1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 1507 OF 2009 Pandurang Harishchandra Patel. ..Petitioner. v/s. The Commissioner & Ors. ..Respondents. WITH WRIT PETITION (L) NO.2284 OF 2009 Hiraji Sakharam Patil. ..Petitioner. v/s. Assistant Municipal Commissioner H/West Ward & Anr. ..Respondents. Mr.S.U.Kamdar, Sr.Counsel a/w. Mr. Mukul Taly, Zubair Dada, Rakesh Misar, Rahul Pujari, Jamshed Ansari, Yusuf Sheikh i/b. S.Mahomedbhai & Co. for Respondent No.5 in WP No.1507/09 & for petitioner in WPL No. 2284/09. Mr.A.A.Kumbhakoni a/w. Mr.S.A.Sawant for petitioner in WP No.1507/09. Mrs. Geeta Joglekar for BMC. CORAM:- A.M.KHANWILKAR AND J.P.DEVADHAR, JJ. DATED :- NOVEMBER 21, 2009. 2 P.C. 1. Both these Petitions can be disposed of together by common order. 2. Writ Petition No.1507 of 2009 has been filed for direction against the Corporation to initiate appropriate action against disputed structure. The grievance is that inspite of the order passed by this Court in the past, the Corporation has not taken any steps in that regard. The Counsel for the Corporation however, contends that notice has already been issued to the occupant, who is Petitioner in the companion Writ Petition proposing to demolish the unauthorised portion of the structure in question. Besides, the Commissioner rejected the stand taken by the occupant-Hiraji Sakharam Patil on the finding that the offending structure was demolished on 31st March, 2006 and has been reconstructed on the same portion. The occupant, Petitioner in Writ Petition(L) No.2284 of 2009 had instituted suit for declaration and prohibitory injunction against the Corporation with a view to protect the structure in question. That suit however, has since been dismissed. Against that decision, the occupant has filed appeal before this Court, which is stated to be pending. 3. The fact remains that the Corporation has initiated action in respect of 3 disputed structure in the light of direction issued by this Court in the earlier round of litigation. The action is founded on the notice issued under Section 351 of the Act which gives measurement of the structure which is stated to be unauthorised. It is noticed that the said notice does not specify the sketch of the structure with particular reference to the extended or unauthorised portion of the structure. The Corporation has not disputed the fact that the original structure existed on the site prior to 1995 and the occupant is considered as eligible for rehabilitation in lieu of the said structure. The controversy however, is limited to unauthorised extension of the original structure. Unless the portion of unauthorised extension is already identified and specifically referred to in the notice under section 351, we fail to understand how the Authority can proceed to take any further action on the basis of vague description given in the notice by mentioning only the measurement of the unauthorised portion of the structure. 4. At this stage, Counsel for the Corporation points out that earlier notice under section 351 is already worked out and the Corporation now intends to demolish the structure on the basis of recent notice issued under section 488 dated 21st November, 2009. In our opinion, however, before 4 taking any such action, the Corporation will have to in the first place clearly identify by way of sketch as to which portion of the structure is unauthorised or extended unauthorisedly. Only after issuance of such notice, the Corporation can legitimately proceed to take action against that portion of the structure, if it is of the view that the explanation offered by the occupant is unacceptable. 5. Needless to mention that the Corporation will give opportunity to the occupant as well as the objector Pandurang H. Patil before proceeding with the proposed action of demolition of the stated unauthorised portion of the structure in question. The Corporation is free to proceed in this behalf in accordance with law as expeditiously as possible and not later than four weeks from today. All questions are left open to be decided at the appropriate stage in the proceedings arising out of the proposed action. 6. In the light of the above discussion, the order passed by the Assistant Commissioner dated 23rd June, 2009 as well as the Notice under section 488 dated 21st November, 2009 are set aside with liberty to the Corporation to proceed in accordance with law. 5 7. Both Petitions are disposed of on the above terms, with no order as to costs. (J.P.DEVADHAR,J) (A.M.KHANWILKAR,J)