1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1308 OF 2001 ALONG WITH NOTICE OF MOTION NO.507 OF 2007 AND NOTICE OF MOTION NO.529 OF 2008 Yeshwant Laxman Mistry ] an adult inhabitant of Mumbai ] residing at Mistri House, 18/D ] Mori Road, Mahim, Mumbai-16 ]... Petitioner. Versus 1. Municipal Corporation of ] Greater Bombay, a statutory body ] having office at Mahapalika ] Marg, Mahapalika Bhavan ] Mumbai – 400 001 ] 2. M/s.Chaitanya Developers ] Pvt. Ltd. Having their office at ] D-5, 1st floor, Goragandhi Apt. ] S V P Road, Borivali (W), ] Mumbai 400 092 ]... Respondents. Mr.Prashant G Karande for the Petitioner. Mr. K N Gaikwad for the Respondent No.1. Mrs.Nilima V Sanglikar for the Respondent No.2. CORAM : P.B.MAJMUDAR & R.M.SAVANT, JJ DATED : APRIL 29, 2009 2 ORAL JUDGMENT : PER P.B.MAJMUDAR, J. 1. Yesterday the matter was substantially heard by us. But in the second sessions, the learned counsel for the Petitioner was not present, we have kept this matter today for submission of the learned counsel for the Petitioner in rejoinder. The learned counsel for the Petitioner after arguing the matter fully submitted that some other petition is filed by the Petitioner being Writ Petition No.1808 of 2001 which is admitted by the order of the Division Bench of this Court on 3rd June 2003 and, the same is connected with the present Petition. The said Petition of course is not placed for hearing today. But this aspect was brought to the notice by the learned counsel for the Petitioner at the time of commencement of the dictation of the judgment, we, therefore place the said Petition for hearing separately in the next week commencing from 4th May 2009. So far as the present Petition is concerned, since the arguments of both the sides have already been canvased fully, we propose to dispose of the same by this Judgment. 3 2. By way of this Petition, the Petitioner has challenged the Notice issued under Section 55 of the Maharashtra Regional and Town Planning Act, 1966 by which Notice the Petitioner was asked to show cause as to why the unauthorised construction carried out by the Petitioner should not be removed and also asking him not to continue with the construction. 3. The learned counsel for the Petitioner submitted that the structure in question is about 100 years old and the same is occupied from generation to generation by ancestors of the Petitioner. It is also submitted that the structure had fallen down on account of natural calamities. It is submitted by the learned counsel for the Petitioner that the predecessor in title of the Petitioner used to pay the taxes as back as from the year 1928-29. It is also submitted by him that initially the Petitioner had filed writ petition before this Court and the Division Bench of this Court had disposed of the said Petition. The copy of the order passed by the Division Bench in the said writ petition is produced on record at page 32, but it is found that the number of the said Writ Petition as 4 well as the date of the decision of the Division Bench is not mentioned in the said copy produced on record at page 32. As per the copy of the said order, the said writ petition was disposed off with directions to the Petitioner to appear before the concerned ward officer on 29.3.2001 and produce further documents and other information before the said ward officer showing that the structure in question is not unauthorised. The Division Bench further directed that the concerned ward officer should pass appropriate orders in accordance with law within a period of six weeks from the date of the decision. The Petitioner thereafter appeared before the ward officer and by the impugned order dated 29.3.2001, which is at page 39 in the compilation, the Asst. Municipal Commissioner, G/N Ward came to a conclusion that the structure in question is newly erected structure which partly falls on proposed 25 ft wide T P Road and partly on F.P No.836 of the Town Planning Scheme. By the impugned order the Asstt. Municipal Commissioner directed the Petitioner to vacate and remove the structure constructed by the Petitioner as per the notice under Section 55 of the M R T P Act within 7 days. The said order is passed by the Asstt Municipal Commissioner 5 on 29.3.2001. 4. Being aggrieved by the said order, the Petitioner has again approached this Court by way of this Petition. The learned counsel for the Petitioner submitted that even though the Division Bench of this Court had asked the ward officer to consider the documents submitted by the Petitioner, in fact the documents were considered by the Sub-Engineer one Shri Birje, as the Asstt Municipal Commissioner/Ward Officer asked the Petitioner to submit the said documents before that officer. We do not find any substance so far as this submission is concerned as the order of the Asstt Municipal Commissioner/Ward Officer dated 29.3.2001 is a reasoned order and the Asstt Municipal Commissioner/Ward Officer has observed in the said order that the Petitioner was shown the compensation paid by the Corporation to the Government of Bombay, to whom the plot in question belongs. Compensation of Rs.9,392/- was shown to be paid by the Corporation. The Petitioner was also shown the photographs of the existing disputed structure, while erection process was going on. After considering the submissions of the Petitioner, 6 the Asstt Municipal Commissioner/Ward Officer, by the reasoned order, came to a conclusion that it is not possible to accept the case of the Petitioner. 5. The next submission of the learned counsel for the Petitioner is that the structure in question was in existence since years and it cannot be said that the Petitioner has carried out unauthorised construction. The Corporation, in its affidavit has clearly stated that the Petitioner has carried out the construction during holidays. It is also submitted that Rs.11,216/- has been awarded by the Arbitrator in favour of the predecessor in title of the Petitioner Smt.Bhimabai D/o. Padminibai who was shown as monthly tenant. The said compensation was paid on the basis that the superstructure was carried out by the said Bhimabai and the land belongs to the Government. The compensation regarding the superstructure was therefore awarded to Smt.Bhimabai. Considering the said affidavit, it cannot be said that the Petitioner has any right so far as the superstructure is concerned. It is absolutely clear that the construction has been carried out by the Petitioner unauthorizedly and without 7 any authority of law. The superstructure which has been carried out is a part of final Town Planning Scheme and the authority is required to hand over the said area as per the Town Planning Scheme to the Respondent No.2. Since this Petition is pending, the Municipal Corporation could not carry out statutory obligations by handing over the final plot which is required to be allotted to the Respondent No.2 as per the Final Town Planning Scheme . 6. The learned counsel for the Petitioner further submitted that in lieu of the present structure and premises, the Petitioner is required to be allotted a suitable plot. Whether the Petitioner is entitled to other plot or land as per the Town Planning Scheme is not the subject matter of the present petition nor the Petitioner has made out any case in this behalf. Whether the Petitioner has carried out new construction or whether the earlier structure was already there is a question which cannot be decided by this Court in its extraordinary jurisdiction under Article 226 of the Constitution of India. It is not possible to accept the submission of the Petitioner that the existing structure had 8 fallen because of the natural calamity as the authority, after considering the material on record, has not found the aforesaid aspect to be correct. Considering the said aspect, in our view, the notice issued under Section 55 of the MRTP Act cannot be faulted with. The Petitioner has failed to produce any material before the authority to show that the structure in question was an authorised one. In fact proper reasons have been given by the Ward Officer while passing the impugned order. The Petitioner is trying to delay the implementation of the Town Planning Scheme since long and the Respondent No.2 is entitled to get the area as per the Final Town Planning Scheme. The Municipal Corporation could not carry out statutory obligations by handing over the final plot which is required to be allotted to the Respondent No.2 as per the Final Town Planning Scheme because of the pedency of this Petition. 7. As stated above, whether the Petitioner is entitled to any other plot in lieu of the existing structure is not even the subject matter of this Petition. In our view, the Town Planning Scheme is not required to be further delayed. Hence 9 we direct the Petitioner to remove the unauthorised structure on his own in any case within a period of two weeks from today. If the Petitioner fails to do so, it will be open to the Corporation to remove the same in accordance with law 8. The learned counsel for the Petitioner has submitted that on 26.10.2007, the Petitioner at the time of arguing the Notice of Motion No.507 of 2007 pointed out to the Division Bench of this Court that the Asstt Engineer G/North Ward visited the premises regularly and informed the Petitioner that there is a pressure from the builder and, therefore, he is required to demolish the structure and, therefore, the said Notice of Motion was filed by the Petitioner. This Court had directed the Municipal Corporation to verify the same and put an affidavit on record in this regard and the interim order granted to the Petitioner on 26th April 2002 was continued for limited period. The learned counsel for the Corporation submitted that the Corporation is required to inspect the premises regularly and even if in a given case somebody has given a complaint, the officer of the Municipal Corporation is required to visit the 10 site. It is also submitted that the allegation made by the Petitioner in this behalf is therefore not correct. 9. Since we are disposing of the present Petition by this final judgment, question of continuation of the interim relief granted in the Notice of Motion taken out by the Petitioner does not arise 10. In the result, we do not find any substance in the present Petition and the same is dismissed. Rule is accordingly discharged. Interim relief stands vacated. 11. In view of the dismissal of the above Writ Petition, the Notice of Motion Nos.507 of 2007 and 529 of 2008 do not survive and the same are disposed of as such. [R.M.SAVANT,J] [P.B.MAJMUDAR,J]