Bombay HC continuing the hearing on the petition filed by actor Kangana Ranaut @KanganaTeam against the demolition of her bungalow by the Mumbai civic body @mybmc.

A bench of JJ Kathawalla and R I Chagla hearing the matter.

#KanganaRanuat

What happened on the last hearing day(Sep 25)?. Read this report:

Kangana Ranaut Case: Did You Act With Same Swiftness Against Other Unauthorized Constructions? Bombay HC Asks Mumbai Civic Body

@KanganaTeam @mybmc https://www.livelaw.in/top-stories/kangana-ranaut-case-did-you-act-with-same-swiftness-against-other-unauthorized-constructions-bombay-hc-asks-mumbai-civic-body-163530

Sr Adv Aspi Chinoy, appearing for the BMC, submits that the mobile phone of the BMC official who claimed to have taken the photographs on September 5 of the building, has been deposited before the Court.

The bench had directed to do so on the last date.

#KanganaRanuat

Dr.Birendra Saraf, Kangana's lawyer, guiding the bench through photos of the demolished site and the photos prior to demolition for comparison.

#KanganaRanuat
#BMC

Saraf submits that the demolition order is in violation of the orders of the Supreme Court and the Bombay HC. He submits that the HC had restrained authorities from carrying out demolition works in view of the COVID-19 situation.
#KanganaRanuat
#BMC

Chinoy, BMC's counsel, submits that the order is not applicable as the HC only stopped authorities from executing orders passed earlier.
#KanganaRanuat
#BMC

The bench remarks that the Court had only expressed a hope that the municipal authorities will not carry out demolitions and that acting contrary to such hope may not be contempt as such.
#KanganaRanuat
#BMC

J Kathawalla : Mr Saraf we have had so many cases where we asked the Corporation to demolish & they have not demolished. That's why we observed in our first order(in this case) that if they (BMC) act with such swiftness in all cases city would have been a better place to live.

Saraf submits that there are provisions for regularizations in the Maharashtra Regional Town Planning Act and the demolition notice ought to be kept pending while the regularization application is pending. Similar provisions are there in the BMC Act, he submits.
#KanganaRanuat

Saraf submits that there are cases where the civic body has permitted to retain the entirety of floors after regularization.

#KanganaRanuat
#BMC

The notice and the order are not in consonance with Section 354A of the BMC Act : Saraf for Kangana.
#KanganaRanuat
#BMC

Kangana's lawyer Saraf makes two points :

1. There was no construction going on. The notice was not issued on the basis of any finding that any work was in progress.
#KanganaRanuat
#BMC

2. Assuming work was being done, under Section 354A of the BMC Act, the authorities have to first issue notice giving an opportunity to the person to produce the permit. Straightaway demolition not contemplated.

#KanganaRanuat
#BMC

Parties also have the option to go for regularization. These opportunities were denied to Kangana @KanganaTeam as the authorities @mybmc did not act according to the provisions : Saraf.

#KanganaRanuat
#BMC

All of these (opportunities) have been denied because the authorities invoked a provision which was ex-facie not applicable : Saraf, Kangana's lawyer.

@KanganaTeam
@mybmc

Dr. Saraf refers to the 1996 decision of Bombay HC in
Sopan Maruti Thopte vs Pune Municipal Corporation". SC called this decision a "locus classicus" on the subject, he adds. This decision contemplates personal hearing before demolition, he submits.
@KanganaTeam
@mybmc

The SC has approved the above decision in the 2019 judgment "Municipal Corporation Of Greater Mumbai. vs M/S Sunbeam High Tech Developers" : Dr. Saraf, Kangana's lawyer.

@KanganaTeam
@mybmc

The Court said that 15 days notice should be given for demolition, submits Saraf, referring to 'Sopan Maruti Thopte' decision of the HC.

@KanganaTeam
@mybmc

Saraf refers to Sub Vijay International Pvt ltd. vs. Commissioner, MCGM (2006). He says in that case the HC held that compensation should be awarded to the order if the Corporation has violated procedure in demolition, even if the construction was unauthorized.

#KanganaRanaut

BMC's lawyer Chinoy interrupts and asks Saraf to read another paragraph from the judgment. Saraf reads that paragraph in which Court observed that in cases on unauthorized construction people raise the claim that the building had been in existence long ago.
#KanganaRanaut

The Court had suggested techniques like geo-mapping to ascertain such claims - Saraf reads out from the judgment.

#KanganaRanaut

The judgment referred to is the 2019 SC verdict in MCGM v. Sunbeam High Tech Developers Pvt. Ltd.

Read the judgment here :

Illegal Structures Cannot Be Permitted To Be Re-Erected Merely Because Of Procedural Violation While Demolishing Them: SC https://www.livelaw.in/top-stories/illegal-structure-reconstruction-reerection-procedural-violation-sc-149234

Saraf submits that the SC has said that there should be 7 days notice for demolition, that photographs should be annexed to the notice etc and that the violation of these procedural guidelines will make the demolition illegal.

#KanganaRanaut

BMC's lawyer Chinoy submits that the SC judgment is in the context of Section 351 and not Section 354A of the BMC Act.
#KanganaRanaut

Saraf submits that his next argument is on the point of "mala-fides'.

There are "malice-in-law" and "malice-in-fact" involved in the case : Saraf, Kangana's lawyer.

#KanganaRanaut

If authorities are acting with high-handedness and in violation of statutory provisions and court directives, there is 'malice in law', irrespective of the intention of the authorites : Saraf, Kangana's lawyer.

#KanganaRanaut

As regards 'malice-in-fact', Saraf submits that Kangana had made certain statements against the government, and one of her tweets elicited a strong response from Sanjay Raut @rautsanjay61. Raut said that Kangana should be taught a lesson : Saraf, Kangana's lawyer.
@KanganaTeam

Court asks Saraf to play the video clip containing the statement of Sanjay Raut @rautsanjay61.

@KanganaTeam

Saraf is playing before the Court the audio clip containing the statement of Sanjay Raut against Kangana Raut.

@KanganaTeam @rautsanjay61

Raut's lawyer, Pradeep J Torat, submits that Kangana's name was not referred to by his client.

J Kathawalla : Can we record the statement that you(Raut) have not called the petitioner 'haramkhor'?

I will file an affidavit tomorrow, Torat says.

@KanganaTeam @rautsanjay61

It cannot be disputed that there is a great deal of angst against my client. Around the same time, the BMC official vists my property : Saraf, Kangana's lawyer.

@KanganaTeam @rautsanjay61 @mybmc

The manner in which demolition order was passed in 24 hours, the manner in which demolition was carried out, the manner in which BMC delayed appearance before this Court despite filing a cavaeat...all these factors taken...

...in entirerty show that the action is vitiated by malice : Saraf, Kangana's lawyer.
@KanganaTeam @rautsanjay61 @mybmc

BMC's lawyer Chinoy submits that Kangana has stated that all these actions were result of her tweet made on Sept 5. Chinoy asks for production of the tweet to know its timing.

@KanganaTeam @rautsanjay61 @mybmc

Court also asks Saraf to produce the tweets. Saraf agrees.

@KanganaTeam @rautsanjay61 @mybmc

J Kathawalla to Saraf : If you have joined issues (against Raut), have the guts to fight it? Admit what you have done. Why hide things?

Saraf : I will produce all my tweets. All my statements are in public. There is no question of hiding anything.

@KanganaTeam @rautsanjay61

Saraf : In recent times the petitioner has been at loggerheads with the Maharashtra Government over the way in which certain issues have been handled. This displeased certain quarters.
@KanganaTeam @rautsanjay61

Saraf adds that the demolition was followed by a news item where @rautsanjay61.
"It shows as if they are rejoicing the news", Raut.
@KanganaTeam @mybmc

Saraf points out that the major party(Shiv Sena @ShivsenaComms) in the ruling coalition is controlling the BMC as well.
@KanganaTeam @mybmc

Saraf now referring to SC precedents on 'malice in law' and 'malice in fact'.

These have to be inferred from the surrounding circumstances, he submits.

Saraf now responding to the objection raised by BMC as to the maintainability of the writ petition.

Merely because some disputed questions of fact are involved, it cannot be said that writ is not maintainable, he submits.

If there is arbitrary or unreasonable action by state violating Article 14, courts can consider writ petition under Art 226, even though some disputed questions of fact are involved, if elaborate evidence is not required : Saraf quotes from precedents.

#KanganaRanuat

The BMC took the objection in their sur-rejoinder. In any case, the court is now at the stage of the final hearing. So, the stand taken by the BMC is not fair : Kangana's lawyer Saraf.

@KanganaTeam @mybmc
#KanganaRanuat

On the reliefs, Saraf submits that Kangana be permitted to make the building habitable and if necessary, to make applications for regularization.

J Kathawalla : How much time you need to make the building habitable?

Saraf says he will reply after getting instructions.

Saraf further submits that the damage suffered by his client should be fully compensated.

"According to me, the damage is Rs 2 crores", he submits.

@KanganaTeam @mybmc

The SC has held (in Sun Beam case) that even if the construction is unauthorized, officials are lible to pay compensation if there are procedural violations : Saraf, Kangana's lawyer.
@KanganaTeam @mybmc

Saraf now referring to SC decisions on payment of compensation under writ jurisdiction.
@KanganaTeam @mybmc

Compensation under writ jurisdiction is to make monetary amends for the breach of public duty and is in the nature of exemplary damages for the violation of fundamental rights : Saraf refers to precedents.
@KanganaTeam @mybmc

Petitioner has really been wronged in this case. Her house has been demolished without following procedure established by law : Kangana's lawyer Saraf.
@KanganaTeam @mybmc

Saraf concludes the arguments.

J Kathawalla tells BMC's lawyer Chinoy that the bench does not want to have the phones and that it is interested only in the files (of the official who claimed to have taken the photos of the building).
@KanganaTeam @mybmc

J Kathawalla says the court wants the full interview of Raut.

Saraf says he will also produce the interview of Raut where he said what he meant by "haramkhor".

"We also have dictionaries", J Kathawalla replies.

@rautsanjay61 @KanganaTeam

Saraf : He says 'haramkhor' means 'naughty'.

J Kathawalla : Then what does 'naughty' mean!

@rautsanjay61 @KanganaTeam

Court to resume hearing at 2.30 PM.

Saraf says he will submit the complete tweets of Kangana by then.

@KanganaTeam @rautsanjay61 @mybmc

The story so far :

Bombay HC Plays Audio Clip Of Sanjay Raut's Statements Against Kangana Ranaut After Lawyer Alleges Malice In Demolition https://www.livelaw.in/top-stories/bombay-hc-plays-audio-clip-of-sanjay-rauts-statements-against-kangana-ranaut-after-lawyer-alleges-malice-in-demolition-163624?/new

The bench has re-assembled.

#KanganaRanaut
#BombayHC
#BMC
#SanjayRaut

Saraf submits that he has submitted the tweets by Kangana Ranaut from Aug 30 onwards.

He adds that he has not been able to trace the entire video of the interview with @rautsanjay61 and that only a clipping is available in public domain.

There is some confusion in the pagination of the files submitted by BMC.

Sr Adv Chinoy suggests he can re-submit the files by 5 PM after correcting the pagination.

Chinoy starts submissions for BMC.

He says that he would like to start by giving a perspective to the matter.

@KanganaTeam @mybmc

Chinoy : Petitioner has been characterized as a person who has been victimized and harassed.

The reality is that the petitioner has carried out unauthorized structural alterations.

@KanganaTeam @mybmc

Chinoy : Petitioner would have us believe that all this 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.

@KanganaTeam @mybmc

Chinoy : As judges and lawyers, sometimes we get coloured by what is said in the media.

There is a studied silence in her petition as to when these alterations were made.
@KanganaTeam @mybmc

Chinoy : The general rule is that writ petition is not maintainable in such a case.

There is not a word in the petition or in the amended petition as to why writ should be entertained and what are the exceptional circumstances as to why it should not be send to a civil court.

Chinoy : It cannot be that a political controversy created by the petitioner(Kangana Ranaut) in the media is an exceptional circumstance (to maintain a writ).

@KanganaTeam @mybmc

Chinoy : This will be a case of tail wagging the dog. The petitioner herself creates a political controversy and cites that to be reason to entertain a writ.

@KanganaTeam @mybmc

Chinoy : I did not raise the objection first as the writ petition prepared in haste may not have such averments. But even in the amended petition and the supplementary affidavit there is no mention of exceptional circumstances.

@KanganaTeam @mybmc

Chinoy :The record establishes that the petitioner has brazenly made unlawful structural alterations. She has not said before the court when the alterations were made.
@KanganaTeam @mybmc

Chinoy refers to the reply filed on behalf of Kangana on September 8 - She says no work is being done, whereas three days ago our inspection revealed work in progress, with workers, machinery etc. She does not say in the reply that she is doing water proofing work.
@KanganaTeam

Chinoy : 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.

@KanganaTeam @mybmc

Chinoy : When the response was "no work is being carried out", I don't have to wait(for demolition). The law says that. There is no need for elaborate hearing over 7 days.

@KanganaTeam @mybmc

Chinoy : Nowhere in the entire petition, she doesn't say 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.

@KanganaTeam @mybmc

Chinoy : She has made only evasive denials, carefully, knowing fully that she has violated the laws.
@KanganaTeam @mybmc

Chinoy : There is not even one word in the petition about when these alterations and additions from the plan were made. As per Sunbeam judgment of SC, these works needs prior permission after submitting plans.
@KanganaTeam @mybmc

"In this day and age, when you can tweet all the way from Mohali, you can surely tell your advocate when the work started", Chinoy says in reference to the argument that the first reply lacked details as she was away.

@KanganaTeam @mybmc

The bench remarks that laypeople may not realize the distinction between Section 351 and 354A.

Chinoy says the reply only need to say when the work started and whether the work had permission and need not go into Sections.
@KanganaTeam @mybmc

Justice R I Chagla asks if the power of the Corporation is not to stop the work.

Chinoy replies Ranaut's reply was that no work was going on, which was clearly wrong, and so there was no need to wait further.
@KanganaTeam @mybmc

Chinoy : When you build toilets in an open chowk, it is an FSI issue. When you amalgamate your bedroom with another bedroom, it is not a simple matter.
@KanganaTeam @mybmc

Chinoy : 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!.
@KanganaTeam @mybmc

Chinoy : 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.

@KanganaTeam @mybmc

The bench remarks that this issue (of quicker response) may be relevant on the issue of whether the action was malafides.

Chinoy : Malafides has to be analyzed in the context of petitioner's actions. You have to come to court with clean hands.

@KanganaTeam @mybmc

Chinoy : The Court has to look at conduct of the petitioner and analyze the issue in the context of her actions.

@KanganaTeam @mybmc

Chinoy : There is complete lack of candour on the part of the petitioner as to whether the work was done and when the work was done.

@KanganaTeam @mybmc

Chinoy : We have seen five workmen and one supervisor in the site. We have seen gunny bags and plywoods in the site. There was detailed work going on.
@KanganaTeam @mybmc

Chinoy : The BMC has demolished parts of the unauthorized construction and the rest has been stopped by the injunction order of this Court.
@KanganaTeam @mybmc

Chinoy : We have nothing on record to show that she has done it earlier..that she has applied for permission and done it with permission.
@KanganaTeam @mybmc

Chinoy : 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 the important distinction.

@KanganaTeam @mybmc

Chinoy : As to when the work started, there is an amazing withholding of information on her part.

Even today you don't tell us.

@KanganaTeam @mybmc

Chinoy : 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.

@KanganaTeam @mybmc

Chinoy : And you (Kangana Ranaut @KanganaTeam) create a huge hullaballoo 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.
@mybmc

Chinoy : To allege mala-fides, she says she tweeted about police and the action was in response to that.
But the problem is that her tweet is at 5 PM and the inspection was at 1 PM.

@KanganaTeam @mybmc

Chinoy : The inspection was three hours before the tweet of Kangana Ranaut. Where is the link? Mala-fides cannot be loosely alleged.

@KanganaTeam @mybmc

Chinoy : Malice in law will be when you try to achieve an unlawful purpose, extraneous purpose. Where is the unlwaful purpose is acting against unauthorized construction?
@KanganaTeam @mybmc

Chinoy(BMC's lawyer) : Your utterances cannot give immunity to your unlawful works. It cannot be that you carry out unlwaful works, and say that the action was a response to your criticism of the government.
@KanganaTeam @mybmc