Partly allowed

Vijay Kamat v. State of Maharashtra and 3 Ors.

Bombay HC6 Jan 2010WP/2214/2009

Case brief

AI extract

What is this about?

In a writ petition regarding an unauthorised AC shed, the court declined to quash the demolition notice. Instead, it directed the petitioner to apply for regularisation under D.C.R. No. 65 of 1991 within two weeks, allowing the municipal corporation to consider the application before issuing a fresh notice if rejected.

What did the court decide?

Petitioner directed to seek regularisation under D.C.R. No. 65 of 1991 within two weeks; respondents to decide within four weeks or give fresh 15-day notice if rejected.

Vijay Kamat Vs State of Maharashtra and 3 Ors. — Civil Procedure and Limitation | Bombay HC (2010)

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

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WRIT PETITION NO. 2214 OF 2009

Vijay Kamat.

.. Petitioner.

vs.

State of Maharashtra & Ors. .. Respondents.

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Mr. Chandan Athani i/by Vikas Mahangare for the Petitioner.

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Ms. S.M. Dandekar, AGP., for the respondent/State.

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Ms. G.S. Joglekar for Respondent/BMC.

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CORAM : J.N. PATEL, ACTING C.J. &

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B.R. GAV AI, J.

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DATE : 6TH JANUARY, 2010.

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P.C.

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Heard.

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This petition can be disposed of at the stage of admission

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itself.

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The petitioner is a retired Dy. Superintendent of Police and residing at Bullet Government Gazetted Co-operative Housing Society

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registered under the Maharashtra State Co-operative Societies Act, 1960. It is the case of the petitioner that he has covered the open terrace by plastic A.C. Shed due to the nuisance of throwing of refuse by the upper floor tenants. It is the contention of the petitioner that the said sheet also gives protection from rain and direct sun heat. According to the petitioner, because of the complaint made by one of the members of the society to the officials of respondent no. 2, M.C.G.M. has issued the impugned notice by erroneously construing that the A.C. Shed covering of the terrace is an unauthorised structure. It is the contention of the petitioner that the respondent no. 4 society has filed a suit against the society challenging the said notice which is pending before the City Civil Court at Mumbai.

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It is the case of the petitioner that he has on 18.8.2009 made an application to regularise the said structure as the petitioner has already paid compensation for the said structure on 23.8.2000. But in spite of this, the respondent no. 3 has sent a notice under section 488 of the BMC Act for demolition of the alleged structure which is a temporary weather shed. Therefore, he has approached this Court seeking an order and direction against the respondents to quash and set aside the communication and notices issued by the Assistant Municipal Engineer, N Ward, Matunga i.e. respondent no. 3 on behalf of respondent no. 2.

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The learned counsel appearing for the petitioner submitted that

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the petitioner has not carried out any unauthorised structure. On the other hand, such structures are tolerated by the Brihanmumbai Mananagarpalika.

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In support of his contention he has annexed a circular dated 25.8.1967 which is annexed to the petition as Exhibit "F". Therefore, it is contended that this Court may direct the respondent to consider regularisation of the subject structure in accordance with the said circular.

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The learned counsel appearing for the Municipal Corporation has drawn our attention to the fact that the said circular stands withdrawn by another circular issued by the Chief Engineer, (Development Project) dated 17.8.96 which has been approved by the competent authority and, therefore, if at all the petitioner seeks any permission for temporary structure it could only be considered in accordance with provisions D.C.R. No. 65 of D.C.R., 1991. It is submitted that the impugned notice is given in accordance with the requirement of law which does not call for any interference.

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Taking into consideration the fact that the structure is existing since long and the petitioner claims that he has deposited compensation for the said structure on 23.8.2008, rather than acting upon the impugned notice, the petitioner can be given an opportunity to get his structure regularised by obtaining permission for the same strictly in accordance with D.C.R. No. 65 of D.C.R., 1991 under which the Corporation is now considering the grant of permission for such temporary structures.

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We, therefore, direct the petitioner to seek

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permission/regularisation from the respondent nos. 2 and 3 by making an application along with the plan as required under D.C.R. No. 65 of D.C.R.,

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1991 within a period of two weeks from the date of this order. On such application being made, the respondents would take a decision in the matter within a period of four weeks after giving due opportunity of hearing to the petitioner and pass a speaking order. In case the respondent Municipal Corporation rejects the application of the petitioner for permission/regularisation of temporary structure, it shall give fresh notice giving a clear 15 days time to the petitioner.

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The petition stands disposed of accordingly with no order as to

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costs.

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(J.N. PATEL, ACTING C.J.)

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(B.R. GAVAI, J.)

Vijay Kamat v. State of Maharashtra and 3 Ors.

Case brief

What is this about?

What did the court decide?

Vijay Kamat v. State of Maharashtra and 3 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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