Dismissed

Edwin Juren Dsilva and 7 Ors. v. the Brihan Mumbai Municipal Corporation and Anr.

Bombay HC4 Jan 2010WP/1660/2009

Case brief

AI extract

What is this about?

The High Court of Bombay dismissed a writ petition seeking a direction to demolish unauthorized structures on the petitioners' property. The court held the petition was not a fit case for writ jurisdiction because an alternate and efficacious remedy in the civil court was available, distinguishing a cited Supreme Court precedent on fact.

What did the court decide?

none

Edwin Juren Dsilva and 7 Ors. Vs the Brihan Mumbai… — Property and Title | Bombay HC (2010)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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ORDINARY ORIGINAL CIVIL JURISDICTION

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WRIT PETITION (CIVIL) NO.1660 OF 2009

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Edwin Juren D’silva & Ors. .. Petitioners Vs. Brihan Mumbai Municipal Corporation and Anr. .. Respondents

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Mr.D.H.Mehta i/b Mr.S.R.Mishra for the petitioners

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Ms.G.S.Joglekar for respondent nos.1

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Ms.Madhubala Kajale, A.G.P. for respondent nos.2

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CORAM : J. N. PATEL, ACTING C.J. & B.R.GAVAI, J.

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DATE : 4TH JANUARY, 2010

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P.C. :

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None for the petitioners.

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The petitioners have approached this court by invoking its extra ordinary Jurisdiction under Article 226 and 227 of the Constitution of India for

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seeking a direction against respondent Corporation in respect of demolition of unauthorized structures. The petitioners claim that the alleged unauthorized structures are on the property owned by the

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petitioners. If that is so, nothing prevented the petitioners from approaching the Civil Court for removal of encroachments.

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On the earlier occasion, the petitioners had filed Writ Petition No.420 of 2008 which came to be disposed of by this court on 10.06.08 by rejecting the petition which was taken to the Supreme Court by pressing Special Leave to Appeal which also came to be dismissed.

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In the aforesaid circumstances, we are not inclined to entertain the petition. The same is dismissed.

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Later on the counsel for the petitioners appears and submits that the court may hear him in the matter.

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Heard the learned counsel for the parties.

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The learned counsel for the petitioners has drawn our attention to the decision of the Supreme Court rendered in the case of the Municipal Corporation of Greater Mumbai and Anr. v. The Advance Builders (India) Pvt.Ltd and Others reported in AIR 1972 SUPREME COURT 793 and specifically pointed out the observations made by the Supreme Court in para 5 as under:

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“5. The controversy between the parties has been narrowed down in this Court. The learned AttorneyGeneral, who appeared on behalf of the appellants, did not dispute that, so far as the roads and drains are concerned, it was the primary obligation of the Municipal Corporation to provide the same in accordance with the Scheme. He also agreed that, if there were any unauthorized structures, huts, sheds and the like on any part of the plots which vested in the Corporation for a public purpose, the same were liable to be removed by the Corporation. His chief contention, however, is that the Corporation owed no duty to remove the unauthorized structures situated in the private plots of the owners who, in his submission, were solely responsible to remove them. In any event, he further submitted, since the petitioners and their predecessors had authorized these structures and collected rent from the owners or occupants of these structures, a writ of mandamus at their instance should not, in the discretion of the Court, be granted.”

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With due respect to the learned counsel appearing for the petitioners, the said Judgment does not assist the petitioners as in the petition there is no whisper as to whether the property in question is under the scheme

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floated by the Municipal Corporation under the provisions of Bombay Town Planning Act (27 of 1955) as the matter relating to The Advance Builders (India) Pvt. Ltd. was in respect of Town Planning Scheme under section 55 of the Bombay Town Planning Act (27 of 1955). Hence, the petition stands dismissed with the aforesaid reasons.

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We make it clear that the dismissal of this petition would not in any way preclude the right of the petitioner to agitate in Civil Court as we have not dealt with the merits of the matter for the reasons that in our discretion, it is not a fit case to exercise our Jurisdiction under Article 226 and 227 of the Constitution of India, particularly when alternate and efficacious remedy is available.

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( ACTING C.J.)

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(B.R. GAVAI, J)

Edwin Juren Dsilva and 7 Ors. v. the Brihan Mumbai Municipal Corporation and Anr.

Case brief

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Edwin Juren Dsilva and 7 Ors. v. the Brihan Mumbai Municipal Corporation and Anr.

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