Wednesday, August 17th, 2022 17:50:49

In Kangana’s building demolition case Bombay HC’s slap in BMC’s face

By Sanjeev Sirohi
Updated: December 18, 2020 1:25 pm

As anticipated, the Bombay High Court in Kangana Ranaut’s case titled Ms. Kangana Ranaut vs. Municipal Corporation of Greater Mumbai and 4 others in Writ Petition (ST.) No. 3011 of 2020 delivered on November 27, 2020 rose up to the occasion and in a huge respite to eminent Hindi film actress Kangana Ranaut quashed the notice and order issued by the Brihanmumbai Municipal Corporation (BMC) to demolish her bungalow. The High Court came to the palpable conclusion that the order of BMC was “actuated by legal malice”. BMC must admit what Bombay High Court has pointed out so explicitly, elegantly and effectively!

To start with, this extremely laudable, latest, learned and landmark judgment authored by Justice SJ Kathawalla for himself and Justice RI Chagla sets the ball rolling by first and foremost observing in para 1 that, “The above Writ Petition is filed by the Petitioner – Ms. Kangana Ranaut against Respondent No. 1 – Municipal Corporation of Greater Mumbai (‘MCGM’), Respondent No. 2 – Executive Engineer ( B & F ), Respondent No. 3 – Government of Maharashtra, through its Secretary, Respondent No. 4 – Shri Bhagyavant Late, Designated Officer of MCGM and Respondent No. 5 – Shri Sanjay Raut, Member of the Rajya Sabha. Respondent No. 5 is the Chief spokesperson of Shiv Sena, a political party which is a part of the Government of Maharashtra, and which Party is also the ruling party in MCGM. Respondent No. 5 is also the Executive Editor of Marathi Daily Newspaper ‘Saamna’.”

While stating the relevant facts required to be set out at the outset, the Bench then observes in para 3.1 that, “The Advocate for the Petitioner first moved this Court at around 11.30 a.m. on 9th September, 2020, and sought circulation of the Writ Petition at the earliest. Since the MCGM had filed a Caveat, he was asked to give notice to the MCGM and the hearing was vexed within an hour i.e. at 12.30 p.m. The unaffirmed Petition, being filed in extreme urgency and when the Petitioner was not available in Mumbai, lacked material particulars/averments and was incomplete. The Petitioner was, therefore, granted liberty to amend the Writ Petition at the time of granting ad-interim reliefs on 9th September, 2020 and also on 10th September, 2020. Pursuant thereto, the Petition was amended. In the amended Writ Petition, the Petitioner reiterated her allegation that the demolition carried out by MCGM was malafide/malicious, with ulterior motives. In support thereof she interalia relied on a video clip recording the interview of Shri Sanjay Raut, wherein he had allegedly abused the Petitioner. The also relied on the news report pertaining to the demolition of her bungalow, captioned ‘Ukkhad Diya’, meaning – ‘uprooted’ published in the Marathi daily newspaper ‘Saamna’ of 10th September, 2020 (i.e. the day after the demolition), of which newspaper Shri Raut is the Executive Editor. Therefore, by our Order dated 22nd September, 2020, the Petitioner was allowed to join Shri Raut as party Respondent to the above Writ Petition. It was also alleged by the Petitioner in the above Writ Petition, that Shri Bhagyavant Late, Designated Officer of MCGM, had with malafide and malicious intent, issued the impugned Notice dated 7th September, 2020, followed by an Order of Demolition dated 9th September, 2020, and proceeded to demolish the bungalow of the Petitioner. Therefore, by our said Order dated 22nd September, 2020, Shri Late was also allowed to be joined in his personal capacity, as party Respondent to the above Writ Petition. Consequently, Shri Bhagyawant Late and Shri Sanjay Raut are joined as Respondent Nos. 4 and 5, respectively, to the above Writ Petition.”

Be it noted, it is then very rightly pointed out in para 17.14.4. that, “The object and purpose of Section 354A is stoppage of unauthorized ongoing work (which is described in Section 342) by a notice and its removal, if despite such notice the noticee does not stop the unauthorized ongoing work or produce authorization within twenty-four hours. The purpose is not demolition of unauthorized work already carried out (in contravention of Sections 342 or 347). The State action of demolition of works under Section 354A in the present case, is thus clearly for a purpose not authorized by the Act. There is no reasonable or probable cause or excuse for the State action complained of and it has been carried out, as we shall demonstrate presently, wrongfully and willfully.”

Truth be told, it is then rightly postulated in para 17.14.6. that, “Coming now to the wrongfulness of the State action, it is important to note at the outset that anything which is not authorized by law and which infringes a citizen’s rights is wrongful on the part of the State. As we have seen above, assuming that the subject structures were illegal and amounted to unauthorized works as per Sections 342 and 347 of the Act, it was the Petitioner’s right to show cause why they should not be removed, altered or pulled down. Even after passing of a final Order for removal, alteration or pulling down of these works, upon her failure to show sufficient cause, it was open to the Petitioner to approach the MCGM for regularization of such works under Section 53(3) of the MRTP Act or alternatively, approach the Court for preventing the threatened action. To the extent she was prevented from doing so, the action of the MCGM in taking precipitate steps under Section 354A, as we have noted above, can only be described as wrongful. But what really aggravates the wrongfulness and lends further credence to the case of malice in law, is the manner in which the whole action was carried out as we have described above.”

More damningly, it is then envisaged in para 17.14.7. that, “The manner in which the action was carried out, as we have noted above, leaves hardly any manner of doubt that the purpose for using the provision of Section 354A in the instant case was not only unauthorized, considering the distinction between Sections 351 and 354A, but more sinister than that, namely, to prevent the Petitioner from taking recourse to her legal remedies. The whole attempt on the part of the Respondent – MCGM and its officers was to somehow present the Petitioner with a fait accompli, leaving her practically no time to seek redressal of her grievance through Courts by means of preventive action.”

In essence, it is then summed up in para 17.14.8. that, “That sums up the case against the Respondents of malice in law. The MCGM, which is an organ of the State, has done something “without lawful excuse”; it has proceeded to act “wrongfully and willfully without reasonable or probable cause”; its act can only be described as a deliberate act in disregard of the rights of a citizen; the true object of the act clearly appears to be to reach an end different from the one for which the power was entrusted to it. The exercise of power can be summed up as bad in law and lacking in bonafides. It is nothing but malice in law.”

Quite remarkably, the Bench then minces no words to hold in para 18.5 that, “In any case, it is settled law as held by the Supreme Court in a catena of decisions that the availability of an alternative remedy is only a self-imposed restraint and not any bar on the jurisdiction of the High Court in exercising its jurisdiction under Article 226 of the Constitution of India. The Supreme Court has held that the High Court is justified in exercising its powers to the exclusion of all other remedies when it finds that the action of the State or its instrumentality is arbitrary and unreasonable and as such violative of Article 14 of the Constitution of India. We have reached a categorical conclusion, as discussed above, that the action of the State is arbitrary and unreasonable and informed by malice in law. So far as this conclusion is concerned, in the present case in view of the clear facts and evidence made available before this Court, no disputed question of facts can be said to have arisen. Secondly, merely because disputed questions of facts arise, a party cannot be relegated in every such case to a lengthy, dilatory and expensive process of a Civil Suit against a public body, particularly if the action is highhanded and illegal. In fact, the Courts have frowned upon public bodies raising such contentions and held that State instrumentalities ought not to raise technical pleas to defeat the rights and legitimate claims of a citizen.”

What is equally remarkable is as put forth in para 18.10 that, “We are of the view, that this well settled law, when applied to the facts of the present case, makes it apparent that the objection as to the maintainability of the Writ Petition is clearly an afterthought, in order to defeat the Petitioner’s rights. The Petitioner is aggrieved by an ex-facie illegal, arbitrary, unjustified and highhanded and malafide action of MCGM ignoring statutory provisions and guidelines of the Courts as well as of its own Circulars and the said action is an abuse of power and authority. The Petitioner therefore is fully justified in approaching this Court for redressal of her grievances and the protection of her rights.”

More forthrightly, it is then elucidated in para 19.4 that, “As we have come to a clear conclusion that the impugned notice under Section 354A of the Act and the action of demolition following it, are actuated by malafides, in any event, involve a clear malice in law, causing a substantial injury to the Petitioner, we would be perfectly justified, on the basis of the law stated by the Supreme Court in the case of Sunbeam Hightech Developers (supra), to order compensation against responsible Respondents. Any such Order must be preceded by an estimate prepared by an approved valuer of the damage caused to the Petitioner’s property. We would therefore have a valuer appointed for the purpose of preparing such estimate. Both parties, i.e. the Petitioner and the MCGM, shall be heard by the valuer whilst making his report of valuation. We would reserve our further Orders on such report being submitted by the valuer. We would also pass appropriate Orders on recovery of any part of such compensation from individual officers of the MCGM when ordering for payment of such compensation.”

Finally, it is then held in para 20 that, “Based on the foregoing observations, and being convinced that the impugned notice dated 7th September, 2020 and the impugned speaking Order of demolition dated 9th September, 2020 issued / passed by Shri Late / MCGM deserves to be quashed and set aside, the following Order is passed:

(i) The impugned notice dated 7th September, 2020 alongwith the speaking Order of demolition dated 9th September,2020 are quashed and set aside.

(ii) The Petitioner is allowed to take such steps as are required to make the said bungalow habitable so that the Petitioner can immediately start occupying and using the same. However, to the extent any demolished portion requires a planning permission and such permission in not in place reconstruction of such portion can only be made either in compliance with the sanctioned plan or after seeking approval of the MCGM for the work proposed. In the event any application is made, the MCGM shall decide the same within a period of four weeks from the date of receipt of such application / plan.

(iii) As regards the area, which is not demolished by the MCGM, if the MCGM proposes to take any action, it may issue a notice giving 7 days time to the Petitioner to respond to / comply with the same. In the meantime, the Petitioner shall also be at liberty to make an application seeking regularization of the works already carried out but not demolished under Section 53 (3) of the MRTP Act, 1966. In case any such application is made no further steps in response to the notice shall be taken by the MCGM before disposal of such application and a copy of the Order provided to the Petitioner as well as her Advocate.

(iv) M/s. Shetgiri and Associates, Architects, Engineers, Interior Designers and Valuers are appointed as the Surveyors / Valuers to value and determine the extent and value of damage and loss caused to the Petitioner and

(v) submit their report to this Court on 9th March, 2021 to enable the Court to award compensation to the Petitioner. The Surveyors / Valuers shall hear both parties i.e. the Petitioner and the MCGM before making their report. The charges of the Surveyors / Valuers shall initially be borne by the Petitioner.

(vi) Liberty to the parties to apply in case of any difficulty.

(vii) The Writ Petition to appear for further Orders on 9th March, 2021.”

No doubt, Bombay High Court in its 166-page judgment has very rightly rapped the BMC on its knuckles and also has laid down the correct position on all the issues raised before it. BMC has no option now but to comply with it accordingly and in future also exercise extreme caution in such cases! If the Bombay High Court while ruling in her favour has asked her to exercise restraint, it has also minced no words in saying categorically that Sanjay Raut’s conduct doesn’t befit a leader. Both Raut and Kangana must mend themselves and their conduct accordingly as directed by the Bombay High Court!


By Sanjeev Sirohi

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