awadheshjha 26 July 2015

Writ of mandamus

Respected Members,

There is a encroachment on my property by housing society secretary. He has encroached my flats flower beds and constructed a shed on his first floor pocket open to sky terrace. He has constructed this with permanent construction and not with temperory monsoon shed. No permission from Municiple Corporation were taken and neither permission from society.

This is violation of FSI as well as MRTP Act. I have submitted complaint to the ward officer of Muncipal corporation in prescribed form A and several letters adn follwo ups. Number of RTI which reveled that no action has been taken on my complaint.

I even submitted a complaint under transfer and delays Act which is section 64C of BMC act to commissioner of municipal corpoaration, which provides punishment for not addressing the complaint within 90 days. However as usual no response on such complaint as well.

Now nowhere to go, I would like to file a writ under Mandamus in Bombay High court against the ward officer, head of encroachment department and municipal commissioner to issue order for the demolistion of unauthorised strcuture and order the punishment to concerned officers. My question is as follows:

1. I understadnt that the state will also be party to it being governmetn organisation, Kindly correct me if I am wrong. In case where the state will also be party, who in the state will be the party? What should i wirte the contact details of state who will be party for this writ?

2. Can I request the court to pass an order to municipal commissioner to take action against concerned ward officer under transfer and delays Act for not performing his obligation?

3. Can I request the court to pass an order against municipal commisioner for deciplinary action for not acting on my complaint?

would highly appreciate your comments and guidance in this regard.

best regards,
Awadhesh

Reply Follow

5 Replies

Dr J C Vashista (Advocate) 28 July 2015

No need to implead the government. Municipal corporation is a body created by legislature. Proceed you are right.

Biswanath Roy (Advocate) 30 July 2015

From the given post it appears that you have no idea of Writ of Mandamus. In MANDAMUS injury is the main criteria. You shall have to prove before the court by adducing evidences that as a citizen of India your legal, fundamental and constitutional right has been sufficiently encroached upon, interfered with, infringed or tending to infringe and thereby caused injury to you or to your interest and inspite of your report to the authorities of the Municipality who are public officers holding their public offices are not taking any action against the accused person and thus they are not discharging their statutory duties in accordance to law and as enjoined upon them.

T. Kalaiselvan, Advocate (Advocate) 01 August 2015

Instead of writ of mandamus, you can file a mandatory injunction suit against the encroacher seeking direction of court to remove the structures built illegally encroaching your land, you can implead the Municipality as a party to the suit. Consult your lawyer on further issues.