Writ Petition (L) No.1148 of 2017

25th April, 2017.

Petitioner Counsel: Mr. VIRAL RATHOD
Respondent Counsel: Mr. A.I.I. PATEL, Ms. PALLAVI THAKAR

JUDGMENT

Dr. Shalini Phansalkar-Joshi, J. :- Rule. Rule made returnable forthwith. Heard finally, by consent of the parties.

2. By this Writ Petition filed under Article 226 of the Constitution of India, the Petitioner is challenging the Notice dated 1st March, 2016 issued by the Respondent-Municipal Corporation under Section 55(1) of the Maharashtra Regional and Town Planning Act, 1966 (MRTP Act) and the consequent order dated 8th April, 2017 passed by Respondent No.1-the Designated Officer, Assistant Engineer (Building & Factory) of Mumbai Municipal Corporation for demolition of the subject structure.

3. The Petitioner claims himself to be the owner and in possession of the premises ad-measuring about 160 sq.ft. on ground floor adjoining to the building known as "Mahavir Mansion" situated at then 116/126 and now Building No.122B of Kika Street, Gulalwadi, Mumbai.

4. According to the Petitioner, he is carrying the business of Tea, Cold-drinks, Mineral Water etc in the said premises under the name and style as "Shreesha Tea Shop" since the year 1991. According to him, the structure is in existence since prior to 1961. It was purchased by virtue of an oral agreement by the Petitioner from one Fazam Rahi Peer Mohammad. The Petitioner is having all the necessary documents in support of the same like shop licence, electricity and telephone bills etc. Despite that the Municipal Corporation had issued impugned notice to him calling upon him to show the legality of the said structure. Accordingly, he produced the requisite documents before Respondent No.1-Designated Officer. However, by the impugned order Respondent No.1-Designated Officer called upon the Petitioner to demolish the said structure. The grievance of the Petitioner is that Respondent No.1- Designated Officer has not properly considered all the necessary documents produced before him. Moreover, though the structure is of permanent nature, the notice issued to him is under Section 55 of MRTP Act. Hence the said notice is also not legal and valid. According to the learned counsel for the Petitioner, therefore, the impugned notice and the impugned order are liable to be quashed and set-aside.

5. Per contra, learned counsels for Respondents has supported the said notice and order by pointing out that the structure which the Petitioner has erected is totally unauthorized. It is temporary and not at all a permanent one. It is partly made of MS-sheet walls and covered with MS-sheet roof. The Petitioner is having no documentary evidence to prove that said structure was constructed after obtaining requisite permission from the Municipal Corporation. It is further submitted that Respondent No.1-Designated Officer of the Municipal Corporation has considered all the documentary evidence produced by the Petitioner and passed the impugned order. Hence no interference is warranted in the same.

6. We have heard these rival submissions of learned counsels and with their assistance we have perused the impugned notice issued to the Petitioner, which shows that the subject structure is of semi permanent nature made of partly BM-sheet walls and partly MS-sheet walls. It is covered with MS-sheet roof. Whether the structure is temporary or permanent; it was for the Petitioner to show that he has constructed or erected the same after obtaining requisite permission from the Municipal Corporation and after getting the plan sanctioned for the same. The Petitioner was given sufficient opportunity to prove the legality of the said structure. In response to the show cause notice issued to him, the Petitioner has approached Respondent No.1-Designated Officer and produced all the record/the documentary evidence which was in possession.

7. The perusal of the impugned order passed by Respondent No.1-Designated Officer reveals that he has considered all the documents, which were produced on record by the Petitioner and after properly considering the same found that none of the document prove that the structure is in existence since prior to the datum line or it was constructed with requisite permission from the Municipal Corporation after getting the plan sanction. It is pertinent to note that the Petitioner has relied upon the documents like the photocopy of the rent receipt which does not mention the description regarding authenticity of the suit structure. The Petitioner has then produced on record "Registration Certificate" under the Maharashtra Shops and Establishment Act. However, it does not again mention the remarks regarding authenticity of the said structure. Similarly, the telephone or electricity bills on which the Petitioner has relied upon can not prove the legality or authenticity of the said structure. The Petitioner has not produced before Respondent No.1-Designated Officer or even before this Court any document prior to 1st April, 1962, which is the datum line for commercial structure to be considered in tolerated category. The Petitioner has not produced either before Respondent No.1-Designated Officer or before this Court any permission/approval from the Executive Engineer building proposal for erecting such structure. He has not even alleged that the said structure was constructed after obtaining requisite permission from the Municipal Corporation.

8. Moreover, it is pertinent to note that the subject structure is situated on the open space which is adjoining to the building bearing no.122B and causing obstruction to the passersby.

9. Hence, taking into consideration totality of facts and circumstances, in exercise of our writ jurisdiction, we do not find any grounds or reasons being made out to interfere with the impugned notice or the order. This Writ Petition, therefore, being without any merits, stands dismissed.

10. Rule is discharged.

Petition dismissed.