`No legal basis for China Garden’s case’

MUMBAI, JULY 28: Counsel for China Garden -- the Chinese restaurant at Kemps Corner, under judicial scrutiny for unauthorised constructio...

MUMBAI, JULY 28: Counsel for China Garden — the Chinese restaurant at Kemps Corner, under judicial scrutiny for unauthorised construction — senior advocate Goolam Vahanvati today admitted to Bombay High Court that the correspondence between his client and the state government, even after its suit was rejected by the court in 1997, was not under any section of any law.

The admissions came towards the end of today’s arguments when Justice B N Srikrishna angrily enquired about the law under which the restaurant made representations to the state government from January 1998 even when the matter had been rejected by Supreme Court. “If you say your legal rights have been affected, point out the legal sections under which you had applied,” Justice Srikrishna said.

Vahanvati then claimed if it was so, the letters written by the state to BMC to consider the matter should have been thrown out saying the applications were not maintainable. “Yes, but as Singhvi (counsel for BMC) stated, subordinates do not havethe gumption to say no to their superiors. It is unfortunate,” the Justice retorted.

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The counsel, however, continued that though the letters were not “statutorily permitted by the law,” the BMC commissioner was “bound by the dictates of the chief secretary” to consider their case “under a fair proposition under law.” The senior advocate then premised his case saying it was through such assurances given by the state government that his clients could claim to have a “legitimate expectation.” And it was this “legitimate expectation” that was being denied to them since, according to him, the civic body had not considered his case fairly enough.

China Garden, and its high-profile Chinese owner Nelson Wang, are fighting a stiff legal battle trying to protect the restaurant’s admittedly unauthorised structure of around 700-odd sq metres from demolition. The structure has stood for the past 15 years, and with the state and BMC rejecting its applications for regularisation, was slated for demolition onJuly 19, 1999.

China Garden has filed a petition in the HC challenging BMC’s refusal to consider the heritage TDRs bought by it to regularise the structure. The matter is being heard by the division bench of Justice M B Ghodeswar and Justice B N Srikrishna.

According to Vahanvati, for a `legitimate expectation’ to flow, it is not necessary that a “distinctive legitimate enforceable legal right” should exist. The fact that the state had entertained their applications was enough for them to “expect a fair consideration,” he held.

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Earlier in the day, special counsel for BMC K K Singhvi argued that following a letter of clarification dated September 8, 1998 from the Union Ministry of Environment and Forests, the heritage TDRs could not be considered in the case of China Garden since it fell within the Coastal Regulation Zone, i.e., 500 metres from the coastline.