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The Legal Affair

Let's talk Law

The Legal Affair

Let's talk Law

The Bombay High Court slams the BMC for its insensitivity and orders the developer to vacate land reserved for the Nair Hospital Extension

The Bombay High Court slams the BMC for its insensitivity and orders the developer to vacate land reserved for the Nair Hospital Extension

Rubberwala Developers Private Limited was recently ordered by the Bombay High Court to evacuate the property reserved by the BMC for the extension of Nair Hospital in Byculla, Mumbai.

The court also chided BMC for not acting quickly enough to reclaim the premises from the developer. “In a city like Mumbai, where space is at a premium, the MCGM’s apparent apathy in reclaiming the grounds and handing it over to Nair hospital is unacceptable,” the court observed.

In a PIL case filed by one Imran Qureshi demanding that the property allocated for hospital expansion be given over to the hospital, a division bench of Chief Justice Dipankar Datta and Justice MS Karnik directed the Developers to vacate the premises within a month.

Despite the fact that the petition was filed in 2013, the court took suo moto cognizance of the matter in July 2022 because there was some dispute about the petitioner’s locus. Advocate Aseem Naphade was appointed as amicus curiae in the case by the court.

The site, which included two godowns, was originally owned by Hindustan Spinning and Weaving Mills Ltd. The state government purchased the site for the Nair Hospital expansion and turned it over to the BMC. Nalini M. Amin leased godowns near the Nair Hospital campus. The godowns were utilised to build a nursing home. Because Nalini was a project impacted person, BMC granted her permission to inhabit the premises purchased from Hindustan Spinning and Weaving Mills Ltd through a leave and licence agreement. In 2003, Nalini leased the site to Rubberwala Developers without the BMC’s written consent, as required by the leave and licence agreement. The Developer quickly filed applications for property repair. The Developer demolished the godowns without first obtaining the Certificates of Completion.

Despite highlighting the irregularity of the demolition, the Additional Municipal Commissioner (WS) recommended the proposal for repairs on the condition that the Developer restore the premises when MCGM requests it and that no permanent construction be undertaken. The Dean of Nair Hospital repeatedly requested that the part assigned to Nalini be allocated to the hospital.

The court noted that designs for the expansion of Nair Hospital had been created, and that the BMC was required to process the drawings and proceed with the public purpose for which the site had been bought. The court stated that the BMC’s actions generate the appearance that it is just not concerned with the public’s welfare. According to the court, the MCGM effectively allows the developer to have his way.

“We are amazed at the insensitivity which is displayed in the present case as we find that one of the officers of the MCGM had the audacity to ask the Dean of Nair Hospital as to why Nair Hospital needs the Dharmashala, despite the fact that the land in question was acquired for Nair Hospital, and it is the Dean’s views which should have received primal importance. We would have expected the MCGM, even now to have displayed a sense of urgency. Surprisingly there is none.”

The court remarked that the developer deliberately legitimised his claim to public land by entering into a tenancy agreement with Nalini. The BMC should have evicted the developer after discovering that Nalini had assigned the rights to the premises without the written consent of the Municipal Commissioner, according to the complaint.

The court stated that the decision-making authorities treated the situation from the standpoint of a private developer’s interests rather than the public interest. If necessary, the developer committed to pass over land possession to the corporation. According to the court, MCGM conveniently ignored the enormous public interest by allowing all of the developer’s violations to be regularised. The court found that the developer’s violations were overlooked at every level.

In the current instance, the court stated that there has been a severe abuse of power at the expense of overwhelming public interest. The court noted that the developers had occupied the premises for more than 14 years, but the BMC had shown no urgency in reclaiming the premises since 2008, other than to say that the extension is proceeding in stages and the developer will be asked to hand over the premises at the appropriate time. Instead of pursuing action against Nalini for breaking the terms of her lease, the court stated that the BMC recognised the developer as a licensee. The court described the BMC’s approach as “as cold as it can be.”

The court did observe, however, that several officials lower than the Additional Municipal Commissioner requested that the developers be evicted and the properties be turned over to Nair Hospital. The court praised the efforts of the Deputy Municipal Commissioner and other officials “who attempted to bring up suggestions in accordance with the law, but were unfortunately forced to fall in line with the dictates of their superiors.”

CASE: Imran Suleman Qureshi v. Municipal Corporation of Greater Mumbai