JUDGMENT - S.M. DAUD, J.:---This petition under Article 226 of the Constitution takes exception to the demolition of a cross held sacred by the Roman Catholic Community residents at Bombay and in particular at Mahim.

2. Petitioners are an association and office-bearers of certain associations at Mahim. At the relevant time respondent No. 2 was the Administrator of respondent No. 1 and respondent No. 3 a Senior a senior Ward Officer of the 1st respondent. In the vicinity of the Parsi Maidan at Mahim near the junction of M.M. Chotani Road and Pitamber Lane - so allege the petitioners - stood the Cross figuring in this case. This Cross was installed in the year 1905 and had stood undisturbed upto the night of 16th March, 1985. In fact in September 1977, the 1st respondent i.e. the Bombay Municipal Corporation, had given a no objection to the proposal to renovate the said Cross by providing mosaic tiles thereto. Suddenly without any previous intimation at about 11.30.p.m. on 16th March, 1985 a posse of Municipal employees led by respondent No. 3 descended on the spot and without any further order demolished the Cross. After coming to know about the demolition, the petitioners lodged a report with the Mahim Police Station. Several residents of Mahim addressed written protests to the BMC but to no effect. A legal notice also has had no effect and hence the petition. Petitioners contend that the demolition of the Cross, atleast without a notice, was contrary to the Bombay Municipal Corporation Act, being Bombay Act III of 1888. Any provision of the said Act which permitted demolition of any structure without a notice was violative of Article 14 of the Constitution and in the matter of objects held sacred by any community, Article 25 of the Constitution of India. Petitioners sought a mandamus to the respondents to re-construct the Cross at the very site where it formerly stood.

3. The 3rd respondent has filed a return pleading that he was in-charge of demolition of illegal structures. It was not correct to say that the Cross in dispute was installed at the site in the year 1905. The letter permitting renovation in the year 1977 did not validate the said Cross. In any case no one including the Municipal Commissioner could allow the construction of a permanent structure on Municipal road or foot-path in contravention of the Act. The Cross stood on the foot-path and in accordance with the provisions of section 314 could be demolished without giving of a notice. The nightly demolition of the Cross was not because of the action was illegal but by way of administrative convenience and in order to avoid any unpleasantness. The petition was misconceived and deserved to be demolished with costs. One A.G.D'Mello had filed a supplement to the petition wherein he speaks of having inspected records with the Superintendent of City Survey and Land Records, Office of the Collector at Bombay. The inspection of the record, 1st edition published in 1914, showed that a structure existed within the original plot meaning the Parsi Maidan as far back as in 1914. The public office concerned was unable to furnish a copy thereof and this inability being in line with their existing rules vis-a-vis the areas shown in red ink.

4. The first question requiring determination is as to when the Cross was installed. Petitioners, one of whom represents an association of folks of Mahim, avers that the Cross was installed in the year 1905. It is contended that this is a bare assertion and no documentary evidence of a credible nature has been produced in support of a self serving statement of the petitioners. Documentary evidence is not as meagre as is sought to be made out by the respondents. I have referred to the supplementary affidavit of A.G. D' Mello and in the absence of any refutation thereto, it has to be held that the existence of the Cross was taken note of in the certified plan bearing C.T. S. No. 1981, 1st edition. Respondents could have also taken inspection

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