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Tuesday, April 30, 2013

HC declines to intervene in Worli case, cites petition in apex court Residents To Weigh Future Legal Course

Rosy Sequeira TNN

    The Bombay High Court on Monday declined to intervene and grant interim relief from demolition to residents of the illegal upper floors of all buildings at the Campa Cola compound at Worli.
    Rejecting their plea, the court said so long as the Supreme Court’s order continues to operate, it should not interfere with the Brihanmumbai Municipal Corporation’s (BMC) action under Section 488 of the Mumbai Municipal Corporation Act, more so when a review petition is pending before the apex court. It noted that there is no interim relief granted in the review petition.
    A division bench of Justice Abhay Oka and Justice A R Joshi heard two petitions, one by residents who live above the fifth floor and another, by those who live up to the fifth floor. The SC had on February 27, 2013, upheld the BMC’s notice under Section 351 (stop work) notice.
    Advocates Rajendra Pai and Sandeep Aole argued on behalf of all residents facing demolition that the BMC is “going hammer and tongs’’ to undertake the demolition even while their review petition is pending in the Supreme Court. “It is an enormous, gross work. Nowhere in Mumbai has demolition taken place of an occupied building,’’ said Pai. The judges said the BMC notice has been confirmed by the Supreme Court. “What else is there to be done? Once the apex court says demolish, can anybody say he wants to continue to stay?” asked Justice Oka.
    The judges said the residents could have gone to the Supreme Court with their grievances instead of approaching the HC. “You’ve adopted remedy of review, you go there. In the teeth of this direction, can we stop the demolition?” asked Justice Oka. Pai said residents moved the HC after flats above the fifth floor were issued notice under Section 488 (power to commissioner to enter premises) of the MMC Act on April 26, 2013 in which they were asked to vacate their premises by April 29, 2013. He said the SC order does not say demolition should be carried out hastily.
    To a query, the judges were informed that demolition has not started. “Demolition of a building where a person is residing is against fundamental rights,’’ said Pai, adding, “They must not take hasty decisions. Don’t dis-house me like this. We appeal to the conscience of the court.” Pai said time to exhaust legal remedy must be given.
    The judges said they were not going to hear the petitioners on merit. They made extensive reference to the Supreme Court’s order. They pointed out that the SC said it was not dealing with illiterate people but those who were fully aware that the upper floors were illegal. Also, the SC had expressed that the BMC will undertake the demolition at the earliest and that its officers/employees shall not put hurdles and obstacles in its way.
    “We are contemplating the legal options available and should decide on the next course of action by Tuesday,” said Aole, a partner in the law firm which handled the High Court case for the residents.
    Counsel M P Rao, appearing for residents living up to the fifth floor, argued the BMC does not have technical ability and specialised knowledge to undertake demolition of only the occupied part of the structure. “They must make sure the demolition does not affect our flats,’’ said Rao, adding the BMC must get a structural stability report.
    BMC counsel S U Kamdar said it has appointed consultant Shashank Mehendale and Associates for the job. “The work will be carried out in a phased manner,” said Kamdar. “While carrying out demolition, the BMC is bound to ensure safety of the structures held to be legal,” the court said.

‘ONLY SUPREME COURT CAN GRANT INTERIM RELIEF’
HC declines to intervene as the review petition is pending in the SC
The judges said they were not going to hear the petitioners on merit. Any interim relief or remedy available to the affected residents should be taken up in the pending SC review petition
We are contemplating the legal options available and should decide on the next course of action by Tuesday
Sandeep Aole | LAWYER FOR AFFECTED RESIDENTS