Bombay High Court
Roopa W/O Sanjay Mukte Through P.O.A. ... vs State Of Mah. Through The Minister Of ... on 25 September, 2019
Author: Milind N. Jadhav
Bench: Milind N. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO. 2456 OF 2017
PETITIONER :- Smt. Roopa W/o. Sanjay Mukte,
Through Power of Attorney Holder :
Shri Sanjay Govindrao Mukte,
Aged about 51 years, Occ. Household,
R/o. 290, Munshi Mandir Marg, Near
Gaurabai Math, Mahal, Nagpur.
...V E R S U S...
RESPONDENTS :- 1. State of Maharashtra through
The Minister for State, Urban Development
Department, Mantralaya, Madam Cama
Road, Hutatma Rajguru Chowk,
Mumbai 400032.
2. Nagpur Municipal Corporation,
Through its Municipal Commissioner,
Civil Lines, Nagpur 440001.
3. Smt. Shashiprabha Wd/o. Tejsingh Ahirrao,
Aged about 68 years, R/o. Kalyaneshwar
Mandir, Killa Road, Mahal, Nagpur.
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Shri S. P. Bhandarkar, Advocate for petitioner.
Smt. T. H. Khan, A.G.P. for respondent no. 1.
Shri J. B. Kasat, Advocate for respondent no. 2.
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CORAM:- MILIND N. JADHAV, J.
DATED :- 25.09.2019.
ORAL JUDGMENT:
1. Heard. Rule. Rule made returnable forthwith. Heard ::: Uploaded on - 17/10/2019 ::: Downloaded on - 19/04/2020 23:06:58 ::: 2 wp2456.17.odt finally by consent of the parties.
2. By the present petition, the Petitioner has challenged the order dated Nil, October, 2016 received by the Petitioner under letter dated 17.11.2016 from the Desk Officer, Urban Development Department, Government of Maharashtra, Mantralaya, Mumbai. This order has been passed in appeal proceedings under the provisions of Section 47 of the Maharashtra Regional Town Planning Act, 1966 (in short 'Act of 1966') by Respondent no. 1-State. The impugned order dismisses the appeal filed by the Petitioner and gives consequential directions to the original applicant (Respondent No.3) and Respondent no. 2-Nagpur Municipal Corporation in respect of the subject property.
3. The relevant facts required to be gone into for the purpose of deciding the present Petition are as under :-
The Petitioner claims to be co-owner of property bearing City Survey No. 158, Sheet No. 222, admeasuring 1048.69 sq. meters situated in Mahal area, Nagpur(hereinafter referred to as 'the said property'). It is the Petitioner's case that all other co-owners of the said property have transferred their respective ownership right in the said property to a Developer and the said Developer alongwith ::: Uploaded on - 17/10/2019 ::: Downloaded on - 19/04/2020 23:06:58 ::: 3 wp2456.17.odt Respondent no. 3 has developed the said property by constructing two buildings viz. Ahirrao Wada and Gayatri Plaza. Respondent no. 3 being one of the co-owner of the said property was instrumental in carrying out the above development alongwith the Developer and is occupying some portion therein. The remaining portion has been let out to various tenants. It is the Petitioner's case that Respondent no.
3 has constructed several shops in the parking space on the said property without prior permission of the statutory authorities and has also constructed illegal floors over and above the permissible limit without sanction and approval. It is the Petitioner's further case that by specific order dated 28.03.2014 passed in Writ Petition No. 5692/2013, Respondent no. 2-Corporation was directed to demolish the unauthorized portion of the aforementioned illegal construction on the said property. The Petitioner is aggrieved that her property rights are trampled upon and has therefore, move the present petition because Respondent no. 2-Corporation has not initiated any action and reluctantly such omission has given an unfair advantage to Respondent no. 3, who has continued with her illegal construction thereby depriving the Petitioner of her legitimate rights in the said property.
4. Some background is necessitated to be looked into as the ::: Uploaded on - 17/10/2019 ::: Downloaded on - 19/04/2020 23:06:58 :::
4 wp2456.17.odt same is relevant to the present case. This Court in Writ Petition (PIL) No. 1201/2003 (which was previously numbered as Criminal Writ Petition No. 101 and 109/1999) by order dated 25.11.1999 issued directions to Respondent no. 2-Corporation and Nagpur Improvement Trust (N.I.T.), both planning authorities for the city of Nagpur, to carry out survey of buildings in Nagpur City and to take appropriate actions against errant owners of such buildings who were found to be letting out parking spaces to vendors or using them for commercial purposes. The aforementioned two statutory authorities conducted the survey and published a list of 61 buildings wherein illegal conversion and use of parking space for commercial purposes was noticed. This list of 61 buildings included the name of the said two buildings viz. Ahirrao Wada and Gayatri Plaza, which were constructed on the said property. This list came to be published in the daily newspaper "Nav bharat" on 18.08.2002 and on reading the same, the Petitioner came to know for the first time about the aforesaid aberration in respect of the said two buildings. Since the Petitioner being a co-owner had a share in the said property, being concerned, the Petitioner filed Intervention Application in pending Writ Petition (PIL) No. 1202/2003 which came to be allowed by this Court. Respondent no. 3 and the Developer of the aforesaid two buildings viz. Ahirrao Wada and Gayatri Plaza were served with ::: Uploaded on - 17/10/2019 ::: Downloaded on - 19/04/2020 23:06:58 ::: 5 wp2456.17.odt notice issued under the provisions of Section 286(2) r/w. Section 281(1) and Section 423 of the Nagpur Corporation Act, 1948 (in short 'Act of 1948') for demolition of illegal constructions.
5. Being aggrieved by receipt of the notice, Respondent no. 3 filed appeal under the provisions of Section 387(1) of the Act of 1948 before the Appellate Authority i.e. Deputy Municipal Commission, Nagpur. By order dated 08.08.2002, the Deputy Municipal Commissioner, Nagpur concluded that some portion of the construction standing on the said property was in violation of the rules and regulations and held that the owners had constructed shops in marginal spaces illegally and two floors were constructed without obtaining sanction from the Planning Authority/Respondent no. 2. Respondent no. 3, thereafter, filed Revision Application before the Additional Municipal Commissioner, Nagpur. The Revision Application came to be dismissed by order dated 16.11.2002 with a specific finding that the Petitioner herein was co-owner of the said property, where the aforesaid two flat scheme/buildings viz. Ahirrao Wada and Gayatri Plaza were constructed. There were certain other findings also relating to transfer of the Petitioner's right to Respondent no. 3 which are not relevant for the present. Respondent no. 3 thereafter filed appeal before Respondent no. 1-State. ::: Uploaded on - 17/10/2019 ::: Downloaded on - 19/04/2020 23:06:58 :::
6 wp2456.17.odt Simultaneously, the Petitioner filed Writ Petition No. 288/2004 in this Court seeking disposal of the pending appeal before Respondent no. 1-State within a stipulated time-frame and to revoke the sanction of the building plans and sought demolition of the unauthorized construction. This Court by order dated 17.02.2004 directed Respondent no. 1-State to dispose of the appeal within a period of eight weeks. On 12.04.2004, Respondent no.1-State dismissed the appeal filed by Respondent no. 3. Respondent no. 3, therefore, filed Writ Petition No. 97/2005 in this Court, challenging the above order. The Petitioner had also filed a companion Writ Petition being Writ Petition no. 604/2005 in this Court seeking implementation of the above order. Respondent no. 3 filed a separate Writ Petition being Writ Petition No. 963/2005 seeking alternate reliefs, in case demolition of the unauthorized portions of the buildings by the statutory authorities.
6. All three Writ Petitions were clubbed and heard together. Writ Petition No. 97/2005 came to be withdrawn on 23.02.2005, wherein flat owners occupying the unauthorized portion of the buildings were given time of 15 days to seek alternate accommodation. However, on 30.03.2005, in Writ Petition No. 963/2005, the Developer of the said property, respective flat owners ::: Uploaded on - 17/10/2019 ::: Downloaded on - 19/04/2020 23:06:58 ::: 7 wp2456.17.odt occupying the unauthorized portion of the buildings standing on the said property and Respondent no. 3 file a compromise pursis, finalizing terms and conditions relating to payment of compensation by the Developer to respective flat owners occupying unauthorized floors of the buildings which were to be demolished by Respondent no. 2-Corporation and accordingly on the basis of the said compromise, Writ Petition No. 963/2005 came to be disposed of.
7. Respondent no. 3 thereafter filed Revision Application in respect of the two buildings viz. Ahirrao Wada and Gayatri Plaza before the Assistant Director of Town Planning, Nagpur for seeking regularization of the unauthorized portion of the two buildings standing on the said property. The Assistant Director of Town Planning rejected the Revision Application submitted by Respondent no. 3, against which Respondent no. 3 filed appeal under the provisions of Section 47 of the Act of 1966 before Respondent no. 1- State. This appeal came to be partly allowed on 02.06.2005, wherein Respondent no. 1-State directed Respondent no. 3 to submit revised proposal to Respondent no. 2 and directed Respondent no. 2 to take appropriate action for regularization of the unauthorized construction by assessing compounding charges and carry out technical scrutiny as per provisions of Development Control Regulations (in short 'DCR') ::: Uploaded on - 17/10/2019 ::: Downloaded on - 19/04/2020 23:06:58 ::: 8 wp2456.17.odt as applicable.
8. In Writ Petition No. 604/2005 this Court on 12.07.2005 gave further directions to Respondent no. 1-State to take appropriate steps within 12 months and granted liberty to the Petitioner to challenge the order dated 02.06.2005 passed by Respondent no. 1- State and intervene in the proceedings pending before the Land Record Authority. On 10.01.2005, the Assistant Director Town Planning, Nagpur once again, for the second time rejected the revised building plan. On 24.03.2006, for the third time the Assistant Director Town Planning, Nagpur rejected the revised building plan, which was submitted by Respondent no. 3 and the Developer along with affected flat owners occupying the unauthorized portion of the buildings standing on the said property. The Petitioner was permitted by this Court to approach Respondent no. 2-Corporation and raise objections, if so desired in the pending proceedings. Accordingly, the Petitioner in compliance of directions passed by this Court filed a detailed representation dated 15.03.2012 in the pending proceedings before Respondent no. 2-Corporation. The Petitioner was also given an opportunity of hearing, but the proceedings before Respondent no. 2-Corporation remained pending for an inordinate period of time.
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9. The Petitioner therefore made an application under Right to Information Act, 2005 seeking status of the pending proceedings before Respondent no. 2-Corporation and also sought information relating to demolition of unauthorized construction standing on the said property. The Petitioner, thereafter filed Writ Petition No. 6140/2012 for seeking status in respect of the said property, as mentioned above. During pendency of the above Writ Petition, the Petitioner received letter dated 15.05.2013 from Gandhibagh Zone No. 6, inter alia, informing the Petitioner that the case relating to unauthorized construction standing on the said property was to be referred for legal opinion, before taking any action. On receipt of this letter, the Petitioner was convinced that unauthorized construction would be demolished by Respondent no. 2-Corporation and therefore, withdrew Writ Petition No. 6140/2012. Since, no corrective action was taken for almost a year thereafter, the Petitioner filed Writ Petition No. 5692/2013 for seeking demolition of the unauthorized construction standing on the said property. In this Writ Petition, Respondent no. 3 raised several disputed questions of fact, inter alia, with respect to the said property being divided into two portions and the Petitioner having a substantive right in respect of only one portion of the said property and the said portion was not concerned with any unauthorized construction. Apart from this, ::: Uploaded on - 17/10/2019 ::: Downloaded on - 19/04/2020 23:06:58 ::: 10 wp2456.17.odt Respondent no. 3 suppressed the fact that revised plan seeking regularization of the unauthorized construction standing on the said property was rejected on three earlier occasions.
10. The Petitioner thereafter intervened in Respondent no. 3's appeal pending before the Respondent no. 1-State under the provisions of Section 47 of the Act of 1966. The statutory authorities viz. N.M.C. and Town Planning Department, Nagpur filed their respective replies in the appeal, inter alia, stating that revised plan submitted by Respondent no. 3 and the Developer (Shri Chawala) were in accordance with DCR prior to year 2000 and as such, the said regulations cannot have retrospective effect on the revised plan which was submitted in the year 2013. Respondent no. 1-State passed final order dated 22.04.2015 without hearing the Petitioner. Hence the Petitioner once again approached this Court by filing Writ Petition No. 569/2013, wherein on 03.08.2016, Respondent no. 1- State was directed to hear the Petitioner and decide the matter within a period of 8 weeks thereafter. In the remand proceeding, Respondent no. 1-State, the Petitioner and the Developer (Shri Chawala) were the only parties who remained present and made their respective submissions. On 17.11.2016, Respondent no. 1-State passed order and once again directed Respondent no. 3 to forward ::: Uploaded on - 17/10/2019 ::: Downloaded on - 19/04/2020 23:06:59 ::: 11 wp2456.17.odt revised plan to Respondent no. 2-Corporation and Respondent no. 2- Corporation was once again directed to consider the same, in accordance with the rules and impose costs, if necessary, and regularize the unauthorized construction. This order is assailed in the present petition before this Court.
11. Shri S. P. Bhandarkar, learned counsel appearing for the Petitioner after taking this Court through the gamut of the above proceedings and various orders passed by this Court from 2014 to 2016 submitted that the Petitioner has substantive ownership interest in the said property as a co-owner and therefore, she is entitled to raise grievances with respect to any unauthorized construction standing on the said property. He submitted that till date, no proceedings for seeking partition of the said property amongst the co- owners had taken place, by any co-owner of the said property, much less Respondent no. 3. He submitted that in order to mislead this Court, Respondent no. 3 has raised a bogey of division/partition of the said property into two portions but that did not take away the fact that some portion of the construction standing on the said property was unauthorized. He submitted that one of the most crucial aspect that needed to be considered by the Court was that pursuant to directions given by this Court in earlier proceedings, ::: Uploaded on - 17/10/2019 ::: Downloaded on - 19/04/2020 23:06:59 ::: 12 wp2456.17.odt Respondent no. 3 along with the Developer and affected flat owners who were in occupation of the unauthorized portion of the construction standing on the said property had submitted revised plan for seeking regularization of the same. He submitted that such revised plan were submitted on more than one occasion and the Assistant Director of Town Planning had rejected the same. He submitted that action on the part of Respondent no. 3 in approaching the statutory authorities was pre-judicial to the right of the Petitioner in as much as the Petitioner has a substantive proportionate right in the said property as co-owner thereof and therefore being aggrieved with the unauthorized construction standing on the said property, the Petitioner was pursuing the same. He submitted that the Petitioner has never relinquished or parted with her share in the said property. He submitted that the allegation/submission on the part of Respondent no. 3 that the said property was partitioned was not established and substantiated with any documentary evidence, whatsoever before any of the statutory authorities, as also in the appeal proceedings. He stressed upon stand taken by N.M.C., Town Planning Department, Nagpur and Town Planning Department, Pune in the appeal proceedings, which were filed previously before Respondent no. 1-State and submitted that the same ought to have been considered.
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12. Shri Bhandarkar, submitted that Respondent no. 3, though served as far back as on 24.04.2017, filed her written submissions dated 18.08.2017, on record of the present Writ Petition but, has chosen not to remain present today, though she was represented by an Advocate. He submitted that her written submissions be considered for the purpose of deciding the present Writ Petition. He submitted that the impugned order was prima-facie erroneous and gave a conditional right to the Respondent no. 3 to prefer the application for regularization to the Respondent No. 1-State as and when she would desire, thereby allowing perpetration of the illegality.
13. PER CONTRA, Shri J. B. Kasat, learned counsel appearing on behalf of Respondent no. 2-Corporation vehemently opposed the Petition and defended the impugned order. He submitted that the impugned order was correctly passed, in as much as, it required the original applicant (the Respondent no. 3) to approach for seeking regularization along with revised plan to the Respondent no. 2- Corporation. According to him, once this application is made by the original applicant i.e. (Respondent no. 3). Respondent no. 2- Corporation would take appropriate decision, in accordance with law, in respect of the same. He submitted that the original applicant ::: Uploaded on - 17/10/2019 ::: Downloaded on - 19/04/2020 23:06:59 ::: 14 wp2456.17.odt (Respondent no. 3) had still not filed the application for seeking regularization along with revised plan with Respondent no. 2- Corporation and Respondent no. 2-Corporation was still awaiting the application from Respondent no. 3. He assured the Court that once the application seeking regularization of the illegal construction is filed by Respondent no. 3, the Respondent no. 2-Corporation would act upon it ,in accordance with law. But, since the application was not filed, Respondent no. 2-Corporation had maintained status-quo in respect of the said issue.
14. Shri Kasat, learned counsel appearing on behalf of Respondent no. 2-Corporation submitted that since the Petition involved a number of disputed questions of facts as stated therein, this Court, in exercise of its extraordinary writ jurisdiction should dismiss the petition. He further submitted that it was an admitted fact that besides the Petitioner and Respondent no. 3, there were several other co-owners also and therefore, the Petition was bad for non-rejoinder and mis-joinder of proper and necessary parties. He submitted that one of the prayers in the Writ Petition pertained to seeking demolition of the unauthorized construction in the buildings standing on the said property and therefore, the occupants of the said flats were also proper and necessary parties who were required to be ::: Uploaded on - 17/10/2019 ::: Downloaded on - 19/04/2020 23:06:59 ::: 15 wp2456.17.odt heard by this Court. He however, fairly submitted that Respondent no. 2-Corporation noticed that unauthorized construction was indeed undertaken in the two buildings which had resulted in the proceedings. Respondent No. 2's affidavit-in-reply refers to 23 such consequent proceedings between 05.10.1995 and 17.11.2016, inter alia, pertaining to unauthorized and illegal construction in the two buildings which were constructed on the said property. In paragraph no. 5 of its affidavit-in-reply dated 15.08.2017 the Respondent no. 2- Corporation has submitted thus :-
"5. The respondent submits that though a sanction for basement+G+4 construction was accorded, however it was noticed that out of two wings constructed in one of the wings, the construction of one floor i.e. 5" floor is in excess of sanctioned map plan and therefore notice u/s. 53 of the MRTP Act was issued on 30/1/2014."
15. According to Mr. Kasat, it was a clear case of excess construction and as such it was his duty to point out the same before this Court. He submitted that orders passed by this Court viz. interim orders dated 03.07.2014 and 08.07.2014 directed Respondent no. 2- Corporation not to carry out any demolition work and by order dated 03.08.2016 Respondent no. 2-Corporation was directed not to take any coercive steps during the pendency of appeal with Respondent ::: Uploaded on - 17/10/2019 ::: Downloaded on - 19/04/2020 23:06:59 ::: 16 wp2456.17.odt no. 1-State and therefore, Respondent no. 2-Corporation was constrained not to take any action for demolition. He also fairly admitted that the operative part of the impugned was cryptic, as in clause no. 2 thereof, it required the original applicant to submit revised application and proposal to Respondent no. 2-Corporation, after the decision by the Superintendent of Land Record. He submitted that unless and until, the original applicant i.e. Respondent no. 3 herein did not submit revised plan, Respondent no. 2- Corporation was helpless, in as much as, no decision whatsoever can be taken by Respondent no. 2-Corporation with respect to regularization, in accordance with law. He very fairly submitted that, unless and until, the revised plan/s are submitted to Respondent no. 2-Corporation, Respondent no. 2-Corporation would not be in a position to take any action, whatsoever, unless and until directed by this Court. He further submitted that if, revised plans are not submitted to Respondent no. 2-Corporation, the extent of unauthorized construction in the buildings standing on the said property would prevail. He submitted that Respondent no. 3 was liable to submit revised plan for regularization to Respondent no. 2- Corporation so that further action can be taken in accordance with law. Smt. T. H. Khan, learned A.G.P. appearing on behalf of Respondent No. 1-State, though opened her defence in support of the ::: Uploaded on - 17/10/2019 ::: Downloaded on - 19/04/2020 23:06:59 ::: 17 wp2456.17.odt impugned order, was fair enough to admit that unless and until Respondent no. 3 would approach Respondent no. 2-Corporation with the revised plans as directed, the illegality would continue and given the facts of the present case, Respondent no. 3 would never file the revised plan.
16. Respondent no. 3 has remained absent, though represented by Advcoate, she has filed her written submissions dated 18.08.2017. She has submitted that sometime in the year 1993, all co-owners of the said property executed an agreement of sale and development with the Developer M/s. Shri Sai Builders and Developers, a proprietory concern belonging to Shri Abhimanyu S/o. Bakhatmal Chawla. She has submitted that in accordance with the agreement of sale and development alongwith registered Power of Attorney (PoA) granted in favour of the above Developer, all co- owners were under a bonafide impression that the development carried out by the said Developer was as per law. She has submitted that on receipt of notice dated 10.04.2016 from this Court in Writ Petition No. 5692/2013, Respondent no. 3, for the first time learnt that certain litigations pertaining to illegal construction carried out by the Developer were pending in this Court. She has submitted that she further questioned the Developer as to how could he carry out ::: Uploaded on - 17/10/2019 ::: Downloaded on - 19/04/2020 23:06:59 ::: 18 wp2456.17.odt illegal construction without her consent and/or consent of other co- owners. She has further submitted that in order to absolve herself from any liability, she decided to cancel the PoA and revoke and resume her undivided equal share given to the Developer and accordingly, issued a legal notice intimating the Developer that she had canceled the PoA to the extent of her undivided equal share. She has submitted that it was the Developer, who was liable for any excess construction carried out in the buildings standing on the said property and she was not responsible for the same. She has submitted that since all co-owners had jointly executed the PoA in favour of the Developer to develop the said property, all co-owners were under a bonafide impression that the Developer would have carried out development in accordance with law and the sanctioned plans. She has put the blame squarely on the Developer and Respondent nos. 1 and 2 respectively by stating that the Developer has been given a chance to regularize the said illegal construction. She therefore, has impliedly supported the impugned order. However, she has questioned the locus of Petitioner to file the present Petition, in as much as, if the Petitioner has any grievance, whatsoever in respect of any rights in the said property, it was open for the Petitioner to approach the concerned authorities. She has submitted that no civil right is violated in the present proceedings. ::: Uploaded on - 17/10/2019 ::: Downloaded on - 19/04/2020 23:06:59 :::
19 wp2456.17.odt She has further submitted that the Petitioner had filed Special Civil Suit no. 1041/1995 seeking partition of House No. 180 and the said suit was compromised on 04.05.1996. She has further submitted that adjacent to House No. 180, there was another House No. 188 and the Petitioner had filed another Civil Suit bearing Special Civil Suit No. 1512/1996 against the properties of Ahirrao Family and the said Civil Suit was decreed on 26.08.2004 wherein the Petitioner was granted 1/6th share in the said house. The Petitioner has also challenged the above decree in First Appeal No. 3/2005. According to Respondent no. 3, the illegal construction is standing on plot of House No. 180 and as such, the Petitioner has no nexus with the same. She has submitted that in that in view of the matter, the Petitioner had filed the Petition with malafide intentions. She has submitted that Respondent nos. 1 and 2 have allowed the appeal, in as much, as the said illegal construction has been allowed to be regularized under the provision of the rules and since no appeal has been filed by the Petitioner under the provisions of the Act of 1966, the impugned order deserves to be sustained. She has submitted that the Petitioner could not present herself being aggrieved here because the submissions of the Petitioner have been considered by the statutory authorities before passing the impugned order. She has finally submitted that by virtue of the impugned order, the construction in ::: Uploaded on - 17/10/2019 ::: Downloaded on - 19/04/2020 23:06:59 ::: 20 wp2456.17.odt question is held to be within permissible limit under the DCR and if this was a finding of fact based on technical data and information, it cannot be disturbed in the exercise of writ jurisdiction under Article 226 of the Constitution of India.
17. Having considered the rival submissions and on going through the pleadings and various orders passed in the present proceedings at different stages, I find that the impugned order has not given a clean chit and/or legality to the unauthorized/illegal construction, constructed in the building standing on the said property. The impugned order on the contrary requires submission of revised plans in respect of the unauthorized/illegal construction in the buildings on the said property, so as to enable Respondent no.-2- Corporation to consider the same in accordance with law. Therefore, the principal submission of Respondent no. 3, that by virtue of the impugned order, construction in question is held to be within permissible limit fixed by applicable DCR deserves to be rejected at the outset. It is an admitted position that pursuant to passing of impugned order in October-2016, which was received by the Petitioner by covering letter dated 17.11.2016, no application, whatsoever has been made by the original applicant and/or the Developer to Respondent no. 2-Corporation submitting revised plans, ::: Uploaded on - 17/10/2019 ::: Downloaded on - 19/04/2020 23:06:59 ::: 21 wp2456.17.odt resultantly perpetrating the illegality and unauthorized construction as it is. Respondent no. 2 has referred to 23 instances in paragraph no. 4 of its affidavit-in-reply. These are instances, which relate to action taken by statutory authorities beginning from issuance of notice dated 05.10.1995 under section 286 of the Act of 1948, until issuance of the impugned order dated 17.11.2016. For the sake of reference these instances are reproduced thus :-
"4. ............
DATE PARTICULARS 5/10/1995 Notice for unauthorized and illegal construction
without sanction u/s. 286 of the CNC Act was served upon the owner of the demised premises 11/12/1997 Notice u/s. 423 of the CNC Act was served. 19/12/1997 The appeal was preferred under section 387(1) of the CNC Act challenging the notice dated 5/10/1995 before the Dy. Municipal Commissioner.
8/8/2002 The appeal came to be finally disallowed by the order of the Dy. Municipal Commissioner and the stay was vacated. Annexure C to the petition.
16/11/2002 Revision preferred against the order dated 8/8/2002 before the Additional Municipal Commissioner came to be disallowed. Annexure D to the petition. 12/4/2004 Second appeal preferred u/s. 387(3) of the CNC Act challenging the notice and the orders hereinabove was disallowed. Annexure E to the petition.
23/12/2004 Revised Map plan was submitted.
30/12/2004 The revised map plan submitted on 23/12/2004
came to be rejected.
10/1/2005 The revised map plan was re-submitted.
15/3/2005 The re-submitted revised map plan came to be
rejected.
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19/3/2005 Appeal u/s. 47 of the MRTP Act against the rejection
of map plan was preferred.
2/6/2005 The appeal preferred before the State Government
came to be partly allowed and permitted to submit revised map plan. (DOCUMENT NO. 1 enclosed herewith).
24/3/2006 The revised map plan was submitted. 20/8/2009 That, WP No. 4851/2005 preferred by the petitioner
challenging the order at Document no. 1, came to be disposed off by granting the opportunity to the petitioner to raise the objection in the proceedings pending before the authority for consideration of building map plan. Anenxure-I to the petition. 20/4/2011 The review application filed by the petitioner against the order dated 20/8/2009 in WP No. 4851/2005 came to be dismissed.
16/3/2012 The petitioner submitted written representation in pursuance to the orders of the Hon'ble High Court dated 20/8/2009 in WP No. 4851/2005 and 20/4/2011 in review application seeking hearing in the matter.
30/4/2012 The petitioner was accordingly issued with notice for hearing in the process of consideration of building map plan.
2/7/2013 The revised map plan submitted on 24/3/2006 came to be finally disapproved.
16/8/2013 The revised map plan was re-submitted. 14/10/2013 The said revised map plan resubmitted on 16/8/2013 was rejected.
25/3/2014 The rejected revised map plan were resubmitted along with hand written application.
28/3/2014 The said resubmitted map plans were rejected by passing afresh order.
17/11/2016 Appeal came to be filed by the respondent no. 3 before the respondent no. 1 State u/s. 47 of MRTP Act and by the impugned order at Annexure A the appeal came to be partly allowed."::: Uploaded on - 17/10/2019 ::: Downloaded on - 19/04/2020 23:06:59 :::
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18. Perusal of the above instances would reveal that on 23.12.2004 after contesting and being unsuccessful in the statutory proceedings before the Corporation, revised plan seeking regularization was submitted for the first time. This revised plan was in respect of unauthorized constructions carried out by the Developer and Respondent no. 3 in the two buildings standing on the said property viz. Ahirrao Wada and Gayatri Plaza. On 30.12.2004, this revised plan was rejected. Thereafter, on 10.01.2005, revised plan was submitted for the second time, which came to be rejected on 15.03.2005. Thereafter on 24.03.2006 revised plan was submitted for the third time, which came to be rejected on 02.07.2013 after almost 7 years and several intervention proceedings. Thereafter, on 16.08.2013, revised plan was submitted for fourth time, which came to be rejected on 14.10.2013. Thereafter on 25.03.2014, the rejected revised plan was resubmitted for the fifth time alongwith handwritten application. On 28.03.2014, Respondent no. 2- Corporation rejected the resubmitted revised plan by passing a fresh order against which further proceedings were filed which culminated in passing of the impugned order dated 17.11.2016. Thus, it can be seen that between 1995-2016, every possible effort was made by Respondent no. 3 along with and in conjunction with the Developer of the said property to submit revised plan seeking regularization of ::: Uploaded on - 17/10/2019 ::: Downloaded on - 19/04/2020 23:06:59 ::: 24 wp2456.17.odt the unauthorized construction carried out in the two buildings on the said property and on all five occasions, the revised plan came to be rejected by Respondent no. 2-Corporation. In this background, the impugned order, while dealing with the fact and circumstances, once again directed re-submission of the revised plan to Respondent no. 2- Corporation, with further directions that on submission the Respondent no. 2-Corporation should consider the same and regularize the same in accordance with DCR and charge appropriate regularization/ development charges in respect thereof. However, unless and until, the application is made for seeking regularization on the basis of revised plan, the Corporation would not be in a position to consider the case. After the impugned order was passed in 2016, Respondent no. 3, as also the Developer of the said property and the respective flat purchasers have not made any application submitting revised plans so as to enable Respondent no. 2-Corporation to take an appropriate decision. This can be viewed from the fact that on five earlier occasions revised plans have been submitted for seeking regularization of the unauthorized/illegal construction but, the same have been rejected. Therefore, there is substance in the submissions made on behalf of the learned counsel appearing on behalf of the Petitioner that, unless and until, the application is made/submitted with revised plan, in respect of the unauthorized/illegal construction, ::: Uploaded on - 17/10/2019 ::: Downloaded on - 19/04/2020 23:06:59 ::: 25 wp2456.17.odt there would not be adjudication in respect of the said unauthorized/illegal construction. Learned counsel appearing for the Petitioner and Respondent no. 2 have both submitted that in the facts and circumstances of the present case, Respondent no. 3-Corporation would never take any steps for regularization of the unauthorized/illegal construction unless and until revised plan/s are submitted. Therefore, if such an application submitting revised plan was not made, no adjudication would be possible and resultantly the unauthorized/illegal construction standing on the said property, contrary to DCR and sanctioned plan would stand.
19. Another dimension of the matter which requires consideration is that, the unauthorized/illegal construction has been occupied by flat owners. However, such flat purchasers are not before me in this Petition but, considering the litigations since 1995 and the issue having been agitated in several proceedings by the Developer, as also the flat purchasers filing intervention applications, it cannot be said that the occupants of the said unauthorized/illegal flats are not aware about its illegality. Time is ripe now to put an end to such blatant and gross illegalities, which are perpetuated by Developers and owners of such properties. The provisions of the Act of 1966 and applicable DCR to the City of Nagpur are required to be adhered ::: Uploaded on - 17/10/2019 ::: Downloaded on - 19/04/2020 23:06:59 ::: 26 wp2456.17.odt to in the strictest sense, especially when plans are sanctioned by the statutory planning authorities. In the instant case, plans which were sanctioned by Respondent no. 2-Corporation were completely given a go-bye by the Developer and Respondent no. 3 who developed the said property in excess of the sanctioned plan. Admittedly, there is violation and breach of the sanctioned plan, in as much as, it has come on record that there are additional floors which have been constructed over and above and in excess of the sanctioned plan in respect of the said property. This, if tolerated, in the manner and circumstance in which parties have been litigating from 1995 to 2017, will send a wrong signal to the public at large. Administration of justice is required to be adhered to in the strictest possible manner, by complying with all statutory provisions and more specifically with respect to statutory provisions relating to development. The impugned order results in a stalemate and allows the illegality to continue unless and until revised plans are submitted. Any person, admittedly committing an illegality will not file the revised plans considering the outcome. Hence the impugned order is quashed and set aside and the Petition is partly allowed.
20. In view of above, Petition is disposed of with the following directions :-
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(i) Respondent no. 3 is directed to submit revised plans in respect of the unauthorized/illegal construction carried out in the buildings standing on the said property viz. Ahirrao Wada and Gayatri Plaza to Respondent no. 2-Corporation within a period of 12 weeks from the date of this order. Respondent no. 2-Corporation shall also issue notice to the Developer of the said property who had originally submitted the sanctioned plans and also call upon him to submit revised plans, if he so desires and grant him opportunity for hearing.
(ii) Respondent no. 2-Corporation is directed to consider the revised plans submitted by Respondent no. 3 and issue notice to the affected parties i.e. the occupants of the flats in the unauthorized/illegal construction in the buildings standing on the said property. Such individual notices shall be given to each affected flat owner and all such affected parties be accorded an opportunity of hearing, and pass appropriate order in accordance with law as expeditiously as possible and in any case within a period of 12 weeks thereafter.
(iii) While considering the revised plan/s, Respondent no. 2- Corporation shall call for remarks from the Superintendent of Land ::: Uploaded on - 17/10/2019 ::: Downloaded on - 19/04/2020 23:06:59 ::: 28 wp2456.17.odt Records in respect of technical data pertaining to the said property and after considering the said remarks and application of the relevant provisions of the Development Control Regulations and other provisions, as applicable and technical scrutiny, decide regularization of the unauthorized/illegal portion of the buildings standing on the said property, if permissible and strictly in accordance with law.
(iv) If Respondent no. 2-Corporation comes to the conclusion that the unauthorized/illegal construction in the buildings standing on the said property, in the facts and circumstances of the present case and applicable statutory provisions, cannot be regularized in accordance with law, then appropriate measures shall be taken by Respondent no. 2-Corporation to demolish only those unauthorized/illegal construction/flats in the buildings viz. Ahirrao Wada and Gayatri Plaza standing on the said property, in accordance with law, by taking all precautionary measures. Respondent no. 2- Corporation shall ensure that before the unauthorized/illegal portion of the construction is razed, notices to vacate are given to the occupants of the said unauthorized/illegal portion, in accordance with law, by giving them adequate time of up to eight weeks to vacate the unauthorized/illegal portion, so as to enable them to look ::: Uploaded on - 17/10/2019 ::: Downloaded on - 19/04/2020 23:06:59 ::: 29 wp2456.17.odt for alternate accommodation and also ensure that while carrying out demolition of the unauthorized/illegal portion, the existing authorized construction/flats/occupants in the buildings viz. Ahirrao Wada and Gayatri Plaza are put to adequate notice and all safety measures and precautions are adhered to while carrying out demolition of the unauthorized/illegal portion. The Respondent no. 2-Corporation shall also direct Respondent no. 3 and the Developer of the said property to deposit any rectification fee as applicable or required to be paid, in accordance with law for carrying out demolition of the unauthorized/illegal portion/construction in the two buildings viz. Ahirrao Wada and Gayatri Plaza standing on the said property.
(v) The local Police authorities are directed to provide appropriate assistance to the Respondent no. 2-Corporation, if so required, at the time of demolition of the unauthorized/illegal construction/portion.
21. The Petition is disposed of in the above terms. Rule is discharged with no order as to costs.
JUDGE RR Jaiswal ::: Uploaded on - 17/10/2019 ::: Downloaded on - 19/04/2020 23:06:59 :::