HC orders demolition of seven illegal floors of 31-yr-old Khar building

MUMBAI: The Bombay high court has ordered the demolition of seven floors of an eight-storey building in Khar West as its top seven floors were found to be built illegally. The court ordered the Brihanmumbai Municipal Corporation (BMC) to demolish the seven illegal floors of Shivanjali Co-operative Housing Society at Dr Ambedkar Road in three months.
The division bench of justice Mahesh Sonak and justice Kamal Khata said it was evident from documents that the Commencement Certificate (CC) issued for the building was only for the construction of the first floor, but the building comprised a basement, ground floor and eight upper floors. The building was jointly developed in 1993 by AG Developers and Rao & Associates.
“Thus, the construction of the building beyond the first floor, i.e. the 2nd floor to the 8th floor, is patently illegal and unauthorised. This is in addition to illegal constructions in the basement and on the ground and 1st floors,” the bench said.
The court was hearing a petition filed by Rafique Kabani, a resident of the eighth floor of the building, challenging a June 2018 notice issued by the H/West ward office of the BMC for demolition of the seven illegal floors. Kabani had sought quashing of the demolition notice and an interim restraint on the BMC from proceeding with the demolition.
According to the petitioner, a show cause notice was issued to the society on September 12, 2017, mentioning only six illegalities, but the June 2018 order sought to demolish seven floors of the building – something which was not envisaged in the show cause notice. He therefore asked for the June 2018 demolition order to be struck down on the ground of breach of natural justice.
Senior advocate Rajshekhar Govilkar, rebutted the petitioner’s argument by pointing out that permissions were granted only for construction of basement, ground and first floor, but seven more floors were brazenly constructed by the builder. He also pointed out that not only were the upper seven floors illegally constructed, but the building did not even have fire clearance or an Occupancy Certificate (OC).
The court dismissed the petition and imposed a cost of ₹50,000, to be paid to BMC, on the petitioner for having “secured an interim order by misleading the court and making selected disclosures”.
While dismissing the petition, the court also noted that the building was constructed by consuming excess floor space index and therefore could not be regularised.
In any case, the court said, the law is well settled that regularisation can be resorted to in exceptional cases and the benefit of regularisation can never to be extended to the parties who violate the building or environmental regulations brazenly and with impunity.