MR. MALCOM FRANCIS DAMEL @ DEMELLOversusVASAI-VIRAR MUNICIPAL COPORATION TROUGH IT COMMISSIONER AND ORS

                                                      901-WP-5798-2021.doc


          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  CIVIL APPELLATE JURISDICTION

                 WRIT PETITION NO. 5798 OF 2021
Mr. Malcom Francis Damel @ Demello         ]
Age : 61 years, Occ: Agriculturist         ]
Residing at : Diwanwadi, Papadi,           ]
Vasai, Taluka: Vasai, District: Palghar    ]
Maharashtra 401207                         ].....Petitioner
             Versus
1. Vasai-Virar Municipal Corporation           ]
Through it Commissioner                        ]
Having offices at:                             ]
Manvelpada Rd, Opp. Virar police station,      ]
Virar East, Virar, Maharashtra 401305.         ]
                                               ]
2.    Assistant Commissioner                   ]
Vasai-Virar Municpal Corporation               ]
Standing Committee I                           ]
Having office at:                              ]
Killa Rd, Parnaka, Koli wada,                  ]
Vasai west, Vasai, Maharashtra 401201          ]
                                               ]
3.    Smt. Bridget Baratol Fernandes           ]
Age : Adult, Occupation : Housewife,           ]
Residing at: Diwanwadi, Papadi,                ]
Vasai-West, Taluka: Vasai, District: Palghar   ]
Maharashtra 401207                             ].....Respondents
                              .....
Ms. Siddh Vidya a/w Ms. Mansi Sahani, Ms. Akshata Morye and Mr.
Bhalachandra Kumbhar i/b Siddh Vidya & Associates, for the
Petitioner.

Mr. Mayuresh Lagu a/w Mr. Sagar Patil, for the Respondent Nos.1
and 2.
Mr. Laukik Palekar a/w Mr. Laukik Deshmukh i/b Lawfort, for the
Respondent No.3.
                              ..…

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             Digitally signed by
MANISHA      MANISHA
             BALKRISHNA
BALKRISHNA   TALEKAR
TALEKAR      Date: 2026.08.20
             18:26:49 +0530
                                                           901-WP-5798-2021.doc



                         CORAM                : M. S. KARNIK &
                                                SANDESH D.PATIL, JJ.
                         RESERVED ON          : 12th AUGUST 2026
                         PRONOUNCED ON : 19th AUGUST 2026


JUDGMENT [PER SANDESH D. PATIL, J.] :-

1.        By the present Writ Petition, the Petitioner is seeking a writ of

mandamus directing the Respondents to implement the Order dated

28th August, 2019 passed by the Respondent No.2. It is the

contention of the Petitioner that, the Petitioner is owner of land

bearing old Survey No.265 and new Survey No. 275 Hissa No.9A. It

is the further contention of the Petitioner that the Respondent No.3

made illegal constructions on the land of the Petitioner and

therefore, made a complaint on 20th February, 2018 to the

Respondent-Corporation. The Respondent-Corporation acting upon

the Complaint of the Petitioner, carried out a survey on 3rd April,

2018 and prepared a report. The Respondent-Corporation on the

basis of the report issued a Notice dated 4th April, 2018. It is further

contended by the Petitioner that the Respondent No.3 filed Regular

Civil Suit (R.C.S.) No.501 of 2018 for injunction against the

Respondent Nos.1 and 2 in respect to the land bearing Survey

No.275 Hissa No.33 situated at Village Sandor, Vasai, District Palghar.

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It is contended that, the application for temporary injunction was

allowed by the learned Civil Court vide Order dated 4 th Jully, 2019

with respect to land bearing Survey No.275 Hissa No.33, however, in

that application no stay was granted to demolition of illegal

construction carried on Survey No.275 Hissa No.9A which is the

property of the Petitioner. It is contended that on 28th August, 2019,

the Respondent No.2 after giving a hearing to the Respondent No.3

passed an Order of demolition of the illegal construction. The

Petitioner has approached this Court on the ground that inspite of

the Order dated 28th August, 2019 no action is taken against the

Respondents.


2.        The Respondent No.3 appeared pursuant to the Notice issued

by this Court and sought dismissal of this Petition. Learned Counsel

for the Respondent No.3 contended that the Petitioner had filed

R.C.S. No.127 of 2018 seeking injunction against the husband of the

Respondent No.3 with respect to old Survey No.265, new Survey

No.275 Hissa No.9A. In that suit, the Respondent No.3’s husband had

filed a counter claim seeking declaration of the ownership. By virtue

of an Order dated 23rd September, 2021, the R.C.S. No.127 of 2018



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was withdrawn by the Petitioner, however the counter claim is still

continuing. Learned Counsel for the Respondent No.3 contended

that, the Respondent No.3 also had filed R.C.S. No.501 of 2018

challenging the illegal action of the Respondent No.2 threatening to

demolish the residential house No.167 situated at old Survey No.265,

new Survey No.275 Hissa No.36 and 33. The learned Trial Court

allowed the application for temporary injunction and thus, the House

No.167 is protected. Learned Counsel for the Respondent No.3

further contended that, since the Petitioner approached the office of

the Lokayukta inspite of pendency of aforesaid Civil Suits, the office

of the Lokayukta directed the Corporation to give hearing to the

Petitioner and Respondent No.3 and accordingly, the Municipal

Commissioner vide Order dated 17th August, 2021 heard the parties

to this Writ Petition and observed that, there are suits pending

between the parties and hence, the complaint of the Petitioner

cannot be entertained.


3.        The Respondent-Corporation has filed an affidavit through Mr.

Subodh Thanekar, Assistant Municipal Commissioner, I-Ward of the

Respondent No.2 who stated that due to pendency of Civil Suits they



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were unable to take any action against the alleged offending

structure. There is an additional affidavit filed by the Municipal

Commissioner of the Respondent No.1-Corporation who has also

stated on oath that there are proceedings pending before the Civil

Court. The said affidavit further states that the deponent had given

the instruction to the Advocate on record in the learned Civil Court

to file an application for vacating the interim Order passed by the

learned Civil Court and accordingly, an application is filed. The said

affidavit further lays much stress upon the fact that the matter is

pending before the Civil Court. There is also a affidavit in rejoinder

filed by the Petitioner to the affidavits filed by the Respondent Nos.1

and 2.


4.        We have heard the learned Counsels appearing for the parties.

At the outset we must mention that, the Order of which

implementation is sought is an Order dated 1st August, 2019 and 28th

August, 2019. Learned Counsel appearing for the Petitioner has

although vaguely tried to contend that the said Order is dated 28 th

August, 2019 however, on reading of line No.5 of the said Order, it is

clear that, the Order is passed on 1 st August, 2019. Be that as it may,

this would not affect the merits of the said Order. We have also

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perused the interim Orders dated 4th July, 2019 passed in R.C.S.

No.501 of 2018. That Order was only in respect of Survey No.275

Hissa No.33 and that Hissa No.9A was not mentioned in the said

order. The Respondent No.3 therefore, sought correction of the Order

dated 4th July, 2019. The learned Civil Judge, Junior Division was

pleased to correct the Order on 28th April, 2026 and the Order is

corrected as under:


“                             Order

          1.   The application (Exh. 05) is allowed.

          2. The defendant through themselves or through their
          agents, representative or the any other person authorized on
          their behalf are temporarily restrained from demolishing the
          suit property i.e. structure bearing house no. 167,
          admeasuring about 12.5 x 8.60 sq. meters, consisting ground
          plus two upper floors, standing on the portion of land bearing
          old survey no.265, corresponding new survey no.275, hissa
          no.36 and old survey no.265 corresponding new survey
          no.275, hissa no.33 situated at village Sandor, Divanwadi,
          Vasai (W), Taluka Vasai, Dist. Palghar, now within the limits of
          Vasai Virar Municipal Corporation till the decision of the suit.

          3.   Parties to bear their own costs. ”

5.        Upon considering the entire conspectus of the matter, it is clear

that, it is for the Municipal Corporation to decide about the legality

of the structure. The property which is described by the Petitioner in

the Writ Petition namely Survey No.275 Hissa No.9A does not appear

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to be the property mentioned in the Orders dated 28 th April, 2019 or

4th July, 2019 in R.C.S. No.501 of 2018. It is for the Municipal

Commissioner to consider whether the property mentioned by the

Petitioner namely Survey No.275 Hissa No. 9A is the same property

which is subject matter of R.C.S. No.501 of 2018. The Municipal

Commissioner will have to consider all these aspects.


6.        If the structure is illegal and is not protected by any Order of

the learned Civil Court then the Municipal Commissioner can

proceed to take appropriate steps against the offending structure. It

is made clear that, we have not gone into the issue of title of the

parties. Thus, the issue of title is expressly kept open. The Municipal

Commissioner shall carry out the exercise as mentioned above within

a period of 12 weeks from today and then take appropriate action in

accordance with law.


7.        With the aforesaid observations, Writ Petition No.5798 of 2021

is disposed of.




(SANDESH D.PATIL, J.)                               (M. S. KARNIK, J.)



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