1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.632 OF 2008 WRIT PETITION NO.632 OF 2008 WRIT PETITION NO.632 OF 2008 M/s.Mahesh Builders and Ors. .. Petitioners vs. The Trustees of Shree Garden Lane Nageshwar Parssshwanath Jain Temple and Ors. .. Respondents Mr.M.S.Lad for the petitioners Mr.Y.M.Chaudhari with Mr.H.C.Mehta i/b Mr.V.T.Chawan for respondent nos.1 Mr.S.S.Pakale with Ms.Shobha Ajeet Kumar for respondent nos.2 CORAM: J.N. PATEL, & CORAM: J.N. PATEL, & CORAM: J.N. PATEL, & Smt.V.K.TAHILRAMANI, JJ. Smt.V.K.TAHILRAMANI, JJ. Smt.V.K.TAHILRAMANI, JJ. DATE: 23RD MARCH, 2009 DATE: 23RD MARCH, 2009 DATE: 23RD MARCH, 2009 P.C. 1. Heard the learned counsel for the parties. 2. This petition came to be filed by the builders who had constructed Sai Darshan Society abutting the ’B’ Wing of the building. There exist a temple known as Shree Garden Lane Nageshwar Parshwanath Jain Temple. It so happened that the trustees of the temple undertook some additions and alterations and utilised 2 the FSI beyond the permissible limit on the part of land allotted to the temple by the petitioners which was approx. 700 sq.ft. Therefore, the petitioners moved this court by invoking its extraordinary Jurisdiction and alleged that not only respondent nos.1 have carried out unauthorised construction without taking permission of the respondent no.2 and 3 but have also encroached upon the open marginal space by extending and carrying out unauthorised construction by erecting walls and cement sheet roofing along the Jain Temple. 3. The petitioners also made specific allegations against respondent nos.1 that M.C.G.M. which is the planning authority have enclosed 13.40 mt. wide D.P. Road or 44’ D.P.Road and set-back land of 15’ x 50 feet wide D.P.Road passing through the said property illegally and unauthorizedly. It appears that after the petition was taken up by this court for admission from time to time, the parties have come to a settlement and the petitioner builder has agreed to share additional FSI with the temple. Insofar as this additional FSI is concerned, that can be utilised by respondent no.1 for the purpose of regularising the 3 temple and tendered Consent Terms signed amongst them i.e. the petitioner and respondent no.1. Such consent terms cannot be accepted by the court as it binds respondent nos.2 and 3 which have no authority to allow the party to construct in compulsory open space and block public street which will be contrary to building bye laws, rules and regulations and is also not permitted under the DCR, 1991 which governs carrying out of constructions within the Municipal Limits of M.C.G.M. Surprisingly, there was inaction on the part of respondent nos.2 and 3 in the matter and in the affidavit filed by one Mr.V.E.Kothawade, Sub Engineer of the area, except for stating that they have issued notices under section 351 of the M.M.C. Act, he did not state what the Corporation proposes to do to atleast remove unauthorised construction from compulsory open space of the building and construction of 10" thick walls having length 53’ width 13’8" height 6’3" beyond existing line of compound wall of building and erection of shed above it and therefore, we called upon the Dy.Municipal Commissioner of the region to file his affidavit in reply. 5. We have gone through the affidavit of Mr.Milind 4 D.Sawant, presently working as Deputy Municipal Commissioner Zone V, on behalf of D.M.C. (Z-VI). On going through the affidavit of Mr.Sawant, this court is now satisfied that the Corporation has acted in accordance with law and has demolished the unauthorised structure which was erected in the compulsory open marginal space and removed the obstruction to the public road. 6. In so far as the unauthorised construction of the temple exceeding the FSI is concerned, it has been stated that this can be continued in view of the fact that the petitioners have agreed to provide an additional FSI to the temple. The same can be done within the building bye laws, rules and regulations. We, therefore, find that nothing survives in the petition. We accept the additional affidavit filed by Mr.Sawant as an undertaking given to this court by respondent nos.2 that in future they would not regularise any construction in the subject plot and public land vested in the Corporation for erecting any structure. 7. Petition stands disposed of accordingly. 5 (J.N. Patel, J.) (J.N. Patel, J.) (J.N. Patel, J.) (Smt.V.K.Tahilramani, J.) (Smt.V.K.Tahilramani, J.) (Smt.V.K.Tahilramani, J.)