The High Court held that a writ petition regarding a demolition notice involves a disputed question of fact that cannot be resolved in summary proceedings, dismissing the petition with liberty to approach the Civil Court.
The writ petition was dismissed with liberty to the petitioner to approach the competent Civil Court.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
906.1-WPST273-19.DOC
Atul
IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION ST NO. 273 OF 2019
Jagdish C Mistry...Petitioner
Versus
Municipal Corporation of Greater Bombay & Ors ...Respondents
Mr Nilesh Khandray,i/b GM Joshi, for the Petitioner.
Ms Vandana Mahadik, for the Respondent-MCGM.
CORAM: S. C. DHARMADHIKARI &
G.S. PATEL, JJ
DATED:16th August 2019
PC:-
1.The petitioner in this connected petition says that the notice
in question is issued to a building known as Valentino building.
2.It is stated that the petitioner before this Court is a tenant of a
unit situated at Valentino building, ground floor, Vakola Village
Lane, Opposite, St Charles’s School, Santacruz (East) Mumbai 400
055. It is only a ground floor RCC structure admeasuring about 250
sq ft. It has a loft, wash basin, urinal and 24 hours water supply from
the Valentino building overhead tank water connection. It is stated
that the 3rd respondent is the widow of the erstwhile landlord, Mr
Ivan Lobo. It is stated that the 4th Respondent is the new landlord.
Adjoining this unit at a distance of 6 to 8 feet is the ground plus
Page 1 of 3 16th August 2019
906.1-WPST273-19.DOC
three floor storey building known as Valentino. The Municipal
Corporation has proceeded against this building but the petitioner
apprehends that the independent structure allegedly belonging to
the Lobo family and rented out to him would be brought down or
demolished in pursuance of this notice issued to Valentino building.
3.After a perusal of this writ petition and all annexures thereto,
so also the municipal files, we are of the firm view that the writ
petition involves a seriously disputed question of fact. The
petitioner may claim that this is an independent unit but the
Municipal Corporation says it is in the same compound as Valentino
building. It says that the Valentino building is highly unsafe and
dangerous. It is in a ruinous condition and likely to fall.
4.The challenge to the notice issued to Valentino building has
been withdrawn today before us.
5.As far as the petitioner in this petition is concerned, if he or
she is desirous of protecting the structure from demolition, then,
the petitioner must approach the competent Civil Court and satisfy
it by leading evidence that this construction exists at site much prior
to what is claimed to be the Valentino building; and, further, that it
is independent and has nothing to do with the Valentino building.
He must also prove that in the garb of notice being issued to
Valentino building, he is threatened with demolition of the structure
of which he is a tenant and that this action is not in accordance with
law, and wholly ultra vires to the statute in question. It is only on
establishing of these facts can the petitioner successfully
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906.1-WPST273-19.DOC
demonstrate that the attempt is illegal and the demolition cannot
take place.
6.We do not think that in writ jurisdiction the serious dispute
between the parties on facts can be resolved. The writ petition is
dismissed with liberty to the petitioner to approach the competent
Civil Court.
(S. C. DHARMADHIKARI, J)
(G. S. PATEL, J)
Page 3 of 3 16th August 2019
2 issues framed by the court
Whether a seriously disputed question of fact regarding the existence and independence of a building precludes determination in writ jurisdiction.
Whether a writ petition challenging a demolition notice can succeed if the petitioner fails to lead evidence in a civil court.
Jagdish C Mistry
Municipal Corporation of Greater Bombay
S. C. Dharmadhikari
G. S. Patel
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court