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: __________________________________________________ 30th September, 2026 SMITA JOHNSON GONSALVES Digitally signed by SMITA JOHNSON GONSALVES Date: 2026.10.05 11:13:32 +0530 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 __________________________________________________ 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, __________________________________________________ 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.) __________________________________________________ 30th September, 2026