Bombay High Court
Shri. Sunil Dattu Gaikwad And Ors vs The State Of Maharashtra And Ors on 9 March, 2021
Equivalent citations: AIRONLINE 2021 BOM 332
Author: G. S. Kulkarni
Bench: Dipankar Datta, G. S. Kulkarni
9.WPSTNo.314152019.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION (ST) NO.31415 OF 2019
Shri.Sunil Dattu Gaikwad & Ors. ... Petitioners
versus
The State of Maharashtra & Ors. ... Respondents
.....
Mr.J.S.Yadav, Advocate for the Petitioner.
Mr.B.V.Samant, AGP for the Respondent No.1/State.
Ms.Mayuri Karekar i/b. Mr.Sandeep Shinde, Advocate for the
Respondents No.2 to 4.
.....
CORAM :- DIPANKAR DATTA, CJ &
G. S. KULKARNI, J.
DATE :- MARCH 9, 2021 PC : 1. The petitioners whose illegal construction is
questioned by the Municipal Corporation and now sought to be demolished, are before the Court assailing the notice dated 22nd November 2019 issued by the respondent Kalyan- Dombivali Municipal Corporation (for short 'the Corporation'). By such notice issued under Section 478 of the Maharashtra Municipal Corporation Act, 1949 (for short 'the MMC Act'), the petitioners are called upon to remove the illegal construction within a period of thirty days from the said notice.
2. The case of the petitioners is that they are in occupation of the land and the structure prior to the Gaikwad RD 1/6
9.WPSTNo.314152019.docx establishment of the Municipal Corporation for more than 35 to 40 years as also they are paying municipal taxes. The petitioners have contended that in the year 2012 notices were received by the petitioner for road widening and demolition of their structure. The Municipal Corporation had also undertaken demolition of some portion of their houses and shops. The petitioners have contended that at such point of time the Municipal Corporation had made oral assurances to the petitioners that the Municipal Corporation will grant extra F.S.I. and T.D.R. in lieu of compensation and would regularize the remaining construction, however, the Municipal Corporation has failed to regularize the remaining structure. The averments made in paragraph 6 required to be reproduced:
"6. The Petitioners states that the Petitioners have received the notices, in respect of road winding and demolition under section 260 of Maharashtra Municipal Corporation Act in the year of 2012 and thereafter Corporation without giving any hearing and opportunity to the Petitioner, give a order to demolished some of the portion of their houses and shops and at that time the Corporation had given a oral assurance that they will grant the extra F.S.I. and T.D.R. for the purpose of compensation and regularized the remaining structure, but till the date K.D.M.C. failed to regularized Petitioners remaining structures. A copy of that notices is annexed herewith and marked as Exhibit 'A' collectively."
3. The petitioners contend that despite such assurances of regularization, the Municipal Corporation has issued the impugned notice dated 22nd November 2019 under Section 478 of the MMC Act. The impugned order records that the petitioners were issued a notice dated 18 th July 2018 calling upon the petitioners for a hearing on 24 th July 2018 and at such hearing, the petitioners had failed to remain present Gaikwad RD 2/6
9.WPSTNo.314152019.docx nor any documents were submitted to the Corporation to show that the construction in question was legal. Accordingly as the construction of the petitioners being totally illegal, the municipal corporation directed the petitioners to remove the construction within thirty days from the receipt of the notice.
4. The petitioners contend that the action on the part of the Municipal Corporation in issuing the impugned notice is illegal. It is in breach of the principles of natural justice. It is contended that the Ofcers of the Corporation never inspected the structures to ascertain whether it is authorized or unauthorized before passing the impugned order.
5 Learned Counsel for the petitioners in support of the prayers submits that at least an opportunity be granted to the petitioners to regularize the structure declared to be illegal by the Municipal Corporation. He submits that such indulgence can be granted by the Court, only in exercise of its writ jurisdiction.
6 On the other hand, the learned Counsel for the Municipal Corporation would submit that the Municipal Corporation has followed due procedure in law. A notice was issued to the petitioners as on 18th July 2018 as per the provisions of Section 260 of the Maharashtra Municipal Corporation Act, 1949, calling upon the petitioners to remain present on 24 th July 2018, along with all necessary documents to show that the structure was authorized. However, the petitioners failed to remain present and eventually, the Municipal Corporation proceeded to pass an order under Section 478 of the Gaikwad RD 3/6
9.WPSTNo.314152019.docx Maharashtra Municipal Corporation Act, 1949 declaring the structure to be illegal and calling upon the petitioners to remove such illegal structure within thirty days from the receipt of the said notice, failing which the Municipal Corporation itself undertake the removal work of such illegal structure.
7 Learned Counsel for the respondent/Municipal Corporation has drawn our attention also to an order passed by coordinate bench of this Court on 16 th October 2019 in Public Interest Litigation No.62 of 2018 (Janardan Shankar Jaiswal Versus State of Maharashtra & Ors. ) to contend that the very construction as undertaken by the petitioners was the subject matter of the said petition. By the said order this Court directed the Municipal Corporation to take cognizance of the illegal construction and take appropriate action as per the provisions of law, while specifcally observing that if it was found to be an unauthorized construction then the same shall be demolished. It is submitted that in pursuance of such order proceedings came to be initiated by the Municipal Corporation and consequently the impugned notice dated 22nd November 2019 was issued after following due procedure in law. Her submission is that the Municipal Corporation had also addressed a letter dated 3rd March 2021 to the Deputy Commissioner of Police, Kalyan Division for providing police protection during the demolition of the illegal construction undertaken by the petitioners. It is submitted that the construction undertaken by the petitioners being a brazenly illegal construction of a shopping complex, the same cannot Gaikwad RD 4/6
9.WPSTNo.314152019.docx have any protection in law.
8 We have heard the learned Counsel for the parties. We have also perused the record and the impugned notice. We are not persuaded to accept the contentions as urged on behalf of the petitioners. Even if the case of the petitioners that they had not received the notice dated 18 th July 2018, is to be accepted, in our opinion, in the present facts, It would not cause any prejudice to the petitioners. This for the reason that the construction in question is a rank illegal construction, the petitioners have no documents whatsoever or any other material to show that the structure was constructed on a prior permission issued by the municipal corporation as per the requirement of law. The case of the petitioners that the structure was in existence prior to the coming into existence of the Municipal Corporation, is also absolutely baseless, as no construction permission issued by the Grampanchayat or any such competent authority, is placed on record.
9. We would not countenance a situation that a citizen violates law, undertakes illegal construction and then when an action is being resorted by the municipal authorities taking recourse to law, approach the Court on equitable considerations that a permission be granted by the Court to apply for regularization of such illegally constructed structure. This would amount to doing a violence to any regularization provision the law may prescribe. The writ jurisdiction is not available for such litigants, who approach the Court not against infringement of any legal right, but who approach the Court for protection and/or for perpetration of such illegalities Gaikwad RD 5/6
9.WPSTNo.314152019.docx committed by them. Entertaining such proceedings would amount to an abuse of the process of law.
10. We have perused the orders passed by the coordinate bench of this Court in Janardan Shankar Jaiswal (supra) by which the Court had directed the Municipal Corporation to take cognizance of the public interest litigation as a representation in regard to the illegal construction undertaken by the petitioners and specifcally directing that if it is found that the building is unauthorized, the same shall be demolished.
11 In the above circumstances, we are satisfed that the impugned notice as issued by the respondent/Corporation cannot be faulted. The construction undertaken by the petitioners is totally illegal. The principles of law on removal/demolition of illegal constructions are well settled. It is the requirement of law that such illegal structure be removed, leaving it to the petitioners to follow the rules of law in order to undertake any construction.
12 The petition accordingly deserves to be dismissed. The Corporation is permitted to proceed with such action as directed by this Court in its order dated 16th October 2019 passed in Janarndan Shankar Jaiswal (supra).
13 No costs.
(G. S. KULKARNI, J.) (CHIEF JUSTICE)
Digitally
signed by Raju
D. Gaikwad
Raju D.
Gaikwad
Date:
2021.03.10
21:32:38
Gaikwad RD 6/6
+0530