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Did You Act in the Same Manner and With the Same Swiftness Against Other Unauthorized Constructions?: Bombay HC to BMC in Kanagana Ranaut case

By Neha Bharti      29 September, 2020 08:11 AM      0 Comments
Did You Act inthe Same Manner and With the Same Swiftness Against Other Unauthorized Constructions?: Bombay HC to BMC in Kanagana Ranaut case

The Bombay High Court while hearing the Writ Petition of Kangana Ranaut against the Municipal Corporations demolition of her bungalow turned office at Pali Hill, Bandra questioned as to how the ground floor was demolished, there was no alteration made on the ground floor according to the inspection report submitted by the BMC. It was one of such questions that came up during the hearing that was scheduled on September 25, 2020, at 3 p.m. 

The two-judge Bench of Justice S J Kathawalla and Justice R L Chagla heard Kangana Ranaut's Counsel Senior Advocate Dr. Birendra Saraf on September 25, 2020, at length. BMC's Council Senior Advocate Aspi Chinoy submitted that the allegations and counter-allegations in the matter on facts, the matter should not be considered as a writ petition but the Bench said that the submission will be considered. 

Dr. Birendra Saraf referred to the fresh sari joinder which is submitted by the municipal corporation in response to the petitioner rejoinder and said that he will respond to it. He further said that "This is a case where all the laws and provisions have been thrown out. The material produced by the corporation and the photograph submitted has far from establishing the case demolish their own case with every effort if they have tried to improve their case. This is a malafide action against me as I have a difference of opinion and ideology with those in power having an authority. The timing of the action taken by the Corporation supports my case and clearly shows that there is malice in fact and law on the part of Municipal Corporation of Greater Mumbai authorities".

The building was purchased in 2017 and Kangana Ranaut has made an application in 2018 for the structural repair of the building as the building was 42 years old. The structural audit of the building was placed in the C2B category. 

In October 2018 Municipal Corporation of Greater Mumbai sent a letter to the petitioner that the proposed structure repairs were major and it should be carried out to the satisfaction of the Structural Consultant. In May 2019, Kangana has sent a letter to the Bombay Municipal Corporation enclosing a letter that the building is fit for inhabitation after structural repair. Dr. Saraf contended that she was granted permission for renovation work and even at every stage she has proceeded with the necessary permission and after consulting with the experts. 

Dr. Saraf continues that thereafter when the renovation was completed in January 2020 and a ‘Puja ceremony was held after innovation and attracts media attention also. The newly renovated bungalow was also highlighted in architecture magazine in April 2020'. 

However, Dr. Saraf said that "The petitioner is at the loggerhead with the Maharashtra government over some issues. She has displeased a party in power with her open views she has to face life threats and has to seek special protection from the Centre. Sanjay Rawat has made a derogatory statement against Kangana on a TV channel. He said that the Kangana needs to be taught a lesson and on the same day when Rawat makes a remark, an officer (Mukadam) from the BMC visited and enter the property without prior notice and the timing of the visit assume its relevance". According to Mukadam report he just saw the gate open and he walked into the premises thereafter on September 7, the official from the municipal corporation of Greater Mumbai visited the property around noon did take some measurements and also the handwritten notes. The messed up the security staff and other working at the premises and even threatened them. 

Then on September 8, a notice was issued by the Municipal Corporation of Greater Mumbai seeking the documents, regarding the alteration carried out at the property. "At the first opportunity the petitioner got, she has denied all the allegations made by the corporation and categorically stated that no work was going on at that property"

Thereafter on September 9, 2020, the order of demolition was passed, and although the order of demolition was posted on the property door at 10:34 a.m. the officials of the corporation along with the requisite machinery were present at the site with the full force at 10.19 a.m.

Dr. Saraf refer to the Corporation's claim that on September 10, 

Mukadam in the course of a routine inspection of the said area apparently saw some construction activities were going on that property in question. He also noticed gunny bags kept outside, the gate was open so, he went into the property. On the same day i.e. September 5, prepare the detection report now the corporation had annexed all kinds of documents to respond to the petitioner's claim but not the detection report, Dr. Saraf questioned. The first inspection report of the premises was prepared by the designated officer who inspects the property.

Justice Kathawalla remarked that "We will have to examine whether the demolished portion said to be an unauthorized construction was ongoing work or work done in the past". 

Justice Kathawalla after reading the first inspection report asks "there is no ongoing work on the ground floor even according to the corporation except for the entrance gate nothing was changed. Then how was the ground floor demolished? "

The Bench told Dr. Saraf "Has the corporation demolished any portion which exists in January 2020? We want your assistant with that. 

Dr. Saraf while referring to the inspection report which is prepared on the demolition site \. Dr. Saraf pointed out that the corporation has alleged that are toilet has been converted into an office and alteration has been made in the kitchen how do they know that this structure did not exist before? The first handwritten notes do not mention any of these contentions. 

When the statute confers more power it requires great responsibility. BMC has even not prepared any panchnama recording at any equipment or tool for work which was found on that property and there is no consistency in the contention taken by the BMC. 

MCGM's Council intervenes with Dr. Saraf saying that everything that was demolished was unauthorized. 

The Court asked the corporation whether the photograph of the sites was taken by the BMC officer this question was asked after the Saraf told the court that the photograph has no date imprinted on them and all the date of September 5 is handwritten over them. MCGM'S Counsel confirms that the officer had taken the photographs from his mobile the Bench ask him to deposit his mobile phone to the court so that it can be verified that the photos were taken from his phone. 

Finally, the BMC report refers to the photograph of the people who were allegedly working at the petitioner's property but Saraf said that these are just random people standing around and the corporation has just taken their pictures and purport to show them as workers one of them is a cleaner who worked at the building and corporation has annexed picture of him taking over the phone".

Saraf refer to the DMC circular and said that there should be an entry in the detection register on the same day when unauthorized construction is detected. Secondly, they have to get a photograph of the site and thirdly panchnama to be prepared on the material and machinery, etc. He contended that "all these procedures were thrown out of the wind in the instant case"." There is non-compliance of the circular and there is no sketch, no photograph, no entry in the detection register”, he submitted that.

At this point in time, Justice Kathawalla asks Senior Advocate Chinoy about some other entries in the detection register and also questioned him with the demolition was carried out with respect to them or not. Chinoy said that he will respond to a specific point on the next date of hearing. Justice Kathawalla said that "We want to know if the demolition has taken place in those cases with same swiftness"

The matter was adjourned and the next date of hearing is on September 28 at 11 a.m. 

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