EARTH BUILDERS Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE petitioners seek a writ of mandamus to direct the State Government and the Municipal authorities to enforce their powers under Rule 22 (5) of the Development Control Rules, 1994 read with section 291 of the Bombay Municipal Corporation Act, 1888 and the Circular dated 18th January 1996 of the Bombay Municipal Corporation (BMC) and to provide petitioners property an access through the adjoining property of respondent No. 4 viz. the Consulate General of Islamic to State of Afghanistan over the portion of the land shown in yellow hatched lines in the plan annexed as Ex. A to the writ petition by declaring that portion to be a public street.

(2.) AN advertence, though brief, to the factual antecedents leading to this petition is necessary to appreciate the controversy between the parties in proper perspective. The petitioners are a partnership firm carrying on business as builders and developers. Under a conveyance dated 6th September, 1994, the petitioners have purchased the property known as "dani Chawl" bearing City Survey No. 278 situate at Malabar Hill, Mumbai. There is a 125 year old structure standing on the said property which consists of ground plus three storeys occupied by tenants. There are approximately three hundred persons residing in this building. The property in question is situated at level of almost sixty feet below the level of the main road being Walkeshwar Road and the only access to the building is through a pathway of the five feet in width through the adjoining property of Parsi Tooty Agyari Trust situate on the eastern side. The pathway comprises of about forty naturally carved steps which lead to the petitioners property. It seems that in cases of emergency, the occupants of the building were in a position to have an access through the property bearing CTS No. 281 lying to the eastern side of the petitioners property. However, it transpires that CTS No. 281 had been fully developed about ten years back and a twenty-eight storeyed building has been constructed on the said property. As a result, there is no motorable access now available for the petitioners property. On the southern side of the petitioners property is the property bearing CTS No. 278 belonging to the respondent No. 4, the Consulate General of Islamic State of Afghanistan. It is an admitted position that the structure standing on the respondent No. 4s property had been demolished about three years back and the plot is lying vacant. The respondent No. 4 has applied to the municipal authorities for sanctioning plans for constructing a building.

(3.) IT is the case of the petitioners that their property is a landlocked property, The petitioners through their architect made a representation dated 22nd September, 1994 to the Municipal Commissioner for providing access under the provisions of Rule 22 (5) of the Development Control Rules, 1991 (DC Rules ). The DC Rules of 1991 are framed under section 22 (m) of the Maharashtra Regional and Town Planning Act, 1966. Under Rule 22 (5), Municipal Commissioner is empowered to provide access to the land-locked property at the cost of the owner of the land-locked property. Rule 22 (5) reads as follows :-