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The appellant Nos.1 to 11 filed a suit being suit No.1478 of 2005 in the City Civil Court at Bombay for declaration and injunction.

The developer in an attempt to pressurize the appellants into not prosecuting the said suit had setup respondent no.1 herein (a tenant of the Trust property) to initiate proceedings against the appellants. According to the appellants, the fact that the respondent no.1 was setup is clear from the following-

a) though the construction of the temple was completed in the year 2001, the respondent no.1 who was a tenant of the premises did not complain about the unauthorized construction till the appellants herein filed a suit against the developer; b) that the respondent no.1 had participated in the celebration of idol installation; c) the advocates of the developer as well as the Respondent no.1 were same; d) that the respondent no.1 and the developer belong to the same Nationalist Congress Party.

7) The High Court erred in granting prayer of the appellant which seeks direction to demolish entire illegal and unauthorized structure standing on CTS No.206, 206 (1 to 9) in as much as there are many structures on the said plot which were constructed prior to the year 1962 and were considered to be heritage.

8) The High Court failed to appreciate the following evidence which clearly showed that the writ petition was filed by a person who was set up by the developer: (a) though the construction of the temple was completed in the year 2001, the writ petitioner who was a tenant of the premises did not complain about the unauthorized construction till the petitioners herein filed a suit against the developer;

Mr. Rohatgi submitted that despite the several complaints made by the first respondent - Municipal Corporation of Greater Bombay did nothing to demolish the illegal structure and that the Municipal Commissioner did not exercise the power vested in him under the Act to demolish the illegal structure. It is further submitted that the Municipal Commissioner was under a duty and obligation to order or direct illegal structure to be removed as the same was per se illegal and that the Commissioner ought to have ordered demolition as Municipal Corporation had issued a notice under Section 354A of the Act and in spite of the same, the respondent had continued with the illegal construction. Learned senior counsel further submitted that owing to the inaction on the part of the Municipal Corporation in demolishing the illegal structure, the respondent had no other option but to move the Bombay High Court by filing the writ petition No. 2841 of 2005. He also drew our attention to the order passed by the High Court which clearly stated that the order of the High Court dated 21.12.2005 will not prevent the Corporation from taking any action in accordance with the law if the construction is found to be unauthorized. After the order of the High Court, the counsel for the first respondent sent several letters calling upon the BMC to take action against the unauthorized construction and despite these letters the BMC failed to take any action in the matter and ultimately the High Court vide impugned order directed the Municipal Corporation to demolish the said illegal structure. It was submitted that the writ petition was filed for inaction of the Municipal Corporation and the writ petition was directed to ensure that the authority performed the duty cast upon it under the Statute and that the High Court on considering that the Commissioner had not taken any action in respect of the said illegal structure directed the demolition of the same. Thus, it was submitted that the order passed by the High Court was a corrective order aimed at enforcing the law and if the Commissioner declined to use his powers or enforce the law, the High Court was fully competent to enforce the same and that the writ of the High Court runs superior to the statutory powers of the Corporation. Concluding his argument, learned senior counsel submitted that considering the material on record and provisions of the BMC Act, this Court would hold that the High Court was right in ordering the Municipal Commissioner to demolish the structure and that when the executive failed to perform their duties or erred in performing their duties, the High Court acting under the extraordinary powers vested under Articles 226 and 227 of the Constitution of India has the necessary power to direct the executive to enforce the law as laid down in the statutes and power to order demolition of illegal structures as the Commissioner has failed to do so.

As pointed out by this Court in Syed Muzaffar Ali and Others vs. Municipal Corporation of Delhi (supra) that the mere departure from the authorized plan or putting up of a construction without sanction does not ipso fact and without more necessarily and inevitably justify demolition of the structure. There are cases and cases of such unauthorized construction and some are amenable to compounding and some may not be. According to learned counsel for the first respondent, the appellants have constructed the temple without obtaining any sanction whatsoever. There is serious breach of the licensing provisions or building regulations which may call for extreme step of demolition. In our view, these are matters for the Municipal Commissioner to consider at the appropriate time.