In a writ petition filed before the Bombay High Court seeking quashing of seven notices dated 22-12-2022, and seven speaking orders dated 10-03-2023 pertaining to a property located at Bharat Coal Compound, Bail Bazar, Kurla West, Mumbai, a Division Bench of Justice A.S. Gadkari and Justice Kamal Khata dismissed the petition, holding that the impugned orders were well-reasoned and found the subject structure to be palpably illegal.
Petitioner 1 claimed to be carrying on business in partnership from Bharat Coal Compound and contended that the industrial shed originally consisted of 6 industrial galas that had been assessed to Municipal taxes prior to 1962. The petitioners asserted that their premises constituted a tolerated structure existing prior to the 01-04-1962 datum line for non-residential structures, as evidenced by the Brihanmumbai Municipal Corporation assessment records.
The petitioners argued that the assessment records showed that the gala was assessed to municipal taxes prior to 1962, and that the petitioners possessed various documents proving lawful use, occupation, and possession. They submitted a communication dated 19-01-1993 from the Assistant Assessor and Collector of the BMC to petitioner 1’s partner, stating that the said property had been assessed for municipal taxes since 01-04-1962, and an assessment bill dated 29-12-2012 showing the first assessment date as 01-04-1962. They also relied on a BMC communication dated 26-10-1993, granting permission for repairs to a mezzanine floor.
The Municipal Corporation of Greater Bombay (respondent) submitted that the Tikka sheets relied upon by the petitioners indicated no structures on the plot of land prior to the datum line. It asserted that the layout plan showed the petitioners’ plot as empty, with a dotted-line boundary, rendering their claim baseless. Additionally, it submitted the City Survey Department’s MR plan showing the structure in red hatch, indicating that it was erected after the datum line.
The Court identified the case as one in which the law was blatantly violated, with specious pleas to justify the actions. It found no clear documents on record, other than the Tikka sheet and assessment bill, to prove the existence of the petitioners’ structure prior to the datum line, let alone its exact constructed area. The Court found that the notices indicated that the entire structure, including the shed with the ground floor and mezzanine, was illegal.
Further, it was stated that the impugned orders were well-reasoned and elaborated on why the structure deserved to be demolished. The Court reiterated that unauthorized structures are liable to be demolished, and that illegality is incurable. The Court held that an assessment invoice or receipt alone does not prove that both land and building were assessed, nor does an IOD issued for an adjacent plot prove the existence of a structure on the petitioners’ plot. The Court found that the communication dated 19-01-1993 from the Assistant Assessor and Collector was not conclusive evidence of property assessment with a structure, as it was issued without reference to property details.
The Court stated that repair permissions granted by the BMC do not, without independent supporting documents, conclusively prove that a structure existed prior to the datum line. It was said that the permission granted only revealed the abysmal state of BMC affairs, since such permission could not have been granted without ascertaining the structure’s legality. It was stated that the officers concerned were responsible for the rampant illegalities in the State and that it is imperative for BMC Officers to verify whether a structure is authorized before granting permission for repairs.
Thus, the petition was dismissed, and the petitioners’ request for a four-week extension of the ad-interim relief granted on 19-04-2023 to allow them to appeal before the Supreme Court was rejected, as the structure was found to be palpably illegal.
Appearances:
For Petitioners – Mr. S.U. Kamdar (Sr. Adv), Mr. Chirag Kamdar, Ms. Sakshi Agarwal, Mr. Nilesh Jadhav, Mr. Bipin Joshi
For Respondents – Mr. Shailesh Shah (Sr. Adv), Mr. Joel Carlos, Ms. S.V. Tondwalkar, Ms. Komal Punjabi
