1 mgj IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Writ Petition No. 1279 of 2007 1 H.R.Ballal of Mumbai ..Petitioners and others vs. 1 Municipal Corporation of Greater Mumbai and others ..Respondents Mr.S.S.Pakale for petitioner Ms.Trupti Puranik for respondent nos. 1 to 5 Mr.V.V.Ginde respondent no.6 in person and Secretary of respondent no.7 Mr.S.P.Darade, Executive Engineer, B.P.City III present in person. CORAM: S.J.KATHAWALLA J. 25th September, 2009 P.C. 1 The petitioners who are 83 and 90 years old respectively, are members of Kirti Mandir Co-operative Housing Society at Mahim (the said society). The said society has two wings A and B . Both the wings have ground plus three floors. A lift has been installed in wing A . Though the members residing on the 2nd and 3rd floors of B wing 2 the said society are in the age group ranging between 75 years to 90 years and are willing to have a lift installed in the B wing of the said society, entirely at their cost, they are unable to do so because of the objection by Mr.Ginde, respondent no.6 staying on the ground floor of the B wing, on the ground that the lift will obstruct 50% of his kitchen window. In view thereof, the senior citizens residing in their flats on the 2nd and 3rd floors are virtually confined to their flats and are unable to go out. This Court has made every attempt to explain to Mr.Ginde to adopt a humanitarian approach in the matter, but Mr.Ginde sticks to his case that the members have allegedly not complied with certain decisions taken at the General meeting of the society about four to five years back. Since Mr.Ginde has claimed before this Court that he is the Secretary of the said society and represents the General 3 Body of the society, which claim is disputed by the learned Advocate appearing for the petitioner, this Court also suggested to Mr.Ginde to call a General Meeting of the said society and obtain the view of the members as regards the issue pertaining to installation of the lift in wing B of the said society. However, Mr.Ginde has refused to accede to the said suggestion of the Court. This Court has, therefore, proceeded to hear the petition on merits. 2 By this writ petition the petitioners have inter alia sought orders/directions against the Municipal Corporation to forthwith withdraw/revoke/cancel the order dated 12th October, 2006 (Exhibit J to the petition) and to implement the order dated 27th February 2006 (Exhibit D to the petition). 3 The order dated 27th February 2006 was passed by the Chief Engineer of the 4 Municipal Corporation directing the Building Proposal Department of City Zone to permit construction of the lift as per the plans approved on 13th December, 1999 in B Wing of the building of the said society. The said order was passed by the Chief Engineer after hearing and considering all the objections of Mr.Ginde in great detail. The operative portion of the said order dated 27th February 2006 is reproduced hereunder: a)The Building Proposal Department of City Zone is directed to permit construction of lift as per the plans approved on 13.12.1999 in B wing of the building of Kirti Mandir CHS on F.P.No.106, T.P.S.II, Mahim, Mumbai b) The Society will bear the cost of shifting of window of kitchen of Mr.Ginde s flat by 1.6 towards West and furnish a registered undertaking to that effect along with payment of an amount of Rs.4000/- towards Security Deposit for faithful compliance of this condition. c) In alternative to  b above, if desired by Mr.Ginde and communicated to Society in writing within 7 days of receipt 5 of this order by him of his desire, the society shall organize, pay and bear the costs of shifting of the window of kitchen of Mr.Ginde s flat by 1 -6 towards West. d) The parties shall cooperate with each other in implementation of this order. e) This order will be effective after 3 weeks from the date of receipt by both the parties. 4 As can be seen from Exhibit D-1 to the petition, Mr.Ginde thereafter took assistance of Mumbai Congress Committee and got letters issued to the Municipal Commissioner and Additional Municipal Commissioner from the Mumbai Regional Congress Committee asking the Municipal Commissioner and Additional Municipal Commissioner to give a hearing to Mr.Ginde before the order becomes effective. Thereafter the petitioner no.1 also addressed letters to the Hon ble Minister for Cooperation, Additional Municipal Commissioner (Vigilance) and the Municipal 6 Commissioner setting out the hardships caused to them in absence of a lift in B wing of the said society. The letter written by the petitioner no.1 was treated as a representation made by him to the Municipal Commissioner and the Executive Engineer, Building Proposal, (City) III without assigning any reasons by a cryptic order, as against the detailed order of the Chief Engineer dated 27th February, 2006 recorded as under: Sir With reference to above subject proposal and your representation to M.C.dated 17th August, 2006, by directions of M.C., it is to inform you that your request to grant C.C. for the proposed lift for West wing of the building under reference, cannot be considered at this stage and the same can be granted after receipt of following requisitions: 1.Final order in C.C.No.109/1 and R/2005 7 from Hon ble 9 th Court of Addl.Chief Metropolitan Magistrate, Bandra. 2.N.O.C. From Shri V.V.Ginde for shifting of his window. 3.To settle the dispute between members of the society pending in 3rd Co-operative Court. After receipt of the above requisitions, the matter can be dealt further on its merits. Sd/- Executive Engineer Building Proposals (City)III 5 The learned Advocate for the petitioner, after referring to item nos.1 and 3 set out in the letter dated 12th October, 2006 of the Executive Engineer, Building Proposals (City) III, has stated that till date there is no order from any Court in any of the proceedings restraining the society from installing the lift in the B wing of the society building. Requisition 8 Nos. 1 and 2 raised/set out by the Executive Engineer in his letter/order dated 17th August, 2006 are, therefore, without any application of mind. As regards requisition no.2 it is submitted on behalf of the petitioners that after the Chief Engineer having passed his reasoned order dated 27th February, 2006, the Executive Engineer has no powers to ignore the said order and pass orders contrary to the order passed by the Chief Engineer, without assigning any reasons. Though the Executive Engineer has written in his order/letter dated 12th October, 2006 that he is informing/conveying to the petitioner, the directions of the Municipal Commissioner, no such directions are produced and it is not explained under what provisions of law, the Municipal Commissioner, without setting aside the order of the Chief Engineer dated 27th February 2006, has directed the Executive Engineer, 9 Building Proposals (City) III to forward to the petitioner the said letter/order dated 12th October, 2006. 6 The learned Advocate appearing for the Municipal Corporation, on instructions, states that admittedly the order of the Chief Engineer dated 27th February 2006 is not set aside by any order till date. The said order shall, therefore, prevail over the letter/order of the Executive Engineer, Building Proposals (City) III dated 12th October, 2006. It is stated on behalf of the Corporation that in view of the statement made by the petitioner that there is no order as on date of any Court/Tribunal restraining the petitioners or the society from installing a lift in wing B of the building of the said society, the Municipal Corporation would comply with the order dated 27th February 2006 passed by the Chief Engineer of the Corporation provided the 10 society will bear the costs of shifting of kitchen window of the flat of Mr.Ginde by 1 6 towards West and furnish a registered undertaking to that effect along with the payment of Rs.4000/- towards the security deposit for faithful compliance of these conditions. It is also stated on behalf of the Corporation that upon compliance of the order of the Chief Engineer dated 27th February, 2006 the required CC shall be issued to the society within a period of four weeks thereafter. The above statements made by the Corporation are accepted. 7 Mr.Ginde instead of addressing the Court on the issue involved in this petition kept on making allegations of fabrication/forgeries against the petitioners and that the petitioners not having abided by the resolutions passed by the General Body of the said society prior to the order of the Chief Engineer dated 27th February, 2006, 11 which submissions are irrelevant for the purpose of deciding the present writ petition. 8 In view of the above statements made on behalf of the Municipal Corporation and accepted by this Court, no orders are required to be passed in this writ petition. The writ petition is accordingly disposed of with no order as to costs. 9 After this Court completed dictation of this order, Mr.Ginde has tried to tender his written submissions in the matter which are not taken on record by this Court. (S.J.KATHAWALLA J.)