The court mandated the BMC to fulfill its statutory duties by demolishing illegal constructions, emphasizing accountability and prompt action against unauthorized developments.

JUDGMENT :

Kamal Khata, J.

1) By this Petition under Article 226 of the Constitution of India, the Petitioner seeks a Writ of Mandamus directing the Brihanmumbai Municipal Corporation (‘BMC’), Respondent No.1 to discharge its statutory duties under the Brihanmumbai Municipal Corporation Act, 1988 (‘BMC Act’) and demolish the illegal construction carried out by Respondent No.3.

BRIEF FACTS:

2) A member of Manav Seva Dham Charitable Trust (‘Charitable Trust’) noticed an illegal construction being erected in an open space bearing CTS No.1054, next to Lotus Apartment and opposite Lokbharti Building, at Marol village, Andheri (East), Mumbai-400059. On 2^nd March 2021, the Charitable Trust made a complaint about the illegal construction addressing a letter and photographs (Exhibit ‘B’) to the Assistant Engineer Maintenance Department. Another complaint was addressed to the Municipal Officer, K/East Ward on 11^th May 2022 with regard to the illegal construction by Respondent No.3 – Azam Akbar Khan. No action was taken and nor was there any response from the BMC. The Charitable Trust asked the Petitioner to take over the cause. The Petitioner made an application under the Right to Information Act (RTI Act) on 2^nd June 2022 regarding the said illegal construction. The grievance was that, the illegal structure was being visited by antisocial elements and thereby causing trouble to the occupants of the adjoining residential premises. There are commercial activities also being conducted from the said open space around the illegal structure. The complaints made to the BMC by letters dated 19^th July 2022 and 20^th September 2022 have been of no avail. There was another letter addressed by way of a complaint to the Deputy Municipal Commissioner K/East Ward on 10^th November 2022. This complaint too went unheeded, and no action was taken by the BMC. It is in these circumstances, that the Petition is filed, for the reliefs as noted earlier.

3) Mr. Mahesh Rajpopat, learned Advocate for the Petitioner submits that, this illegal construction ought to be demolished as the same is patently illegal. He also draws our attention to the photographs to submit that, this has been recently constructed and despite complaints, no action has been taken by the Respondent No.1.

4) Ms. Dhruti Kapadia for Respondent Nos.1 and 2-BMC, submits that an Affidavit dated 13^th February 2025, of Mr. Vipin Sharma, Additional Municipal Commissioner, Western Suburb, has been filed. She took us through the Affidavit that begins with an unconditional apology for non-compliance of our earlier Orders dated 29^th August 2024 and 3^rd February 2025 and explains the steps taken by the BMC which are stated herein for reference.

4.1) That, pursuant to the site visit by the Junior Engineer of Building and Factory Department, K/East Ward on 19^th and 20^th September 2024 BMC issued a notice to the Respondent No.3 on 20^th September 2024. To that, a Reply was received from Respondent No.3 on 23^rd September 2024 stating that, there were no irregularities in the construction of the said structure. Another site visit was conducted on 3^rd February 2025 and after noting the description, on 5^th February 2025 a Notice under Section 351 of BMC Act was issued to the Respondent No.3. The Respondent No.3 in turn tendered a Reply on 10^th February 2025. After considering the Reply, a speaking Order was passed on 12^th February 2025 whereby the Respondent No.3 was directed to remove the notice structure within 15 days of receipt of the Order.

4.2) The explanation sought to be given in the Affidavit regarding the erring officer was that, the staff of the concerned Wards were on duty on account of the Ganpati festival and thereafter on Assembly Election duty which caused the Officer to lose track of the matter. The Affidavit states that, the error was inadvertent and not a willful non-compliance of the Order or a willful intention to disobey the Orders of this Court.

5) There is an additional Affidavit filed by Mr. Vipi