Bombay High Court
RAJ SAHKARI GRUHA NIRMAN SANSTHA THROUGH MR. MAHENDRA MALIversusM/S PATIL ASSOCIATES AND ORS
- Decided
- Disposal
- Disposed Off
Holding
Mandamus cannot be granted as no prior demand was made to the municipal officers, a prerequisite for such relief.
Summary
The petitioner, Raj Sahkari Gruha Nirman Sanstha, filed a writ petition seeking a mandamus against municipal officers (Respondents 4 and 5) for alleged inaction on illegal construction by Respondents 1‑3, and also sought protection from the police (Respondents 6‑7) and an injunction restraining further illegal building. The petition, originally filed in 2016 and supplemented by an affidavit in 2023, was examined to determine whether a prior demand had been made to the municipal officers to act. The Court observed that the pleadings and affidavit did not contain any specific request or representation made to the authorities before approaching the Court. Since a writ of mandamus is only issued when a statutory authority fails to perform a duty after a clear demand, the Court held that the prerequisite was missing. Consequently, the Court directed the petitioner to make a representation to the municipal officers and warned that failure to act thereafter could give rise to a fresh mandamus application. The petition was therefore disposed without granting any relief.
Issues considered
- What is the appropriate test for granting a writ of mandamus against a public authority?
- Whether a prior demand or representation to the municipal officers is a prerequisite for issuing mandamus in the present case?
Subjects
- mandamus
- statutory duty
- public authority
- illegal construction
- representation
- writ petition
- civil appellate jurisdiction
Judgment
SMITA Digitally signed by SMITA
JOHNSON GONSALVES
JOHNSON Date: 2026.10.05
GONSALVES 11:13:32 +0530
sg 4.wp(c)7760-16.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 7760 OF 2016
Raj Sahkari Gruha Nirman Sanstha
Through Mr. Mahendra Mali … Petitioner
versus
M/s Patil Associates And Ors. … Respondents
----
Mr. Mithil Sampat, a/w. Ms. Tanisha Sampat, for the Petitioner.
Mr. Sanjay Ghaisas, for Respondent Nos.1 to 3.
Mr. Ayush Hasabnis, i/b. Mr. Sachindra B. Shetye, for Respondent
Nos. 4 and 5.
Mr. Ketan V. Joshi, “B” Panel Counsel, for the Respondent/State.
----
CORAM:BHARATI DANGRE &
ASHISH S. CHAVAN, JJ.
DATE: 30th SEPTEMBER, 2026
P.C.:
1. The Petitioner Society approached this Court seeking the
following relief:
Page 1 of 4
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30th September, 2026
sg 4.wp(c)7760-16.docx
“a. A mandamus is required from this Hon’ble court
against Respondent No.4 and 5 for their inaction
and non-action and for their negligently remaining
silent when required to act under statutory duty and
so they and their officers be ordered to take all lawful
action and Respondent No.6, 7 be ordered to
initiated inquiry against the above mentioned deed
and inaction of act of Respondent No.5 and 6 and
officers of Respondent No.5.
b. A positive mandamus is required against police
department Respondent No.6 and 7 to provide
protection to Respondent No.4 and 5 while they
were in action of demolition of said structure under
the order of court as done previously and as given
under this Writ Petition.
c. Respondent No. 1, 2, 3 are carrying on illegal
construction and so court may by an order injunction
refrain them from carrying on any further illegal
construction in said premises through a proper court
order.”
2. The petition being filed in the year 2016, came to be admitted
and an additional affidavit came to be filed by the Petitioner in the
year 2023.
3. When we particularly queried with the Counsel for the
Petitioner for seeking a writ in the nature of mandamus whether any
demand/request was ever made to take action against the offending
structures to Respondent Nos. 5 and 6, as the mandamus is sought
Page 2 of 4
__________________________________________________
30th September, 2026
sg 4.wp(c)7760-16.docx
against the said Authorities, he would submit that the pleadings are to
be found in the additional affidavit but we do not find any demand
being specifically made to Respondent Nos. 4 and 5, i.e. the Officers
of the Council, for taking appropriate action against the alleged illegal
construction by Respondent Nos. 1 to 3.
4. It is a tried position in law that a writ of mandamus deserves to
be issued in a contingency when the statutory authority or any
functionality of the State has failed to discharge its obligation but since
we find that the allegation about the structure being erected by
Respondent Nos. 1 and 3 being illegal, and having been carried out
without prior consent of the members of the Society, is not brought to
the notice of the Respondent Authorities, we are of the clear opinion
that the relief of mandamus cannot be granted. However, according
to the learned Counsel for the Petitioner, the alleged illegality still
continue and, therefore, we permit the Petitioner Society to prefer a
representation to Respondent Nos. 4 and 5 as regards the alleged
illegal/unauthorised structure, and upon such a representation being
made, we request the Authorities to look into it as expeditiously as
possible but if there is failure to act on part of the Authorities,
Page 3 of 4
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30th September, 2026
sg 4.wp(c)7760-16.docx
definitely it will give rise to a cause of action to the Petitioner Society
to approach this Court seeking issuance of writ of mandamus. With
these directions, the petition is disposed of. Rule is discharged.
(ASHISH S. CHAVAN, J.) (BHARATI DANGRE, J.)
Page 4 of 4
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30th September, 2026
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