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Judgment
Riyaz I. Chagla J
The Petitioners by the present Petition are seeking a direction against Respondent Nos. 2, 3 and 5 to carry out their statutory duties and to remove
the encroachment and the unauthorised constructions carried out by the Respondent No.4 on the land belonging to Respondent No.1.
The Petitioner No.1 is the owner of the building situated on CTS No. 183, Hissa No.2 (Part) Rokadia Lane House, Borivali (W), Mumbai. Abutting
to the boundary wall of the Petitioner No.1 building is the subject land viz. CTS No.2460 belonging to the Respondent No.1. It is the Petitioners case
that a group of persons formed the Rokadia Land Welfare Association which is the Respondent No.4 herein. Initially, Respondent No.4 was using a
small part of the subject land for celebrating Ganpati Pooja celebrations. It is claimed that Respondent No.4 has encroached into the open land and
constructed a temporary structure by using the wall of the Petitioners building as a support. The Petitioner No.1 is aggrieved by the structure as it is
causing a nuisance to the members of the Petitioner No.1 as well as obstructing light and ventilation to the occupants of the Petitioner No.1 building.Â
It is claimed that the Respondent No.4 has used steel frames to erect a shed on the subject land and the shed constructed is interfering with the
drainage line to the Petitioner No.1 building which passes under the same and the water line to the Petitioner No.1 building which also pass through
the impugned structure.
The Petitioner has preferred a complaint before Respondent Nos. 1 and 2 pointing out their grievance with regard to the impugned structure. It is
also pointed out by the Petitioners that they had addressed a communication on 26th November, 2012 to the Respondent No.3, pointing out their
grievances. During the inspection carried out by the officers of the Municipal Corporation of Greater Mumbai (for short “the Municipal
Corporationâ€) as well as MHADA authority, it had been observed that foundation of the unauthorised structure are such that provision had been
made for a multi-storeyed building. The Petitioners had sought immediate steps to be taken to stop the work which had been carried out on the
subject land. The Petitioners had also moved an application under Right to Information Act, 2005 to find out whether permission had been granted
to Respondent No.4 to build on subject land and / or any approval had been granted. Pursuant to the application, Respondent No.3 on 15th January,
2013 confirmed that they had not given permission for the work being carried on the subject land. The Petitioners by their communication dated
11th February, 2013 addressed to Respondent No.3 sought the demolition of the existing structure in view of confirmation that permission had not been
granted to Respondent No.4. Further communications were addressed by the Petitioners to the Respondent No.2 and the Vigilance Officer of the
Municipal Corporation, setting out all the grievances of the Petitioners. However, there was no action taken against the impugned structure. On 24th
September, 2013, the Respondent No.2 informed the Petitioners that the unauthorised structure was carried out by utilizing the MLA fund of
Hemendra Mehta. The Petitioners addressed a letter dated 6th January, 2014 to Respondent No.2 stating that the authorities were abetting the
illegality of the structure instead of taking action to demolish the unauthorised structure. The Petitioners being aggrieved by inaction on the part of the
Respondent Nos. 1 to 3 and 5 have filed this Petition.
Considering the narrow controversy in this Petition, this Petition has been taken up for final hearing.Â
This Court vide an order dated 21st June, 2017 had directed the appropriate officer nominated by the Respondent No.2 as well as the designated
officer of the concerned ward of the Municipal Corporation to make a joint visit to the concerned site with a view to ascertain whether any illegal
construction as alleged by the Petitioner is carried out on the government land which is the subject matter of this Petition. A joint inspection had
been carried out by the designated officer of the concerned ward and the officer nominated by the Deputy Collector (Encroachment) which is
recorded in the order of this Court dated 28th February, 2018. A compilation was tendered on record by the learned Counsel appearing for the
Mumbai Municipal Corporation which has been taken on record and marked 'X-1' for identification. It was noted in the report signed by the
Municipal officers as well as officers of the State after carrying out joint inspection on 11th July, 2017 that the area occupied by the impugned
structure bears the name board of the Respondent No.4 admeasuring 1080 Sq.ft. On the front portion of the structure there was a board displaying
that the same had been erected by using the funds of Shri Vinod Ghosalkar, a Member of the Legislative Assembly. From the documents annexed to
the report, it appears that on 30th July, 2012, Mumbai Slum Improvement Board which is a unit of MHADA, addressed a letter to the Assistant
Municipal Commissioner of the Municipal Corporation stating that Shri Ghosalkar had proposed construction of a social welfare centre and no
objection certificate dated 24th December, 2013 issued by the District Collector has been annexed. The no objection certificate recorded that it will
be first verified whether the proposed user is lawful. The no objection certificate was for constructing a cultural centre. Further, it records that no
objection certificate was being issued for carrying out construction of maximum area of 300 sq. ft. A condition has been incorporated that it shall
ensure that no interest is created in favour of any individual or private organisation. It was only after compliance with the conditions, the
construction would be commenced. It has been recorded in the said order of this Court that construction made by using the funds of the MLA ought
to have been restricted to 300 Sq.ft. There is construction of a larger area comprising ground plus upper floor. It is recorded that that officers at the
time of joint visit had not measured area of the upper floor. A report has been signed by the Tahasildar in the office of Deputy Collector
(Encroachment) as well as Municipal Officers. A direction was issued to the Petitioners to join Shri Ghosalkar as party Respondent No.6 by
carrying out amendments to the cause title as well as consequential amendments. The Municipal Corporation was directed to initiate appropriate
action for demolition of the illegal structure by following due process of law. The Corporation was also to ascertain whether its permission for
construction was necessary and if found that the direction is mandatory and not taken, the entire structure was to be demolished. By a further order
dated 12th June, 2018, this Court has recorded the statement of the learned counsel appearing for the Respondent No.4 on instructions of one Shri
Jayesh Vrujlal Chauhan, Joint Secretary of Respondent No.4 that the said Respondent by demolishing excess construction will reduce the existing
structure, subject matter of this Writ Petition to the size of 300 Sq. ft. within a period of 15 days from the date of the order. The statement was
accordingly accepted. A direction was issued to the Respondent No.4 to produce documents in support of their solemn statement made in Affidavit
of Shri Chauhan that the Collector had granted an area of 300 Sq. ft of land to the Respondent No.4. Further, the Designated Officer of the Municipal
Corporation was directed to ensure that the appropriate officer visited the site on 27th June, 2008 and measure the area of the structure after its
demolition. Thereafter an Affidavit-cum-Undertakings has been filed by Shri Jayesh Vrujlal Chauhan, Joint Secretary of the Respondent No.4
affirmed on 29th June, 2018 which is taken on record and marked 'U-1' for identification. On 13th July, 2018, this Court has recorded the statement of
learned counsel appearing for the Respondent No.4 that in terms of the undertaking accepted by this Court by order dated 29th June, 2018,
compliance had been made by reducing the size of the structure to 300 Sq. ft. A letter had been tendered across the bar dated 10th July, 2018
which is addressed to the Designated Officer along with the photographs. Thereafter, the Municipal Officers visited the site as directed by this Court
and confirmed that the size of the structure had in fact been reduced to 300 Sq.ft.        Â
We refer to the Affidavit filed by the Respondent No.4 through Jayesh Chauhan, Joint Secretary of the Respondent No.4 dated 12th June, 2018
wherein he has stated in paragraph 6 that the Collector granted an area of 300 Sq. ft of land to the Respondent No.4. There is another Affidavit of
Shri Jayesh Chauhan on behalf of Respondent No.4 dated 27th June, 2018 wherein he has withdrawn the statement made in paragraph 6 of his prior
Affidavit and has stated that the disputed structure was given to the Respondent No.4 on caretaker basis by the Mumbai Slum Improvement Board.Â
He has stated that the disputed structure is constructed by MHADA with due permission from the officer of District Collector and that the same has
not been constructed by the Respondent No.4. He has, therefore, stated that the both the sheds admeasuring 1080 sq. ft constructed in the year
2004 and the disputed shed admeasuring 300 Sq.ft constructed in the year 2014 were in the domain of the concerned MLA and constructed by
MHADA with the due approval of and NOC issued by the Collector. He has referred to correspondence entered into between the Respondent
No.4 and the concerned MLA for constructing welfare centre for the benefit of the people of the said locality as well as the permission granted by the
Collector for constructing the disputed structure. He has stated that the structures are legally authorised structures and cannot be termed as illegal and
liable to be demolished.
There is an Affidavit of Shri Padmakar Ganpati Chavan dated 31st March, 2018 on behalf of the Respondent No.3 wherein he has referred to a
prior notice under Section 351 of the Mumbai Municipal Corporation Act, 1888 issued to the owner / occupier of Respondent No.4 â€" Association in
compliance with the orders of this Court.
We have heard the learned counsel appearing for the Petitioners as well as the learned counsel appearing for the Respondent No.4 â€" Association,
the learned AGP for the Respondent â€" State and the learned counsel for the Respondent Nos. 3 and 5 of the Municipal Corporation. It is an
accepted position that the excess illegal construction over and above 300 sq.ft. has been removed by the Respondent No.4 pursuant to the
aforementioned orders of this Court. It appears from the documents on record that possession of the structure of 300 Sq.ft. had been given to the
Respondent No.4 â€" Association on a caretaker basis by the Mumbai Slum Improvement Board. There is a caretaker agreement which has been
annexed to the Affidavit of Shri Jayesh Chauhan dated 27th June, 2018. From the agreement, it is apparent that the structure of 300 Sq. ft had been
given on caretaker basis to the Respondent No.4 â€" Association on 2nd June, 2014 for a period of five years. The structure has been constructed by
MHADA in 2014 and apparently with concerned MLA funds as bourne out from the documents on record.
The Petitioners are seeking by this Petition, action of demolition of the unauthorised construction which they claim had been carried out by
Respondent No.4 on the subject land belonging to Respondent No.1. We find from the record that the construction of the structure of 300 Sq.ft. had
not been carried out by the Respondent No.4 and in fact was carried out by MHADA with the funds of the concerned MLA. There is a letter on
record dated 3rd April, 2012 wherein the Mumbai Slum Improvement Board consented to construction of the Samaj Kalyan Kendra on the subject plot
with an estimated cost of Rs.15 lakhs. The Mumbai Slum Improvement Board by a letter dated 18th March, 2013 informed the Collector that they
were constructing 300 Sq.ft. Samaj Kalyan Kendra on the said site with the MLA fund and called upon the Collector to give no objection certificate.
The office of the Collector has granted no objection certificate vide letter dated 3rd October, 2013 for construction of the 300 Sq. ft on the said site as
the Samaj Kalyan Kendra for general public use and by a letter dated 5th October, 2013, the conditions were modified. MHADA has confirmed
having constructed the structures with no objection from the concerned authorities in its letter to the Municipal Corporation dated 19th June, 2018.
Accordingly, from the documents on record, it is apparent that the 300 Sq. ft. disputed structure i.e. Samaj Kalyan Kendra is constructed by
MHADA as per approval of the concerned authorities. The unauthorised structure which was in excess of 300 Sq.ft. has been removed by the
Respondent No.4 and this has been confirmed by the Designated Officer of the MMC. Hence, there is no unauthorised structure which requires
removal for which this Petition has been filed.Â
We dispose of this Petition by directing the Respondent No.4 to handover the 'Samaj Kalyan Kendra' structure of 300 sq. ft. to the Mumbai Slum
Improvement Board, (W) Division, Mumbai (a unit of MHADA) upon the expiry of five years from 2nd June, 2014 as agreed in the caretaker
agreement. There shall be no order as to costs.Â