Full Text
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.4097 OF 2024
1. Rajaram Dinkar Ketkar, ]
Age: 65 years, Occupation: Business. ]
2. Shantaram Dinkar Ketkar, ]
Age: 59 years, Occupation: Business, ]
Both of Mumbai India Inhabitant, ]
Residing at 1st and 2nd floor, ]
Krishna building No.1, Opp. Malad ]
Railway Station, Malad (West), ]
Mumbai – 400 064. ] ...Petitioners
A statutory corporation established under ] the Provisions of the Mumbai Municipal ]
Corporation Act, 1999 (as amended from ] time to time) and having its office at ]
Mahapalika Marg, Opp. CST., ]
Mumbai – 400 001. ]
2. Municipal Commissioner, ]
Municipal Corporation of Gr. Bombay, ]
Having his office at Mahapalika Marg, ]
Opp. CST, Mumbai – 400 001. ]
3. Assistant Commissioner, ]
P/North Ward, Municipal Corporation of ]
Gr. Bombay, having his office at Liberty ]
Garden, Mamletdarwadi, Malad (West), ]
Mumbai – 400 064. ]
4. The Designated Officer, ]
Building & Factory Department, ]
P/North Ward, Municipal Corporation of ]
Gr. Bombay, having his office at Liberty ]
Garden, Mamletdarwadi, Malad (West), ]
Mumbai – 400 064. ]
5. Sr. Inspector of Police, ]
Malad Police Station, Malad (West), ]
6. Heaven Blue, ]
Through its Partner, Mr. Mansukh Chheda, ]
Age 48, Occupation – Business, having its ]
Address at Shop No.5, Krishna Building ]
No.1, Malad (West), Mumbai – 400 064. ]
7. Men’s Corner, ]
Through its partner, Mr. Anil G. Faria ]
Age 41, Occupation – Business, having its ]
Address at Shop No.4, Krishna Building ]
No.1, Malad (West), Mumbai – 400 064. ]
8. Kanchan Namechand Shah, ]
Age 48, Occupation – Business, having its ]
Address at Shop No.6, Krishna Building ]
No.1, Malad (West), Mumbai – 400 064. ]
9. Harshi Medical Store, ]
Through its owner Satish Savla, ]
Age 64, Occupation – Business, having its ]
Address at Shop No.7, Krishna Building ]
No.1, Malad (West), Mumbai – 400 064. ]
10. Shree malad Vastu Bhandar, ]
Through its owner, Rakesh Anraj Punmiya ]
Age 50, Occupation – Business, having its ]
Address at Shop No.8, Krishna Building ]
No.1, Malad (West), Mumbai – 400 064. ]
11. Dayal, ]
Through its proprietor, Mrs. Kusumben ]
Thakkar, Age 73, Occupation – Business, ] having its address at Shop No.9, ]
Krishna Building No.1, Malad (West), ]
Mumbai – 400 064. ]
12. Sapna Cutpiece Cloth Centre, ]
Through its partner, Sunil Behari Kukreja, ]
Age 47, Occupation – Business, having its ]
Address at Shop No.10, Krishna Building ]
No.1, Malad (West), Mumbai – 400 064. ]
Through its partner, Siddharth Murli Kukreja]
Age 37, Occupation – Business, having its ]
Address at Shop No.11, Krishna Building ]
No.1, Malad (West), Mumbai – 400 064. ] … Respondents
IN
WRIT PETITION 4097 OF 2024
1. Heaven Blue, ]
Through its Partner, Mr. Mansukh Chheda, ]
Age 48, Occupation – Business, having its ]
Address at Shop No.5, Krishna Building ]
No.1, Malad (West), Mumbai – 400 064. ]
2. Men’s Corner, ]
Through its partner, Mr. Anil G. Faria ]
Age 41, Occupation – Business, having its ] address at Shop No.4, Krishna Building ]
No.1, Malad (West), Mumbai – 400 064. ] … Applicants
(Org.Respondent Nos.6 and 7)
IN THE MATTER BETWEEN
1. Rajaram Dinkar Ketkar, ]
Age: 65 years, Occupation: Business. ]
2. Shantaram Dinkar Ketkar, ]
Age: 59 years, Occupation: Business, ]
Both of Mumbai India Inhabitant, ]
Residing at 1st and 2nd floor, ]
Krishna building No.1, Opp. Malad ]
Railway Station, Malad (West), ]
Mumbai – 400 064. ] ...Petitioners.
A statutory corporation established under ] the Provisions of the Mumbai Municipal ]
Corporation Act, 1888 (as amended from ] time to time) and having its office at ]
Mahapalika Marg, Opp. CST., ]
Mumbai – 400 001. ]
Municipal Corporation of Gr. Bombay, ]
Having his office at Mahapalika Marg, ]
Opp. CST, Mumbai – 400 001. ]
3. Assistant Commissioner, ]
P/North Ward, Municipal Corporation of ]
Gr. Bombay, having his office at Liberty ]
Garden, Mamletdarwadi, Malad (West), ]
Mumbai – 400 064. ]
4. The Designated Officer, ]
Building & Factory Department, ]
P/North Ward, Municipal Corporation of ]
Gr. Bombay, having his office at Liberty ]
Garden, Mamletdarwadi, Malad (West), ]
Mumbai – 400 064. ]
5. Sr. Inspector of Police, ]
Malad Police Station, Malad (West), ]
Mumbai – 400 064. ]
6. Heaven Blue, ]
Through its Partner, Mr. Mansukh Chheda, ]
Age 48, Occupation – Business, having its ]
Address at Shop No.5, Krishna Building ]
No.1, Malad (West), Mumbai – 400 064. ]
7. Men’s Corner, ]
Through its partner, Mr. Anil G. Faria ]
Age 41, Occupation – Business, having its ]
Address at Shop No.4, Krishna Building ]
No.1, Malad (West), Mumbai – 400 064. ]
8. Kanchan Namechand Shah, ]
Age 48, Occupation – Business, having its ]
Address at Shop No.6, Krishna Building ]
No.1, Malad (West), Mumbai – 400 064. ]
9. Harshi Medical Store, ]
Through its owner Satish Savla, ]
Age 64, Occupation – Business, having its ]
No.1, Malad (West), Mumbai – 400 064. ]
10. Shree Malad Vastu Bhandar, ]
Through its owner, Rakesh Anraj Punmiya ]
Age 50, Occupation – Business, having its ]
Address at Shop No.8, Krishna Building ]
No.1, Malad (West), Mumbai – 400 064. ]
11. Dayal, ]
Through its proprietor, Mrs. Kusumben ]
Thakkar, Age 73, Occupation – Business, ] having its address at Shop No.9, ]
Krishna Building No.1, Malad (West), ]
Mumbai – 400 064. ]
12. Sapna Cutpiece Cloth Centre, ]
Through its partner, Sunil Behari Kukreja, ]
Age 47, Occupation – Business, having its ]
Address at Shop No.10, Krishna Building ]
No.1, Malad (West), Mumbai – 400 064. ]
13. Pattern Mens Wear ]
Through its partner, Siddharth Murli Kukreja]
Age 37, Occupation – Business, having its ]
Address at Shop No.11, Krishna Building ]
No.1, Malad (West), Mumbai – 400 064. ] … Respondents
1. Heaven Blue, ]
Through its Partner, Mr. Mansukh Chheda, ]
Age 48, Occupation – Business, having its ]
Address at Shop No.5, Krishna Building ]
No.1, Malad (West), Mumbai – 400 064. ]
2. Men’s Corner, ]
Through its partner, Mr. Anil G. Faria ]
Age 41, Occupation – Business, having its ]
Address at Shop No.4, Krishna Building ]
No.1, Malad (West), Mumbai – 400 064. ]
Age 48, Occupation – Business, having its ]
Address at Shop No.6, Krishna Building ]
No.1, Malad (West), Mumbai – 400 064. ]
4. Harshi Medical Store, ]
Through its owner Satish Savla, ]
Age 64, Occupation – Business, having its ]
Address at Shop No.7, Krishna Building ]
No.1, Malad (West), Mumbai – 400 064. ]
5. Shree Malad Vastu Bhandar, ]
Through its owner, Rakesh Anraj Punmiya ]
Age 50, Occupation – Business, having its ]
Address at Shop No.8, Krishna Building ]
No.1, Malad (West), Mumbai – 400 064. ]
6. Dayal, ]
Through its proprietor, Mrs. Kusumben ]
Thakkar, Age 73, Occupation – Business, ] having its address at Shop No.9, ]
Krishna Building No.1, Malad (West), ]
Mumbai – 400 064. ]
7. Sapna Cutpiece Cloth Centre, ]
Through its Proprietor, ]
Sunil Behari Kukreja, ]
Age 47, Occupation – Business, having its ]
Address at Shop No.10, Krishna Building ]
No.1, Malad (West), Mumbai – 400 064. ]
8. Pattern Mens Wear ]
Through its Proprietor, ]
Siddharth Murli Kukreja ]
Age 37, Occupation – Business, having its ]
Address at Shop No.11, Krishna Building ]
No.1, Malad (West), Mumbai – 400 064. ] … Petitioners
A statutory corporation established ]
Under the Provisions of the Mumbai ]
Municipal Corporation Act, 1888 ]
(as amended from time to time) ]
Opp. CST., Mumbai – 400 001. ]
2. Assistant Commissioner, ]
P/North Ward, Municipal Corporation of ]
Gr. Bombay, having his office at Liberty ]
Garden, Mamletdarwadi, Malad (West), ]
Mumbai – 400 064. ]
3. The Designated Officer, ]
Assistant Engineer (B&F) ]
P/North Ward, Municipal Corporation of ]
Gr. Bombay, having its office at Liberty ]
Garden, Mamletdarwadi, Malad (West), ]
Mumbai – 400 064. ]
4. Dy. Municipal Commissioner Zone-IV ]
Having office at K/west ward office ]
Building, 3rd
Floor, Paliram Road, ]
Near S.V. Road, Andheri-West, ]
Mumbai – 400 058. ]
5. Rajaram Dinkar Ketkar ]
Age : 65 years, ]
Occupation : Business ]
6. Shantaram Dinkar Ketkar, ]
Age : 59 years, Occupation: Business, ] both of Mumbai, Indian Inhabitants, ]
Residing at 1st and 2nd floor, ]
Krishna Building No.1, ]
Opp. Malad Railway Station, ]
Malad (West), Mumbai – 400 064. ] … Respondents
IN
WRIT PETITION (L) NO.26976 OF 2023
1. Mangesh Mehta ]
Age: 67, Occupation: Service ]
An adult Indian Inhabitants ]
Residing at Flat No.602, Neeta Tower, ]
Malad (West), Mumbai – 400 064. ]
2. Saroj Pradeepkumar Tiwari ]
Age: 53, Occupation : Housewife ]
21, Govind Bhavan, 2nd floor, ]
Ramchandra Lane, Off. S.V. Road, ]
Near Allahabad Bank, Malad (West), ]
Mumbai – 400 064. ]
3. Kalpana M. Dabhi ]
Age: 80, Occupation: Housewife ]
Room No.14, Krishna Baug Building, ]
No.1, Malad (West), Mumbai – 400 064 ]
4. Mamta Varma ]
Age: 53, Occupation: Housewife ]
Room No.18, Krishna Baug Building ]
No.1, Malad (West), Mumbai – 400 064. ] … Applicants/Interveners
IN THE MATTER BETWEEN
1. Heaven Blue, ]
Through its Partner, Mr. Mansukh Chheda, ]
Age 48, Occupation – Business, having its ]
Address at Shop No.5, Krishna Building ]
No.1, Malad (West), Mumbai – 400 064. ]
2. Men’s Corner, ]
Through its partner, Mr. Anil G. Faria ]
Age 41, Occupation – Business, having its ]
Address at Shop No.4, Krishna Building ]
No.1, Malad (West), Mumbai – 400 064. ]
3. Kanchan Namechand Shah, ]
Age 48, Occupation – Business, having its ]
Address at Shop No.6, Krishna Building ]
No.1, Malad (West), Mumbai – 400 064. ]
4. Harshi Medical Store, ]
Age 64, Occupation – Business, having its ]
Address at Shop No.7, Krishna Building ]
No.1, Malad (West), Mumbai – 400 064. ]
5. Shree Malad Vastu Bhandar, ]
Through its owner, Rakesh Anraj Punmiya ]
Age 50, Occupation – Business, having its ]
Address at Shop No.8, Krishna Building ]
No.1, Malad (West), Mumbai – 400 064. ]
6. Dayal, ]
Through its proprietor, Mrs. Kusumben ]
Thakkar, Age 73, Occupation – Business, ] having its address at Shop No.9, ]
Krishna Building No.1, Malad (West), ]
Mumbai – 400 064. ]
7. Sapna Cutpiece Cloth Centre, ]
Through its Proprietor, ]
Sunil Behari Kukreja, ]
Age 47, Occupation – Business, having its ]
Address at Shop No.10, Krishna Building ]
No.1, Malad (West), Mumbai – 400 064. ]
8. Pattern Mens Wear ]
Through its Proprietor, ]
Siddharth Murli Kukreja ]
Age 37, Occupation – Business, having its ]
Address at Shop No.11, Krishna Building ]
No.1, Malad (West), Mumbai – 400 064. ] … Petitioners
A statutory corporation established ]
Under the Provisions of the Mumbai ]
Municipal Corporation Act, 1888 ]
(as amended from time to time) ] and having its office at Mahapalika Marg, ]
Opp. CST., Mumbai – 400 001. ]
2. Assistant Commissioner, ]
P/North Ward, Municipal Corporation of ]
Gr. Bombay, having his office at Liberty ]
Mumbai – 400 064. ]
3. The Designated Officer, ]
Assistant Engineer (B&F) ]
P/North Ward, Municipal Corporation of ]
Gr. Bombay, having its office at Liberty ]
Garden, Mamletdarwadi, Malad (West), ]
Mumbai – 400 064. ]
4. Dy. Municipal Commissioner Zone-IV ]
Having office at K/west ward office ]
Building, 3rd
Floor, Paliram Road, ]
Near S.V. Road, Andheri-West, ]
Mumbai – 400 058. ]
5. Rajaram Dinkar Ketkar ]
Age : 65 years, ]
Occupation : Business ]
6. Shantaram Dinkar Ketkar, ]
Age : 59 years, Occupation: Business, ] both of Mumbai, Indian Inhabitants, ]
Residing at 1st and 2nd floor, ]
Krishna Building No.1, ]
Opp. Malad Railway Station, ]
Malad (West), Mumbai – 400 064. ] … Respondents
Associates for the Petitioner in WPL/26976/2023 and for Respondent
Nos.6, 7, 12 and 13 in WP/4097/2024.
Mr. A.Y. Sakhare, Senior Advocate, i/by Mr. Pradeep Havnur for the
Petitioners in WP/4097/2024.
Mr. Sanjeev Singh, i/by Adv. Ritesh Singh for the Applicant in
IAL/29277/2023.
Ms. R.M. Hajare a/w. Adv. Rutuja Bodake i/by Ms. Komal Punjabi for
Respondent Nos.1 to 4-BMC in both Petitions.
Ms. Manisha Gawde, AGP for Respondent No.5 in WP/4097/2024.
Adv. Vikhil Dhoka, a/w Mr. Abhijit Mukherjee, i/by GM Legal for
Ms. Aditi S. Naikare a/w. Adv. Rushikesh Kekane for Respondent Nos.9 and
11 in WP/4097/2024.
Mr. Girish Godbole, Senior Advocate a/w. Adv. Leena Shah, Adv. Shubham
Mishra i/by Furia Associates for the Petitioner in WPL/26976/2023 and for
Respondent Nos.6, 7, 12 and 13 in WP/4097/2024 on 27th June, 2025.
JUDGMENT
1) Rule. Rule made returnable forthwith and by consent of Advocates, the Petition is disposed of finally.
2) We have heard the learned Counsel for both sides in each Petition. We also endeavored to facilitate an amicable settlement amongst the contesting parties, however it could not yield positive result.
3) We have two Writ Petitions before us in respect of Krishna Baug Building No.1 situated at Malad West, Mumbai (writ building). Writ Petition No 4097 of 2024 is filed by the landlord seeking directions to the Respondents-Brihanmumbai Municipal Corporation (‘BMC’) to demolish the writ building by implementing its Notice dated 26th October, 2020, under Section 354 of The Mumbai Municipal Corporation Act, 1888 (‘BMC Act’) after evacuating the Respondents Nos.[6] to 13, who are tenants, using police assistance and force, if necessary. The other, Writ Petition (L) No 26976 of 2023 is by the tenants of the writ building to quash and set aside the BMC’s Order dated 28th August 2023 directing the tenants to vacate their premises to demolish the building categorised as C-1 i.e. “To be evacuated and demolished immediately.” on the basis of their Structural Engineer’s report.
4) The landowners contend that the building is approximately 100 years old, and they desire to redevelop it. However, the tenants, particularly Respondent Nos.[6] to 13, have continuously obstructed the demolition process.
5) Such obstruction is legally untenable. We say so because pending the hearing of the Petition, this Court, in Anandrao G. Pawar vs. Municipal Corporation of Greater Mumbai and Others reported in 2023 SCC OnLine, has unequivocally held that, the property owners possess an absolute right to demolish their building, irrespective of their structural soundness. Tenants cannot lawfully obstruct such demolition. The rights of tenants remain safeguarded under the Maharashtra Rent Control Act, 1999 (‘Rent Control Act’) and the BMC Act.
6) In Chandralok People Welfare Association vs. State of Maharashtra through Government Pleader, & Ors. reported in 2023 SCC OnLine Bom 2300ii, this Court has comprehensively interpreted and linked the three statutory provisions, namely Section 17 of the Rent Control Act, Section 499 and 354 of the BMC Act. The Court delineated the obligations of the BMC concerning its extensive civic responsibilities in city management. Furthermore, it distinctly crystalized the rights of tenants concerning the ‘reconstruction’ of the building while expressly excluding the right to ‘redevelop’ thereby clearly differentiating between the two concepts.
7) We entirely concur with the views expressed by the co-ordinate Bench in the aforesaid two cases and finding them directly applicable to the facts of the present case.
8) Despite being apprised of the ratio laid down by this Court in the aforementioned two judgments, Dr. Chandrachud, after taking instructions from his clients, continued to press that Respondent Nos. 6 to 13 be permitted to reoccupy the ground floor of the building. He further urged that the Respondent-BMC be directed to reclassify the building from C[1] category to C2-B category structure and permit its renovation and repair. He also submitted that, Respondent Nos. 1 to 4 be directed to implement the TAC Report dated 23rd October 2020. He asserted that, the repair work has already been completed and consequently, the ground floor of the building is no longer dangerous, thereby eliminating the need for eviction.
9) It is pertinent to note that these tenants appear solely focused on continuing their individual tenancies, with little regard for the interest of the other resident Petitioners in the building. Redevelopment of the building cannot be achieved unless the entire structure is demolished and reconstructed. In light of the obstinate stance adopted by the Petitioners in Writ Petition (L) No.26976 of 2023, we are of the view that, such conduct amounts to an obstructionist approach intended solely to hinder the landlord’s efforts toward redevelopment.
10) Recently, in the case of Khimjibhai Harjivanbhai Patadia vs. Municipal Corporation of Greater Mumbai and Ors. reported in 2024 SCC OnLine Bom 3709iii this Court after reviewing various judgments observed that, such litigations often constitute a sophisticated form of extortion. In our considered view, the Writ Petition (L) No 26976 of 2023 filed by tenants is of the same nature.
11) In view of the above settled legal position, we dispose of this Petition by granting prayer clause (b)(i) in Writ Petition No.4097 of 2024 reproduced below: “(i) this Hon’ble Court be pleased to issue a writ of Mandamus or Writ in the nature of Mandamus or any other appropriate writ, order or direction under Article 226 of the Constitution of India directing Respondents No.1 to 4 to execute Notice No.PN/DO4PN/046/354- MMC Act/PN367NO[1] dated 26.10.2020 to forthwith demolish the ground floor of the building [Krishna Baug Building No.1] presently occupied by Respondents No.6 to 13, their family members, servants, agents and any other person found occupying the same, if necessary, by use of force and to take police assistance;”
12) With the above direction, Writ Petition (L) No.26976 of 2023 and the connected Interim Applications stands dismissed.
13) Each Petitioner in Writ Petition (L) No.26976 of 2023 shall pay a costs of Rs 2,00,000/- to the Armed Forces Battle Casualties Welfare Fund within a period of four weeks from the date of uploading of the present Judgment on the official website of the High Court of Bombay.
13.1) Details of the bank account for payment of cost are as under: Account Name: Armed Forces Battle Casualties Welfare Fund. Account Number: 90552010165915. Bank Name: Canara Bank. Branch: South Block, Defence Headquarters, New Delhi - 110011. IFSC Code: CNRB001905[5].
14) It be noted here that, if the Petitioners fail to deposit the said cost within stipulated period as noted hereinabove, the Authorized Officer of the Armed Forces Battle Casualties Welfare Fund will be entitled to file an Application for execution of the present Order and for recovery of the said amount before this Court through its Advocate or through the Office of Additional Solicitor General of India, of this Court. (KAMAL KHATA, J.) (A.S. GADKARI, J.)
15) At this stage, Mr. Godbole, learned senior Advocate appearing for the Respondent Nos.6, 7, 12 and 13 in Writ Petition No.4097 of 2024 submits that, the said Respondents intend to challenge the correctness of the present Order before the Hon’ble Supreme Court. Accordingly, a request is made that, the effect and implementation of this Order be stayed for a period of six weeks from today.
16) Mr. Havnur, learned counsel appearing for the Petitioner in Writ Petition No.4097 of 2024, opposed the said prayer.
17) Taking into consideration that the other tenants in the suit property are suffering for no fault on their part and that such hardship is a result of the adamant approach of Respondents Nos.6, 7, 12 and 13 in Writ Petition No.4097 of 2024 and further having regard to the reasons recorded in the present Judgment, we see no reason to grant a stay to the operation and implementation of the present Judgment.
18) The prayer seeking a stay of the present Judgment on the ground of an intended challenge before the Hon’ble Supreme Court is accordingly rejected. (KAMAL KHATA, J.) (A.S. GADKARI, J.) i Anandrao G. Pawar vs. Municipal Corporation of Greater Mumbai and Others reported in 2023 SCC OnLine Bom 2534. ii Chandralok People Welfare Association v State of Maharashtra through Government Pleader, & Ors. reported in 2023 SCC OnLine Bom 2300. iii Khimjibhai Harjivanbhai Patadia vs. Municipal Corporation of Greater Mumbai and Ors. reported in 2024 SCC OnLine Bom 3709.