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TMI Blog2005 (3) TMI 806X X X X Extracts X X X X X X X X Extracts X X X X ..... 31 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 : 4. 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. 5. 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. 6. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ducing the rules of planned development of the city and, thus, cases of such unauthorized constructions must be dealt with sternly. 11. 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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: 16. 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 (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charged: and no further proceedings shall be taken against him in respect of the offence compounded. 17. 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: Provided that, if the bye-laws of the Council so require, such notice shall be in such form as the Coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch 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 therefore shall be recoverable from the person concerned in the same manner as an amount due on account of a property tax. ANALYSIS OF THE STATUTORY PROVISIONS : 18. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, 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. Kindly note that necessary cooperation will be given in the matter of compensation (price) for affected land from Municipal Council. 25. 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. 26. It is, therefore, apparent that the Appellants have made incorrect statements and annexed a wrong document before this Court. 27. 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 respec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ereof 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.. 31. 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. 32. We have, therefore, no option but to hold that only repair permission had been granted to the Appellants. 33. 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. 34. 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/ withou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mission 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 therefore. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 43. 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. v. Reshmi Constructions, Builders Contractors AIR2004SC1330 ]. 44. Payment of development charges by itself, therefore, did not lead to exoneration from the consequence of commission of an offence or regularization ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . : [1999]3SCR1066, 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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..... 52. 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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