WPL.1604/2010 acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION (LODG) NO. 1604 OF 2010 Junned Usman ... Petitioner. Versus The Municipal Corporation of Greater Mumbai & Ors. ....Respondents. ---- Mr. P.K. Dhakephalkar, Sr. Adv. with J.J. Shah, for the Petitioner. Ms. Geeta Joglekar, for Respondent-Corporation. Ms. Kiran Bagalia, for Respondent-MMRDA. ---- CORAM : MOHIT S. SHAH, C.J. AND S.C. DHARMADHIKARI, J. DATE : 19th JULY, 2010. P.C. Rule. Rule made returnable forthwith. Learned counsel for respondent no.1-corporation and the learned counsel for respondent no.2- MMRDA waive service of rule. 1 WPL.1604/2010 1] What is challenged in this petition under Article 226 of Constitution of India is the order dated 8.7.2010 of the Assistant Commissioner, K/West Ward of respondent No.1-municipal corporation of Greater Mumbai holding that the petitioner's structure existing on the site in question is treated as unauthorised and his application for repair permission as per kurar pattern is rejected. Petitioner is also directed to remove his structure from the site in question, failing which the Corporation will demolish the same. 2] Learned counsel for the petitioner submits that the respondents have held that the entire structure was not existing prior to 1.4.1962, and that the petitioner’s claim that the structure is made eligible by the Deputy Collector admeasuring 1692 sq.ft. was not accepted in the absence of certificate from the Deputy Collector(Encroachment). However, the Executive Engineer of MMRDA had already wrote a letter dated 30.4.2008 to the Assistant Municipal Commissioner, K/West Ward, stating that the competent authority under MUIP i.e. Deputry Collector (Encroachment) Andheri had already certified that the structure was made eligible and certified for an area of 20” x 43” plus 64”x13 equivalent to 1692 sq.ft. (157,25 Sq.Mt.). He, therefore, submits that in view of this, respondent no.1-municipal 2 WPL.1604/2010 corporation ought to have held that the structure admeasuring 1692 sq.ft. was eligible for getting benefit of the MCGM Circular dated 25.2.2004 at Exhibit-I’ wherein it is mentioned that :- “The structure/structures affected in RL however, cannot be removed fully and in the process by shifting the structure if half or more than half of the portion of road is made available for smooth flow of traffic, in such cases eligible structure/structures affected may be allowed to be repaired/reconstructed and raised to the height of 17’.0” on ‘kurar pattern’.” 3] It is further submitted that the petitioner has not claimed any benefit for the structure which has been lost in the road widening but the petition is only confined to 1692 sq.ft. structure on the land below which still private land under the jurisdiction of the respondent no.1-Municipal Corporation. It is, therefore, submitted that the petitioner is entitled to get permission for repair/reconstruction of the structure on the said portion of the land in light of the aforesaid Circular. 4] As far as the respondent no.2-MMRDA is concerned, since the petitioner does not claim any relief from MMRDA, we are not required to call upon learned counsel for the MMRDA to make any submission. 3 WPL.1604/2010 5] As far as the respondent no.1-municipal corporation is concerned, learned counsel for respondent no.1-municipal corporation submits that the Assistant Engineer has given finding that the entire structure was unauthorised, therefore, the same could not have been repaired or reconstructed as per the Circular referred to above. Thus, this is not a fit case for exercise of jurisdiction under Article 226 of Constitution of India. 6] Having heard the learned counsel for the parties, we found that when the Assistant Municipal Commissioner, K/West Ward, had been informed by the Executive Engineer of MMRDA as far back as on 30.4.2008 that the case was referred to the competent authority under MUIP i.e. Dy. Collector (Encroachment) Andheri for deciding the eligibility of the structure and when he certified the area admeasuring 1692 sq.ft., then, merely because the petitioner could not produce the certificate from the Dy. Collector (Encroachment) Andheri mentioned at page 83 of the compilation, the petitioner may not be deprived of his claim for repairs/reconstruction only because such document was not produced before the Assistant Municipal Commissioner. 4 WPL.1604/2010 7] In view of the above, we set aside the impugned order dated 8 th July, 2010 and remand the matter back to respondent no. 1-municipal corporation for reconsidering the petitioner’s claim for permission to repair/reconstruction of the structure over the land in question admeasuring 1692 sq.ft. We make it clear that by this order we have not expressed any opinion on the question of petitioner’s ownership of the land in question and respondent no.1-corporation shall examine the matter in accordance with law after taking into consideration the aforesaid letter dated 30.4.2008 of the Executive Engineer of MMRDA addressed to the Assistant Municipal Corporation, K/West ward, and the document produced by the petitioner at page 83 of the compilation which is certificate issued by the Dy. Collector (Encroachment) Andheri of MMRDA. This shall be done as expeditiously as possible and preferably within two months from receipt of this order. 8] The petition is disposed of with above directions. CHIEF JUSTICE S.C. DHARMADHIKARI, J. 5