as the Bombay High Court says explicitly that the sketch is extremely unclear and in addition the ‘unauthorized’ works about which so much of brouhaha was made by the BMC cannot at all be seen in this sketch!

What then ensues is stated in para 4.5 that, “The Advocate for the Petitioner immediately served a Reply-Letter dated 8th September, 2020 to the Executive Engineer (B&F) H/W Ward and recorded therein that the allegations made by the MCGM in the said Notice are false and the same shall be forthwith dealt with by the Petitioner, who is expected to arrive in Mumbai on 9th September, 2020 and requested for a minimum of 7 days to respond and address the concern raised in the said Notice. By the said Reply-Letter, MCGM was called upon not to misuse its dominant position “to cause prejudice to the Petitioner with any hidden agenda coupled with ulterior motives”.”

Going ahead, para 4.6 then discloses that, “On 8th September, 2020, the MCGM filed its Caveat before this Court under Section 148-A of the Code of Civil Procedure, recording therein that the Petitioner is likely to file a Writ Petition before this Court challenging the Notice dated 7th September, 2020 issued by the MCGM to the Petitioner, pertaining to the said Premises and “LET NOTHING BE DONE in the above mentioned matter unless prior notice is given to the Corporation”. The MCGM also filed the Vakalatnama of its Advocate along with the said Caveat.”

Significantly, it is then stated in para 5 that, “The matter was called out at 12.30 p.m. However, for the first ten minutes, none appeared for the MCGM despite notice being served on them by the Petitioner’s Advocate. In the meantime, the Advocate for the Petitioner informed the Court that today morning at around 11.00 a.m., the MCGM moved its entire machinery and in the presence of several police officers, started carrying out the job of demolition by use of heavy machines and by now 40% of the said Premises is already demolished by the MCGM. Thereafter, an in-house Advocate of the MCGM appeared and informed the Court that they do not have a copy of the Writ Petition. The Advocate for the Petitioner informed the Court that a copy of the Writ Petition has been served on the MCGM. This Court inquired from the Advocate for the MCGM whether she at least had a copy of the impugned Notice issued by the Corporation to the Petitioner. The answer given was in the negative. When this Court inquired as to who is instructing her in the matter, she informed the Court that none of the Officers of the MCGM are present with her. Since the Court was of the view that the MCGM is trying to waste the time of the Court and in the meantime complete the demolition of the said Premises, the Advocate for MCGM was orally instructed by the Court to forthwith inform the Municipal Commissioner that the Court has directed the MCGM to forthwith stop the demolition work, in the light of today’s hearing pending before the Court. Since no clear assurance was coming from the Advocate that the Municipal Commissioner was so informed, the Court Associate at our instance tried to call up the Municipal Commissioner, whose cellphone was continuously switched-off. Ten minutes thereafter, the in-house Advocate for the Corporation informed the Court that the directions of this Court were conveyed to the Municipal Commissioner. About 15 minutes thereafter, Shri Sakhare, Senior Advocate, for MCGM appeared before the Court through video conferencing. In response to a query by the Court, he informed the Court that he too is not having a copy of the Writ Petition as well as copy of the impugned Notice and that the offices of the Corporation are not with him since he is appearing from his residence.”

More significantly, the Bench then without mincing any words lampoons in para 6 holding that, “We find the above conduct of the MCGM highly deplorable, more so since the MCGM was well aware that a Writ Petition would be filed by the Petitioner before this Court at any time, and an application seeking urgent orders will be moved by the Petitioner and MCGM had therefore filed a Caveat before this Court. We, therefore, informed Senior Advocate Shri Sakhare that such conduct on the part of the MCGM is totally unacceptable to the Court. However, Shri Sakhare immediately arranged to bring the Assistant Municipal Commissioner as well as the Executive Engineer (B&F) of H/W Ward of MCGM online to answer the queries raised by the Court.”

What’s more, it is then disclosed in para 7 that, “In response to the queries put to the Assistant Municipal Commissioner, H/W Ward as well as the Executive Engineer, they have informed the Court as follows:

7.1 That on 5th September, 2020 i.e. Saturday, the Building Mukadam whilst he was in the H/West Ward, noticed some work going on in the said Premises and also certain debris lying outside the said Premises.

7.2 The Mukadam informed about the same to the Assistant Engineer (B&F) of the MCGM.

7.3 The Assistant Engineer (B&F) of the MCGM, who is the Field Officer, informed about the same to the Designated Officer, (B&F), who is the Executive Engineer of H/W Ward of the Corporation.

7.4 The Executive Engineer along with others visited the said Premises on 7th September, 2020 at 11.00 a.m. (Monday), where Shri Nikhil Surve, Manager of the premises was also present. After Shri Nikhil Surve took permission from Ms. Rangoli, sister of the Petitioner over the phone, the Executive Engineer and others were given access to the said Premises. The Executive Engineer and others inspected the said Premises and prepared inspection notes, inspection report and also notice under Section 354A, addressed to the Petitioner, on the same day i.e. 7th September, 2020, and pasted the Notice on the outer door of the said Premises on 8th September, 2020 (Tuesday) at 10.03 a.m.

7.5 Exactly after 24 hours, MCGM started the demolition work, which is stopped few minutes back in view of the oral directions of this Court.”

Most significantly, it is then clearly and convincingly enunciated in para 8 that, “Section 354A of the Act (which is invoked by the MCGM by issuing the impugned Notice dated 7th September, 2020), sets out the ‘power of Commissioner to stop erection of building or work commenced or carried on unlawfully.’ From the works set out in the Notice, it is clear beyond any doubt that the works which are ‘unauthorised’ have not come up overnight. However, all of a sudden, the Corporation appears to have overnight woken up from its slumber, issued Notice to the Petitioner, that too when she is out of the State, directing her to respond within 24 hours, and not granting her any further time, despite written request, and proceeding to demolish the said Premises upon completion of 24 hours. Though the manner in which the MCGM has proceeded to commence demolition work of the said Premises, prima facie does not appear to be bonafide and smacks of malafide, we are giving an opportunity to the MCGM to explain its stand/conduct on Affidavit by 3.00 p.m. tomorrow.”

While rapping the MCGM on its knuckles, the Bench then also makes it a point to also say the unpalatable truth in simple, straight and suave language in para 9 that, “We cannot help but mention here that if the MCGM would act with similar swiftness qua the numerous unauthorized constructions in this City, the City would be a completely different place to live in.”

Finally, we then see that the Division Bench of Bombay High Court clearly, categorically and convincingly holds in para 10 that, “In the circumstances, we pass the following Order:

(i)                         We allow the Petitioner to carry out the necessary amendments to the Petition;

(ii)                      We direct the MCGM to file its affidavit in Reply by 3.00 p.m. tomorrow.

(iii)                   In the meantime, the MCGM is restrained from carrying out any further demolition qua the said Premises mentioned in the impugned Notice.

(iv)                   Stand over to 10th September, 2020 at 3.00 p.m.

No doubt, the MCGM and the Maharashtra State Government must seriously introspect after going through this latest, landmark and extremely laudable judgment by a two Judge Division Bench of the Bombay High Court in detail. No elected government nor the MCGM can ever dare to say goodbye to the “due process of law” and equality as enshrined in our Constitution under Article 14 which talks about equality and equal protection of law for all the citizens of India! Kangana Ranaut is a famous Indian actress with an impeccable reputation and the MCGM and the State Government should not have acted with undue haste in demolishing her residence in Bandra in Greater Mumbai.

On the contrary, the illegal houses like that of dreaded gangster Dawood Ibrahim along with others which the Courts have also sanctioned to be demolished must be promptly demolished by BMC and they should too not be given a long rope under any circumstances as most unfortunately we have been seeing till now as was pointed out even by former Maharashtra CM Devendra Fadnavis and even the Bombay High Court too has pointed this out most emphatically in this leading case also! Petty politics should not be allowed to triumph over our national interests under any circumstances as it gives a bad name to our country and severely damages the reputation of our country beyond repair where the high and the mighty are able to easily mould the law as per their own whims and fancies! There can be no denying or disputing it!

Sanjeev Sirohi

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