The Bombay High Court recently intervened in a case involving a demolition notice issued by the Brihanmumbai Municipal Corporation (BMC) against Senior Advocate V Sridharan. The notice pertained to the alleged illegal merging of a niche area into his office space. A division bench comprising Justices Gautam Patel and Kamal Khata granted a stay on the BMC’s action, highlighting the disproportionate nature of the Corporation’s response.
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The bench observed the selective approach of the BMC in dealing with illegal constructions, contrasting the aggressive action taken for minor irregularities against the leniency shown towards large-scale violations. Justice Patel and Justice Khata noted,
“For the most minor irregularity, the entire machinery of the Municipal Corporation of Greater Mumbai (MCGM) is thrown at it with considerable aggression, but for anything that is on a larger scale, other than a stop work notice, nothing at all happens.”
The court further emphasized the discrepancy in the BMC’s actions, stating,
“Large scale illegalities directly affect the adherence to and implementation of planning law and generally of town planning. The merging of a niche area into an office is hardly comparable in a situation like this. At some point, we will have to consider these actions on the basis of the doctrine of proportionality and Wednesbury unreasonableness — not merely in the context of a particular notice or case, but overall, about whether the highly selective implementation of notices and invocation of statutory powers can be said to meet the tests of either doctrine.”
Senior Advocate Sridharan approached the High Court under Article 226 of the Constitution of India, challenging the BMC notice dated October 23, 2023, issued under Section 351 of the Mumbai Municipal Corporation Act. The notice demanded the restoration, removal, or demolition of the supposedly unauthorized construction within 15 days, failing which the BMC threatened demolition.
The petitioner claimed to have received the notice on October 31, 2023, and feared demolition by November 14, 2023. In response, the BMC sought time to file an affidavit, to which the court directed it to be filed and served by December 4, allowing a rejoinder by December 11. The bench intended to hear the petition finally on December 13, 2023.
Granting relief to the petitioner, the court ordered,
“In the meantime, the impugned notification is stayed. The MCGM will not take further action against the niche in question and will send no further notices in that regard. It may proceed to decide the regularization application, but if that application is rejected, no further action will be taken in respect of the niche in question until further orders.”
This case, titled V Sridharan Versus Brihanmumbai Municipal Corporation & Ors, highlights the High Court’s scrutiny of the BMC’s selective enforcement of its powers and the need for proportionality in its actions.
