The Bombay High Court Tuesday dismissed a plea of a company owned by Union Minister and BJP leader Narayan Rane seeking direction to the BMC to consider and decide its second application for regularisation of alleged unauthorised structures at his eight-storey bungalow in Juhu.
A division bench of Justice Ramesh D Dhanuka and Justice Kamal R Khata directed the Brihanmumbai Municipal Corporation to demolish unauthorised portions within two weeks and submit a compliance report of the same within a week thereafter. The bench observed it is clear the BMC has accepted consideration of the second regularisation by ignoring principles laid down by the Supreme Court and high court and inconsistent with earlier stand.
It said allowing the BMC to consider a second application will be an “encouragement of wholesale unauthorised construction.” It also imposed a cost of Rs. 10 lakh on the firm owned by Rane and said it should be deposited with the Maharashtra State Legal Services Authority within two weeks. The court refused Rane’s request to maintain the status quo for six weeks to approach the Supreme Court.
The bench held, “The BMC cannot be allowed to take steps inconsistent with the Supreme Court and High Court judgements and provisions of the statutes. The corporation is bent upon considering the application (for regularisation) irrespective of the provisions of law. If an application for retention is allowed irrespective, then that would lead to encouragement of wholesale construction over reaching the idea for allowing retention. The petitioners have admittedly constructed three times above the permissible limit and without obtaining permissions from BMC fire department and Maharashtra Coastal Zone Management Authority (MCZMA)”.
“The application for proposed retention will amount to the encouragement of large-scale violation within the city of Mumbai without any concern for the statutory provisions. We are not impressed by the petitioner’s argument about the additional FSI for regularisation. Application for retention of unauthorised construction is rejected,” it added.
On August 23, while reserving its verdict on the plea, the bench had questioned the no-objection from the BMC to consider a second application submitted on July 11, after the civic body had rejected the first application in this regard.
In June, the BMC had rejected an application for regularisation by Kaalkaa Real Estates Limited, a firm owned by Rane and his family, a decision the HC had accepted after the company had approached the court.
After the BMC informed the court that there is no bar to considering a second regularisation application filed by Rane’s company, the HC had asked to what extent it can allow regularisation of constructions in Mumbai.
The bench had then asked, “Does the order passed by this court have no sanctity? Is the corporation above the High Court? Again, we will pass some order and again you will take a different stand. It will be endless otherwise. Now, this is your stand, we will have to examine it.”
Notably, the Uddhav Thackeray-led MVA government was in power in Maharashtra when the first application was rejected by the BMC. The Thackeray government collapsed in the last week of June following a rebellion by Eknath Shinde, the current chief minister.
On June 23, the HC had dismissed a plea filed by Rane’s firm which challenged the BMC’s order that had refused permission to retain the bungalow with its alleged unauthorised structures. On July 25, while hearing the firm’s new plea seeking consideration of the second application, the court had directed the BMC not to take action against the bungalow till further orders and also asked the minister to not carry out further constructions and the same was continued only till the pronouncement of judgement.
As per the firm’s plea argued through advocates Shardul Singh and Sayali Sawant, the architect had filed a new application for regularisation in view of the Development Control and Promotion Regulations (DCPR), 2034, considering the floor space index (FSI) of the entire plot, as was originally factored for granting the first permission to get an Occupation Certificate. The firm said the same was not part of the first application and added that they restricted themselves to apply for regularisation or retention only in respect of land admeasuring 532.18 square meters.
The BMC told the court that the second application can be considered under the new DCPR-2034 and there was no restriction on submitting a proposal for regularisation of the existing building once the earlier proposal was rejected.
Senior advocate Anil Sakhare had said that the second application “is not disturbing BMC’s earlier decision” and the civic body’s concerned authority can deliberate if such regularisation is permissible. The BMC’s affidavit specified that while additional FSI can be claimed by paying a premium to the state, additional TDR can be purchased from the market.