1 WP.1313/2010 acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 1313 OF 2010 Tarachand Dalchand Jain ….Petitioner. Vs. The Municipal Corporation of Greater Mumbai & Ors. ….Respondents. ..... Mr. P.M. Shah, for the Petitioner. Ms. Geeta Joglekar, for Respondent No.1(BMC). Mr. Kuldip Patil, for Respondent No.2 MMRDA. Mr. Ajay Panicker, for Respondent No.3. .... CORAM: MOHIT S. SHAH, C.J. AND S.C. DHARMADHIKARI, J. DATE : 21ST JULY, 2010. P.C. 1] By this petition under Article 226 of Constitution of India, the petitioner seeks a writ of mandamus directing respondent nos.1 and 2 to abide by their policy and offer the petitioner alternate accommodation as the petitioner’s property was affected by road widening. 2] It is the case of the petitioner that respondent no.2- MMRDA authority has undertaken a project of widening of the road. The petitioner is a proprietary firm and carrying on business in the 2 WP.1313/2010 name and style ‘Mahavir Metal Mart’ from the premises, more particularly described at Exhibit ‘A’ to the petition. The learned Advocate for the petitioner states that the structure is partly demolished and the petitioner had acquired the structure on tenancy basis from his predecessor in title. He had produced the necessary documents before the Executive Engineer (respondent no.2). The petitioner states that despite the structure existing at site and from which the petitioner was carrying on his business, a notice was issued to the petitioner dated 29.11.2007 under section 351 of Mumbai Municipal Act alleging that the petitioner has commenced construction without requisite permission of respondent no.1- municipal corporation. The petitioner replied to this notice and produced the necessary documents. The petitioner has made several allegations against the private respondents but we need not go into the same as it is common ground that the petitioner was served with a communication dated 12.5.2010 by respondent no.2 wherein respondent no.2-MMRDA concluded that the documents produced did not prove the existence of the structure as authorized or one constructed prior to Datumline i.e. 1.4.1962. This date was fixed for tolerating unauthorized commercial structure and 17.4.1962 is the date determined for residential structure. Admittedly, the structure involved is a commercial structure. 3 WP.1313/2010 3] However, the Executive Engineer has held that the structure was in existence prior to 1.1.1995 and therefore, the petitioner is entitled to alternate accommodation as per the Mumbai Urban Infrastructure Policy. 4] This matter was adjourned so as to enable respondent nos. 1 and 2 to take instructions. The time was granted because it was contended by respondent no.2 that although the letter dated 12.5.2010 was issued by it’s Executive Engineer that was in pursuance to the direction of the City Civil Court in the suit instituted by the petitioner. However, the policy of rehabilitation of such persons has to be implemented by the Municipal Corporation because the road has been developed and constructed so also handed over to the Municipal Corporation. 5] The learned Advocate appearing for respondent no. 1- municipal corporation, after seeking instructions, states that the Corporation straightaway cannot offer alternate accommodation to the petitioner. The Corporation will have to decide whether the structure can be tolerated or not. 6] The petitioner’s Advocate in the alternative contended that if not the Corporation, at least MMRDA should take responsibility to provide alternate accommodation to the petitioner. Learned Advocate for the MMRDA states that once the road is handed over to the Corporation, the responsibility of rehabilitation is of the Corporation and not of the MMRDA. 4 WP.1313/2010 7] We are unable to accept this contention of the learned Advocate for the MMRDA. The MMRDA’s communication dated 12.5.2010 in terms holds that the petitioner’s structure was in existence prior to 1.1.1995 and therefore, it may be unauthorized for the purposes of Mumbai Municipal Corporation Act and not tolerable but under the Mumbai Urban Infrastructure Policy, the petitioner has satisfied the eligibility criteria and therefore alternate accommodation as per this policy can be made available. The structure is therefore liable to be removed only after providing alternate accommodation, is the conclusion in the communication dated 12.5.2010. 8] We see no reason as to why MMRDA cannot abide by its own communication. Once the petitioner states before us that he is agreeable to the structure being demolished by respondent nos.1 and 2, so also willing to shift to alternate accommodation provided by either of these respondents, then, there is no impediment in MMRDA providing alternate accommodation under Mumbai Urban Infrastructure Policy to the petitioner. 9] Accordingly, we direct the MMRDA to abide by its letter dated 12.5.2010 and provide alternate accommodation under Mumbai Urban Infrastructure Policy to the petitioner. The accommodation be provided as expeditiously as possible. 5 WP.1313/2010 10] The next grievance of the petitioner is that until he is provided an alternate accommodation, the electricity supply to the existing premises be restored. That supply was disconnected by respondent no.4. In the light of the order and direction to MMRDA to abide by its own policy and ensure compliance of the letter dated 12.5.2010 as above, interest of justice would be served if the electricity supply to the existing premises is restored on the same terms and conditions on which it was granted to the petitioner. 11] Needless to state that no demolition can take place unless alternate accommodation is provided to the petitioner. Once, alternate accommodation is provided, the authority is free to demolish the existing structure as it is obstructing the widened road. 12] Petition disposed of in the above terms. No costs. CHIEF JUSTICE S.C. DHARMADHIKARI, J.