Bombay High Court
Suresh M. Garodia & Anr vs Mun. Corpn. Of Gr. Bom on 1 July, 2017
Bench: A.S. Oka
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.1560 OF 2003
Suresh M.Goradia and Another. .. Petitioners
Vs
The Municipal Corporation of Greater Mumbai
and Others. .. Respondents
--
Shri Shilpan Gaonkar along with Shri Dharmesh Pandya i/b Ashwin
Pandya and Associates for the Petitioners.
Ms.Vandana Mahadik for the Respondent No.1 BMC.
Representative of the Respondent No.2 Society.
--
CORAM : A.S. OKA &
SMT. VIBHA KANKANWADI, JJ
DATED : 1ST JULY 2017
ORAL JUDGMENT ( PER A.S. OKA, J)
1. The submissions of the learned counsel appearing for the
Petitioners, the learned counsel appearing for the first Respondent and
the representative of the second Respondent Society were heard on the
earlier date.
2. The Plaintiffs are claiming to be the Assignees from the
Lessee of a plot of land described in the Exhibit-A to the Petition.
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3. On the basis of the permission granted by the first
Respondent Mumbai Municipal Corporation, the case of the Petitioners
is that the Assignors have constructed two buildings. The case made
out by the Petitioners is that the balconies/otlas attached to the flats on
the ground floor of the two buildings have been illegally enclosed by
the members of the first and second Respondents housing societies.
The only substantive prayer in this Petition under Article 226 of the
Constitution of India is the prayer clause (a), which reads thus:
"(a) that this Honourable Court be pleased to issue a
Writ of Mandamus or any other Writ order or direction
in the nature of Mandamus under Article 226 of the
Constitution of India calling for the records of the case
and after examining the legality and/or validity of the
same be pleased to direct Respondent No.1 to
forthwith demolish and/or remove the unauthorized
and illegal enclosures of the otlas/balconies of the
ground floor flats in the said two buildings namely
"Varma Villa" and "Varma Villa No.2" situated on the
larger plot of land described in Exhibit "A" thereto."
4. The learned counsel appearing for the Petitioners has taken
us through the averments made in the Petition, annexures to the
Petition and the photographs annexed to the affidavit-in-rejoinder of the
first Petitioner. He has also invited our attention to the copies of the
sanctioned plan, the correspondence made by the Petitioners with the
first Respondent Municipal Corporation and repeated complaints made
by the Petitioners regarding failure of the Municipal Corporation to take
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steps as regards the illegal act of enclosing the balconies/otlas attached
to the ground floor by the occupants. He has also invited our attention
to the letter dated 13th January 2003 at Exhibit-L issued by the
Executive Engineer, Building Proposals (West Suburbs), K/West, P
Ward, in which the Executive Engineer stated that no proposal is under
consideration of the Municipal Corporation. The representative of the
second Respondent Co-operative Housing Society submitted that there
is a regularization of the alleged unauthorized work. He invited our
attention to a receipt showing payment of premium to Municipal
Corporation annexed to the Petition. He also invited the attention of
the Court to the affidavit-in-reply filed by the second Respondent. In
the said reply, a contention has been raised disputing the rights claimed
by the Petitioners in respect of the plot in question. There is a reference
to the proceedings in the City Civil Court as well as the Small Causes
Court. It is pointed out in the reply that the Petitioners have indulged
in suppression of material facts. We have also heard the learned
counsel appearing for the Municipal Corporation.
5. At the outset, we must record here that though a grievance
is made by the learned counsel appearing for the Petitioners as regards
enclosure of the balconies/otlas on the upper floors, the prayer for
issuing a writ of mandamus in this Petition is confined to illegal
enclosure of the balconies/otlas on the ground floor flats in the two
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buildings described in the prayer clause (a). The annexures to the
Petition show that certain occupants applied for regularization of the
enclosure of the open otla on the ground floor. Our attention is also
invited to the Circular dated 29 th December 1975 issued by the Deputy
Chief Engineer (D.P) of the Mumbai Municipal Corporation. This
Petition is of the year 2003. The Municipal Corporation has not chosen
to file any reply placing on record whether there is any regularization of
the alleged offending work. The representative of the second
Respondent, as stated earlier, relied upon a receipt showing payment of
premium. One of the contentions raised on behalf of the contesting
Respondents appears to be that the action of enclosing balconies/otlas
was taken for the protection of the flats on the ground floor.
6. Considering the fact that the alleged enclosures exist for
considerably long time and considering the nature of the alleged illegal
work, a writ of mandamus as prayed cannot be issued. Nevertheless,
the Municipal Corporation will have to consider the grievances made by
the Petitioners in relation to the alleged illegal enclosure of
balconies/otlas attached to the ground floor flats in the said two
building. Accordingly, we dispose of the Petition by passing the
following order.
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ORDER :
(a) We direct the Designated Officer of the concerned
Ward to visit the buildings in question after sufficient
advance notice in writing to the second and third
Respondents as well as the Petitioners;
(b) The Petitioners as well as the representative of the
second and third Respondents shall remain present
at the time of inspection. The second and third
Respondents as well as the Petitioners are free to
produce requisite documents at the time of site visit;
(c) After taking inspection and after perusing the
documents, if any, produced by the parties, the
Designated Officer of the concerned Ward will decide
whether there is any such illegal work carried out on
the ground floor as alleged by the Petitioners;
(d) The Designated Officer of the concerned Ward will
also examine the documents produced by the
concerned Respondents/Occupants to show that the
enclosure of balconies/otlas have been regularized;
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(e) If the Designated Officer of the concerned Ward is
satisfied that there is any illegal work carried out on
the ground floor of the said buildings, he shall
initiate appropriate proceedings in accordance with
law for removal of the said illegal work;
(f) We make it clear that the action of removal of the
illegal work shall not be taken by the Municipal
Corporation without issuing advance notice in
writing to the owners/occupants of the concerned
flats on the ground floor and without giving them
opportunity of being heard;
(g) In the event, the orders of removal of the illegal
work are made by the Designated Officer of the
concerned Ward, the same shall be served to the
occupants/owners of the respective flats;
(h) The action of removal/demolition, if any, shall be
carried out only on the expiry of the period of one
month from the date on which the orders are served
to the concerned occupants/owners;
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(i) We make it clear that we have made no adjudication
on the rival contentions including the issue of
regularization of the alleged act of illegally enclosing
the balconies/otlas on the ground floor of the
buildings in question;
(j) Rule is accordingly made absolute on above terms
with no orders as to costs.
(VIBHA KANKANWADI, J) ( A.S. OKA, J )
