Bombay HC Issues Suo Motu Contempt Against Flat Owners For Illegal Constructions, Reprimands BMC For Failure To Take Necessary Actions

The Bombay High Court recently initiated suo moto contempt against two flat owners, who demolished the walls of their flat along with a flat owned by another person resulting in structural alterations, without necessary permission from the BMC.A division bench of Justice Kamal Khata and Justice A.S. Gadkari observed that despite action initiated by the petitioner-society and order of the Court permitting the BMC to take action against the flat owners, they failed to restore the flats to their original position. “A law-abiding citizen is expected to submit the proposed alteration plans and take structural stability reports before carrying out structural alterations of demolishing several walls in the premises to amalgamate them, even assuming he was a legal owner of both flats. He could have voluntarily restored the flats to the original position. This is clearly contempt on the face of it. We therefore issue suo motu contempt against the Respondent Nos.1 & 2” the Court said. The Court also criticized the BMC for its failure to carry out its obligations. It remarked, “This is yet another case of BMC's failure to perform with statutory obligations namely execute its own Orders, restoring the subject Flats in their original state. Consequently, law abiding citizens are being compelled to come to Court. Appallingly, the BMC has failed to even comply with Court Orders.”The petitioner-society complained to the BMC that two of its members (respondent nos. 1 & 2), adjoined their flat with another flat, which belonged to a deceased member. They complained that demolishing the dividing walls of the flats endangered the structural stability of the building.The petitioner-society stated that the respondents failed to produce any BMC permissions for the changes effected and their legal rights in the adjoining flat. They submitted that the BMC merely issued three notices warning the respondents, but failed to restore the flats to their original position. The High Court noted that the petitioner-society filed a suit in the City Civil Court and the court appointed a Commissioner a visit the suit premises. The Commissioner submitted a report that the respondents had removed the walls of the two flats and thus the court allowed the petitioner's motion. Following this, the BMC issued a notice under Section 351 of the BMC Act to the respondents. The respondents then filed a civil application before the High Court, however, a single bench permitted the BMC to proceed with the required action under Section 351 BMC Act. However, despite the notice, the petitioner did not remove the unauthorized work and BMC did not take any action against them. The Court stated that the respondent no. 1's affidavit contained false information and showed intent to mislead the court. It observed, “The Affidavit attempts to lead us to believe that it is the society who is obstructing the use of the common amenities and is harassing the Respondent No.1. Although it claims that the renovation work is carried on within the boundaries of law, the Respondent fails to produce any sanctions from the BMC permitting them to do so, it in fact admits that the Respondents continued the renovation work despite the Petitioners having gone to the Court seeking their stop of work, the Respondents blatantly call the Petitions and the notices of the BMC hindrances and nuisance.” It also noted that the respondent's submission that the society had granted them permission for the renovation permission was incorrect as it had granted the permission only with respect to their flat and not the adjoining flat. It noted that the permission also had an undertaking that no structural changes could be made while carrying out renovation. The Court remarked that the respondents were responsible for endangering the lives of the Society members by removing the walls and partitioning the flats. On BMC's failure to take action against the respondents, the Court commented, “It is not BMC's case that they had issued notice to the Respondent Nos. 1 & 2 at the instance of the Society without verifying the correctness of allegations/complaints. Naturally, we draw an inference that, the BMC's officers desired to protect the offenders for the reasons best known to them. It is inconceivable that the BMC who has several departments… and requires Architects to to submit plans to each department for sanctions granted from each department would not have a single sanctioned plan from any department on its record.”The Court further observed that the BMC ought to have taken the help of police as per Section 522 (1) & (2) of the BMC Act to enforce the provisions of the Act and comply with the Court's order. Observing that there is a “a trend of selective enforcement of the law”, the Court said that it has informed the Municipal Commissioner and the Police Commissioner to take action against offenders. With these observations, the Court held respondents no. 1 & 2 guilty of contempt and issued...

Bombay HC Issues Suo Motu Contempt Against Flat Owners For Illegal Constructions, Reprimands BMC For Failure To Take Necessary Actions

Sanjana Dadmi

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