Demolition cases cannot be kept pending indefinitely due to Ad-interim relief, Bombay HC

In a significant order, the Bombay High Court recently emphasised that cases stalled due to ad-interim relief granted against the proposed demolition of illegal structures cannot be kept pending indefinitely. The Court observed,.“We have in most of the matters before us noted that, as soon as the Municipal Corporation issues a notice to any party to remove the unauthorized structure/s, he/she files an injunction suit in the City Civil Court, giving very short notice to the Corporation, moves and obtains an ad-interim injunction, not on merits but as a matter of course, since the Advocate for the Corporation, who is served with the papers at the last minute is left with no alternative but to seek time to take instructions. “ .The Court went on to note,.“Consequently, as in the instant case, this Court is unable to move further in the matter, since the Corporation repeatedly submits that despite the structure being unauthorized, it is unable to take any action because of the ad interim order passed by the City Civil Court. This modus operandi cannot continue.”.A Division Bench of Justices SJ Kathawalla and BP Colabawalla was hearing a petition filed by one Indu Sarathi Developers, seeking writ of mandamus from the Court to the Municipal Corporation of Greater Mumbai (MCGM) to demolish an allegedly unauthorised construction on the petitioner’s property..Earlier, the Bombay High Court on June 6, 2017 had directed the MCGM officers to visit the subject property to ascertain whether illegal construction as alleged by the petitioner had been carried out. The Court had directed that if the respondent MCGM finds illegal construction, it should take steps for its demolition in accordance with law. The Court had further clarified that the action of demolition should follow due notice to the occupant, Atul Mishra of Atul Marbles..Pursuant to the said order, the MCGM had confirmed that the structures put up by the respondent proprietor/occupant were illegal and issued notice in the matter. Subsequently, the occupant challenged the demolition order before the City Civil Court. The trial Court had granted ad-interim relief to the occupant and restrained the Corporation from taking action to demolish the structures in question..The High Court observed that injunction was granted by the City Civil against Corporation without going into the merits of the case. The Court went on to note that the injunction order has continued for over two years and that even the Notice of Motion has not been taken up for hearing..In response, the Division Bench has now directed the Principal Judge, City Civil and Sessions Court to ensure that ad-interim urgent orders passed in such a such matters do not continue for an indefinite period. In this regard, the order states,.“A copy of this order shall be forwarded to the Principal Judge, City Civil and Sessions Court to ensure that ad-interim urgent orders passed in the aforestated routine manner without going into the merits and without the Corporation getting enough time to take instructions in the matters, do not continue for an indefinite period but the matters pertaining to unauthorized constructions where such exparte urgent orders are passed should be taken up for final hearing and decided on merits at the earliest.“.The High Court proceeded to direct the City Civil Court Judge to hear Notice of Motion within two weeks and pass appropriate orders. The Bench also directed that a copy of its order be forwarded to the Guardian Judges of the City Civil Court, Mumbai by the Prothonotary and Senior Master of the High Court..Respondent MCGM was represented by Special Counsel Ashwin Sakolkar along with advocates Rupali Adhate and Yamuna Parekh. Advocate AR Shaikh appeared for petitioner Indu Sarathi Developers..[Read order dated December 5, 2019]