Full Judgment Text
2018:BHC-OS:14094-DB
3-WP-591-2014.DOC
Jsn
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 591 OF 2014
The State Bank of India Employees
(Sahishunta) Co-operative Housing
Society Ltd. & Anr.
…Petitioners
Versus
The State of Maharashtra & 4 Ors. …Respondents
Mr. Ryan Menezes, I/b. Jhangiani Narula and Associates for the
Petitioners.
Mr. Sukanta Karmakar, AGP for Respondent – State.
Mr. Rajesh Patil, for Respondent – BMC.
Mr. Amrendra Mishra, for Respondent No.4.
CORAM: A.S. OKA &
RIYAZ I. CHAGLA, JJ.
JUDGMENT RESERVED ON 31st July, 2018.
JUDGMENT PRONOUNCED ON 17TH SEPTEMBER, 2018
O R A L J U D G M E N T :- (Per Riyaz I. Chagla J.)
1. The Petitioners by the present Petition are seeking a
direction against Respondent Nos. 2, 3 and 5 to carry out their
statutory duties and to remove the encroachment and the
unauthorised constructions carried out by the Respondent No.4 on
the land belonging to Respondent No.1.
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2. The Petitioner No.1 is the owner of the building situated on
CTS No. 183, Hissa No.2 (Part) Rokadia Lane House, Borivali
(W), Mumbai. Abutting to the boundary wall of the Petitioner No.1
building is the subject land viz. CTS No.2460 belonging to the
Respondent No.1. It is the Petitioners case that a group of
persons formed the Rokadia Land Welfare Association which is
the Respondent No.4 herein. Initially, Respondent No.4 was using
a small part of the subject land for celebrating Ganpati Pooja
celebrations. It is claimed that Respondent No.4 has encroached
into the open land and constructed a temporary structure by using
the wall of the Petitioners building as a support. The Petitioner
No.1 is aggrieved by the structure as it is causing a nuisance to
the members of the Petitioner No.1 as well as obstructing light and
ventilation to the occupants of the Petitioner No.1 building. It is
claimed that the Respondent No.4 has used steel frames to erect
a shed on the subject land and the shed constructed is interfering
with the drainage line to the Petitioner No.1 building which passes
under the same and the water line to the Petitioner No.1 building
which also pass through the impugned structure.
3. The Petitioner has preferred a complaint before Respondent
Nos. 1 and 2 pointing out their grievance with regard to the
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impugned structure. It is also pointed out by the Petitioners that
they had addressed a communication on 26th November, 2012 to
the Respondent No.3, pointing out their grievances. During the
inspection carried out by the officers of the Municipal Corporation
of Greater Mumbai (for short “the Municipal Corporation”) as well
as MHADA authority, it had been observed that foundation of the
unauthorised structure are such that provision had been made for
a multi-storeyed building. The Petitioners had sought immediate
steps to be taken to stop the work which had been carried out on
the subject land. The Petitioners had also moved an application
under Right to Information Act, 2005 to find out whether
permission had been granted to Respondent No.4 to build on
subject land and / or any approval had been granted. Pursuant to
the application, Respondent No.3 on 15th January, 2013
confirmed that they had not given permission for the work being
carried on the subject land. The Petitioners by their
communication dated 11th February, 2013 addressed to
Respondent No.3 sought the demolition of the existing structure in
view of confirmation that permission had not been granted to
Respondent No.4. Further communications were addressed by
the Petitioners to the Respondent No.2 and the Vigilance Officer
of the Municipal Corporation, setting out all the grievances of the
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Petitioners. However, there was no action taken against the
impugned structure. On 24th September, 2013, the Respondent
No.2 informed the Petitioners that the unauthorised structure was
carried out by utilizing the MLA fund of Hemendra Mehta. The
Petitioners addressed a letter dated 6th January, 2014 to
Respondent No.2 stating that the authorities were abetting the
illegality of the structure instead of taking action to demolish the
unauthorised structure. The Petitioners being aggrieved by
inaction on the part of the Respondent Nos. 1 to 3 and 5 have filed
this Petition.
4. Considering the narrow controversy in this Petition, this
Petition has been taken up for final hearing.
5. This Court vide an order dated 21st June, 2017 had
directed the appropriate officer nominated by the Respondent
No.2 as well as the designated officer of the concerned ward of
the Municipal Corporation to make a joint visit to the concerned
site with a view to ascertain whether any illegal construction as
alleged by the Petitioner is carried out on the government land
which is the subject matter of this Petition. A joint inspection had
been carried out by the designated officer of the concerned ward
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and the officer nominated by the Deputy Collector (Encroachment)
which is recorded in the order of this Court dated 28th February,
2018. A compilation was tendered on record by the learned
Counsel appearing for the Mumbai Municipal Corporation which
has been taken on record and marked 'X-1' for identification. It
was noted in the report signed by the Municipal officers as well as
officers of the State after carrying out joint inspection on 11th July,
2017 that the area occupied by the impugned structure bears the
name board of the Respondent No.4 admeasuring 1080 Sq.ft. On
the front portion of the structure there was a board displaying that
the same had been erected by using the funds of Shri Vinod
Ghosalkar, a Member of the Legislative Assembly. From the
documents annexed to the report, it appears that on 30th July,
2012, Mumbai Slum Improvement Board which is a unit of
MHADA, addressed a letter to the Assistant Municipal
Commissioner of the Municipal Corporation stating that Shri
Ghosalkar had proposed construction of a social welfare centre
and no objection certificate dated 24th December, 2013 issued by
the District Collector has been annexed. The no objection
certificate recorded that it will be first verified whether the
proposed user is lawful. The no objection certificate was for
constructing a cultural centre. Further, it records that no objection
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certificate was being issued for carrying out construction of
maximum area of 300 sq. ft. A condition has been incorporated
that it shall ensure that no interest is created in favour of any
individual or private organisation. It was only after compliance
with the conditions, the construction would be commenced. It has
been recorded in the said order of this Court that construction
made by using the funds of the MLA ought to have been restricted
to 300 Sq.ft. There is construction of a larger area comprising
ground plus upper floor. It is recorded that that officers at the time
of joint visit had not measured area of the upper floor. A report
has been signed by the Tahasildar in the office of Deputy Collector
(Encroachment) as well as Municipal Officers. A direction was
issued to the Petitioners to join Shri Ghosalkar as party
Respondent No.6 by carrying out amendments to the cause title
as well as consequential amendments. The Municipal Corporation
was directed to initiate appropriate action for demolition of the
illegal structure by following due process of law. The Corporation
was also to ascertain whether its permission for construction was
necessary and if found that the direction is mandatory and not
taken, the entire structure was to be demolished. By a further
order dated 12th June, 2018, this Court has recorded the
statement of the learned counsel appearing for the Respondent
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No.4 on instructions of one Shri Jayesh Vrujlal Chauhan, Joint
Secretary of Respondent No.4 that the said Respondent by
demolishing excess construction will reduce the existing structure,
subject matter of this Writ Petition to the size of 300 Sq. ft. within a
period of 15 days from the date of the order. The statement was
accordingly accepted. A direction was issued to the Respondent
No.4 to produce documents in support of their solemn statement
made in Affidavit of Shri Chauhan that the Collector had granted
an area of 300 Sq. ft of land to the Respondent No.4. Further, the
Designated Officer of the Municipal Corporation was directed to
ensure that the appropriate officer visited the site on 27th June,
2008 and measure the area of the structure after its demolition.
Thereafter an Affidavit-cum-Undertakings has been filed by Shri
Jayesh Vrujlal Chauhan, Joint Secretary of the Respondent No.4
affirmed on 29th June, 2018 which is taken on record and marked
'U-1' for identification. On 13th July, 2018, this Court has recorded
the statement of learned counsel appearing for the Respondent
No.4 that in terms of the undertaking accepted by this Court by
order dated 29th June, 2018, compliance had been made by
reducing the size of the structure to 300 Sq. ft. A letter had been
tendered across the bar dated 10th July, 2018 which is addressed
to the Designated Officer along with the photographs. Thereafter,
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the Municipal Officers visited the site as directed by this Court and
confirmed that the size of the structure had in fact been reduced to
300 Sq.ft.
6. We refer to the Affidavit filed by the Respondent No.4
through Jayesh Chauhan, Joint Secretary of the Respondent No.4
dated 12th June, 2018 wherein he has stated in paragraph 6 that
the Collector granted an area of 300 Sq. ft of land to the
Respondent No.4. There is another Affidavit of Shri Jayesh
Chauhan on behalf of Respondent No.4 dated 27th June, 2018
wherein he has withdrawn the statement made in paragraph 6 of
his prior Affidavit and has stated that the disputed structure was
given to the Respondent No.4 on caretaker basis by the Mumbai
Slum Improvement Board. He has stated that the disputed
structure is constructed by MHADA with due permission from the
officer of District Collector and that the same has not been
constructed by the Respondent No.4. He has, therefore, stated
that the both the sheds admeasuring 1080 sq. ft constructed in the
year 2004 and the disputed shed admeasuring 300 Sq.ft
constructed in the year 2014 were in the domain of the concerned
MLA and constructed by MHADA with the due approval of and
NOC issued by the Collector. He has referred to correspondence
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entered into between the Respondent No.4 and the concerned
MLA for constructing welfare centre for the benefit of the people of
the said locality as well as the permission granted by the Collector
for constructing the disputed structure. He has stated that the
structures are legally authorised structures and cannot be termed
as illegal and liable to be demolished.
7. There is an Affidavit of Shri Padmakar Ganpati Chavan
dated 31st March, 2018 on behalf of the Respondent No.3
wherein he has referred to a prior notice under Section 351 of the
Mumbai Municipal Corporation Act, 1888 issued to the owner /
occupier of Respondent No.4 – Association in compliance with the
orders of this Court.
8. We have heard the learned counsel appearing for the
Petitioners as well as the learned counsel appearing for the
Respondent No.4 – Association, the learned AGP for the
Respondent – State and the learned counsel for the Respondent
Nos. 3 and 5 of the Municipal Corporation. It is an accepted
position that the excess illegal construction over and above 300
sq.ft. has been removed by the Respondent No.4 pursuant to the
aforementioned orders of this Court. It appears from the
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documents on record that possession of the structure of 300 Sq.ft.
had been given to the Respondent No.4 – Association on a
caretaker basis by the Mumbai Slum Improvement Board. There is
a caretaker agreement which has been annexed to the Affidavit of
Shri Jayesh Chauhan dated 27th June, 2018. From the
agreement, it is apparent that the structure of 300 Sq. ft had been
given on caretaker basis to the Respondent No.4 – Association on
2nd June, 2014 for a period of five years. The structure has been
constructed by MHADA in 2014 and apparently with concerned
MLA funds as bourne out from the documents on record.
9. The Petitioners are seeking by this Petition, action of
demolition of the unauthorised construction which they claim had
been carried out by Respondent No.4 on the subject land
belonging to Respondent No.1. We find from the record that the
construction of the structure of 300 Sq.ft. had not been carried out
by the Respondent No.4 and in fact was carried out by MHADA
with the funds of the concerned MLA. There is a letter on record
dated 3rd April, 2012 wherein the Mumbai Slum Improvement
Board consented to construction of the Samaj Kalyan Kendra on
the subject plot with an estimated cost of Rs.15 lakhs. The
Mumbai Slum Improvement Board by a letter dated 18th March,
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2013 informed the Collector that they were constructing 300 Sq.ft.
Samaj Kalyan Kendra on the said site with the MLA fund and
called upon the Collector to give no objection certificate. The office
of the Collector has granted no objection certificate vide letter
dated 3rd October, 2013 for construction of the 300 Sq. ft on the
said site as the Samaj Kalyan Kendra for general public use and
by a letter dated 5th October, 2013, the conditions were modified.
MHADA has confirmed having constructed the structures with no
objection from the concerned authorities in its letter to the
Municipal Corporation dated 19th June, 2018.
10. Accordingly, from the documents on record, it is apparent
that the 300 Sq. ft. disputed structure i.e. Samaj Kalyan Kendra is
constructed by MHADA as per approval of the concerned
authorities. The unauthorised structure which was in excess of
300 Sq.ft. has been removed by the Respondent No.4 and this
has been confirmed by the Designated Officer of the MMC.
Hence, there is no unauthorised structure which requires removal
for which this Petition has been filed.
11. We dispose of this Petition by directing the Respondent
No.4 to handover the 'Samaj Kalyan Kendra' structure of 300 sq.
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ft. to the Mumbai Slum Improvement Board, (W) Division, Mumbai
(a unit of MHADA) upon the expiry of five years from 2nd June,
2014 as agreed in the caretaker agreement. There shall be no
order as to costs.
(RIYAZ I. CHAGLA J.) ( A.S. OKA, J.)
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