Mr Vikramashama Shetty vs Designated Officer Assistant ...
2017 Latest Caselaw 1987 Bom

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       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
           ORDINARY ORIGINAL CIVIL JURISDICTION

                    WRIT PETITION (L) NO. 1148 OF 2017


        Mr.VikramShama Shetty                                   ]
        Age : 62 years, Occ.: Business                          ]
        R/o.Flat No.301, Mildred CHS Ltd.                       ]
                                                                ]
        Above Jay Anand Hospital,                               ]
        Charai, Thane West,                                     ]
        Thane - 400 601                                         ] Petitioner

        Versus

  1.    Designated Officer                                      ]
        Assistant Engineer                                      ]
        (Building and Factory)                                  ]
        C-Ward Office, 76,                                      ]
        Shrikant Palekar Marg,                                  ]
        Chandanwadi,                                            ]
        Mumbai - 400 002                                        ]
                                                                ]
  2.    Assistant Municipal Commissioner                        ]
        C-Ward Office, 76,                                      ]
        Shrikant Palekar Marg,                                  ]
        Chandanwadi,                                            ]
        Mumbai - 400 002                                        ]
                                                                ]
  3.    Municipal Corporation of Greater Mumbai                 ]
        Through its Commissioner                                ]
        Having its office at Mahapalika Marg,                   ]
        Opp. CST Fort, Mumbai - 400 001.                        ]
                                                                ]
  4.    State of Maharashtra                                    ]
        (to be served through the office of                     ]
        Learned Government Pleader,                             ]
        High Court, Mumbai)                                     ] Respondents



      • Mr.Viral Rathod for the Petitioner.
      • Mr.A.I.I. Patel, Addl. Government Pleader for the State.
      • Ms.Pallavi Thakar for MCGM.
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                 CORAM : NARESH H. PATIL &
                        DR.SHALINI PHANSALKAR-JOSHI, JJ.

DATE : 25 th APRIL, 2017.

JUDGMENT : (Per Dr.Shalini Phansalkar-Joshi, J.)

1] Rule. Rule made returnable forthwith. Heard finally,

by consent of the parties.

2] By this Writ Petition filed under Article 226 of the

Constitution of India, the Petitioner is challenging the Notice

dated 1st March, 2016 issued by the Respondent-Municipal

Corporation under Section 55(1) of the Maharashtra Regional

and Town Planning Act, 1966 (MRTP Act) and the consequent

order dated 8th April, 2017 passed by Respondent No.1-the

Designated Officer, Assistant Engineer (Building & Factory) of

Mumbai Municipal Corporation for demolition of the subject

structure.

3] The Petitioner claims himself to be the owner and in

possession of the premises ad-measuring about 160 sq.ft. on

ground floor adjoining to the building known as "Mahavir

Mansion" situated at then 116/126 and now Building No.122B

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of Kika Street, Gulalwadi, Mumbai.

4] According to the Petitioner, he is carrying the

business of Tea, Cold-drinks, Mineral Water etc in the said

premises under the name and style as "Shreesha Tea Shop"

since the year 1991. According to him, the structure is in

existence since prior to 1961. It was purchased by virtue of an

oral agreement by the Petitioner from one Fazam Rahi Peer

Mohammad. The Petitioner is having all the necessary

documents in support of the same like shop licence, electricity

and telephone bills etc. Despite that the Municipal Corporation

had issued impugned notice to him calling upon him to show

the legality of the said structure. Accordingly, he produced the

requisite documents before Respondent No.1-Designated

Officer. However, by the impugned order Respondent No.1-

Designated Officer called upon the Petitioner to demolish the

said structure. The grievance of the Petitioner is that

Respondent No.1- Designated Officer has not properly

considered all the necessary documents produced before him.

Moreover, though the structure is of permanent nature, the

notice issued to him is under Section 55 of MRTP Act. Hence

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the said notice is also not legal and valid. According to the

learned counsel for the Petitioner, therefore, the impugned

notice and the impugned order are liable to be quashed and set-

aside.

5] Per contra, learned counsels for Respondents has

supported the said notice and order by pointing out that the

structure which the Petitioner has erected is totally

unauthorized. It is temporary and not at all a permanent one.

It is partly made of MS-sheet walls and covered with MS-sheet

roof. The Petitioner is having no documentary evidence to

prove that said structure was constructed after obtaining

requisite permission from the Municipal Corporation. It is

further submitted that Respondent No.1-Designated Officer of

the Municipal Corporation has considered all the documentary

evidence produced by the Petitioner and passed the impugned

order. Hence no interference is warranted in the same.

6] We have heard these rival submissions of learned

counsels and with their assistance we have perused the

impugned notice issued to the Petitioner, which shows that the

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subject structure is of semi permanent nature made of partly

BM-sheet walls and partly MS-sheet walls. It is covered with

MS-sheet roof. Whether the structure is temporary or

permanent; it was for the Petitioner to show that he has

constructed or erected the same after obtaining requisite

permission from the Municipal Corporation and after getting

the plan sanctioned for the same. The Petitioner was given

sufficient opportunity to prove the legality of the said

structure. In response to the show cause notice issued to him,

the Petitioner has approached Respondent No.1-Designated

Officer and produced all the record/the documentary evidence

which was in possession.

7] The perusal of the impugned order passed by

Respondent No.1-Designated Officer reveals that he has

considered all the documents, which were produced on record

by the Petitioner and after properly considering the same

found that none of the document prove that the structure is in

existence since prior to the datum line or it was constructed

with requisite permission from the Municipal Corporation after

getting the plan sanction. It is pertinent to note that the

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Petitioner has relied upon the documents like the photocopy of

the rent receipt which does not mention the description

regarding authenticity of the suit structure. The Petitioner has

then produced on record "Registration Certificate" under the

Maharashtra Shops and Establishment Act. However, it does

not again mention the remarks regarding authenticity of the

said structure. Similarly, the telephone or electricity bills on

which the Petitioner has relied upon can not prove the legality

or authenticity of the said structure. The Petitioner has not

produced before Respondent No.1-Designated Officer or even

before this Court any document prior to 1st April, 1962, which

is the datum line for commercial structure to be considered in

tolerated category. The Petitioner has not produced either

before Respondent No.1-Designated Officer or before this Court

any permission/approval from the Executive Engineer building

proposal for erecting such structure. He has not even alleged

that the said structure was constructed after obtaining

requisite permission from the Municipal Corporation.

8] Moreover, it is pertinent to note that the subject

structure is situated on the open space which is adjoining to

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the building bearing no.122B and causing obstruction to the

passersby.

9] Hence, taking into consideration totality of facts and

circumstances, in exercise of our writ jurisdiction, we do not

find any grounds or reasons being made out to interfere with

the impugned notice or the order. This Writ Petition, therefore,

being without any merits, stands dismissed.

10]              Rule is discharged.



[DR.SHALINI PHANSALKAR-JOSHI, J.]                [NARESH H. PATIL, J.]