Bombay High Court
Subhash Balu Vaskar vs State Of Maharshtra Thr Secretary And ... on 14 September, 2023
Author: G.S. Patel
Bench: G.S. Patel
907-ASWP-10115-2023.DOC
Wadhwa
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 10115 OF 2023
Subhash Balu Vaskar ...Petitioner
Versus
State of Maharashtra & Ors ...Respondents
Mrs Neeta P Karnik, for the Petitioner.
Mr SL Babar, AGP, for the Respondent-State.
Ms Chaitrali Deshmukh, for Respondent No. 5.
Mr Deepak Natu, i/b N Deepak & Co, for Respondents Nos. 7 & 8.
CORAM G.S. Patel &
Kamal Khata, JJ.
DATED: 14th September 2023 PC:-
1. To say that on a daily basis this Court is confronted with an utterly fantastic situation is a great understatement. Municipal Corporation after Municipal Corporation is before us expressing complete inability to prevent wholly unauthorized, and more importantly, admittedly unauthorized construction and development within the jurisdiction of each Municipal Corporation.
2. This is exactly what has happened here. The Petitioner complained of illegal construction within the jurisdiction of the Page 1 of 6 14th September 2023 ::: Uploaded on - 15/09/2023 ::: Downloaded on - 16/09/2023 02:43:36 ::: 907-ASWP-10115-2023.DOC Thane Municipal Corporation ("TMC"), Respondent No. 3 by Respondent Nos. 7, 8 and 9.
3. Leaving aside any dispute as to title to the land, we are only concerned with the allegations in the Petition that the eight- floor structure shown at pages 17, 18 and 19 has been post-haste constructed without any permission whatsoever. Ms Karnik further states on the basis of an Additional Affidavit that on the immediately adjacent plot, another building has begun in broad daylight by the same persons. A plinth was cast and now the first and second floor slabs have come up at speed.
4. After we directed a notice to be issued, on 21st August 2023 we passed the following order:-
"1. The Petitioner and Respondents Nos. 7 and 8 are brothers. They are apparently at war over a piece of land bearing Survey No. 138/3 (part) in district Thane. The Petitioner claims that he is a protected tenant and that the land is a private forest within the meaning of The Maharashtra Private Forests (Acquisition) Act, 1975. It is said that without any right or title, Respondent No. 7 has forcibly dispossessed the Petitioner and completed construction of an eight-storey structure called Anam Palace on the plot. The grievance against the public authority, namely Respondent No. 3, the Thane Municipal Corporation ("TMC") is that it has permitted this illegality without any check or control whatsoever. The prayer of course is for demolition and other reliefs. That the building is complete seems to be clear from the photographs annexed to the Petition itself, although we do not know whether it has received an occupancy certificate or even whether there are sanctioned plans or any permissions. That might, in Page 2 of 6 14th September 2023 ::: Uploaded on - 15/09/2023 ::: Downloaded on - 16/09/2023 02:43:36 ::: 907-ASWP-10115-2023.DOC fact, be the heart of the dispute.
2. There is an Affidavit in Reply from Respondents Nos. 7 and 8. This reply is prima facie more notable for what is does not say rather than what it does. It does not clearly set out how Respondents Nos. 7 and 8 have acquired any form of right to or title over this land, what permissions they obtained, when, from whom and on what representation.
3. We are not concerned with the internal disputes between the Petitioner and his siblings. That might well be the subject matter of a civil suit before some jurisdictionally competent and appropriate forum. What needs to be examined, however, is what the records of the TMC show as to whether or not this construction is authorised or permitted.
4. We have made it clear to Mrs Karnik on behalf of the Petitioner that we will not be embarking on any enquiry into title disputes or rights in this Writ Petition. We cannot. But whether or not the building is authorised, sanctioned or permitted is a matter to be addressed by the TMC.
5. Respondents Nos. 1, 2, 7 and 8 waive service. Issue notice to Respondents Nos. 3, 4 and 5. At present we do not think notice is necessary to Respondent No. 6 which is an electricity supply company or to Respondent No. 9 who might be a civil contractor. In addition to service through Court, private service is permitted including by email and courier. Hamdast is allowed. Notice is returnable on 6th September 2023. Affidavit in Reply by the TMC is to be filed and served by 4th September 2023.
6. We make it clear that we have not refused ad interim relief, but we will consider the necessary ad interim relief on the next date.
7. List the matter on 6th September 2023."Page 3 of 6
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5. On behalf of the Thane Municipal Corporation, Ms Deshmukh has instructions to state, and this is now also in an Affidavit filed by one Akshay Sunil Gudadhe, Assistant Commissioner of Town Planning that the structures in question are totally illegal. The land is correctly identified as Survey No. 138/3(part) admeasuring 0.26-7 hectares near Bholenath Nagar, Near Goble Hill, Village Shil, Taluka and District Thane. The Affidavit says that the TMC Officers visited the site on 9th February 2023. They were told that the construction was being done by one Abdul Gani Shaikh. Respondent Nos. 7 and 8 and some others had entered into an agreement with this Shaikh for the construction of a building of ground and eight floors. Then the Affidavit says in paragraph 6 that this construction was not in accordance with the provisions of the Maharashtra Municipal Corporations Act, 1949 ("MMC Act"). Notices were issued under Section 267 of the Maharashtra Municipal Corporations Act, 1949 and Sections 53, 54 and 55 of the Maharashtra Regional Town Planning Act, 1966. They were sent to the residence of Shaikh as well. Then on 9th February 2023 there were notices under Section 260 of the MMC Act.
6. But after February 2023, the TMC did nothing. The next site visit was on 9th August 2023 and now it was found that there was further construction on the remaining area without any prior permission. Fresh notices were issued under Sections 260 and 267.
7. A hearing was scheduled on 17th August 2023, Shaikh did not present himself. The Assistant Commissioner passed an order on 17th August 2023 observing that no permission had been taken Page 4 of 6 14th September 2023 ::: Uploaded on - 15/09/2023 ::: Downloaded on - 16/09/2023 02:43:36 ::: 907-ASWP-10115-2023.DOC for the construction on Survey No. 138/3 (part). A notice was issued threatening demolition.
8. Mr Natu, learned Advocate on behalf of Respondents Nos. 7 and 8 has instructions to state, and this is the second time these instructions are conveyed to us, that there are no permissions for construction on this survey number at all. These are the persons who, among others, engaged Shaikh for these constructions.
9. Consequently, all further construction on Survey No. 138/3(part) admeasuring 0.26-7 hectares is immediately stayed. Any further construction will invite an action in suo motu contempt if necessary, against Respondents Nos. 7, 8 and Shaikh. We are not concerned with any Agreement that Respondents Nos. 7 and 8 may have had with Shaikh. He may be the developer or the contractor. That is not our concern. Respondents Nos. 7 and 8 through their Advocate will communicate this stay to Shaikh immediately.
10. We do not propose to dispose of the Petition. We will monitor it until the site is cleared. The TMC will proceed with the demolition of all construction on the Survey number in question. No further notice is required since all relevant people are joined to this Petition.
11. None of the Respondents Nos. 7, 8 and 9 or any contractor or any person claiming by, through or under them, are at liberty to approach any civil court in regard to any action for removal by the Page 5 of 6 14th September 2023 ::: Uploaded on - 15/09/2023 ::: Downloaded on - 16/09/2023 02:43:36 ::: 907-ASWP-10115-2023.DOC Thane Municipal Corporation. Any application must be made in the present pending Writ Petition and not otherwise.
12. It is only because of the ensuing festive season and the likelihood that Municipal Officers will be deputed on other duties during the Ganpati period that we grant the TMC a little further time. We expect to see the demolition carried out in full by 30th September 2023.
13. List the Petition on 4th October 2023 for compliance.
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