AJN 05-OS-WP(L)916.10 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION (LODGING) NO.916 OF 2010 Mahesh Tukaram Vengurlekar & Ors. ... Petitioners Vs. The Mumbai Municipal Corporation & Ors. ... Respondents Mr. Pramod Kathane for the petitioners. Mr. R.J. Mane, A.G.P. for the State. Mr. A.N. Jakhadi for respondents 3 and 4. Mr. A.S. Potnis i/b Tamhane & Co. for respondent 5. CORAM: MRS. RANJANA DESAI & R.V. MORE, JJ. DATED : 5TH OCTOBER, 2010. P.C.:- 1. The petitioners are residents of a building known as “Noor Manzil”, situate at Dr. Babasaheb Ambedkar Road, Mumbai – 400 027. Respondents 3 and 4 have a hotel viz. AJN 05-OS-WP(L)916.10 2 “Hotel Rajatachal” situate at Shop Nos.8, 9 and 10 on the ground floor of the said building. Respondent 5 is the landlord of the said building. Respondent 1 is the Mumbai Municipal Corporation (for short, “the Corporation”). 2. In this petition, the basic grievance of the petitioners is about the unauthorized construction carried out by respondents 3 and 4. Their grievances are about illegal and unauthorized excavation to the plinth; illegal construction of water tank and certain other constructions in the emergency passage of the building. 3. Affidavit in reply is field by Mr. Nishikant Luman working as Sub Engineer in the Corporation. So far as the grievance about the excavation is concerned, Mr. Luman has stated as under : “c) I say and submit that thereafter one Smt. Shobha Sakpal has claimed to be the owner of the Hotel and has informed these Respondents that she had excavated the plinth for carrying out tenantable repairs only i.e. for strengthening and fixing the AJN 05-OS-WP(L)916.10 3 new flooring tiles. Accordingly, she had informed that the work refilling of plinth is being carried out by her. She has accordingly also submitted structural stability certificate of Registered Structural Engineer Shri K.C. Shah for stability of the building wherein the hotel under reference is situated. I say and submit that accordingly, site under reference once again came to be inspected by the Officer of the Respondent on 15.5.2009 when these Respondents found the subject excavated plinth has been found refilled and the work of laying P.C.C. was found in progress. The Officers of these Respondents have also taken photographs of the same. I say and submit that the owner has now refilled the excavated plinth and restored to its original position and also submitted Structural Stability Certificate from the Registered Structural Engineer and as the complaint filed in the Police Station was against the original licensee of the hotel Smt. Ratnawali Raju Shetty and now since Smt. Shobha Sakpal has claimed that she has carried out the work, the said fact was informed to Kala Chowky Police Station and, therefore, they were requested that no further action under MRTP Act be initiated.” 4. In view of this assertion made in the affidavit, the grievance regarding excavation does not survive. AJN 05-OS-WP(L)916.10 4 5. So far as the grievance regarding the illegal construction of water tank is concerned, he has stated as under : “e) I say and submit that in response to the notice, the addressee had submitted copy of NOC granted by Dy. Insecticide Officer under No.IO/2542/SR dated 28/10/2009. I say and submit that as per the provisions of Section 381A of the M.M.C. Act, 1888, NOC has to be obtained from Insecticide Branch regarding the mosquito proof nature of the tank and its accessibility for inspection. I say and submit that accordingly, Shri Dagdu Haribhau Sakpal was issued NOC for one existing water storage tank, placed in the open space on ground floor within the said premises. This NOC was issued on merits after obtaining NOC from the landlord and after due inspection of the said High Density Polyethylene (HDP) Tank. However, the party had themselves removed the said HDP Tank which was issued NOC, entirely off the premises, and therefore, the NOC issued automatically stands cancelled. f) I say and submit that the Officer of these Respondents once again inspected the site on 8/7/2010 and observed that the Party has now kept Sintex Water Tank on the M.S. Angle Frame work for which the stop work notice under Section 354A of the MMC Act was given by these Respondents on 13/3/2010. I say and AJN 05-OS-WP(L)916.10 5 submit that the Officer of these Respondents have also taken photographs from dated camera showing the position as of 8/7/2010. I crave leave to refer to and rely upon the same as and when produced. g) I say and submit that no new NOC is issued by the Dy. Insecticide Officer as on the date to the presently erected sintex water tank kept on M.S. Angle frame work. h) I say and submit that erection of frame work and/or fro installation of water storage tank in the open space or on the terrace of the building amounts to additions/alterations to the existing building, thus it is necessary to obtain approval of Building Proposal Department for the same. I say and submit that in view thereof one more letter was issued in the name of Shri Dagdoo Haribhau Sakpal i.e. Husband of Smt. Shobha Sakpal under No.ACE/367/SR/Bldg. dt. 21.9.2010, informing the above facts and once again calling upon them to remove the water tank on their own, failing which the same shall be removed by these Respondents at their risk and costs. The said letter was duly served at the suit premises”. 6. The above paragraphs make it clear that it is the case of the Corporation that the water storage tank has been illegally put up. Respondents 3 and 4 could not show that AJN 05-OS-WP(L)916.10 6 they have obtained any permission for erection of the water tank. If the Corporation finds that there is any illegal construction, the Corporation is duty bound to take action and remove it, if necessary. We direct the Corporation to take steps in accordance with law so far as the illegal water tank is concerned. So far as the alleged construction in the passage of the building is concerned, it is stated to be a safety hazard. The Corporation shall inspect the same and if any such construction is found, it shall take steps in accordance with law. 7. Removal of unauthorized construction has to be done expeditiously and, in any case, within a period of six weeks from today. 8. The petition is disposed of in the aforestated terms. [MRS. RANJANA DESAI, J.] [R.V. MORE, J.]