Esther Mary Dmello v. The Municipal Corp. For Greater Mumbai And ANR.

VPH

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION No. 498 OF 2015 Esther Mary D' Mello ...

Petitioner Vs.

The Municipal Corporation of Greater Mumbai & Ors.

...

Respondents *** Mr. Vijay Dhingreja a/w R. Mishra, for the Petitioner. Ms. K. H. Mastakar, for Respondent No. 1 - BMC. Mr. G. V. Murti a/w Mohan Rao i/b MSR & Associates, for Respondent No. 2.

*** CORAM : V. M. KANADE, & M. S. KARNIK, JJ.

DATE : MARCH 28, 2016 PC.

1.

By this petition, which is filed under Article 226 of the Constitution of India, Petitioner is seeking an appropriate writ, order and direction, directing the Respondent Corporation to implement the demolition order dated 29th October, 2013. According to the Petitioner, by virtue of the an unauthorised extension of staircase by Respondent No. 2, her right to air and light are obstructed since she is 1 / 3

not in a position to open the window in her house. It is submitted that despite the show-cause notice issued by the Corporation and despite the final order of demolition being passed, the Corporation has not taken any steps for the demolition of staircase. 2.

On the other hand, learned counsel appearing on behalf of Respondent No. 2 has submitted that after the show-cause notice was issued to him, Respondent No. 2 has complied with the directions given by the Corporation in the notice dated 13.7.2013. It is submitted that the staircase is situate in his property, and there is no obstruction to air and light, as alleged by the Petitioner in this petition. It is submitted that after the demolition order dated 29.10.2013 Respondent No. 2 approached the Municipal Commissioner and showed him the documentary evidence that he has complied the show-cause notice dated 13.7.2013. In our view, there appears to be a dispute between the Petitioner and Respondent No. 2 regarding demarcation of boundaries, and the ownership of land. We are, therefore of the view that this Court, while exercising our writ jurisdiction under Article 226 of the Constitution of India, cannot decide the disputed question of facts. Reserving the right of the Petitioner to exhaust an alternate 2 / 3

remedy, which is available to her by filing a suit or taking an appropriate proceeding before the Corporation, writ petition is disposed of. All contentions of both parties raised in this petition are kept open. It is clarified that we have not expressed our opinion on the merits of the case.

Sd/- Sd/- [M. S. KARNIK, J.] [V. M. KANADE, J.] Vinayak Halemath 3 / 3