IN THE SUPREME COURT OF INDIA
Justice B.P.Singh and Justice S.B.Sinha
Mahendra Baburao Mahadik vs Subhash Krishna Kantikar.
Reported in 2005 AIRSCW 1579.
S.B. Sinha, J.
These two appeals arising from a common judgment and order dated 31st July, 2000
passed by a Division Bench of the High Court of Judicature at Bombay in writ
petition No. 4675 of 1999 were taken up for hearing together and are being
disposed of by this common judgment.
FACTS:
2. The factual matrix is being noticed from Civil Appeal No. 2733 of 2001. The
First Respondent herein, an advocate, is said to be associated with various
social activities and had been acting as Chief Trustee of Ganpati Devasthan,
Bhiwandi. He filed a writ petition in the nature of a Public Interest Litigation
inter alia for issuance of an appropriate direction upon The Bhiwandi Nizampura
Municipal Council (hereinafter referred to 'Municipal Council') to demolish a
building consisting of ground and six upper floors constructed by the Appellants
herein on the land bearing City Survey No. 3331 and House Property No. 358 and
358/1 of Kaskar Alley, Bhiwandi, District Thane. A further prayer was made that
the Municipal Council be directed to furnish certified copies of extracts of
assessment register/book and permission dated 5th May, 1995 granted to the
Appellants herein in relation to the aforementioned property.
WRIT PROCEEDINGS
3. In his writ petition, the first Respondent complained of illegal
constructions made in the town of Bhiwandi on private as well as Government
lands but despite the same neither any action was taken thereupon nor any
certified copy of the assessment register/ book was supplied.
4. In the writ petition, it was contended that on the aforementioned plot there
existed a single storied structure but the Appellants managed to obtain a repair
permission dated 5th May, 1995' for carrying out repairs on the ground floor and
two upper floors, but construction of ground plus six floors was started on the
basis thereof.
5. The First Respondent herein sought for copies of extracts of the assessment
register for the purpose of establishing the nature of the original structure
standing on the said property but the same was denied to him on the premise that
the property in question did not stand in his name. It was furthermore contended
that the officials of the Municipal Council colluded with the Appellants herein.
It was urged that such constructions had come up solely owing to negligence and
default on their part. It was further contended that no F.S.I. was available on
the plot for constructing such a huge building and, thus, the same being
unauthorized was liable to be demolished.
6. Before the High Court the Appellants did not file any return. The Municipal
Council, however, contended that in relation to the said property a civil suit
had been pending in the Court of Civil Judge, Junior Division, Bhiwandi wherein
the Appellants had obtained an order of status quo. It was further disclosed
that a First Information Report in relation to the aforementioned unauthorized
construction was lodged on 4th June, 1999 under Section 43 read with Section 52
of the Maharashtra Regional and Town Planning Act, 1966 (MRTP Act) and Sections
119 and 217 read with Section 34 of the Indian Penal Code wherein the Appellants
as also the officers of the Municipal Council including the then Chief Surveyor
and Chief Engineer were named as accused therein.
7. Before the High Court, reliance was also placed upon a purported resolution
of the Municipal Council dated 12th October, 1998 in terms whereof all
unauthorized constructions within the municipal area were sought to be
regularized upon imposition of penalty and compounding of offences in terms of
Section 43 of the MRTP Act.
8. The State of Maharashtra in its affidavit contended that it was not inclined
to approve the aforementioned resolution passed by the Municipal Council.
JUDGMENT OF THE HIGH COURT:
9. In the impugned judgment, the High Court held :
(i) The First Respondent was entitled to inspection of documents as also grant
of certified copies on payment of requisite charges; (ii) Recovery of taxes in
respect of unauthorized construction does not amount to regularisation thereof;
(iii) The Resolution dated 12th October, 1998 passed by the Municipal Council on
a wholesale basis is wholly unsustainable in law. (iv) Offences relating to
unauthorized or illegal constructions cannot be compounded and, thus, structures
have to be demolished. (v) Regularization of such unauthorized structures would
defeat the very purpose of introducing the rules of planned development of the
city and, thus, cases of such unauthorized constructions must be dealt with
sternly.
It was directed: "(i) The Respondent nos. 1 and 2 are directed to issue
certified copies of the documents within four weeks as per the applications
filed by the Petitioners subject to payment of charges.
(ii) Civil Judge (J.D.) Bhiwandi is directed to decide the application for
interim relief by Respondent nos. 4 to 6 in Reg. Civil Suit No. 321 of 1999
within a period of eight weeks. The parties shall appear before the Civil Court
on 4th September, 2000 and thereafter the Civil Court shall hear the matter on
day to day basis without granting any adjournments to either side.
(iii) Appeal filed against the order of the Trial Court, if admitted and
ad-interim or interim relief is granted, shall be disposed of within a period of
six weeks without insisting for formal paper book.
(iv) In case the Civil Court vacates the interim order the Municipal Council
shall demolish the building constructed by Respondent nos. 4 to 6 within a
period of four weeks from the date of vacation of interim relief.
(v) The Commissioner of Police, Thane is directed to provide adequate police
protection to the municipal staff in carrying out demolition of the building.
(vi) The resolution dated 12th October, 1998 is quashed and set aside.
Respondent nos. 1 and 2 are directed to take immediate steps to demolish the
unauthorized structures in Bhivandi in accordance with law."
SUBMISSIONS:
10. Mr. Shekhar Naphde, learned senior counsel appearing on behalf of the
Appellants principally raised the following two contentions in support of these
appeals: (1) Having regard to the statutory scheme contained in Sections 52 and
53 of the MRTP Act read with Section 189 of the Maharashtra Municipal Councils,
Nagar Panchayats and Industrial Townships Act, 1965 (the Municipal Act), the
Municipal Council had the requisite jurisdiction to pass the resolution dated
12th October, 1998 and in that view of the matter the direction of the High
Court to demolish the structure is manifestly unjust, as pursuant to or in
furtherance of such scheme of regularization, the Appellant could have filed an
application praying for regularization of the constructions raised by them. (2)
In any event, the High Court should not have exercised its discretionary power
in directing demolition of the structure. Strong reliance, in this behalf, has
been placed on Corporation of Calcutta Vs. Mulchand Agarwalla [(1955) 2 SCR 995]
11. Dr. N.M. Ghatate, learned senior counsel appearing on behalf of the
Appellants in Civil Appeal No. 2734 of 2001 and Respondent Nos. 2 & 3 in Civil
Appeal No. 2733 of 2001 supported the contention of Mr. Naphde and furthermore
urged that although a notice had been served upon the Appellants, no demolition
could be carried out in view of the order of status quo passed by the Civil
Court.
12. According to Dr. Ghatate, the Municipal Council has the requisite
jurisdiction to regularize such unauthorized constructions by compounding
offences upon accepting compounding fees prescribed therefor.
13. Mr. V.A. Mohta, learned senior counsel appearing on behalf of the First
Respondent, on the other hand, would submit that the Appellants are guilty of
commission of fraud and even in this Court got up documents have been filed and
wrong statements have been made to bolster their cases. According to learned
counsel, Section 143 of the MRTP Act refers only to offences and in that view of
the matter, by reason thereof, except as expressly provided for in the MRTP Act
or the Municipal Act, no general order of regularization could be issued in
terms of the purported resolution dated 12th October, 1998 or otherwise.
Provisions of Sections 52 and 53 of the MRTP Act, Mr. Mohta would contend, would
apply only during development and not thereafter.
STATUTORY PROVISIONS:
14. The relevant provisions of the MRTP Act are as under:
"2(15) "local authority" means (a) the Bombay Municipal Corporation constituted
under the Bombay Municipal Corporation Act or the Nagpur Municipal Corporation
constituted under the City of Nagpur Municpal Corporation Act, 1948, or any
Municipal Corporation constituted under the Bombay Provincial Municipal
Corporation Act, 1949.
(b) a Council and a Nagar Panchayat constituted under the Maharashtra Municipal
Councils, Nagar Panchayats and Industrial Townships Act, 1965
2(19) "Planning Authority" means a local authority; and includes (a) a Special
Planning Authority constituted or appointed or deemed to have been appointed
under section 40; (b) in respect of the slum rehabilitation area declared under
section 3C of the Maharashtra Slum Areas (Improvement, Clearance and
Redevelopment) Act, 1971, the Slum Rehabilitation Authority appointed under
section 3A of the said Act;
44. Except as otherwise provided by rules made in this behalf, any person not
being Central or State Government or local authority intending to carry out any
development on any land shall make an application in writing to the Planning
Authority for permission in such form and containing such particulars and
accompanied by such documents, as may be prescribed:
Provided that, save as otherwise provided in any law, or any rules, regulations
or by-laws made under any law for the time being in force, no such permission
shall be necessary for demolition of an existing structure, erection or building
or part thereof, in compliance of a statutory notice from a Planning Authority
or a Housing and Area Development Board, the Bombay Repairs and Reconstruction
Board or the Bombay Slum Improvement Board established under the Maharashtra
Housing and Area Development Act, 1976.
52. (1) Any person who, whether at his own instance or at the instance of any
other person commences, undertakes or carries out development, or institutes, or
changes the use of any land (a) without permission required under this Act; or
(b) which is not in accordance with any permission granted or in contravention
of any condition subject to which such permission has been granted; (c) after
the permission for development has been duly revoked; or (d) in contravention of
any permission which has been duly modified.
shall, on conviction, be punished with imprisonment for a term which shall not
be less than one month but which may extend to three years and with fine which
shall not be less than two thousand rupees but which may extend to five thousand
rupees, and in the case of a continuing offence with a further daily fine which
may extend to two hundred rupees for every day during which the offence
continues after conviction for the first commission of the offence.
(2) Any person who continues to use or allows the use of any land or building in
contravention of the provisions of a Development plan without being allowed to
do so under section 45 or 47, or where the continuance of such use has been
allowed under that section continues such use after the period for which the use
has been allowed or without complying with the terms and conditions under which
the continuance of such use is allowed, shall, on conviction be punished with
fine which may extend to five thousand rupees; and in the case of a continuing
offence, with a further fine which may extend to one hundred rupees for every
day during which such offence continues after conviction for the first
commission of the offence.
53(1) Where any development of land has been carried out as indicated in
sub-section (1) of section 52, the Planning Authority may, subject to the
provisions of this section, serve on the owner a notice requiring him, within
such period being not less than one month, as may be specified therein after the
service of the notice, to take such steps as may be specified in the notice.
(a) in cases specified in clause (1) or (c) of sub-section (1) of section 52, to
restore the land to its condition existing before the said development took
place, (b) in cases specified in clause (b) or (d) of sub-section (1) of section
52, to secure compliance with the conditions or with the permission as modified:
Provided that, where the notice requires the discontinuance of any use of land,
the Planning Authority shall serve a notice on the occupier also.
(2) In particular, such notice may, for purposes of sub- section (1), require
(a) the demolition or alteration of any building or works; (b) the carrying out
on land of any building or other operations; or (c) the discontinuance of any
use of land.
(3) Any person aggrieved by such notice may, within the period specified in the
notice and in the manner prescribed, apply for permission under section 44 for
retention on the land of any building or works or for the continuance of any use
of the land, to which the notice relates, and pending the final determination of
withdrawal of the application the mere notice itself shall not affect the
retention of buildings or works or the continuance of such use.
(5) If the permission applied for is granted, the notice shall stand withdrawn;
but if the permission applied for is not granted, the notice shall stand; or if
such permission is granted for the retention only, of some buildings, or works,
or for the continuance of use of only a part of the land, the notice shall stand
withdrawn as respects such buildings or works or such part of the land, as the
case may be, and thereupon, the owner shall be required to take steps specified
in the notice under sub-section (1) as respects such other buildings, works or
part of the land.
124E (2) The Authority shall, on such application being made or if no such
application is made, by a person instituting or changing any use of any land or
building, then after serving a notice in writing on the person liable to such
payment and after calling for a report in this behalf from the concerned officer
of the Authority, after taking into consideration the report aforesaid,
determining whether or not and if so, what development charge is leviable in
respect of that development or, institution of use or change of use and after
giving the person concerned an opportunity to be heard, shall then assess the
amount of development charge payable by such person and give to such person a
notice in writing of such assessment.
143. (1) The Regional Board or Planning Authority or Development Authority
concerned or any person authorized in this behalf by general or special order
may either before or after the situation of the proceedings compound any offence
made punishable by or under this Act or rules made thereunder.
(2) When an offence has been compounded, the offender, if in custody, shall be
discharged: and no further proceedings shall be taken against him in respect of
the offence compounded."
Sub-sections (2), (8) and (9) of Section 189 of the Municipal Act are as under:
"(2) Before beginning to construct any building, the person intending so to
construct shall give to the Chief Officer notice thereof in writing and shall
furnish to him at the same time, if required by a bye-law or by a special order
to do so, a plan showing the levels, at which the foundation and lowest floor of
such building are proposed to be laid, by reference to some level known to the
Chief Officer, and all information required by the bye-laws, or demanded by the
Chief Officer regarding the limits, design, ventilation and materials of the
proposed building and the intended situation and construction of the drains,
privies water-closets, house- gullies and cess pools, if any, to be used in
connection therewith, and the location of the building with reference to any
existing or projected streets, the means of access to such building and the
purpose for which the building will be used:
15. Provided that, if the bye-laws of the Council so require, such notice shall
be in such form as the Council may from time to time prescribe and such plans
shall be signed by a person possessing the qualifications laid down in the
bye-laws or licensed under the bye-laws so to sign such plans.
(8) If any person begins any construction of a building of which notice is
required to be given under sub-section (2) (i) without the permission of the
Chief Officer under sub- section (4) or of the Council under sub-section (5),
save as otherwise provided under sub-section (6); or (ii) having received
permission under clause (a) of sub- section (4), contrary to the plans and
information furnished under sub-sections (2) and (3); or (iii) having received
permission under clause (b) of sub- section (4) contrary to the conditions
imposed under that clause or contrary to the plans and information submitted
under sub-sections (2) and (3) in so far as such plans and information are not
modified by such conditions; or (iv) contrary to the provisions of sub-section
(6), when construction is begun under that sub-section, the Chief Officer may,
by a written notice, require such person to stop such construction and to alter
or demolish any construction already made as specified in the notice. If, within
fifteen days, from the service of such notice for demolishing any such
construction, the work of demolishing is not commenced, the Chief Officer may
cause such work to be done and the expenses incurred therefor shall be
recoverable from the person concerned in the same manner as an amount due on
account of a property tax.
(9) Any person who fails to comply with the notice issued by the Chief Officer
under sub-section (8), shall, on conviction, be punished with fine which may
extend to five thousand rupees."
ANALYSIS OF THE STATUTORY PROVISIONS :
16. In terms of Section 44 of the MRTP Act, a person intending to raise any
construction is required to make an application in respect thereof to the
Planning Authority for permission in such form and containing such particulars
and accompanied by such documents, as may be prescribed. Filing of such
application and obtaining such permission concededly are imperative in
character. Such permission, if granted, remains in force for a period of one
year unless extended by the Planning Authority.
17. Section 52 contains penal provisions. Section 53 authorizes the local
authority to direct removal of unauthorized development. Sub-section (1) of
Section 53 authorizes the local authority to issue a notice where a development
of land has taken place in violation of the conditions indicated in Sub-section
(1) of Section 52.
18. In terms of Sub-section (7) of Section 53, a person prosecuted under Clause
(1) of Sub-Section (6) of Section 53 will be inflicted with the punishment
specified therein.
DETERMINATION :
19. The First Respondent herein in the writ petition categorically stated that
the original structure standing on the site in question was not of permanent
nature and was a single storeyed one. Only the open land in front of the said
structure on its southern side had been taken over by the Municipal Council for
the purpose of road widening, whereafter the Appellants made an application to
the Municipal Council for grant of repair permission which was granted for
carrying out the repairs of ground as also two upper floors, despite the fact
that no upper floor was ever in existence. Although in terms of such permission,
only repairs of the existing structure could have been carried out and that too
within a period of one year from 5th May, 1995, the Appellants herein started
altogether new construction in the year 1998. They had erected R.C.C. framework
of a building consisting of ground plus six upper floors but have not yet
finished the work. The said averments of the Respondents in the Writ Petition
were not denied or disputed. In fact, as noticed hereinbefore, the Appellants
herein did not file any return before the High Court.
20. Before this Court the Appellants have produced a letter of the Municipal
Council dated 4th December, 1986 addressed to the Appellant herein wherein it is
contended:
"Sub: Road Widening.
Sir,
This is to inform you that your land on the southern side from C.T.S. 3331 is
given to the Municipal Council after demolishing the compound wall for Road
widening and the work of drainage is in progress.
21. In lieu of compensation for the said land the Municipal Council shall give
full cooperation and concessions."
Such a statement has also been made in the synopsis and list of dates at page B
of Civil Appeal No. 2733 of 2001.
22. However, while filing the additional documents, a copy of the said letter
dated 4th December, 1986 had been annexed which reads as under:
"By this letter it is to inform you that on the part of your land bearing City
Survey No. 3331 towards South a portion of land is taken for road widening
purpose. In the said land surrendered by you the Municipal Council has broken
the compound and undertaken the work of laying drainage, and developed a road.
23. Kindly note that necessary cooperation will be given in the matter of
compensation (price) for affected land from Municipal Council."
24. The Municipal Council, therefore, in terms of its aforementioned letter
dated 4th December, 1986 did not make any promise to give full cooperation and
concession in lieu of compensation. What was promised was that cooperation will
be given in the matter of payment of compensation for affected land.
25. It is, therefore, apparent that the Appellants have made incorrect
statements and annexed a wrong document before this Court.
The Municipal Council, moreover, granted only repair permission to the
Appellants, as would appear from its letter dated 5th May, 1995 wherein it is
stated:
"Sub: Repairs/ Constructions permission in respect of remaining land upon
demolition carried out for road widening.
Ref: Reply letter No. TP/2021 dt. 4.12.86.
Sir,
For the purpose of road widening you out of your own initiative demolished your
premises and handed over the land affected thereby to the Municipal Council.
Repair permission for the old house, leaving the portion of land falling under
road widening, is hereby granted as under:-
Location: Mauje Bhiwandi, City Survey No. 3331
Scope of Construction: In lieu of the land lost in road widening, on remaining
land the construction of ground + 2 story could be made, leaving the distance of
5 feet from Municipal drainage.
Measurement: East 68', West 38', North 71'.
For constructions made over and above the aforesaid measurement, appropriate
legal action will be taken against you entirely at your risks as to costs and
consequences thereof. Similarly in the event of any objections on ownership,
possession, easement etc. being taken, resulting in civil as well as criminal
proceedings, the Municipal Council shall not be responsible for the same."
26. Thus, if permission had been granted only for carrying out repairs of an
existing building and if, in fact, there existed only ground floor, question of
grant of any permission for new construction or for that matter permission for
carrying out repairs in ground plus two storey could not have been issued. It,
furthermore, appears that the Municipal Council on or about 6.6.1998 issued a
notice asking the Appellants herein to comply with the directions contained
therein failing which it was threatened that necessary action would be taken in
terms of the provisions of the MRTP Act and the Municipal Act and the
unauthorized construction/ development would be demolished.
27. In the Schedule appended to the said notice, the structure in question was
described as:
"Under repair permission No. TP/87 dated 5.5.95, unauthorized construction is in
progress at land bearing City Survey No. 3331 at Bhiwandi Mauje Ground + six
floors. Measurement: East 68 ft. West 38 ft. North 71 ft."
29. It appears that the Appellants had prayed for assessment of house tax by a
letter dated 25.06.1998. In the said letter, permission was sought for
construction of new houses for ground plus four more floors purported to be by
way of compensation for the land lost by them by way of equalization thereof for
road widening. There is nothing on record to show that Mr. R.R. Patil had made
any such application for carrying out the repairs. There is also nothing on
record to show that the said Shri R.R. Patil had any F.S.I..
30. If the Municipal Council in fact had granted any permission to make new
constructions of ground and two storeyed building, there was no reason as to why
the same had not been produced before the High Court or before us.
31. We have, therefore, no option but to hold that only repair permission had
been granted to the Appellants.
32. The Appellants herein in terms of the said notice dated 6.6.1998 had the
option of complying with the directions contained therein or file an appropriate
application in terms of Sub-section (3) of Section 53 of the MRTP Act but they
took recourse to neither.
33. If within a period of one month from 6.6.1998 no such application was filed,
the Municipal Council was under a statutory obligation to carry out demolition
of the structure in question. It did not discharge its statutory obligation. On
the other hand, it adopted the following resolution on 22.10.1998 :
"Sub: Common disposal of cases of unauthorized/ without permission constructions
by imposing penalty under the provisions of Municipal Council Rules.
RESOLUTION
34. In Bhiwandi city, it is observed that there are unauthorized/ without
permission constructions made in large scale. Proceedings against the
unauthorized constructions are already afoot. However, inspite of the actions
pursuant to the decisions of the courts of law and due to inadequate strength of
municipal staff, there is no reduction noticed in unauthorized constructions.
Similarly, it is observed that the people are residing in/ using the
unauthorized construction. Hence, only because the constructions are
unauthorized, from the point of view of humanity it is deemed impracticable /
improper to demolish the said constructions. Hence, the unauthorized
constructions which are not opposed to the Development Planning Scheme and are
within the FSI, the cases of such constructions can be commonly disposed off by
imposing penalty under the provisions of section 143 of Maharashtra Regional and
Town Planning Act, 1966. For dealing of such cases the powers of Planning
Authority are given to the Chief Officer, Bhiwandi Nizampur Municipal Council,
who may take further appropriate action in that regard under the guidance of
respected Dy. Director, Town Planning, Kokan Division, Kokan Bhawan.
Resolution approved unanimously."
35. The Appellants did not file any application for regularization of the
unauthorized constructions raised by them in terms of the aforementioned
resolution dated 22.10.1998 within a reasonable time. They, thus, were not
entitled to obtain any order of regularization from the Municipal Council,
pursuant to the said purported resolution.
36. In any view of the matter, the State of Maharashtra having not approved the
said Resolution, the question of giving effect thereto by the Municipal Council
in favour of the Appellants, as was submitted by Mr. Naphde does not arise.
37. The writ petition was filed by the First Respondent herein on 29.6.1999 and
even during pendency thereof, no such application was filed by the Appellants
nor any contention was raised to the effect that they were entitled to take
recourse to the benefits contained in the said resolution.
38. Once such a notice under Section 52 is served, the persons aggrieved within
the period specified therein, which in the instant case is one month, must apply
for permission for retention on the land of the building or works under Section
44 of the MRTP Act. Only when a permission is granted, the notice would stand
withdrawn. The question of grant of any permission would arise only if an
application is made therefor. As the Appellants herein had not filed such
application, the Municipal Council was obliged not only to prosecute the owner
but also to carry out the demolition in terms of the aforementioned notice dated
6.6.1998.
39. The Municipal Council is a 'local authority' as well as planning authority
within the meaning of the provisions of Sections 2(15) and 2(19) of the MRTP
Act.
40. The Municipal Council being a creature of statute was bound to carry out its
functions within the four-corners thereof. Being a statutory authority, it was
required to follow the rules scrupulously. Concededly, the Municipal Council is
not possessed of any statutory power to regularize unauthorized constructions.
Its power is confined to compounding the offences in certain cases. Moreover,
even development charges could not be recovered from the Appellant in respect of
unauthorized constructions in terms of Section 124E(2) of the MRTP Act.
41. It appears that the Municipal Council itself in terms of a letter dated
20.11.1998 sought for guidance of the Dy. Director Town Planning stating:
"Sub: Common disposal of cases of unauthorized/ without permission constructions
made within Municipal Council limits by imposing penalty under the provisions of
Section 143 of Maharashtra Regional and Town Planning Act, 1966.
Ref: Council's Resolution No. 134 dt. 12.10.98.
Sir,
With reference to above, it is seen that in Bhiwandi city there are large number
of unauthorized/ without permission constructions made. Proceedings against the
said unauthorized constructions are a foot already. However, inspite of the
action taken pursuant to the decisions of the courts of law and due to
inadequate strength of Municipal staff, there is no reduction noticed in the
unauthorized constructions. Similarly, it is observed that the people are
residing in/ using the unauthorized constructions. Hence, only because the
constructions are unauthorized, the demolition of the same is not deemed proper/
possible. Hence, in this regard the Municipal Council has passed a unanimous
Resolution dated 12.10.90 in General meeting, being Resolution No. 134. Such
cases can be disposed off commonly under the provisions of section 143 of
Maharashtra Regional and Town Planning Act, 1966, considering Development
Planning Proposal, FSI etc. Powers for dealing such cases on behalf of the
Planning Authority is delegated to the Chief Officer. Copy of the Resolution is
annexed hereto for perusal. Hence, it is requested that necessary legal and
technical guidance in that regard be kindly given."
42. A reference to the Government also appears to have been made by the
Director, Town Planning by a letter dated 29th July, 2000 addressed to the Head
Secretary of the Government of Maharashtra in the following terms:
"Sub: Recovery of development fees on unauthorized constructions.
Ref: 1) Letter dt. 27.7.99 of Chief Officer, Bhiwandi Nizampur Municipal Council
2) Letter No. TPS 1299-1105/CD-12, dt. 29-3-2000 of City/ Development
Department, Govt. of Maharashtra.
Sir,
With reference to above referred letter of Bhiwandi Nizampur Municipal Council,
guidance is sought for recovery of development fees on unauthorized
construction. Considering the provisions of Section 124- E(2) of Maharashtra
Regional and Town Planning Act, 1966, proceedings of recovery of development
fees on unauthorized constructions by Municipal Councils is not proper. Instead
of that, the Municipal Councils should take actions under the provisions of
Sections 52,53 and 54 of the aforesaid Act with respect to unauthorized
constructions. And only the constructions which can be regularized in accordance
with rules, actions for such constructions should only be taken to regularize
and recovery of development fees in such cases would be proper. Accordingly, the
Municipal Councils may be advised."
44. It may be true that certain demands were made upon the Appellants herein to
deposit the development charges by the Municipal Council but the same were made
without prejudice to their rights, as would appear from the notice dated
3.11.1998. Demand of the development charges without prejudice to the rights of
the Municipal Council did not, thus, create any legal right in favour of the
Appellants. [See Chairman and MD, NTPC Ltd. Vs. Reshmi Constructions, Builders &
Contractors, (2004) 2 SCC 663].
45. Payment of development charges by itself, therefore, did not lead to
exoneration from the consequence of commission of an offence or regularization
of unauthorized constructions.
46. The jurisdiction of a local authority is confined only to deal with
application for grant of permission for construction as contained in Section 44
of the MRTP Act whether at the initial stage or when a notice is served under
Sub-section (2) of Section 53 of the MRTP Act. The power to grant such
permission could be exercised only within the purview of the Building Bye-laws.
Therefore, being beyond the scope of Section 44 of the MRTP Act, the Municipal
Council did not have any jurisdiction to direct regularization of such
unauthorized constructions by reason of the said resolution or otherwise. The
power of the Municipal Council, it is trite, being confined to the provisions of
the said Acts, no action could be taken by them contrary thereto or inconsistent
therewith.
47. In Friends Colony Development Committee Vs. State of Orissa and Others
[(2004) 8 SCC 733], this Court opined:
"25. Though the municipal laws permit deviations from sanctioned constructions
being regularized by compounding but that is by way of exception. Unfortunately,
the exception, with the lapse of time and frequent exercise of the discretionary
power conferred by such exception, has become the rule. Only such deviations
deserve to be condoned as are bona fide or are attributable to some
misunderstanding or are such deviations as where the benefit gained by
demolition would be far less than the disadvantage suffered. Other than these,
deliberate deviations do not deserve to be condoned and compounded. Compounding
of deviations ought to be kept at a bare minimum. The cases of professional
builders stand on a different footing from an individual constructing his own
building. A professional builder is supposed to understand the laws better and
deviations by such builders can safely be assumed to be deliberate and done with
the intention of earning profits and hence deserve to be dealt with sternly so
as to act as a deterrent for future. It is common knowledge that the builders
enter into underhand dealings. Be that as it may, the State Governments should
think of levying heavy penalties on such builders and therefrom develop a
welfare fund which can be utilized for compensating and rehabilitating such
innocent or unwary buyers who are displaced on account of demolition of illegal
constructions."
48. In M.I. Builders Pvt. Ltd. Vs. Radhey Shyam Sahu and Others [(1999) 6 SCC
464], this Court observed: "73. The High Court has directed dismantling of the
whole object and for restoration of the park to its original condition. This
Court in numerous decisions has held that no consideration should be shown to
the builder or any other person where construction is unauthorised. This dicta
is now almost bordering the rule of law. Stress was laid by the appellant and
the prospective allottees of the shops to exercise judicial discretion in
moulding the relief. Such a discretion cannot be exercised which encourages
illegality or perpetuates an illegality. Unauthorised construction, if it is
illegal and cannot be compounded, has to be demolished. There is no way out.
Judicial discretion cannot be guided by expediency. Courts are not free from
statutory fetters. Justice is to be rendered in accordance with law. Judges are
not entitled to exercise discretion wearing the robes of judicial discretion and
pass orders based solely on their personal predilections and peculiar
dispositions. Judicial discretion wherever it is required to be exercised has to
be in accordance with law and set legal principles. As will be seen in moulding
the relief in the present case and allowing one of the blocks meant for parking
to stand we have been guided by the obligatory duties of the Mahalaplika to
construct and maintain parking lots."
49. A discretionary power must be exercised having regard to the larger public
interest.
50. In Consumer Action Group and Another vs. State of T.N. and Others [(2000) 7
SCC 425], this Court held :
"While exercising such a power the authority has to keep in mind the purpose and
the policy of the Act and while granting relief has to equate the resultant
effect of such a grant on both, viz. the public and the individual. So long as
it does not materially affect the public cause, the grant would be to eliminate
individual hardship which would be within the permissible limit of the exercise
of power. But where it erodes the public safety, public convenience, public
health etc. the exercise of power could not be for the furtherance of the
purpose of the Act. Minor abrasion here and there to eliminate greater hardship,
may in a given case, be justified but in no case affecting the public at large.
So every time the Government exercises its power it has to examine and balance
this before exercising such a power. Even otherwise, every individual right
including fundamental right is within, reasonable limit but if it makes inroads
into public rights leading to public inconveniences it has to be curtailed to
that extent. So no exemption should be granted affecting the public at large.
Various development rules and restrictions under it are made to ward off
possible public inconvenience and safety. Thus, whenever any power is to be
exercised, the Government must keep in mind, whether such a grant would recoil
on the public or not and to what extent. If it does then exemption is to be
refused. If the effect is marginal compared to the hardship of an individual
that may be considered for granting"
51. Mr. Naphde, therefore, is not correct in contending that the High Court
should have taken a lenient view.
52. In Mulchand Agarwalla (supra), whereupon strong reliance has been placed by
Mr. Naphde, this Court upon taking into consideration the provisions of the
Calcutta Municipal Act and in view of the terminologies contained in Section 449
thereof noticed that that the Magistrate had a discretionary jurisdiction to
pass an order of demolition and held:
"The conduct of the respondent in adopting a hide- and-seek attitude in
completing the constructions in deliberate defiance of the law calls for severe
action. It would be most unfortunate, and the interests of the public will
greatly suffer, if the notion were to be encouraged that a person might with
impunity break the building rules and put up a construction and get away with it
on payment of fine. All this would be good justification for making an order for
demolition."
53. However, keeping in view the provisions of Sub-section (2) of Section 363 of
the Act which directs that no application for demolition shall be instituted
after a lapse of five years from the date of the work, although were found to be
inapplicable, but in the fact situation obtaining therein, it was opined:
"But then, it is now nearly five years since the building was completed, and
though section 363(2) which directs that no application for demolition shall be
instituted after a lapse of five years from the date of the work does not, in
terms, apply as the proceedings have been started in time, we do not feel that
after the lapse of all this time, an order for demolition is called for in the
interests of the public. We also take into account the fact that the orders in
question would not have come before us in the normal course by way of appeal,
were it not that the appellant desired that the decision of this Court should be
obtained on certain questions of importance, and that purpose has been achieved.
On a consideration of all the circumstances we do not think that this is a fit
case in which we should pass an order for demolition."
55. The said decision, therefore, does not support the contention of the
Appellants.
CONCLUSION :
56. For the reasons aforementioned, these appeals, being devoid of any merit,
are dismissed. The Municipal Council is hereby directed to carry out the order
of the High Court, as expeditiously as possible and not later than four weeks
from date. Having regard to the fact that the Appellants have sought to mislead
this Court, we think it appropriate to impose costs upon them. The Appellants
are hereby directed to deposit a sum of Rs. 50,000/- (Rupees Fifty Thousand)
with National Legal Services Authority within four weeks from date and deposit
the receipt thereof in the Registry of this Court.