Dismissed

Smt. S.G.P. Barnes v. Jairaj Pathak, the Municipal Commissioner of B.M.C. and 3 Ors.

Bombay HC22 Jul 2010PIL/63/2009

Case brief

AI extract

What is this about?

The Bombay High Court dismissed a PIL seeking demolition of structures and merging of private plots due to the inability of the court to conduct factual enquiries required to verify the disputed allegations.

What did the court decide?

Petitioner's prayer for directions to demolish structures and merge plots was dismissed without prejudice to the right to seek declaration in appropriate forum.

Smt. S.G.P. Barnes Vs Jairaj Pathak, the Municipal… — Writ and Judicial Review | Bombay HC (2010)

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pil-63-09

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

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PUBLIC INTEREST LITIGATION NO. 63 OF 2009

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S.G.P. Barnes Versus Shri Jairaj Phatak, Thge Municipal Commissioner of BMC and others.

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... Petitioner

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... Respondents

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Petitioner in person.

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Ms. S.M. Dandekar, Assistant Government Pleader for State. Ms. Geeta Joglekar for MCGM.

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CORAM : MOHIT S. SHAH, C.J. & S.C. DHARMADHIKARI, J.

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Thursday, July 22, 2010

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P .C.

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In this petition purporting to be PIL, the petitioner has prayed for direction to respondent Nos.1 to 4 to demolish two illegal temples and one mosque lying outside the plot No.59A and B and also for a direction to include these three private plots in Plot No.59A and B which is excluded in their plots by fencing it with wall of stone and cement, since it is part and parcel of the mountain garden plot No.59A and B..

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In reply to the petition, the Assistant Engineer (M) K.W. in the employment of the Municipal Corporation of Greater Mumbai has submitted the following formal aspects:

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"(b) I say that plot bearing CTS No.59A is a private plot and multi storeyed building has been constructed on it. The plot bearing CTS No.59B is reserved for garden which is in possession of M.C.G.M. The same has been recently developed. I say that it is the Petitioner's allegation that two unauthorised temples are excluded from the original plot reserved for garden bearing CTS No.59A and 59B intentionally by M.C.G.M. in order to give the benefit of land to the developer. I say that out of these two temples, one is a Shiv temple near Kunj Vihar Bldg. The said temple is situated on the side of Municipal Road for which action has been initiated by issuing notice u/s. 314 of M.M.C. Act. The other temple known as Sai Mandir is situated on private plot bearing CTS No.54 which is outside the garden.

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c) I say that Plot bearing CTS No.60/1 and CTS No.60/2 are belonging to different owners. The owner of Plot No.60/1 has come forward and handed over the said plot to Corporation, however, the owner of Plot No. 60/2 has not come forward to hand over the said plot to Corporation. As far as the mosque is concerned, I say that this mosque is situated on plot bearing CTS No. 60/2 which is a private plot and is surrounded by plot bearing CTS No.60/1 which is reserved for garden and is in possession of M.C.G.M. and the same is being developed by Corporation. The said mosque is just a temporary shed situated on private plot. The same is not a regular mosque and on enquiry, it is learnt that no regular religious activities are performed there. Hereto annexed and marked Exhibit 1 is the copy of the City Survey map Exhibit 2 are the photographs of the garden and mosque."

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The deponent of the reply affidavit has further denied the petitioners' allegations made in the petition.

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The petitioner has taken out a chamber summons to submit further evidence and the documentary proof on the above disputed questions of facts.

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Since such enquiry cannot be conducted in a writ petition under Article 226 of the Constitution of India, much less in a PIL, this petition is dismissed without prejudice to the petitioner's rights, if any, to claim any declaration from the appropriate forum.

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CHIEF JUSTICE

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S.C. DHARMADHIKARI, J.

Smt. S.G.P. Barnes v. Jairaj Pathak, the Municipal Commissioner of B.M.C. and 3 Ors.

Case brief

What is this about?

What did the court decide?

Smt. S.G.P. Barnes v. Jairaj Pathak, the Municipal Commissioner of B.M.C. and 3 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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