The central legal point established in the judgment is the determination of the legality of the construction and the finding that there was no unauthorized structure requiring removal.

Riyaz I. Chagla, J.

1. The Petitioners by the present Petition are seeking a direction against Respondent Nos. 2, 3 and 5 to carry out their statutory duties and to remove the encroachment and the unauthorised constructions carried out by the Respondent No.4 on the land belonging to Respondent No.1.

2. The Petitioner No.1 is the owner of the building situated on CTS No. 183, Hissa No.2 (Part) Rokadia Lane House, Borivali (W), Mumbai. Abutting to the boundary wall of the Petitioner No.1 building is the subject land viz. CTS No.2460 belonging to the Respondent No.1. It is the Petitioners case that a group of persons formed the Rokadia Land Welfare Association which is the Respondent No.4 herein. Initially, Respondent No.4 was using a small part of the subject land for celebrating Ganpati Pooja celebrations. It is claimed that Respondent No.4 has encroached into the open land and constructed a temporary structure by using the wall of the Petitioners building as a support. The Petitioner No.1 is aggrieved by the structure as it is causing a nuisance to the members of the Petitioner No.1 as well as obstructing light and ventilation to the occupants of the Petitioner No.1 building. It is claimed that the Respondent No.4 has used steel frames to erect a shed on the subject land and the shed constructed is interfering with the drainage line to the Petitioner No.1 building which passes under the same and the water line to the Petitioner No.1 building which also pass through the impugned structure.

3. The Petitioner has preferred a complaint before Respondent Nos. 1 and 2 pointing out their grievance with regard to the impugned structure. It is also pointed out by the Petitioners that they had addressed a communication on 26th November, 2012 to the Respondent No.3, pointing out their grievances. During the inspection carried out by the officers of the Municipal Corporation of Greater Mumbai (for short “the Municipal Corporation”) as well as MHADA authority, it had been observed that foundation of the unauthorised structure are such that provision had been made for a multi-storeyed building. The Petitioners had sought immediate steps to be taken to stop the work which had been carried out on the subject land. The Petitioners had also moved an application under Right to Information Act, 2005 to find out whether permission had been granted to Respondent No.4 to build on subject land and / or any approval had been granted. Pursuant to the application, Respondent No.3 on 15th January, 2013 confirmed that they had not given permission for the work being carried on the subject land. The Petitioners by their communication dated 11th February, 2013 addressed to Respondent No.3 sought the demolition of the existing structure in view of confirmation that permission had not been granted to Respondent No.4. Further communications were addressed by the Petitioners to the Respondent No.2 and the Vigilance Officer of the Municipal Corporation, setting out all the grievances of the Petitioners. However, there was no action taken against the impugned structure. On 24th September, 2013, the Respondent No.2 informed the Petitioners that the unauthorised structure was carried out by utilizing the MLA fund of Hemendra Mehta. The Petitioners addressed a letter dated 6th January, 2014 to Respondent No.2 stating that the authorities were abetting the illegality of the structure instead of taking action to demolish the unauthorised structure. The Petitioners being aggrieved by inaction on the part of the Respondent Nos. 1 to 3 and 5 have filed this Petition.

4. Considering the narrow controversy in this Petition, this Petition has been taken up for final hearing.

5. This Court vide an order dated 21st June, 2017 had directed the appropriate officer nominated by the Respondent No.2 as well as the designated officer of the concerned ward of the Municipal Corporation to make a joint visit to the concerned site with a view to ascertain whether any illegal const