Bombay High Court
Subhashchandra Keshavrao Kogje vs Nagpur Municipal Corporation, Behind ... on 21 November, 2018
Author: Rohit B. Deo
Bench: Rohit B. Deo
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.6885 OF 2015
Subhashchandra Keshavrao Kogje,
Aged about 84 years,
Occupation: Retired Engineer,
Resident of "Kanak",
Plot No.133, Gokulpeth,
Nagpur - 440 010. ....... PETITIONER
...V E R S U S...
1] Nagpur Municipal Corporation,
Behind Reserve Bank of India,
Civil Lines, Nagpur - 440 001,
through the Municipal Commissioner.
2] Assistant Director
(Town Planning),
Town Planning Department,
Nagpur Municipal Corporation,
Behind Reserve Bank of India,
Civil Lines, Nagpur - 440 010.
3] Deputy Engineer,
Dharampeth Zone No.2,
Nagpur Municipal Corporation,
Nagpur - 440 010.
4] Mrs. Nalini Jadhav,
Aged about 79 years,
Occupation: Nil,
Resident of Plot No.134,
Gokulpeth, Nagpur - 440 010. ....... RESPONDENTS
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Mrs. S.P. Deshpande, Advocate for Petitioner.
Shri R.S. Kalangiwale, Advocate for Respondent Nos.1 to 3.
Shri A.C. Dharmadhikari, Advocate for Respondent 4.
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CORAM: ROHIT B. DEO, J.
DATE OF RESERVING THE JUDGMENT : 26.10.2018
DATE OF PRONOUNCING THE JUDGMENT : 21.11.2018
JUDGMENT:
1] Heard Mrs. S.P. Deshpande, the learned Counsel for the petitioner, Shri R.S. Kalangiwale, the learned Counsel for respondents 1 to 3 and Shri A.C. Dharmadhikari, the learned Counsel for respondent 4.
2] Rule. Rule made returnable forthwith by consent of the learned Counsels for the parties.
3] The petitioner is challenging the judgment dated 24.07.2015 rendered by the Ad hoc District Judge-1, Nagpur in Miscellaneous Civil Application 739/2009 rejecting the application under section 286(5) of the City of Nagpur Corporation Act ('Act').
4] The petitioner approach the District Judge under section 286(5) Act with a prayer that the Nagpur Municipal Corporation (NMC) be directed to remove/demolish the ::: Uploaded on - 21/11/2018 ::: Downloaded on - 23/11/2018 01:33:27 ::: wp6885.15.J.odt 3 unauthorized and illegal construction made by respondent 4 - Smt. Nalini Jadhav.
5] The District Judge noted that the construction is made without sanction from the NMC and is contrary to the building rules and regulations. The District Judge further noted that the Corporation has initiated action for removal of the illegal construction vide notice dated 07.10.2006.
6] Respondent 4 - Nalini Jadhav challenged the notice dated 07.10.2006 by instituting Regular Civil Suit 197/2008. The said suit is dismissed on 31.12.2014. Regular Civil Appeal 101/2015 preferred by Nalini Jadhav was pending when the District Judge passed the order impugned. The District Judge refused to entertain the application seeking issuance of directions to the NMC on the ground that action is already initiated by the NMC for removal of the illegal construction.
7] During the pendency of this petition, regular civil appeal is dismissed and it is stated at the bar that in Second Appeal 479/2018 preferred by respondent 4 - Nalini Jadhav, this ::: Uploaded on - 21/11/2018 ::: Downloaded on - 23/11/2018 01:33:27 ::: wp6885.15.J.odt 4 Court has directed the NMC not to take further steps to demolish the construction.
8] In view of the subsequent development, no interference in the judgment impugned is necessary. However, in the eventuality the second appeal is dismissed or the interim order vacated, respondents 1 to 3 shall demolish the illegal construction within seven days.
9] During the course of hearing of this petition, this Court noticed that the building rules and regulations and the statutory mechanism legislatively provided to enforce the building rules and regulations are rendered ineffective due to several reasons. The facts of the present case would reveal that no action for demolition was taken even after the dismissal of the suit in the year 2014 although there was no interim order operating in the appeal. By order dated 24.08.2018 this Court directed the Commissioner, NMC to file his personal affidavit explaining why and under which circumstances the NMC chose not to act on the statutory notice issued under section 53 of the Maharashtra Regional Town Planning Act, 1966 ('MRTP Act'). ::: Uploaded on - 21/11/2018 ::: Downloaded on - 23/11/2018 01:33:27 ::: wp6885.15.J.odt 5 10] Paragraph 3 of the affidavit filed by Shri Virendra Singh, Municipal Commissioner, NMC reads thus:
"In pursuance of the Order passed by this Hon'ble Court, I made an inquiry as to why steps in the matter are not taken upon the Notice under Section 53 and 54 of the MRTP Act, 1966 inspite of there being no interim order in the Appeal preferred by Respondent No. 4. I say that, in the inquiry, the primary reason which is disclosed is that there was an interim order operating in favour of Respondent No. 4 for a very long period and therefore the concerned Officers waited for a decision on the Appeal. The reason for waiting for decision in the appeal as disclosed is that, if an action of demolition in pursuance of the Notice had been undertaken and in the event the Appeal is allowed, then an anomalous situation would have arised for the Respondent Corporation. In such an event, a situation might have arisen where Respondent No. 4 could have claimed damages and restitution of suit property against the Respondent Corporation. It is further disclosed that, since the Appeal was being listed for final hearing from time to time, no action for demolition is taken. It was expected that the matter would be heard and decided soon and after a decision of the Learned Appellate Court appropriate steps could have been taken. It is thus disclosed that, the act of waiting for a decision in the appeal is bonafide act and an act done in good faith. It is further disclosed that, there was no oblique or malicious intent behind the same."
This Court noted in the order dated 31.08.2018 that the justification for not discharging the statutory duty is not ::: Uploaded on - 21/11/2018 ::: Downloaded on - 23/11/2018 01:33:27 ::: wp6885.15.J.odt 6 satisfactory. This Court further observed, that prima facie the Officers of the NMC have not been alive to their statutory duty and directed the NMC to furnish the names of the Officers responsible for not acting on the statutory notice issued under section 53 of the MRTP Act.
11] Shri Mahesh Laxmikant Moroney, the Assistant Commissioner, Dharampeth Zone, NMC filed on record an affidavit disclosing the names of the Officers working with the Dharampeth Zone-2, Nagpur at the relevant time. The order dated 12.09.2018 passed by this Court in paragraphs 6 to 8 inter alia observes thus:
6] Today, immediately after the matter was called out the learned Counsel for the Corporation objected to this Bench taking up the hearing and passings of orders, which according to the learned Counsel are beyond the scope of the limited controversy before the Court. The learned Counsel however, admits that he has no instructions from the Corporation to make such a submission. Be that as it may, it may not be necessary to render any positive finding or whether as a constitutional Court which is a Court of record this Court is precluded from taking cognizance of the gross dereliction of statutory duty by the officer of the Corporation, since prima facie, this Court is of the opinion that the issue involves public interest.
7] It is a matter of common knowledge that it is rare, if at all, that statutory notice is issued for removal ::: Uploaded on - 21/11/2018 ::: Downloaded on - 23/11/2018 01:33:27 ::: wp6885.15.J.odt 7 of encroachment or illegal construction are taken to logical end. Many civil suits and other proceedings are pending before the courts in which the statutory notice/s are challenged. Similarly, many notices are the subject matter of proceedings before the State Government. The net result is that few, if at all, notices achieve the desired result intended by the legislature.
8] This Court, therefore, intends to request the Division Bench assigned with PIL to take up the issue in public interest. However, in order to assist this Court in formulating the reference, the Additional Commissioner Shri Ravindra Thakare is directed to make available the data qua the notices issues, whether under the M.R.T.P. Act or any other provision of law, for removal of illegal or unauthorized construction, in the last five years and the action initiated by the Corporation pursuant to the said notices. The Additional Commissioner Shri Thakare shall also furnish the details of the proceedings which are pending either before the Civil Court or any other Forum in which the validity of the statutory notice is questioned including the details of the interim orders, if any, which may be operating. This affidavit shall be filed personally by Shri Ravindra Thakare on or before 21.09.2018. Shri Ravindra Thakare would be expected to be present in the Court and assist the Court on 21.09.2018.
12] In compliance of the order dated 12.09.2018 Shri Ravindra Hanumantrao Thakre, Additional Commissioner, NMC filed affidavit dated 01.10.2018 and placed on record the zone wise extract giving the details of the notices issued for demolition of unauthorized construction from 2013 to 2018.
The abstract depicts a sorry picture. During the year 2013-2018, 1095 notices for demolition of unauthorized construction were ::: Uploaded on - 21/11/2018 ::: Downloaded on - 23/11/2018 01:33:27 ::: wp6885.15.J.odt 8 issued and only 276 constructions were demolished. The abstract reveals that 101 suits were filed challenging the notices, 129 appeals were preferred before the State Government, 22 applications for revision of map are pending with the NMC, 9 appeals are pending before the Competent Authority (Slum) and 18 cases are pending before the committee constituted by this court in PIL 70/2017. What is disturbing is that in majority of the cases the NMC has not initiated action for demolition although as disclosed in the abstract the interim orders/stay operate only in 94 cases pending before the Civil Court or the authorities.
13] Shri Ravindra Hanumantrao Thakre, in the affidavit dated 01.10.2018 has attempted to justify the gross in action and delay in proceeding against the unauthorized and illegal construction. One of the justification pleaded is that the existing staff in the Enforcement Department is inadequate. 14] The Hon'ble Supreme Court and this Court has emphasized that the State must adopt a zero tolerance policy against unauthorized and illegal construction. The ever spiraling number of unauthorized and illegal construction has made a ::: Uploaded on - 21/11/2018 ::: Downloaded on - 23/11/2018 01:33:27 ::: wp6885.15.J.odt 9 mockery of the building rules and regulations and development control regulations and prima facie it does appear that the Officers of the NMC are not discharging their statutory duty. Every citizen has the fundamental right under Article 21 of the Constitution of India to live in a City, Town or Village in which the development is orderly and in accordance with the building rules and regulations. It is common knowledge that the building rules and regulations are violated with impunity knowing fully well that the Corporation Officers would do precious little to demolish the unauthorized and illegal construction. Even where action is initiated, as in the present case, the action is not taken against to its logical end. In most of the cases, action is taken against soft targets and the unauthorized and illegal constructions of the resourceful violators appear to be immune from action. 15] It is stated at the bar that this Court is seized of the issue. Time has come for this Court to step in and to frame appropriate guidelines and issue directions to ensure that the challenges to the statutory notice and action initiated for demolition of unauthorized and illegal construction are decided in a time bound manner and that the Officers of the NMC and other ::: Uploaded on - 21/11/2018 ::: Downloaded on - 23/11/2018 01:33:27 ::: wp6885.15.J.odt 10 planning authorities are held accountable if, either action is not initiated against unauthorized and illegal construction or if initiated, is not taken to its logical end. The justification pleaded by Shri Ravindra Thakre, the Additional Commissioner that the Enforcement Department of the NMC is short of staff also merits consideration.
16] The learned Counsel for NMC has placed on record praecipe dated 19.10.2018 suggesting the issues which may be considered in formulating the reference to the Division Bench dealing with PIL matters. The issues framed read thus:
1] Whether general directions be issued to the State Government to decide the appeal preferred under Section 47 of the Maharashtra Regional and Town Planning Act, 1966 against the Notices issues under Section 53, 54 and 55 in a time bound manner?
2] What would be the reasonable time within which the State Government be directed to decide the such appeals against the Notices issued under Section 53, 54 and 55 of the Maharashtra Regional and Town Planning Act, 1966?
3] Whether similar general directions be issued to the Civil Courts where there is a direct or indirect challenge to such Notices Section 53, 54 and 55 of the Maharashtra Regional and Town Planning Act, 1966?::: Uploaded on - 21/11/2018 ::: Downloaded on - 23/11/2018 01:33:27 ::: wp6885.15.J.odt 11
4] Whether a Municipal Corporation or any other Local Authority should be expected to act against the unauthorized structures during the pendency of a suit or appeal or any other proceeding against Notices Section 53, 54 and 55 of the Maharashtra Regional and Town Planning Act, 1966 in the absence of any restrain Order?
5] Whether general directions be issued to the Police Authorities to response and provide necessary assistance to the Municipal Corporation or any other authority within a particular time frame to carry out the action of demolition against the Notices Section 53, 54 and 55 of the Maharashtra Regional and Town Planning Act, 1966?
17] Similarly, Mrs. Deshpande, the learned Counsel for the petitioner has given her suggestions, few of which are as follows:
[i] framing of guidelines for fixing accountability and responsibility on erring Officers. [ii] initiation of action under the criminal law against the violators of the building rules and regulations and the complicit Officers of the NMC and other departments and [iii] adopting zero tolerance policy against unauthorized and illegal construction. [iv] stipulating time limit for deciding litigations ::: Uploaded on - 21/11/2018 ::: Downloaded on - 23/11/2018 01:33:27 ::: wp6885.15.J.odt 12 relating to unauthorized and illegal constructions and to issue a direction that if there is no interim order then the construction be demolished within a stipulated period.
[v] Increase of staff in the Enforcement Department and provision of the necessary infrastructure and to make the staff of the Enforcement Department immune from political influence.
18] The Registrar (Judicial) is directed to place this order before the learned Division Bench which is assigned PIL matters with a request that if the learned Division Bench so deems fit and proper, cognizance of the issues brought to the force in this petition can be taken in public interest. 19] The petition is disposed of in the afore-stated terms.
JUDGE NSN ::: Uploaded on - 21/11/2018 ::: Downloaded on - 23/11/2018 01:33:27 :::