16 October,2024 08:46 AM IST | Mumbai | Dipti Singh
The Libas store operating from the illegally amalgamated residential flats. Pic/Shadab Khan
After a 19-year-long legal battle and persistent follow-ups, the Brihanmumbai Municipal Corporation (BMC) partially demolished the encroachment and unauthorised alterations by a commercial establishment operating from two âillegally' amalgamated residential flats on the premises of the Sukh Shanti building at Pedder Road, on Wednesday. While residents acknowledge that action was finally taken after nearly two decades, they expressed dissatisfaction, calling it incomplete and criticising the BMC for its prolonged inaction. The space has been rented out to designer Riyaz Gangji, who operates his fashion store - Libas - from the premises.
The story dates back to 2005, when the owner of one of the two flats in the eye of controversy, Dr Soneji, passed away. "Currently, the property in question includes two flats on the ground floor 1A and 2. The owner of flat 1A was one Dr Soneji, who passed away in January 2005, while flat no. 2 was owned by Nishant Mahimtura. Following Dr Soneji's demise, Mahimtura broke the common wall and amalgamated the two flats. He also broke the front wall and turned it into showcase displays. Not only this but the common passage of the society building was encroached upon," said Advocate Vijay Mishra, one of the lawyers representing Sukh Shanti CHS. "In 2005, after the residents questioned the illegal amalgamation of the flats, Mahimtura wrote to the residents of Sukh Shanti society that he is the legal heir of the deceased Dr Soneji," Mishra added.
On January 13, 2005, the residents registered a complaint with the Gamdevi police station, and a year later in January 2006, the residents filed a complaint with the BMC. The BMC issued its first notice to Mahimtura on January 24, 2006, and pulled down the illegal rolling shutter on January 27. "Even after this, the shutter was once again illegally constructed. It was pulled down again by the BMC in February 2006, and civic authorities also wrote to the local police. After this to and fro, we filed a petition at the city civil court," said Advocate Kunal Patel, also representing Sukh Shanti CHS.
Following multiple complaints filed with the BMC, the residents moved to the city civil court against the encroachment and unauthorised alterations in 2006. BMC's D Ward office then issued a show cause notice to Mahimtura in June 2006, directed towards the unauthorised construction or alterations on the premises, which were carried out without the requisite permissions from the competent authority, in violation of Sections 342 and 347 of the Mumbai Municipal Corporation (MMC) Act. Following this, another notice was issued in July 2006, asking Mahimtura to remove the encroachments and alterations, and restore the flats to their original state.
The BMC notice dated July 2006 stated: "You have neither produced any document within the stipulated time period nor complied with the said notice under Section 351 of the MMC Act referred above to show that the work of additions, alterations, and amalgamation of two ground-floor flats has been authorised by the commissioner. You are, therefore, directed to remove the unauthorised work carried out in flats nos. 1A and 2 and restore them to their original positions by providing the partition walls as in approved plans and by removing the rolling shutters (4 nos.), bathrooms and wooden cabins (2 nos.), fabrications, and amalgamations within seven days from the receipt of this order and to not change the use of flat nos. 1A and 2 i.e., residential to commercial. Failing this, the unauthorised work will be demolished departmentally at your risk and cost.
You shall further note that under Section 475-A(a) of the MMC Act you are liable to be punished with imprisonment for a term which shall not be less than three months but may extend to three years and with a fine which shall not be less than Rs 10,000 but may extend to Rs 50,000, and in the case of continuing offence, with a further daily fine which may extend to Rs 1,000."
Following this, the city civil court passed an order stating that the BMC could proceed as required under Section 351 of the MMC Act. Residents of Sukh Shanti have long expressed frustration with the BMC's delayed action, blaming the civic body for failing to uphold its mandate and take timely corrective measures. They claim that while the partial demolition is a step in the right direction, it falls short of fully addressing the illegal encroachment. "Despite this, no concrete action was taken against the violators and violations, and encroachments continued. We moved the Bombay High Court and filed a writ petition in August 2006. The Bombay High Court directed the BMC to take action against the violation. The case remained pending and came for hearing on October 1, 2024, and the court was appalled to find out that no concrete action was taken," said Tejas Dharia, chairman of Sukh Shanti CHS.
While the BMC has now taken action, residents continue to voice concerns about the incomplete nature of the demolition, accusing the corporation of dragging its feet for years and allowing the encroachment to persist. Many are calling for full demolition of the unauthorised construction and a complete restoration of the building's residential integrity. "Only after the court asked the BMC to file an affidavit on the action taken on October 18, on Wednesday, they conducted a partial demolition. This can't be called actual action," expressed Inder Kumar Nigotia, secretary of Sukh Shanti CHS. Dharia added, "They just cleared the encroachment in the common passage, the display window remains as it is. It is indeed an incomplete action."
Reacting to demolition on the common passage of the building and the allegations, well-known fashion designer Riyaz Gangji said, "Yes there was a notice issued to us in 2007 by BMC under Section 351. However, Mahimtura was later acquitted of all these allegations. Suddenly, after so many years, they have moved the court. We are filing a contempt case in the Bombay High Court against the society office bearers and the BMC for acting on a notice issued in 2007, which actually does not stand anymore in 2024. The society office bearers have misled both the court and the BMC. On the other hand, the BMC came in with the old notice and demolished the common passage. How legal is that?"
Reacting to Gangji's allegation of society office bearers misleading the court and BMC, advocate Mishra said: "We have the HC order of October 1, 2024, which supersedes any prior orders, including the one from the Metropolitan Magistrate. The Metropolitan Magistrate's order only provides Mahimtura relief from criminal liability under Section 351 of the MMC Act, which pertains to imprisonment. But, Section 351 has two parts: one is the civil liability for demolition of unauthorised structures, and the other is criminal liability. While Mahimtura was granted relief from imprisonment for lack of evidence, the demolition of illegal structures remains. Only the HC has the authority to set aside the civil aspect under Section 351, not the Metropolitan Court. I hope this clarifies the distinction between criminal and civil liabilities in this case."
September 27, 2007
The court directed BMC to demolish all illegal encroachments and alterations in flats 1A and 2. This decision followed the rejection of a building proposal by the executive engineer, with no further proposal pending. The demolition was to be completed within two weeks.
October 1, 2024
The court gave additional opportunity to Mahimtura, who failed to appear, by postponing the hearing to October 18. Meanwhile, the BMC was instructed to update the court on the implementation of the earlier order dated September 27, 2007.
