Bombay High Court
Arihant Co Operative Housing Society ... vs The Municipal Corporation Of Gr. Mumbai on 26 September, 2025
Author: G. S. Kulkarni
Bench: G. S. Kulkarni
2025:BHC-OS:16523-DB
301 WP.2458.2025.DOC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 2458 OF 2025
1. Arihant Co-operative Housing Society Ltd. }
2. Shree Co-operative Housing Society Limited }
3. Omkar Co-operative Housing Society Limited }
4. Gangadeep Co-operative Housing Society Ltd. }
5. Akashdeep Co-operative Housing Society Ltd. }
(All Co-operative Housing Societies registered }
under the Maharashtra Co-operative Societies }
Act, 1960). }
6. Shree Keshvji Nagar Co-operative Housing }
Societies Association Ltd. }
All having address at Plot of land bearing Survey }
No. 154 (Part), Hissa No. 1, City Survey No. 459 }
at Keshavji Nagar, Bhattipada Road, Bhandup }
(West), Mumbai- 400 078 } ...Petitioners
Versus
1.The Municipal Corporation of Gr. Mumbai }
a statutory body is formed under the provisions }
of the Mumbai Municipal Corporation Act, 1888 }
and having its address at 1, Mahapalika Marg, }
Bombay-400001 }
2.The Asst. Municipal Commissioner, S Ward, }
Building Proposal Department Bhandup (West), }
Mumbai - 400 078 }
3. National Education Society High School and }
Junior College, A registered Education Trust, }
having its address at NES Complex, National }
High School Marg, Bhandup (West), }
Mumbai 400 078. } ...Respondents
_________
Mr. J.S. Kini a/w Mr. Aum Kini i/b Ms Sapna Krishnappa for the
Petitioners.
Mr. Vaibhav Gaikwad a/w Ms Meena Dhuri i/b Ms Komal Punjabi and Ms
Rupali Adhate for the Respondent- BMC.
Mr. Amrut Joshi i/b Mr. Sanket Mungale for Respondent No. 3.
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301 WP.2458.2025.DOC
__________
CORAM: G. S. KULKARNI &
MANJUSHA DESHPANDE, JJ.
RESERVED ON : 03rd SEPTEMBER 2025.
PRONOUNCED ON : 26th SEPTEMBER 2025.
Judgment : (Per Manjusha Deshpande, J.):-
1. The petitioners have approached this court with a prayer seeking
directions to the respondent nos. 1 and 2, which reads thus:
"[a] That this Hon'ble Court be pleased to issue a Writ
of Mandamus or a Writ in the nature of Mandamus or
any other order, direction or Writ in the nature of
Mandamus directing Respondents No.1 and 2 to
decide the representation made by the Petitioners
dated 28th November, 2024 being Exhibit A, within
such period of time as this Hon'ble Court deems fit
and proper.
[b] That this Hon'ble Court be pleased to issue a Writ
of Mandamus or a Writ in the nature of Mandamus or
any other order, direction or Writ in the nature of
Mandamus directing Respondents No.1 and 2 to
demolish the illegally created Turf on the R.G. area as
well as all the illegal and unauthorised structures on
the storm water drain at suit premises i.e., a piece of
land admeasuring 12,605.95 sq. yards or thereabout
i.e.10540.09 sq.mtr. bearing Survey No. 154 Hissa No.
1, CTS NO. 459/1 situated at Village Kanjur, Taluka
Kurla as can be seen in the photographs at Exhibit A
hereto.
[c] Rule and interim and ad-interim reliefs in terms of
prayers clause [a] and [b] above."
2. The brief facts shorn of unnecessary details leading to filing of
the present writ petition are that petitioner nos. 1 to 5 are Co-
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operative Housing Societies, who are members of petitioner no. 6-
Association of the Housing Societies. The grievance of the
petitioners is that respondent no. 3, has encroached upon the
portion of their Recreational Ground (RG) area (hereinafter
referred as "RG"), by constructing illegal and unauthorized
structures on the storm-water drains area. Though the petitioners
have made a representation to the respondent nos.1 and 2 to
ventilate their grievances, however, it has remain unattended.
Hence, the present writ petition is filed with the prayers as stated
hereinabove.
3. According to the petitioners, on the failure of grant of
conveyance in their favour, and the encroachment made by
respondent no. 3, led the petitioners to file L.C. Suit No.2359 of
2014 in the City Civil Court at Bombay. In such suit, the petitioners
filed an Interim Application for appointment of the Court
Commissioner to ascertain the extent of encroachment made by
the respondent no 3. In furtherance of the orders passed by the
City, Civil Court, the D.I.L.R. authorities have conducted a survey
and submitted a report, which discloses the extent of
encroachment made by respondent no.3 on the RG area of the
petitioners. According to the petitioners, the report filed by the
D.I.L.R. clearly reflects, that there is an encroachment made by
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respondent no.3 on the open space of petitioner nos. 1 to 5.
4. On the other hand, respondent no.3 also has filed L.C. Suit
No.4497 of 2013 along with Notice of Motion No. 4277 of 2013,
claiming that, the structures constructed by it were legal and
tolerable, therefore liable to be regularized. However, a notice was
issued by respondent nos. 1 and 2 under Section 351 of the
Mumbai Municipal Corporation Act, 1888 against respondent
no.3. After receiving the reply filed by respondent number no.3, a
reasoned order is passed, directing respondent no.3, to remove
the particular structures constructed by it as mentioned in the
notice.
5. Being aggrieved by the notice 28 th August 2013 and the final
order dated 29th November 2013 passed by respondent nos.1 and
2, respondent no. 3 filed suit, alongwith Notice of Motion in which
protection is granted to the encroached structures by the City Civil
Court at Bombay, vide order dated 18th April 2019. In the civil suit,
the petitioners had filed Chamber Summons bearing No. 2845 of
2013, to implead them as party in the suit filed by respondent
no.3, however, the Chamber Summons filed by them has been
rejected. Hence vide order passed by the Bombay City Civil Court,
the Authorities of the Municipal Corporation are restrained
temporarily from acting upon the impugned notice dated 28 th
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August 2013, till the final disposal of the suit, as a result of the
said protection order, the authorities are not proceeding against
respondent no.3.
6. It is the contention of the petitioner, that the structures which
have been mentioned in the notice dated 28 th August 2013, are
four classrooms and toilet blocks, admeasuring 70'10' x 31'4, with
B.M. wall and AC sheet roof as shown in the sketch map. Although
a protection is granted in favour of the respondent, to the extent
of the area mentioned in the notice dated 28 th August 2013,
however, respondent no.3 has continued its encroachment spree,
and now it extends to such an extent that it entrenches the storm-
water drains of the entire area, causing stagnation of water
resulting into spreading of various diseases, apart from the other
problems that are caused due to water logging. Respondent no.3
has now converted the remaining portion of RG area belonging to
the petitioners into a turf which is now fetching good amount of
income at the cost of petitioner- societies, who continue to be
deprived of their rightful enjoyment of the RG area. Considering
the inconvenience caused and hazards of stagnant rainwater, due
to the encroachment of respondent no. 3, the petitioners contend
that they are constrained to approach this court having left with
no other alternative.
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7. Mr. J.S. Kini, learned counsel appearing for the petitioners
submits that respondent no.3 is using the order passed by the Civil
Court dated 18th April 2019, as a shield and is continuing to
encroach upon the RG area of the petitioners. The protection
granted to respondent no.3 is limited only to the extent of the
portions mentioned in the notice issued by respondent nos.1 and 2
dated 28th August 2013. The encroachment made by respondent
no.3, thereafter is not covered by the protection order. Yet
respondent nos.1 and 2 are not proceeding to take any action
against respondent no.3. It is submitted that although the
petitioners had filed Chamber Summons, seeking permission to
intervene in the matter, but having failed in their attempt, they are
left with no other alternative.
8. Mr. Kini further submits that, it needs to be appreciated that as
a result of inaction on the part of respondent nos.1 and 2, not only
are they deprived of the enjoyment of the open space but are
facing hardships on account of water logging, caused as a result of
the unauthorized construction made by respondent no.3 on the
storm-water drains area, the authorities of the Municipal
Corporation are not able to clean the drains for passage and free
flow of rainwater resulting into accumulation of rainwater, which
remains stagnated, and is likely to spread various diseases during
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the rainy season.
9. Mr. Kini has also drawn our attention to the communication of
the Municipal Corporation dated 26th February 2020, wherein it is
observed that the work of improvement of storm-water drains
(SWD) of respondent no.3- High School is in progress, the SWD
drain is encroached with compound wall and toilet block by the
respondent no. 3- National Education Society, High School, due to
which the work of construction of Nala wall could not be carried
out. The Executive Engineer of the 'S' ward is requested to direct
the staff to remove the encroachment, and to ensure that the work
is completed within stipulated period. This internal
communication is very much clear and unambiguous as regards
encroachment made by respondent no. 3 is concerned. It is
submitted that although it was incumbent upon respondent nos.1
and 2 to remove the encroachments made by respondent no.3, the
respondent nos. 1 and 2 are avoiding to remove it, taking refuge
of the interim protection granted by the City Civil Court dated 18 th
April 2019. It is next submitted that the subsequent
encroachments were brought to the notice of respondent nos.1
and 2 by the petitioners vide representation dated 11 th October
2023 and 31st October 2023, but they have failed to decide the
representation filed by the petitioners or take any steps in
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furtherance thereto. The petitioners have therefore approached
this Court with the prayer as reproduced herein above. Since
respondent nos.1 and 2 are sitting tight over the representation,
which is kept pending since long, the petitioners have approached
this Court with an innocuous prayer to decide representation filed
by them. Hence, it is submitted that the writ petition deserves to
be allowed by directing respondent nos.1 and 2 to decide the
representation filed by the petitioners.
10. Mr. Vaibhav Gaikwad, learned counsel appearing for
respondent nos.1 and 2 submits that, insofar as the prayers made
by the petitioners are concerned, the representation made by the
petitioners is bereft of any details. However, fact remains that the
respondent nos. 1 and 2 have already taken cognizance of the
earlier complaint filed against respondent no.3. The learned
counsel submits that, as far as the second prayer seeking direction
to demolish the turf laid on the RG area and to demolish
structures created on storm-water drains on the suit premises is
concerned, the respondents had already issued notice under
Section 351 of the Mumbai Municipal Corporation Act on 28 th
August 2013, to respondent no. 3, informing of the unauthorized
construction undertaken of four classrooms and toilet block
without permission. By such notice respondent no. 3 was called
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upon to produce documentary evidence showing existence of the
noticed structure prior to the datum line. Respondent no.3 has
responded to the notice and after taking into consideration the
reply filed by respondent no.3, as well as the documentary
evidence available and a speaking order dated 29 th November
2013 was passed by the Assistant Engineer 'S' ward, directing to
remove the structure since respondent no.3 has failed to produce
documentary evidence showing existence and authenticity of the
notice structure. Unfortunately, before the respondent could
proceed in furtherance of the order passed on 29 th November
2013, respondent no.3 has filed L.C. Suit No. 4497 of 2013, before
the City Civil Court at Bombay which is confirmed, vide order
dated 18th April 2019. The respondents are restrained from taking
any action in pursuance of the notice dated 28 th August 2013 and
order dated 29th November 2013.
11. Being aggrieved by the said order, the applicant has also
filed Appeal from order challenging the order passed by the City
Civil Court at Bombay. However, the Appeal from Order No. 28119
of 2019 is still pending before this Court.
12. It is further submitted that in view of the complaint filed by
the petitioners, the staff of the respondent No.2 has inspected the
site under reference on 21st February 2025, alongwith the Assistant
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Engineer, 'S' Ward and found that the toilet and the side
compound wall are constructed on the storm-water drains.
However, considering the pending suit and the interim order of
protection granted in favour of respondent no.3, the respondents
are refraining from taking any coercive action against respondent
no.3. It is also submitted that some portion of the crest area which
is covered with turf is open to sky and the nylon or transparent
nets which are permissible on the grounds for practicing cricket,
hence it cannot be treated as construction as per the policy of the
Bombay Municipal Corporation. It is therefore submitted that
respondent nos.1 and 2 have already taken timely action against
respondent no.3.
13. We have heard the respective parties at length. Having
perused the record, it is evident that though the petitioners had
filed a complaint of encroachment made by respondent no.3 on
the RG area of the petitioners, the same was acted upon, by taking
cognizance of the same, by issuing a notice under Section 351 of
the Mumbai Municipal Corporation Act by the respondent no.3.
Upon receiving the explanation given to the said notice by
respondent no.3, an order directing to remove the unauthorized
construction was passed. Before any steps could be taken by
respondent nos.1 and 2 in furtherance of the order passed by them
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on 29th November 2013, an order directing respondent nos. 1 and
2 not to take any steps in furtherance of the Show Cause Notice
dated 28th August 2013, as well the impugned order dated 29th
November 2013 has been passed by the City, Civil Court at
Bombay.
14. During the course of hearing, the petitioners have placed on
record an order passed by this Court in Interim Application
No.8193 of 2025 in First Appeal No. 982 of 2025 dated 9 th May
2025. On perusal of the said order, it appears that the suit filed by
respondent no. 3 has been dismissed, however, the injunction was
continued for a period of five weeks after disposal of the suit,
which was about to expire on 30 th May 2025. Since the order of
injunction was operating during the trial, it was continued by this
Court till the next date. The matter was directed to be listed for
further consideration on 19th June 2025. It is the categorical stand
of the petitioners that, respondent Nos. 1 and 2 are taking
advantage of the order passed by the Bombay City Civil Court,
when, in fact, the injunction is restricted only to the extent of
structures mentioned in the notice and, therefore, the
encroachment made thereafter are not protected by the order
passed by the City Civil Court, Bombay. The Petitioners have
placed on record the photographs of the encroached area, which
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shows that there is a turf which does not form part of the
structures mentioned in the impugned notice.
15. Considering that the suit filed by the petitioners being L.C.
Suit No.2359 of 2014 for substantive relief against respondent
no.3 is still pending before the concerned Court, therefore relief as
prayed in prayer clause (b) cannot be granted. However, in our
opinion, it would be appropriate to direct respondent no. 2 to
decide the representation made by the petitioner dated 28 th
November 2024 within a period of eight weeks from the date of
this order, by granting an opportunity of a hearing to all the
affected parties.
16. Needless to state, that the affected parties are at liberty to
place on record of respondent no. 2, documents in support of their
respective claims. After hearing the respective parties, respondent
nos. 1 and 2 shall pass appropriate order in accordance with law,
on its own merits, preferably within a period of eight weeks.
17. With the aforementioned directions, the Writ petition stands
disposed of.
(MANJUSHA DESHPANDE, J.) (G. S. KULKARNI, J.)
Digitally
signed by
RUSHIKESH
RUSHIKESH VISHNU
VISHNU PATIL
PATIL Date:
2025.09.26
20:01:18
+0530
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