Sr Adv Aspi Chinoy, representing the Brihanmumbai Municipal Corporation (BMC) put-forth his submissions in the demolition case of Kangana’s Mumbai office.
While hearing the petition filed by Kangana, the BMC firstly told the Bombay High Court that Kangana never came out clear on the issue of illegal construction at her bungalow.
Chinoy said that "In her petition, she first said, "no work is being carried on" and then later it changed to yes there was "waterproofing work" that was going on. She did not even stop the ongoing construction work.”
He then stated that "Petitioner has been characterized as a person who has been victimized and harassed. However, the reality is that the petitioner has carried out unauthorized structural alterations. She would have us believe that all this (demolition) is the reaction to her public utterances and statements. It is the reverse side of the coin. She has made unlawful changes and is claiming demolition to be a response to her utterances."
"There is not a word in the petition or in the amended petition as to why the writ should be entertained and what are the exceptional circumstances as to why it should not be sent to a civil court. It cannot be that a political controversy created by the petitioner in the media is an exceptional circumstance (for maintainability of writ). This will be a case of the tail wagging the dog. The petitioner herself creates a political controversy and cites that to be a reason to entertain a writ."
“She says no work is being done, whereas three days ago our inspection revealed work in progress, with six workers present at the site along with machinery, etc. What is being portrayed is that waterproofing work was going on. The law allows demolition within 24 hours. She does not say in the reply that her work was in the nature of water-leakage proofing. She makes a categorical denial by saying no work at all.”
“When the response was no work is being carried out, I don't have to wait to carry out the demolition. The law says that there is no need for elaborate hearing over 7 days. Nowhere in the entire petition, has she said that she did not carry out the work, she had permission for the work, etc. This is a writ under Article 226. You can't play poker."
Chinoy further submitted that the petitioner has very carefully made only vague denials knowing fully that she has violated the laws. “There is not even one word in the petition about when these alterations and additions against the sanctioned plan that were made.”
On this point, Dr. Birendra Saraf, Advocate for Kangana said that as Kangana was not present in the city therefore the submissions for certain details were difficult to make.
Chinoy responded that "In this day and age when you can tweet all the way from Manali, you can surely tell your advocate when the work started.”
Justice Kathawalla said that people like petitioners may not know the difference between sections 351 and 354A on which Adv Chinoy said that "The reply only needs to state when the work started and whether the prior permission for the work was obtained. When you build toilets in an open area, it is a Floor Space Index issue but when you amalgamate your bedroom with another bedroom, it is not a simple matter. When she can remember all other public issues, how come your memory fails you in this work, which is carried out with lakhs and lakhs of rupees over several weeks. I agree that there is a quicker response in this case when compared to other cases. But that is not an answer. You cannot carry out unauthorized constructions."
Chinoy further submitted that “We have nothing on our records to show that she has applied for permission to carry out the alterations and done it after getting such permission. Suppose they had come and said they have stopped the work, we would have had to hear them. But what did they say? That no work was done. This is an important distinction. Even today you don't tell us when the work started, this is amazing how the petitioner is withholding information. If in a case on inspection it is found that unauthorized alterations have taken place and finishing work is going on, Section 354A can be invoked.”
“And you (Kangana) create a huge hullabaloo about being de-housed. But why don't you tell your case and state when the construction was done and if it was done with permission."
He added that “Also, according to the petitioner, she had tweeted about Mumbai police, and the action of demolition was taken in response to that tweet. However, the problem is that her tweet was posted at 5 pm and the inspection carried out at the partly demolished property was at 1 pm. The inspection was three hours before the tweet of Kangana Ranaut. Where is the link? Mala-fides cannot be loosely alleged.”
The court observed that the issue of quicker response may be relevant to the issue of whether the action was malafide. On this point, Chinoy submitted that "You have to come to court with clean hands. The Court has to look at the conduct of the petitioner and analyze the issue in the context of her actions. There is a complete lack of candor on the part of the petitioner as to whether the work was done and when the work was done. We have seen five workmen and one supervisor on the site. We have seen gunny bags and plywood on the site. There was detailed work going on."
Chinoy while taking into consideration the allegation of malice said that "Malice in law will be when you try to achieve an unlawful purpose, extraneous purpose. Where is the unlawful purpose of acting against unauthorized construction?
Your utterances cannot give immunity to your unlawful works. It cannot be that you carry out unlawful works and say that the action was a response to your criticism of the government."
Finally, he concluded his submissions by saying that “if this writ will be entertained then it will send the wrong signal that people who make public posturing can get away with their unlawful activities.”
Matter for further hearing is put up on 29th September at 3 pm. Submissions by Rajya Sabha MP Sanjay Raut's counsel Advocate Pradeep Thorat will be done on the next hearing only, but the affidavit has already been filed.