Bridget Anthonty Rosario Pereira Vs Mumbai Municipal Corporation and 2 Others

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915-WP1088-14+.DOC

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Shephali

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 1088 OF 2014

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AND

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WRIT PETITION NO. 2665 OF 2015

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Bridget Anthony Rosario Pereira & Anr...Petitioners
Versus
Mumbai Municipal Corporation & Ors ...Respondents

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...Respondents

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Mr Bhavesh Parmar, i/b Mr Devmani Sukla, for the Petitioners in
both Petitions.

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Mr NV Walavalkar, Senior Advocate, with Ms Rupali Adhate, for
the Respondent-MCGM.

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CORAM: S. C. DHARMADHIKARI &
G.S. PATEL, JJ
DATED:12th July 2019

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PC:-

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1.In this Petition under Article 226 of the Constitution of India.
The reference to the prayers is enough to reach a conclusion. The
Petitioners in Writ Petition No. 1088 of 2014 prayed as follows:

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“(b) For a writ or an order in the nature of writ directing the Respondents to immediately and forthwith ensure that the Petitioners being senior citizens are provided with a health and safe environment in and around their residential premises including vehicular access road to their residential premises for vehicular movement of vehicle such as

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ambulance, fire brigade, police van, etc. in case of
emergencies.

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(c)For a writ or an order in the nature of writ directing
the Respondents to immediately and forthwith ensure that
the benefits conferred upon the Petitioners through late Mr
Francis Noronha in the vacant and tenancy conferred vide
Corporation order No MCP/8104 of 4.5.1974 are not
interfered in any manner whatsoever without due process of
law and principles of natural justice being followed by the
Respondent Corporation and its officials.

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(c-i)for a writ or order in the nature of a writ directing
the BMC to immediately and forthwith monetarily
compensate the Petitioners for the physical and mental
harassment and trauma the Petitioners have undergone for
the last many years including during the pendency of the
Petition from the year 2014 and if required the said amount
be recovered from the officials of the BMC found
responsible for the same;

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(c-ii) for a writ or an order in the nature of a writ directing
the Commissioner of the BMC or any other senior official
of high reputation and integrity in the BMC to reside with
the Petitioners in the Petitioners premises for a single day to
understand the miserable conditions in which the Petitioner
is being subjected to due to the various wrongful and illegal
acts of the BMC.

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(c-iii)for a writ or an order in the nature of a writ
appointing an independent officer of this Hon’ble Court
which may be an Architect or Advocate or employee of this
Court to ascertain the factual position in and around his
Petitioners premises and submit a factual report for further
directions by this Hon’ble Court to ensure that the
Petitioners legal and fundamental rights are not further

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violated and the Petitioner can lead her remaining life in a
peaceful manner in her premises.

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(c-iv)for a writ or an order in the nature of a writ directing
the BMC to immediately and forthwith stop the
construction activities carried out if any on the plot of land
immediately adjoining the plot of land upon which the
Petitioners premises are located.”

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2. Similarly, the Petitioners in Writ Petition No. 2665 of 2015 prayed as follows:

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“(b)For a writ or an order in the nature of writ of this
Hon’ble Court directing Respondent No. 1 and/or 2 to
immediately and forthwith personally conduct a detailed
enquiry into the facts of the present Petition within a fixed
time schedule and upon completion of the said enquiry
submit a report to this Hon’ble Court for appropriate
directions thereafter for prosecution and punishment of the
concerned official sand/or private persons found guilty of
wrongs and illegalities.

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(c)For a writ or an order in the nature of writ this
Hon’ble Court directing the Respondent No. 1 and /or 2 to
immediately and forthwith cease and desist from entering
into any agreement whatsoever including the draft
agreement suggested by the Respondent No. 7 vide letter
dated 25.8.2014 without prior permission of this Hon’ble
Court. ”

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3.First of all, the 1st Petitioner says that the property more
particularly described in the Writ Petition has been allotted to his
father, late Francis Noronha, some time on or about 16th October
1973. Undisputedly, the father was an employee of the Municipal

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Corporation of Greater Mumbai. The application was made by him
to allot the structure. The claim is that there is a residential
structure constructed by the Petitioner’s father treating himself as a
vacant land tenant. Ground rent has been paid and thereafter the
claim is that this land has been allotted. Reliance is placed upon an
order of allotment dated 4th May 1974. It is common ground that on
24th November 1974 Francis Noronha retired from the services of
the Municipal Corporation and thereafter on 17th February 1981 he
expired.

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4.The Petitioners claim that on 10th September 2012, a written
complaint was lodged against alleged physical and mental
harassment. A Writ Petition was filed in this Court being Writ
Petition No. 1088 of 2014 for more or less identical reliefs.

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5.However in March 2014 the Petitioner gathered information
with regard to misappropriation of public money by the 7th
Respondent. That misappropriation is highlighted at pages 14 to 16
of this Petition.

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6.The Petitioner says that he is worried as a responsible
resident of Mumbai and citizen of this country that there is
substantial loss of public money to the tune of Rs. 1.60 crores. A
project estimated at R. 30.63 crores of the Municipal Corporation
has allegedly resulted in a bonanza for the 7th Respondent
consultant.

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915-WP1088-14+.DOC

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7.We do not think that we can enter this controversy. There are
several shades to this, one of which takes the garb of information
being in possession of the Petitioners, and by using which the
Petitioners seek gain for themselves. They have already filed a suit
in this Court seeking to protect their right, title and interest in the
immovable property. If there is an obstruction caused to it or there is
an undue interference therewith by a construction activity of the
Municipal Corporation and carried out at its behest by 7th
Respondent, then, all the more in such pending suit every relief can
be claimed if not already claimed. None of the facts that are set out
in the Petitioner are admitted.

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8.We have a Reply Affidavit of the Municipal Corporation
which not only denies all allegations but sets out the background in
which the work had been commenced at site. It is claimed that the
proposed work or construction of H/West Ward office building for
which the 7th Respondent is the consultant has commenced and is
being carried out in accordance with law and following the
prescribed norms. The justification for the award of contract is also
provided in the Affidavit. There is nothing suspicious and dubious
about it, is the response of the Municipal Corporation.

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9.It is claimed that the structure of the Petitioner is adjoining a
railway boundary and is within 31 meter wide buffer zone required to
be kept open from the Western Railway boundary as per the
Development Control Regulations. It is in these circumstances that
the Petitioners used this litigation as an attempt to stop the
construction activity at site which is undertaken to sub-serve the
larger public interest. It is also said that there is enough space left

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for the Petitioners and for vehicles to enter and exit from the
premises. In an emergency, the required emergency vehicles can
also enter. The Municipal Corporation denies the Petitioners’
allegations that an ambulance cannot enter the property. It says the
Petitioners were rendered full assistance.

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10.We do not think that in the light of this reply we should
entertain the Writ Petition.

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11.The 7th Respondent has filed an affidavit with supporting
documents confirming the Corporation’s version. He does not
admit any of the allegations, let alone admit being criminally
involved or having misappropriated public funds. On the contrary,
he asserts that he has been granted recompense for his work of only
3% of the consultancy fees, and not the amount alleged by the
Petitioner. Further, he is rendering consultancy services.

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12.For all these reasons we are reluctant to interfere in a factual
dispute and controversy. The Writ Petition is not the remedy for the
Petitioners. It is dismissed.

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(S. C. DHARMADHIKARI, J)

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(G. S. PATEL, J)

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Bridget Anthonty Rosario Pereira v. Mumbai Municipal Corporation and 2 Others

Case brief

What is this about?

What the court decided

Bridget Anthonty Rosario Pereira v. Mumbai Municipal Corporation and 2 Others

Case brief

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