1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CIVIL WRIT PETITION NO.1553/2009 Sachin Kisan Nayak Age-34, Occ.Nil, Residing at B-18,Room no.3, Opp.Yashodham High School, Yashodham Sankul Gagankunj, Goregaon (East),Mumbai-63.. .....Petitioner Vs. 1. Commissioner,Municipal Corporation of Greater Mumbai, Having Office at Mahapalika Bhuvan Marg, Opp.CST Railway Station, Mumbai 400 001. 2. The Asstt.Commissioner P South Ward, Mitha Nagar,Municipal School Building,Goregaon(E), Mumbai-63 ..... Respondents 3. Junior Engineer, P.South Ward, Having office at Mitha Nagar, Municipal School Building,Goregaon(E), Mumbai-63. Mr.Balasaheb Deshmukh for Petitioner Mr.S.U.Kamdar with Mrs.Shobha Ajitkumar for Respondents. CORAM:SMT.RANJANA DESAI & MRS.MRIDULA BHATKAR,JJ. RESERVED ON : 8/12/2009 PRONOUNCED ON :5/1/2010 2 J U D G M E N T (Mrs.Mridula Bhatkar,J.) . The respondent Municipal Corporation has issued notice under section 55 of the Maharashtra Regional and Town Planning Act 1966 for demolition of unauthorised construction. In Writ Petition No. 1964/2008 the petitioner has challenged the said notice. This Court directed the respondents to hear the petitioner and then pass the order. Pursuant to the said directions the respondents after hearing the petitioner has passed order dated 17/3/2009 and directed the petitioner to demolish the structure within a period of 7 days. The petitioner has challenged the said order in the present petition. 2] Learned counsel appearing for the petitioner has submitted that the petitioner is running a business ,in the disputed structure,constructed of B.M.Wall and A.C.G.I. steel roof admeasuring 064’.0 X 8’X30’.6’x 30’ 8’X6’ since last several years and the said structure is in existence prior to 1962.Learned counsel has submitted that at the time of hearing the 3 petitioner has submitted many documents viz. Voters list from 20/12/1962 to 16/12/1964 showing the names of the predecessors of the petitioner, 7x12 extracts of the property, photo pass showing the petitioner’s occupation in the said premises, etc.. Learned counsel for the petitioner submitted that it is a protected structure over the property of the petitioner and the petitioner has produced license under Shops and Establishment Act issued and renewed from time to time. The petitioner has also produced the plan of the CTS No.114 part of 98 ,116,112/4,for the year 1969 to 70 showing the structure standing on CTS no.114 i.e. survey no.49/1 . Learned counsel has further argued that all these documents were not considered by the respondents and the order of the demolition of the structure is illegally issued by the respondents hence notice dated 6/3/2008 and order dated 17/3/2009 be quashed and set aside. The petitioner claims that he belongs to tribal community. 3] The Assistant Engineer (Building & Factory Department) has filed affidavit in reply opposing the 4 petition in which all the allegations made by the petitioner are denied. It is submitted that the impugned structure is unauthorised and the petitioner has fraudulently obtained license from the Shops and Establishment Department in respect of unauthorised construction which has no jurisdiction in the present matter. It is submitted that earlier notice under 354 of Municipal Corporation Act was issued and at that time relevant documents submitted by the petitioner were verified and the structure was found unauthorised so decision was communicated by letter dated 23/3/2005. However, in between the structure was completed. Therefore, the respondents issued notice under section 55 of the Maharashtra Regional and Town Planning Act, 1966 and thereafter passed order under section 488 of Municipal Corporation Act to demolish the structure. 3] We have gone through the order dated 17/3/2009 passed by the Assistant Commissioner -P South Ward, Mumbai. The record discloses that pursuant to the order dated 21/10/2008 passed by this 5 Court in the earlier Writ Petition no.1964/2008 the Assistant Commissioner heard the parties on 7/1/2009 . The petitioner was represented by the advocate. The Assistant Commissioner after giving proper hearing scrutinised and considered all the documents filed by the petitioner in respect of the impugned structure. It is correctly held that the land on which the structures are situated is a private property and not declared as slum and therefore, there is no question of issuance of photo pass . It is rightly held that the documents relied upon are not prior to 1962 and are of no use. We do not find any illegality in the order passed by the Assistant Commissioner. Moreover the appreciation of the facts involved in the matter cannot be done under the writ jurisdiction. There is no merit in this petition. Hence the petition is dismissed. (SMT.RANJANA DESAI,J.) (MRS.MRIDULA BHATKAR,J.)