This writ petition challenge an order dated 9th February, 2009, directing the Respondent to address a nuisance caused by a chimney. The Court held the grievance no longer survives as the authority acted. It clarified the Respondent must remove non-compliant structures regardless of their age, as easement cannot protect illegality.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.109 2008
Hemlata D. Dhanwani. ..Petitioner.
Versus
Municipal Corporation of Greater
Mumbai. ..Respondent.
...
None for the petitioner.
Ms.Shobha Ajeet Kumar, Advocate for respondent -
M.C.G.M..
...
CORAM : J.N. PATEL AND
SMT.V.K.TAHILRAMANI,JJ.
DATED : 2ND MARCH, 2009.
P.C.:-
1. Heard. None for the petitioner.
2. On 2nd February, 2009 this Court passed a very
specific order directing the respondent to take a
decision in the matter of a subject chimney, which
according to the petitioner is causing nuisance.
Accordingly the matter was heard on 9th February,
2009 by the Competent Authority and appropriate
orders have been passed. Copy of the order dated 9th
February, 2009, which is in the form of rozanama, is
taken on record and marked "X" for identification.
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3. In view of this, we find that the grievance of
the petitioner made before this Court does not
survive. We make it clear that if M/s.Stomach II
Restaurant, Sea Green Building, Seven Bunglows,
Versova, Andheri (West), Versova do not fulfil the
requirement of Environment Department then the
respondent Municipal Corporation would take steps in
accordance with law and get the objectionable Chimney
removed, if the same is not in consonance with the
Development Control Rules, Regulations and Building
Bye-Laws, irrespective of the fact as to whether the
Chimney is in existence from more than 15 years as
observed in the order which came to be passed on 9th
February, 2009, as there cannot be any easement in
favour of a person to continue to commit illegality.
With these observations, the Petition stands
disposed of.
[J.N.PATEL,J.]
[SMT.V.K.TAHILRAMANI,J.]
2 issues framed by the court
Whether the petitioner's grievance regarding a nuisance-causing chimney survives after the Respondent passed an order on 9th February, 2009.
Whether the Respondent is obligated to remove an objectionable chimney if it does not fulfil Environment Department requirements, even if it has existed for over 15 years.
Hemlata D. Dhanwani
Municipal Corporation of Greater Mumbai
J.N. PATEL
V.K. TAHILRAMANI
As recorded by the court registry
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