- (1.) This petition filed by Rajesh S.Parekh and three others against order dated 29.04.2013 of the Division Bench of the Bombay High Court in Writ Petition No.1076/2013 is another attempt by the owners/occupiers of flats in the buildings constructed in Campa Cola Compound, Wroli to stall the action initiated by the officers and employees of the 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 Limited, Orchid Cooperative Housing Society Limited, Midtown Apartments Cooperative Housing Society Limited and Shubh Apartment Cooperative Housing Society Limited 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 3/8.12.2005 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. 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 Appeal Nos. 7934-7938/2012 were dismissed by this Court vide judgment dated 27.2.2013. Writ Petition No.6550/2010 filed by 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 and was registered as Transferred Case (Civil) No.55/2012. 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. Paragraphs 45 to 47 of judgment dated 27.2.2013 are reproduced below: "45. 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 above-noted judgments and, in particular, Royal Paradise Hotel (P) Ltd. v. State of Haryana and Ors. (supra) 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 unauthorized 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. 46. 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 3/8.12.2005 passed by the competent authority and the Corporation shall take necessary action in the matter at the earliest. 47. 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."
(3.) When the Corporation initiated action to demolish the illegal portions of the buildings, the petitioners herein filed Writ Petition No.1076/2013. Some other members of the cooperative housing societies filed Writ Petition No. 1077/2013 with similar prayer. The Division Bench of the High Court referred to the judgment of this Court in Civil Appeal No.7934/2012 - Esha Ekta Apartments Co-operative Housing Society Limited and others v. Municipal Corporation of Mumbai and others (2013) 5 SCC 357 : (2013) 3 SCC (Civ) 89 and connected matters, 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.;