‘Unwarranted litigation at public cost,’ HC seeks five-year data on illegal structures and garages regularised in Mumbai

A bench of Justices Girish S Kulkarni and Aarti A Sathe was hearing a plea by Ramesh Dattatray Pathak, who argued he had occupied a garage for commercial use as an office and he would be entitled for permanent alternative accommodation in the redevelopment premises under such a category.

Senior Advocate Veerendra Tulzapurkar and advocate Aseem Naphade submitted that the garage area, used commercially as an office, was required to be included in redevelopment plan under Regulation 33 (7) of the Development Control and Promotion Regulations (DCPR) for Greater Mumbai, 2034. It observed that BMC was required to take appropriate view on the matter as many old buildings in Mumbai of the ‘earlier era’ had garages, which were later used for other purposes. The court said such view will ensure that similar redevelopment related issues would not arise for such buildings.

However, on December 9, BMC’s Executive Engineer (Building Proposal) rejected petitioner’s application and blamed Pathak for not seeking regularisation prior to redevelopment and recorded that the commercial use of garage was unauthorised and also ruled out post-facto approval or regularisation on payment of penalty and said same cannot be accepted.

The bench said the BMC’s order “completely overlooked the correct factual position on subject matter” observations passed in HC’s earlier orders. The court also observed there was nothing on record to show the BMC Commissioner had applied his mind to the facts of the case while approving the order.

“We are of the opinion that in the midst of development, after the building had been demolished, shifting the burden upon the petitioner on the ground that the petitioner had not applied for regularisation at the relevant time, which could have been then granted, prima facie is not a justified/reasonable approach on the part of the Executive Engineer. The Municipal Commissioner completely overlooked this position,” the HC observed.

The court said it was “left with no alternative” but to direct the BMC to give details of regularisation granted to garages in the city and illegal structures regularised by BMC in the past five years.

“We are also constrained to observe that the BMC in a large number of cases do not adhere to the rules and the law, resulting in generation of unwarranted litigation, before this court being contested at public costs when there are glaring illegalities, which require far greater attention. Comparatively this is a very small case,” the HC said and posted further hearing to December 24.