Mumbai: The
Bombay high court restrained the
BMC on Monday from taking over the area in front of Our Lady of Remedy Church at
Poisar, Kandivli, which includes a heritage
cross and a portion of the cemetery.
A bench of Justices Abhay Oka and Riyaz Chagla directed the restraint “on taking over this portion” till final disposal of the church’s petition challenging the BMC’s February 20, 2016, notice to hand over 338 metres of its land for widening Gamdevi Road. The land comprises 70 square metres within its compound with 33
graves and an open area of 268 sq m.
The judges “prima facie” agreed with advocate Girish Godbole, representing the church, that in light of Supreme Court’s decision in Indian City Properties Ltd case and even otherwise under Section 2(S) of the BMC Act, the cross and even the graves will fall under the definition of a “building”. They said the power of taking possession under Section 299 (acquisition of land or land occupied by buildings, and so on, within the regular street line) of the BMC Act cannot be exercised where a land affected by road line is covered by building, platform, verandah or other structures abutting a public street. “Therefore as far as the said portion is concerned, prima facie, it appears to us that by taking recourse to Section 299, possession cannot be taken by BMC as the said portion is occupied by a building under Section 2(S),” it added.
The church’s petition said the church was built in 1555 and the cross has existed since 1932. Senior advocate Anil Sakhare, for the BMC, said the heritage committee has given its nod for shifting the cross. He also said burials took place during pendency of the petition. The judges said the issue whether the graves were in existence can be considered during final hearing.
The church, though, got no interim relief for the open area outside the church premises. The judges said the BMC has power to take possession of this land and is also under obligation to pay compensation. They noted that the church has not constructed on it and it is used as a market.
The BMC is directed to consider the church’s alternative proposal to save this area and “take an appropriate decision within a week from today”. It can take possession of the plot after two months and the civic chief will proceed to fix compensation within three months.
