The main legal point established in the judgment is the requirement to follow due process of law before demolishing structures and the need for final adjudication on the protection of the structures and the ownership of the lands when due process of law is adopted.

A.S. Oka, J.

1. On the earlier date, the parties were put to notice that this petition will be taken up for final disposal at the admission stage. Accordingly, we have taken up the petition for final disposal. The cause of action for filing this petition under Article 226 of the Constitution of India is the notice dated 16th January 2012 issued to the petitioners, a copy of which is annexed as Exhibit.“K”. The said notice refers to a direction issued by this Court in PIL No.140/2006. It records that the structures of the petitioners which are subject matter of this petition are falling within the distance of ten meters from main water pipeline supplying water to the city of Mumbai. Therefore, the petitioners were called upon to produce documents showing that their structures were in existence on 1st January 1995 so that issue of eligibility of the petitioners for rehabilitation can be decided. On 20th March 2012, the first petitioner replied to the said notice in which he stated that the pipeline in question is underground and is below the development plan road. It was contended that these structures were on private property owned by Mrs. Bansaribai Jugal Kishor. The petitioners have also annexed to this petition, a copy of public notice dated 8th September 2015 at Exhibit-M calling upon the persons affected to submit documents for verification on the dates mentioned in the said public notice.

2. The first substantive prayer in this petition is for issuing writ of mandamus which reads thus : “(A) That this Hon'ble Court be pleased to issue Writ of Mandamus and/or any other appropriate Writ, Order, exercising powers under Article 226 of the Constitution of India, 1950 thereby directing the Corporation, State Government to comply with the due process of law in implementing the “Plan” as per order dated 14/10/2009 passed by this Hon'ble Court (Coram: Bilal Nazki and A.R. Joshi, JJ) in PIL WP No.140/2006, which due process of law involves the mandatory compliance of provisions of Article 243 – ZE of the Constitution of India, 1950, r/w. MR&TP Act, 1966, r/w Maharashtra Planning Committee Act, 1999 r/w The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. In substance, the contention is that for demolishing the structures which are required to be demolished as per the order dated 14th October 2009 passed in PIL No.140/2006, the Municipal Corporation is under an obligation to follow the due process of law. The petition proceeds on the footing that issuing a notice under section 314 of the Mumbai Municipal Corporation Act, 1888 (for short “the said Act of 1888”) will not amount to adopting due process of law.

3. The learned counsel appearing for the petitioners in support of the petition firstly submits that the structures of the petitioners are on a private property as disclosed in the additional affidavits filed by the petitioners. He pointed out that the petitioners are relying upon either the property register cards or the 7/12 extracts annexed to the additional affidavits which show that the structures are situated on the properties held by private persons as the name of the private persons appear either in 7/12 extracts or in the property register cards. The second contention is that though the petitioners have not relied upon and are not having any development permission granted by the Planning Authority to construct the subject structures, the same are otherwise protected. It is further submitted that the pipeline in question does not pass above the ground level but it is below the ground level. The contention of the learned counsel appearing for the petitioners is that assuming that the pipeline passes above the ground level and though the pipeline supplies water to lakhs of citizens in the city, the structures which are abutting or touching the said pipeline need to be protected and cannot be demolished. The other contention is that due process of law has not