Maintainability of writ?

Nitish Banka (Querist) 12 September 2016 This query is : Resolved
Dear Experts,
Instituted a civil suit of mandatory injunction, the facts of the case are like this I am living in 2nd floor and 3rd floor owner has constructed an illegal construction in form of wood construction, now the issue is that construction is damaging my property below as that wooden construction is blocking the water to flow into drains and since accumulation of water has cause heavy seepage in the property below. in 2014 mcd issued notice to third floor and decided to demolish, since then no action by MCD to the third floor. civil suit was instituted in August 2015 and since then the 3rd floor is sealed. Now damage to the 2nd floor is aggravated and pop is started to fall.

1) can i obtain direction from the High court that because of 3rd floor illegal construction its not safe to live and in order to protect my life can high court give direction to mcd to demolish the third floor, is the writ maintainable?

2)Defendant has moved an application under 151 regarding status of 2nd floor in which MCD replied that the building is not as per sanctioned plan there are deviations(no specific details mentioned), what impact does this report do to my civil case.

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Raj Kumar Makkad (Expert) 12 September 2016
1. Writ is maintainable but better to pray the civil court to ensure the flow of water instead of sealing the property causing more damage during the pendancy of the suit.

2. If the entire property including your floor is not as per specification then yo shall also become sufferer. You need to differentiate both the issues before the court.

Nitish Banka (Querist) 12 September 2016
Thank you Makkad Ji,I am your follower for many years now,the flow of water is not possible as that wooden structure has 0.5 feet above ground nobody can reach to clear the water and seeping on my roof causing damage

Regarding the issue of my structure not as per plan, I have been living for more than 10 years now and there is no notice to me till now. That wooden structure is distinguishable and is sealed after the civil suit but MCD is not acting on it sown order.

Ms.Usha Kapoor (Expert) 13 September 2016
File a writ of Mandamus against MCD seeking directions to MCD to demolish 3rd floor as it is seeping and causing nuisance by making life uncomfortable to 2n floor residents.Since you've no other remedy and the matter is urgent you are moving the High Court to issue a writ of Mandamus against MCD.The 3rd Floor people by constructing wooden floor has made your life miserable and as a result water seepage and roof of second floor leaking accumulation of water or water logging nuisance is happening Violating your fundamental right to Life and hygienic health under art 21 of Indian Constitution.

Raj Kumar Makkad (Expert) 14 September 2016
Pending issue before the civil court, writ is not maintainable. The prayer is to be made only before the civil court to ensure the flow of water by either adjusting the wooden structure or to temporarily remove it so that the safety of your structure may be ensured.

So far as other aspects of construction whether the same is as per approved plan or not, can n seen only by municipal authorities after providing due opportunity of hearing and that issue is not subjudice so brevely move ahead as advised.