MHADA Seeks Urgent Hearing Of Plea In Supreme Court On Demolition Of Dilapidated Buildings

The Maharashtra Housing and Area Development Authority (MHADA) has sought urgent hearing before the Supreme Court of pleas challenging the Bombay High Court judgment which directed constitution of a high-level committee to examine issuance of 935 notices under Section 79-A of the MHAD Act.

The matter was mentioned today before a bench of Justices Surya Kant, Joymalya Bagchi and Vipul M Pancholi by Solicitor General Tushar Mehta. The SG submitted,

"the finding of the High Court is that MHADA is not competent to demolish dilapidated buildings. The urgency is that because of heavy rains, some buildings have started collapsing, so we would be praying for stay of the order...it would need urgent hearing."

For context, Section 79A of the MHAD Act primarily focuses on the redevelopment of cessed and dilapidated buildings in Mumbai, particularly those declared dangerous under Section 354 of the Mumbai Municipal Corporation Act.

On hearing the SG, the bench listed the matter on September 16.

To recap, the impugned order was passed by a Division Bench of Justice GS Kulkarni and Justice Arif S Doctor in a batch of writ petitions alleging that hundreds of owners and tenants of buildings were served notices under Section 79-A of the MHAD Act by executive engineers without any jurisdiction. The petitioners argued that the issuance of the notices was ex-facie illegal, and in fact, amount to a large-scale abuse of powers, considering the magnitude at which such notices were issued for different properties.

On hearing the submissions, the High Court noted that in its previous order (8 July), it had observed that for issuing a notice under Section 79-A, a sine qua non was the categorization of a building as 'dangerous' by a notice under Section 354 or such a declaration by the Competent Authority defined under Section 65. It was also observed that the Executive Engineer did not have jurisdiction to issue the impugned notices.

On July 28, holding that it is the duty of a constitutional court to intervene and inquire into instances where state power is alleged to have been abused for extraneous considerations, the High Court directed the constitution of a high-level committee.

“… such notices are issued purely at the ipse dixit of these officers and on a brazen non-compliance of the requirements of sub-section (1) of Section 79-A… the Executive Engineers could not have assumed authority, power and jurisdiction alien to what has been provided by the Legislature for invoking Section 79-A, which was only two circumstances, as noted by us herein above…” the Court observed.

It also came down heavily on the Vice-Chairman, questioning whether the Vice-Chairman was not duty-bound to apply his mind to the provisions of Section 79-A and the requirements to be fulfilled in taking any action under Section 79-A. 

“… considering the proportion and/or magnitude of the illegality and the high-handedness of such actions… and the very severe impact of such actions on the Constitutional rights guaranteed under Article 300A read with Articles 14 and 21 of the Constitution, it is difficult to brush aside such actions lightly.”

Further, the Court remarked that it could not remain a passive spectator in the face of highhandedness and abuse of powers by the officials, and it was imperative upon it as a constitutional court to inquire into such issues.

Aggrieved by the decision, MHADA approached the Supreme Court. Notice was issued on one of the petitions by a bench of Justices Manoj Misra and Ujjal Bhuyan on August 4. On this date, it was contended on behalf of the petitioner(s) that the Municipal Corporation had been treating the concerned building as dilapidated and dangerous and, therefore, the notice under Section 79-A issued by the Board could not be said to be without jurisdiction.

It was also contended that the term 'competent authority' as defined in Section 2(11) was subject to the context, as apparent from the opening part of sub-section (2) of the MHAD Act.

On August 8, a bench led by Justice Kant issued notice on another petition filed by MHADA and tagged it with the earlier case.

Case Title: Maharashtra Housing Area v. Javed Abdul Raheem, SLP (C) No. 21699-705/25