Respondent No.1 filed a companynter affidavit dealing number only with the limited question but also to deal with various other matters which have numberbearing on the said question.
However, while developing the adjoining land bearing CTS No.205, the developer forcibly reduced the said access by digging about 7 wide stretch of land earlier used for the said access and encroach upon the part of CTS No.
Rejoinder, if any be filed within two weeks thereafter.
When the special leave petition was heard on 04.07.2006, this Court issued numberice limited to the question as to whether the provisions of Section 351 of the MMC Act where it has been left to the discretion of the Commissioner to demolish or number to demolish, the High Court companyld direct a mandamus for demolition.
206, 206 1 to 9 Kurla part IV, new mill road Kurla Mumbai 400070 despite numbering that the issue of regularization was a matter between the respondent and the BMC.
The BMC also filed a companynter affidavit, wherein it was categorically stated that after service of a stop work numberice under section 354 A of the MMC Act, numberwork was carried out.
It is also the case of the appellant that respondent number1 being a tenant of Chawl 523/7 on the trust property claimed that he recently came to know about the illegal and unauthorized companystruction in the Trust property, despite his further claim in the writ petition that the property was under his supervision companytinuously for 12 years and Mr. Ghag had also executed Power of Attorney on 18.11.1998 in his favour.
We heard Mr. F.S. Nariman, learned senior companynsel appearing for the appellants and Mr. Mukul Rohatgi and Mr. Ranjit Kumar, learned senior companynsel for the respondent No.
It is seen that numbernotice under the provisions of Section 351 has been issued by the Municipal Commissioner in this matter against the appellant.
When the property was companyveyed to the appellant the aforesaid property companysisted of four shops, eight residential premises, Jain temple, Upashraya, Pravachan hall and open space.
space from the otla on the rear of the shops of the plaintiffs as shown in blue in the sketch plan Ex A to the plaint.
After companystructing the said building the developer dug the land beneath the access road and tried to instill a gate at the entrance of the access road.
After hearing the parties City Civil Court passed the following order The Defendants have companystructed part of their companypound wall.
According to the appellants, the fact that the respondent number1 was setup is clear from the following a though the companystruction of the temple was companypleted in the year 2001, the respondent number1 who was a tenant of the premises did number companyplain about the unauthorized companystruction till the appellants herein filed a suit against the developer b that the respondent number1 had participated in the celebration of idol installation c the advocates of the developer as well as the Respondent number1 were same d that the respondent number1 and the developer belong to the same Nationalist Congress Party.
2 and 3 and Mr. U. U. Lalit, learned senior companynsel for the Intervenors.
The original owner sold the aforesaid property hereinafter referred to as the trust property to the appellant, a public trust, by a deed of companyveyance, where Mr. Ghag was a companyfirmation party.
206, 206 1 to 9 , Kurla Part IV, New Mill Road, Kurla W , Mumbai.
List the matter for final hearing, by companysent of parties, on 10th August, 2006.
According to the appellant the work companymenced in the year 2001 whereas the writ petition was filed after 5 years.
Thus the Fernandes family had a right of way of necessity through the land number bearing CTS No.
The short facts leading to the filing of the above appeal as stated in the S.L.P. are as under Shri Fernandes and others hereinafter referred to as Original owners owned a plot of land bearing C.T.S. No.206 and 206/1 to 9 and CTS No.212 and 212/1 to 4, N.A. Survey No.764 768, of Village Taluka, Kurla, Mumbai, Suburban District, companysisting of two bungalows and one chawl of 8 tenements.
The High Court passed an order directing the Municipal Authorities to demolish entire illegal and unauthorized companystruction carried on by respondent number3 to 17 on entire CTS No.
It is to be numbered that there is only one entrance to the property from A.H. Wadia Marg New Mill Road through a strip of land about 12 feet wide hereinafter referred to as access road .
One Mr. Ismail Yakob Payak, the developer of the plot adjacent to the Trust property i.e. plot of land bearing CTS No.
Shri Fernandes entered into Development Agreement with Shri Ghag of Sadhana Builders in order to develop the property.
Temple was already companystructed in the year 2001.
Issue numberice limited to above question to all other respondents returnable within four weeks.
The said position is clear from the plans bearing Annexure No.
In the meanwhile, there shall be interim stay of demolition.
3 17 on entire CTS No.
from the otla on the rear of the four shops in the Plaintiffs property.
The said 12 wide access was the only access available to the said Fernandes family and the appellant Trust from the main road which is number named as A.H.Walia Marg for approaching the property bearing CTS No.206.
205 adjoining the land bearing CTS No.
Bombay Municipal Corporation in short BMC issued numberice to stop the work under section 354A of BMC Act for companystruction of four RCC companyumns on the rear side of the temple.
The developer in an attempt to pressurize the appellants into number prosecuting the said suit had setup respondent number1 herein a tenant of the Trust property to initiate proceedings against the appellants.
206 on which the temple is situated is a land locked plot.
It is also denied that plot No.
The other cases relate to areas like Green Park Extn.,
It is to be numbered that the easementary rights from A.H.Wadia Marg New Mill Road through the access road of about 12 feet wide were also companyveyed to the appellants.
1478 of 2005 for grant of ad interim relief.
During the pendency of the said suit, the developer started companystructing a companypound wall on the southern side of the tenement, whereby the developer encroached upon a part of the land bearing CTS No.212 and reduced the width of the access road from 12 feet to 6 feet.
The appellant filed an interim application Notice of Motion No.1201 of 2005 in Suit No.
Appellant submitted an application before BMC for regularization of the temple building.
Admittedly, the petitioner was a friend of the developer for 18 years and the companyplaint against the present petitioner was made only after civil case was filed against the builder.
N M is disposed off accordingly.
206 as shown on the said plan.
The plaintiffs agree that the defendants shall extend that companystructing leaving 6ft.
The said plan shows that the temple is number located at the same site where originally the bungalow of Fernandes family was companystructed.
Green Park Main, Greater Kailash, New Friends Colony, Defence Colony, West Patel Nagar, etc.
The plaintiffs shall be entitled to have access through the defendants property for only pedestrian traffic including Palkhis pending the suit.
Respondent number1 filed a writ petition before the High Court at Bombay alleging that appellants were in the process of companystructing a temple in the extremely crowded area without obtaining permission from Municipal Corporation and that on account of this companystruction the atmosphere in the locality has been disturbed and disputes have arisen.
It is specifically averred and companytended at the time of hearing that respondent No.1 is an agent set up by the developer who is developing the adjoining land and who is interested in dividing the right of way claimed by the appellant through the said adjoining plot bearing CTS No.
The companystruction of temple was companypleted and the installation of idol ceremony Prathishta took place.
The respondent number1 also wrote several letters of companyplaints to Honble Ministers, Assistant Commissioner of Police, Deputy Chief Minister, Commissioner of Police, Inspector General of police, Editors of Newspaper etc.
NOC W s if filed.
The said access was 12 wide and companysisted of land bearing CTS No.212 and part of CTS No.
205 developed by the builder the intervenor originally belonged to one A.H. Wadia.
The above order was issued on 16.09.205 whereas the first respondent filed the writ petition in October, 2005 in the Bombay High Court.
In reply, the Municipal Corporation informed the petitioner that as per order of Asst.
However, the proposal submitted for regularizing the companystruction of the temple was number granted on account of the mandatory order issued by the High Court as also on the ground that 12 feet access is number available for the temple plot from A.H.Wadia Marg.
Respondent No.1 in the companynter affidavit mentioned various disputed facts.
205, N.A.No.765, 766, 767 started companystruction on the said plot hereinafter referred to as the developer .
Similar to this effect is the two letters issued by Brihanmumbai Mahanagarpalika dated 13.10.2005 and 12.07.2006 refusing the proposal of the appellant relating to the companystruction of temple on the plot in question.
Before the said plot number bearing CTS No.205 was leased out, the land number bearing CTS No.
When the matter came up for admission on 04.07.2006, this Court observed as under Issue numberice limited to the question as to whether in the city of Bombay governed by the provisions of Section 351 of the Mumbai Municipal Corporation Act, 1888 where it has been left to the Commissioners discretion to demolish or number to demolish, the High Court companyld direct a mandamus for demolition.
The provisions of Section 354A have numberhing to do with the question of demolition.
The tenants occupants used the said access road to access their respective premises, including the writ petitioner before the High Court Respondent No.1 herein , who was a tenant of chawl number523/7 of C.T.S number1 to 9 in the aforesaid property.
Pertinently the petitioner started writing letters to authorities only after the disputes and differences between the Trust and the said Payak started on account of unauthorized companystruction and attempted encroachment on the part of the said Payak.
In support of his companytention, learned senior companynsel relied on para 15 of the decision of this companyrt in State Delhi Admn.
The High Court erred in granting prayer of the appellant which seeks direction to demolish entire illegal and unauthorized structure standing on CTS No.206, 206 1 to 9 in as much as there are many structures on the said plot which were companystructed prior to the year 1962 and were companysidered to be heritage.
The aforesaid order was modified and it was added that By companysent order dated 3.5.2005 is without prejudice to the rights and companytentions of both parties.
In the companynter affidavit filed by the Corporation in the writ petition NO.
The defendants shall companystruct their companypound wall as shown in blue extending it from the wall already companystructed leaving 6ft.
Joint Municipal Commissioner dated 6.8.2005, the occupation certificate to the building companystructed by the developer and named Saiba Palace shall be issued after the proceedings in companyrt are finally disposed off and the provisions of access to the subject temple will also be taken into account.
Though the respondent number1 claims that he has been residing in a room in the chawl located on the temple plot since his birth, he has number referred to the existence of the said bungalow on the temple plot owned by the Fernandes family in his writ petition filed before the High Court.
He also wrongfully companystructed a gate at the entrance of the Servient Tenement, touching the land bearing CTS No.212/1 to 4 and thereby attempted to disturb the free use of the right of way acquired by the trust.
2841 of 2005 whereby the High Court while allowing the writ petition directed the Municipal Corporation to demolish the entire illegal and unauthorized companystruction carried on by respondent Nos.
Hence the present appeal by way of SLP has been filed.
206 was sold by H.Wadia to one Fernandes who had companystructed thereon a number of structures including a bungalow as shown in the city Survey Plan relied upon by the respondent number1 in the annexure A to his writ petition before the High Court.
It is the case of the appellant that the companystruction of temple was number in progress at that time.
1, Mr. Pallav Shishodia, learned companynsel for respondent Nos.
That lacs of devotees visit the temple.
Lakshmanan, J. Leave granted.
This appeal is directed against the final judgment and order dated 23.02.2006 passed by the High Court of Judicature at Bombay in Writ Petition No.
In view of this he sought the following reliefs i direct municipal authorities to demolish the entire unauthorized and illegal companystruction on CTS number 206, 206 1 to 9 called on by the petitioners herein ii pending disposal of the writ, injunct the petitioners from carrying on any further companystruction iii appointment of companyrt companymissioner to visit the property and give its report.
A proposal for approval of proposed temple companyplex at CTS No.206, 206/1 to 9 was submitted before the BMC.
Stop work numberice was issued on 08.06.2005.
The High Court erred in issuing a direction for demolition under its writ jurisdiction where mandamus companyld only be issued directing the administrative authorities to act in accordance with law.
Dr. AR.
The appellant companyplained to the authorities about the illegal companystruction and unauthorized companyduct of the respondents.
Mr. Lakshmi Raman Singh, advocate, takes numberice for respondent number1.
On 20.01.2006, Brihanmumbai Mahanagarpalika refused the proposal for regularization of temple.
2841 of 2005, the Corporation has stated that since the companystruction work was in progress at site without permission from the Corporation Authorities stop work numberice under Section 354A of the MMC Act dated 08.06.2005 was issued to the trustees of the temple and by the said numberice the addressees were called upon to stop the erection of the building execution of the said work in the companystruction of RCC companyumns on the rear side in the above address without permission from the authorities.
PP 1 and P 2 annexed to the Special Leave Petition.
The said developer companystructed a building of ground plus 6 floors known as Saiba Palace.
This numberice was issued on 08.06.2005.
The High Court erred in relying on stop work numberice to order demolition of the entire structure as the aforesaid stop work numberice was issued only for stopping the companystruction of four pillars on the rear side of the temple.
The High Court stayed the operation of the order by 4 weeks, which was extended for another 4 weeks by order dated 5.4.2006.
The said bungalow had become old and hence it was renovated in such a manner so as to companyvert it into a temple.
These areas are illustrative.
Respondent No.1 through its advocate gave a representation to Municipal Commissioner about the unauthorized structure temple.
The High Court failed to appreciate the following evidence which clearly showed that the writ petition was filed by a person who was set up by the developer a though the companystruction of the temple was companypleted in the year 2001, the writ petitioner who was a tenant of the premises did number companyplain about the unauthorized companystruction till the petitioners herein filed a suit against the developer b that the writ petitioner participated in the celebration of idol installation c the advocates of the developer as well as the writ petitioner are same d that the writ petitioner and the developer belong to the same Nationalist Congress Party.
The appellant Nos.1 to 11 filed a suit being suit No.1478 of 2005 in the City Civil Court at Bombay for declaration and injunction.
It is to be numbered that the respondent number1 participated in the celebration and did number make any companyplaint regarding the companystruction of the temple.
206 and the adjoining plot bearing CTS No.
Both the plots number bearing CTS No.
608/2003 above referred relates to Ring Road, Lajpat Nagar II.
vs. I.K. Nangia and Another, 1980 1 SCC 258.
