The plea of the shop owner, N K K Ali, was rejected by the division bench of Justice S S Parkar and Justice N J Pandya.

The illegal structure, situated on the busy Marol-Maroshi Road earlier housed a shady roadside food joint known as Ganpati Vilas Hindu Hotel and had been entirely reconstructed under a repair permission issued by the BMC last year. The construction had begun on May 6, 1998, and following complaints made by residents, the BMC K-east ward office had issued a stop work notice under section 354 (A) of the BMC Act the same day. However, these corrective measures failed to deter Hegde from allegedly patronising the shop.

The petitioner had maintained that the executive engineer (building proposals) of the BMC had erroneously refused to regularise thestructure without bothering to consider the merits of his application, merely under influence of local residents. He had also argued that allegations that the shop was encroaching on the road line demarcated for widening of the Marol-Maroshi Road were baseless, and the structure was well within the specified demarcation.

In a letter dated May 18, 1998 written to K-east ward office, local residents had complained that BMC officials, in connivance with the owners and occupants of the shops and the local corporator, had deliberately flouted provisions of the BMC Act by allowing the alterations to be made under the guise of a repair permission.

Allwyn Gonsalves, Rajnikant Belekar, Bosco Pereira and other residents demanded demolition of the unauthorised construction hampering the road widening. In a letter issued on June 9, 1998, the BMC informed Gonsalves that necessary action under the BMC Act had already been initiated and the same would be followed up according to the process of law, provided there wereno legal hurdles.

The traffic congestion on the road is worst on the Pimenta Chawl stretch due to a bottleneck caused by the shops. This part of the road also gets flooded in monsoon as the shops have obstructed outlets to the drains, the residents alleged.

The municipal corporation, in 1969, had prescribed regular lines under Section 297 (1) of the BMC Act on either side of the road for increasing the road width to 60 feet. The Act prohibits any construction within the road lines, which are demarcated to bring about regularity and orderly development of building activities and traffic control.

While the Act clearly empowers the municipal commissioner to acquire any construction within regular lines as the structure or even a portion of it is deemed to be part of the public road, the structures have not been acquired so far.

Gonsalves pointed out that the BMC, in one of its policy circulars had relaxed the Development Control Rules for Greater Mumbai so as to allow owners of structures in Gaothanareas to carry out necessary repairs.

``However, the circular itself admits to the existence of loopholes vis-a-vis grant of such repair permissions by stating that they are lopsided and contrary to provisions of the BMC Act,'' he said.