1 NMW-44-2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 44 OF 2011 IN PIL WRIT PETITION NO. 158 OF 2006 Disha ..Petitioner versus Municipal Corporation of Greater Mumbai & Ors. ..Respondents And Versova Andheri Mangal CHS Ltd. ..Applicants Mr. D. D. Madan, Sr. Advocate with Mr. Zal Andhyarujina, Mr. Shiralkar i/b. Shiralkar & Co. for Applicants. Mr. Mohit Jadhav for Petitioner. Mr. A. Y. Sakhare, Sr. Advocate with Ms. V. G. Gharpure for Respondent Nos. 1 and 2 Ms. Anjali Helekar, Assistant Government Pleader for Respondent No. 3. CORAM : DR. D. Y. CHANDRACHUD & ANOOP V. MOHTA, JJ. 13 January 2011. P.C. : Not on Board. By consent, the Notice of Motion is taken on board and called out with the connected batch of Notices of Motion. 2 NMW-44-2011 2. In this Notice of Motion the Applicants have sought a direction to the Municipal Corporation and to the Maharashtra Housing and Area Development Authority not to demolish or remove the unauthorized extensions / constructions carried out by the Applicants. The other reliefs sought are ancillary to these directions. 3. In an order of this Court dated 13 December 2010 the Court had observed that the Municipal Corporation had followed due process of law by issuing notices under Section 351 in respect of the unauthorized constructions carried out in the lay outs of MHADA at SVP Nagar and Adarsh Nagar. Final orders were passed after the principles of natural justice were complied with. This Court declined to grant the reliefs prayed of injuncting the Municipal Corporation from implementing its orders of demolition. 4. The Order of this Court was challenged in Special Leave Petition (Civil) Nos. 19583 of 2010, 19847 of 2010 and 19905-19925 of 2010 before the Supreme Court. The Supreme Court, while issuing notice in the Special Leave Petitions, issued the following directions on 10 January 2011:- “All the petitioners have furnished undertakings in the form of respective affidavits, unconditionally undertaking to remove unauthorized portions in their respective tenements within the time as may be granted by 3 NMW-44-2011 this Court, failing which, they will not object to Maharashtra Housing and Area Development Authority (MHADA) / Municipal Corporation demolishing unauthorized portions in the respective tenements. We take the undertakings on record and direct that till 30th April, 2011, MHADA / Municipal Corporation shall not take any action for demolition of the unauthorized constructions. However, if by 30th April, 2011, the petitioners fail to demolish the unauthorized portions, as pointed out in the show cause notices issued by the Municipal Corporation, Mumbai, it will be open to the said authorities to demolish all the unauthorized portions / unauthorized structures existing in the tenements in the occupation of the noticees forthwith. The petitioners are also restrained from carrying out any construction in the subject premises. Be it known to all the petitioners that no Court shall grant further extension for removal of unauthorized structures.” 5. At the hearing of this Notice of Motion, the only relief that has been sought by the Applicants is that in terms of the directions which have been issued by the Supreme Court, time should be granted to the Applicants to remove the unauthorized portions in their respective tenements until 30 April 2011 on their filing unconditional undertakings in the same terms as the undertakings that were filed before the Supreme Court. 6. The learned counsel appearing on behalf of the Municipal Corporation has stated at the hearing that the Corporation had issued 4362 notices under Section 351 of the Mumbai Municipal Corporation Act, 1888. 4 NMW-44-2011 114 structures were regularized and 218 structures were covered by Orders of injunction passed by the City Civil Court. After this Court had declined to stay the action of demolition by the Municipal Corporation, nearly 1500 structures are stated to have been demolished and the demolition action is in progress today. The learned counsel appearing on behalf of the Municipal Corporation submitted that the demolition action may not be stayed at this stage. In any event, it has been submitted that in the event that this Court is inclined to grant protection in the same terms as the Order passed by the Supreme Court on 10 January 2011, this should be subject to (i) unconditional undertakings being filed; and (ii) due verification in each individual case by the Assistant Commissioner of the K/West Ward of the existence and identity of the structures with reference to the notices issued under Section 351. The learned counsel also stated that in the undertakings, the respective individuals should make a statement that the structures have not been demolished thus far and the undertakings should also contain as an annexure the notice under Section 351 in order to facilitate verification. 7. Since in the Special Leave Petitions filed against the order of this Court dated 13 December 2010, the Supreme Court has issued directions on 10 January 2011, judicial propriety and discipline requires that the same order should be passed by this Court. In the circumstances, the Notice of 5 NMW-44-2011 Motion shall be governed by the same directions that were issued by the Supreme Court in its Order dated 10 January 2011, as extracted in the earlier part of this Order. However in order to meet the concerns which have been set forth on behalf of the Municipal Corporation, we direct that the unconditional undertakings to be filed by the Applicants must contain a statement to the effect that the structure is still in existence and has not already been demolished by the Municipal Corporation prior to the date of the passing of this Order and a copy of the notice under Section 351 of the Mumbai Municipal Corporation Act 1888 must be annexed to the undertaking, to enable the Assistant Commissioner of K/West Ward to verify the existence and identity of the structure. The original undertakings shall be filed on the record of these proceedings and copies thereof shall be furnished to the Assistant Commissioner, K/West Ward. This exercise shall be completed on or before 20 January 2011. In view of the Order which has been passed, the deadline of 15 January 2011 is extended until 20 January 2011 for effectuating compliance. These conditions are agreed to by counsel for the Applicants. 8. It has been agreed between the learned counsel appearing on behalf of the Applicants and the learned counsel appearing on behalf of the Municipal Corporation that having regard to the large number of structures involved 6 NMW-44-2011 and since this relates to a mass demolition, the individuals concerned shall furnish a copy of this Order together with the undertaking, accompanied by a covering letter of the Advocate to the Assistant Commissioner, K/West Ward. 9. Learned counsel appearing on behalf of the Applicants has stated that since the application has been taken out on behalf of the Co-operative Housing Society, each individual member concern will file an undertaking as directed by this Court. 10. Before concluding we wish to record that the only relief that has been sought by counsel on instructions from the instructing advocate in these proceedings, is in terms of the Order of the Supreme Court and no other point has been raised. 11. The Notice of Motion is accordingly disposed of. No costs. (Dr. D. Y. Chandrachud, J.) (Anoop V. Mohta, J.)