Wednesday, Oct 01, 2014

SC judge questions stay on demolition by ex-colleague

Written by Utkarsh Anand | New Delhi | Posted: February 4, 2014 3:23 am

In a rare display of discord, a Supreme Court judge Monday raised questions over the suo motu orders passed by a former judge staying the demolition of unauthorised apartments in the Campa Cola compound in Mumbai.

Justice S J Mukhopadhaya, who was party to at least two detailed orders by the Supreme Court rejecting pleas by flat owners to stall demolition of around 100 flats, made his disagreement public in an open court.

Justice G S Singhvi, who has since retired, had led the bench with Justice Mukhopadhaya when the two orders were passed in February 2013 and May 2013. However, in November 2013, a bench that Justice Singhvi led with another judge stayed the ongoing eviction and demolition proceedings and extended the time to vacate till May 2014.

“One of the issues in this matter is that the court has taken it up suo motu. But under what provision? The issue is how can a court take up a matter suo motu against its own judgment? What was in the mind of the judge, who authored the judgement, to later take it up suo motu?” asked the two-member bench of Justice S J Mukhopadhaya and Justice Kurien Joseph on Monday.

Attorney General G E Vahanvati, who appeared for the Brihanmumbai Municipal Corporation (BMC), could say only this much: “My lord will be in a better position to know what was in the mind of the judge when he took up the matter suo motu. What can I say about it?”
Justice Mukhopadhaya then pointed out that the last order mentioned it was a “human” issue. “The main matter has already been decided. Review petition is also dismissed. Now, what about an interlocutory application by a third party? It is one of the issues. Under what provision of law? This matter may be referred to a Constitution bench,” said the judge.

The court is currently hearing a petition by Campa Cola Residents Association and others, claiming some of the flats could still be regularised under the law.

The two orders passed by a bench comprising Justices Singhvi and Mukhopadhaya had asked the BMC to proceed with the demolition of flats built in violation of municipal bylaws.

The February 2013 order in fact held: “The courts are also expected to refrain from exercising equitable jurisdiction for regularisation of illegal and unauthorised constructions or 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.”
In May 2013, the court dismissed an appeal against the Bombay High Court order, but gave the residents five months to vacate the premises.

However, a bench of Justice Singhvi and another judge took suo motu cognizance of newspaper reports in November last year and extended the time to vacate till May 31, 2014 “on purely humanitarian considerations”. This order also stated that the extension of time will not dilute the judgment and orders passed by the court earlier.

Meanwhile, the court adjourned the hearing by four weeks after the residents said they would submit a workable proposal to the AG. The court requested the AG to examine the feasibility of the proposal and inform the court accordingly during the next hearing.

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