A writ of mandamus will not be issued to enforce a right that does not exist.

JUDGMENT :

S.C. Dharmadhikari, J.

1. By this Writ Petition under Article 226 of the Constitution of India, the Petitioner Cooperative Housing Society seeks diverse reliefs, one of which is that the Court be pleased to issue a writ of mandamus or any other writ, order or direction in the nature thereof directing Respondent No. 1, its officers and servants to remove or demolish a staircase in front of the Petitioner's building Bhavya Height and to leave open space of nine metres in front of that building for access to fire engines, ambulances etc in accordance with Regulation Nos. 29 and 43 of the Development Control Regulations for Greater Mumbai 1991. The Petitioner also seeks a mandamus to the 1st Respondent to strictly comply with the provisions of Clauses 8 and 9 of the No Objection Certificate ("NOC") dated 17th October 2008, and to keep open the mandatory open space as required under law. The third relief in furtherance of the above is sought during the pendency of the writ petition.

2. Rule. Respondents waive service. With the consent of all parties and since all affidavits are on record, we have by this order disposed of this writ petition finally.

3. The Cooperative Housing Society before us claims that the 1st Respondent, Mumbai Metropolitan Regional Development Authority ("MMRDA" for short) is a statutory body or authority functioning under the Mumbai Metropolitan Regional Development Act 1974. Then there are other authorities including the Mumbai Municipal Corporation ("MMC") impleaded as Respondents.

4. The petition proceeds to state that the Petitioners are a Cooperative Housing Society, the members of which are the occupants of two high-rise buildings, namely Bhavya Height Wing "A" and Wing "B". It is a building of 22 floors.

5. An Occupation Certificate is granted to these buildings (both wings) on 4th April 2012. The Cooperative Society has been registered by a firm of builders, New Look Constructions Pvt Ltd, which constructed the building.

6. It is claimed that the members of the Petitioners found that the Developer commenced construction of a rehabilitation building without leaving the mandatory open space as required under law between the Petitioner's building and the under construction highrise building No. 5 of 14 floors. That the gap between Bhavya Height building (which is more than 60 metres in Height) and the underconstruction rehab building No. 5 was approximately two metres only. It was, therefore, less than what is stipulated in Regulation 49(1)(e) of the DC Rules.

7. Then there are various other illegalities alleged. What is projected before us is that there is now staircase going through an under-construction Monorail Station. The Petitioners noticed that the construction of Monorail Station was adjacent to the front gate of their building. They feel that the staircase in particular poses an enormous security risk and threatens their life and property. The gap between their building, Bhavya Height, and the underconstruction Monorail staircase at the fourth level, a parking podium floor numbered P4, is less than two feet. The Petitioner's members obtained documents. They resolved to contest this construction, as they believed that due to the construction of such staircase it will not be possible for fire engines to move in the building compound, and the fire tenders' ladders, snorkels and booms would not reach the Bhavya Height refuge areas on the eighth and fifteenth floors. In an emergency, and especially a fire emergency, the Petitioner's members believed they would be at the receiving end and would pay with their lives.

8. The petition has been amended and what is brought on record by paragraph Nos. 7(a) to 7(d) needs reproduction:

"7(a) The Petitioner states that one of the members of the Petitioner Mr. Vinod Chhajed had applied to the Respondent No. 1 to know whether they have obtained No Objection from the office of Mumbai Fire Brigade to construct Staircase to such close to Bhavya Height Building