1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.2067 OF 2007 Rambhai Ranchodji Patel .. Petitioner Vs. Municipal Corpn. of Gr. Bombay and Anr. .. Respondents Ms.U.G.Wagale for the petitioner Ms.P.A.Purandare for respondent nos.1 Mr.J.Rais i/b Mr.N.G.Raut for respondent nos.3 CORAM : J.N.PATEL CORAM : J.N.PATEL CORAM : J.N.PATEL & & & K.K.TATED, JJ. K.K.TATED, JJ. K.K.TATED, JJ. DATED : 25TH JULY, 2008 DATED : 25TH JULY, 2008 DATED : 25TH JULY, 2008 P.C.: 1. The petitioner under Article 226 of the Constitution of India is challenging the occupation certificate issued by the Corporation dated 06.12.2006. It is the case of the petitioner that there are various violation of rules and regulations and also violation of sanctioned plans while carrying out the said construction activity of the suit structure. This Honourable court by 2 order dated 07.12.2007 appointed Commissioner to visit the said building and submit the report. As per the said order, Commissioner submitted the report dated 17.12.2007. Thereafter B.M.C. issued notices to the owner in respect of the illegal construction. Respondent no.3 filed their reply and stated that they have already complied with the notice issued by the Corporation in respect of unauthorised construction. B.M.C. filed their affidavit in reply dated 14.07.08 in which it is specifically stated that their officer visited the building and verified the unauthorised construction. Their officers state that respondent nos.3 has already removed all unauthorised construction which is specifically stated in para 4 of the affidavit in reply which reads as under: "a. We say that in the present case, plans for proposed residential building at Plot bearing CTS No.334, Plot No.52 at N.S.Road No.12, J.V.P.D. Scheme, Vileparle (West), comprising of additional 5th to 11th upper floors over existing stilt (part) + ground (part) + 1st to 3rd + 4th (part) upper floors (for residential) were approved in lieu of plot potential and admissible TDR on 24.3.2004 and full commencement certificate was granted on 28.1.2005. 3 b. We say that on completion of the building work, building completion certificate was submitted by the Architect on 3.5.2006 with a request to grant full occupation to the building under reference. We say that upon Architect complying with the conditions viz. 1) D.C.C., 2) Structural Stability Certificate, 3) Completion Certificate from the Site Supervisor, 4) Lift Inspector’s N.O.C., 5) Final N.O.C. from Chief Fire Officer and as the work of the building was completed except fixing flooring tiles and decorative work, the Occupation Certificate was granted on 06.12.2006, subject to the conditions to submit registered undertaking stating that the internal work of finishing/interior work will be carried out strictly as per the approved plan and the same will be incorporated in the agreement of sale of the prospective buyers and if any, deviation from approved plan is observed, Occupation Certificate will be automatically revoked. c. We say that after the issuanc of Occupation Certificate, the respondent no.3 i.e. the Developer has carried out unauthorized construction, hence the K/West Ward office has issued the stop work notice under section 354A of the MMC Act dated 23.7.2007 to the owner/occupier to stop the work forthwith and to submit permission if any, granted by the Municipal Corporation for carrying out the construction of the said work. We say that the copy of the said notice was also forwarded to the Juhu Police Station. d. We say that the office staff of K/West Ward office visited the site under reference on 15.5.2008 and 7.6.2008. We say that during inspection of the building from 5th floor to 7th floor, it is observed that the Developer has covered the portion of the pergola and duct beyond the approved 4 plan for which stop work notice has already been given by these respondents. It was further observed that on the 8th floor, refuge area is covered by constructing B.M.Walls with the intention to use the said area as flat/room. We say that the said construction in a refuge area on the 8th floor has been removed by the Developer. We crave leave to refer to and rely upon the photographs showing the demolition of the unauthorized construction made by the respondent no.3 in the refuge area of 8th floor of the building under reference. e. We say that with regard to the unauthorised construction of illegal covering of pergola and duct on 9th to 11th floor of the building under reference, these respondents have already taken action by issuing notice under section 354A of the M.M.C. Act and further necessary steps to remove the unauthorized construction beyond the approved plan shall be taken by these respondents in accordance with law. Accordingly, K/West Ward office had arranged the demolition programme and taken the demolition action on 18.6.2008, as against the unauthorized covering of pergolas and duct portion beyond approved plan. Thereafter, Developer has shown the willingness to remove the unauthorized covering of pergolas and duct portion, beyond approved plan. The demolition of unauthorized constructions/covering of pergolas/duct portion beyond approved plan on his own has started and is in progress. f. We say that it is pertinent to note that the respondent no.3 has given a registered undertaking to these respondents annexed to the petition at Pg.No.181 to 187 that respondent no.3 shall demolish the unauthorized work, if extra F.S.I. is consumed and work is carried out beyond the approved plan. Accordingly, the Developer has started demolition/removal of work 5 carried out beyond approved plan, after the action of K/West Ward on 18.6.2008." 2. Affidavit in rejoinder dated 25.07.2008 filed by the petitioner is taken on record. Considering the above mentioned facts and circumstances, the case is not made out by the petitioner to entertain the present petition under Article 226 of the Constitution of India. There are several disputed question of facts involved and this is a dispute between private parties. Considering these facts, the petitioner is at liberty to take out appropriate proceedings and seek alternate remedy, if he desires. Petition is dismissed with no order as to costs. ( J.N. PATEL, J ) ( J.N. PATEL, J ) ( J.N. PATEL, J ) ( K.K. TATED, J ) ( K.K. TATED, J ) ( K.K. TATED, J )