The structures covered by clauses (iii), (iv), (vi), (ix) & (x) above could be made in bricks and cement and still they would be temporary structures. In some cases, the construction may be made in bricks and cement and still it would be development of a temporary nature having regard to its short duration. While in other cases, the construction may be made by using wood or tin sheets or tarpaulin and the structure may be standing for a substantially long period, still it would be development of a temporary nature. Thus, the material used for carrying out the construction is not a decisive factor while considering the expression “development of a temporary nature”. This conclusion is irresistible having regard to the provisions of Sections 3(s) and 3(sb) of the MMC Act, D.C.R. 2(11) and D.C.R. 65. Whether development is of a temporary nature or not would depend upon the facts and circumstances of each case.{Para 14}
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.293 OF 2011
Khimji Virji Karia Vs Municipal Corporation of Greater Bombay
CORAM : SMT.RANJANA DESAI & R.G.KETKAR, JJ.
PRONOUNCED ON: 2nd MAY, 2011
(per R.G.KETKAR, J.) :
Rule. Learned counsel for the respective respondents waive
service. By consent of the parties, Rule is made returnable forthwith
and is heard finally.
2] The petitioners have challenged the order dated 14th January,
2011 passed by the Assistant Municipal Commissioner, R/S Ward of
Municipal Corporation of Greater Mumbai (for short “MMC”). By that order, the Assistant Municipal Commissioner has directed the
petitioners to remove the notice structures i.e.all unauthorised
extensions and covering of open spaces/structures carried on front
compulsory open space of building, within three days from receipt of
the order, failing which, the same will be removed/demolished by his
office entirely at the risk and costs of the petitioners herein without
giving any further intimation.
3] The petitioners are the occupants and owners of the respective
shops as mentioned in the cause title, situate at Dattani Shopping
Centre, plot Nos.29, 30, CTS No.329, Vasanji Lalji Road, Mumbai (for short “the suit premises”). The petitioners acquired the suit premises pursuant to the agreement executed by the third respondent with the petitioners under the provisions of the Maharashtra Ownership of Flats Act, 1963. The petitioners are carrying on business from their respective shops since 197980.
It is the case of petitioners that the
third respondent was interested in redeveloping the property and the
dispute and differences arose between the petitioners on one hand
and the third respondent on the other. The third respondent also
approached the MMC for issuing notices against the petitioners under
the provisions of the Mumbai Municipal Corporation Act, 1888 as also
the Maharashtra Regional and Town Planning Act, 1966 (for short “the
Act”). The third respondent also instituted Writ Petition No.937 of 2010
against the MMC in this Court.
4] The second respondent issued notice dated 13th August, 2010
under Section 55 of the Act. This was replied by the petitioners on 16th
August, 2010. The petitioners also instituted Writ Petition No.1960 of
2010 on 26th August, 2010 challenging the said notice. Writ Petition
No.937 of 2010 instituted by the third respondent and Writ Petition No.
1906 of 2010 instituted by the petitioners were disposed of on 21st
December, 2010 with direction to the petitioners to make a
representation to the MMC. Respondent nos.1 and 2 therein were
directed to dispose of the said representation within four weeks.
5] Pursuant to the order passed in those petitions, the petitioners
made representations on 22nd December, 2010 and 27th December,
2010. The second respondent passed the impugned order on 14th
November, 2011 directing the petitioners to demolish the notice
structure within three days. The petitioners have challenged that order by instituting present petition.
6] Mr.Madon, learned Senior Counsel submitted that basically
Section 55 of the Act itself is not applicable as the alleged offending
structure is not of a temporary nature. He further submitted that the
first respondent MMC has regularised unauthorised construction
carried out by the owners of shop Nos.4 and 5. Though the petitioners
have requested to supply the information regarding regularisation of
shop nos.4 and 5, the MMC has not provided the requisite information.
He submitted that the action of MMC in issuing notice under Section
55 of the Act as also passing the impugned order is mala fide. At any
rate, the alleged offending structures are in existence prior to 1962 and
consequently, cannot be termed as unauthorised construction.
7] On the other hand, Ms.Komal Panjabi, learned counsel for
respondent nos.1 and 2 supported the notice issued under Section 55
of the Act as also the impugned order. She invited our attention to the
affidavit of Mr.Ravindra Sonawane, Assistant Engineer, Building and
Factory, R/S Ward of MMC and, in particular, she has invited our
attention to paragraph 4(b) of the said affidavit wherein, the
unauthorised construction carried out by the shop keepers has been
described in detail. She submitted that the petitioners have carried
out unauthorised extension covering the front compulsory open space
of building in front of respective shops. She further submitted that the
petitioners instituted Writ Petition No.1906 of 2010 challenging the
notice issued under Section 55 of the Act. The said petition was
disposed of on 21st December, 2010 as withdrawn. In that petition, the
order dated 27th September, 2010 passed by the respondent nos.1 and
2 was not challenged and the petition was withdrawn with liberty to
make appropriate representation.
8] In so far as the regularisation of unauthorised extension is
concerned, in paragraph 10 of the affidavit, it is positively asserted that
the MMC has not regularised any unauthorised extension as
mentioned in the notice issued under Section 55 of the Act. In so far
as the shop No.5 of Dattani Shopping Centre is concerned, it is further
averred in the affidavit that respondent nos.1 and 2 had issued
permission for construction of wooden loft only inside the said shop as
per the approved plan. In so far as shop Nos.4 and 5 which are
occupied by M/s.Virsons & M/s.Culcutta Tea Centre are concerned,
the said shops are upto boundary line of the building and as per the
approved plan of the building, there is no compulsory open space in
front of shop nos.4 and 5. Since no extensions were found in front of
shop nos.4 and 4, no notices were issued in respect of shop nos.4 and
5. She, therefore, submitted that the petition deserves to be
dismissed.
9] Mr.Mehta, learned counsel for respondent no.3 invited our
attention to the affidavit made by Mr.Satish J. Dattani, partner of
respondent no.3 and, in particular, the agreement of sale executed
between the third respondent and buyers. He invited our attention to
the map forming part of the said agreement and submitted that in
respect of shop nos.6 to 8 and 9 and 11, open space is shown as
`green’ in the said map. In so far as shop nos.4 and 5 are concerned,
there is no open space on the side of Vasanji Lalji road. The
petitioners have carried out unauthorised extension in the compulsory
open space and consequently, the Authorities were justified in issuing
notice and passing impugned order.
10] We have considered the rival submissions made by learned
counsel appearing for the parties. We have also gone through the
material placed on record by the parties. It is evident that the
petitioners have carried out extensions covering of front compulsory
open space of the building, as set out in the affidavit made by
Mr.Ravindra Sonawane, Assistant Engineer, Building and Factory.
The question is whether these are unauthorised constructions.
Mr.Madon submitted that Section 55 of the Act is not attracted as these
constructions are not of a temporary nature. Section 55 of the Act
reads as under
“55. (1) Notwithstanding anything hereinbefore
contained in this Chapter, where any person
has carried out any development of a
temporary nature unauthorisedly as indicated
in subsection
(1) of section 52, the Planning
Authority may by an order in writing direct that
person to remove any structure or work
erected, or discontinue the use of land made,
unauthorisedly as aforesaid, within fifteen days
of the receipt of the order; and if thereafter, the
the person does not comply with the order
within the said period, the Planning Authority
may request the District Magistrate or the
Commissioner of Police, as the case may be,
[or authorise any of its officers or servants,] to
have such work summarily removed or such
use summarily discontinued without any notice
as directed in the order, and any development
unauthorisedly made again, shall be similarly
removed or discontinued summarily without
making any order as aforesaid
(2) The decision of the Planning Authority on
the question of what is development of a
temporary nature shall be final.
Perusal of Section 55 of the Act would indicate that where any
person has carried out any development of a temporary nature
unauthorisedly as indicated in subsection
(1) of section 52, the
Planning Authority may by order in writing direct that person to remove
any construction or work erected.........
11] Section 52(1) of the Act provides that any person who, whether
at his own instance or at the instance of any other person commences,
undertakes or carries out development, or institutes or changes the
use of any land (a) without permission required under the Act; or (b)
which is not in accordance with any permission granted or in
contravention of any condition subject to which such permission has
been granted; (c) after the permission for development has been duly
revoked; or (d) in contravention of any permission which has been duly
modified...........
Section 2(7) of the Act defines the expression “development” as
under :“
In this Act, unless the context otherwise
requires,(
7) “development” with its grammatical
variations means the carrying out of building,
engineering, mining or other operations in or
over or under, land or the making of any
material change, in any building or land or in
the use of any building or land [or any material
or structural change in any heritage; building
or its precinct and includes demolition of any
existing building, structure or erection or part
of such building, structure of erection ; and
reclamation, redevelopment and layout
and
subdivision of any land; and “to develop” shall
be construed accordingly];
Thus, the expression “development” among others will also
include carrying out of buildings or other operations in or over or under
the land. Section 2(5) of the Act defines “building operations” to
include erection or reerection
of building or any part thereof.
12] Sections 3(s) and Section 3(sb) of the Mumbai Municipal
Corporation Act, 1888 (for short “MMC Act”) define expressions
“building” and “temporary building”, respectively. They read as
under :S.
3. “In this Act, unless there be something repugnant in
the subject or context(
s) “building” includes a house, outhouse,
stable, shed,
hut [tank (except tank for storage of drinking water in a
building or part of a building)] and every other such
structure, whether of masonry, bricks, wood, mud,
metal or any other material whatever.
(sb) “temporary building” means any building which is
constructed principally of mud, leaves, grass cloth,
thatch, wood, corrugated iron or asbestos cement sheets
or such other material and includes a building of
whatever size constructed of whatever material
which the Commissioner has allowed to be built as
a temporary measure.”
13] The Government of Maharashtra, in exercise of powers
conferred by subsection (1) of Section 31 of the Act and all other
powers enabling in that behalf, sanctioned the Development Control
Regulations for Greater Mumbai, 1991 (for short “D.C.R.”). The D.C.R.
2 (11) defines “building” to mean a structure, constructed with any
materials whatsoever for any purpose, whether used for human
habitation or not, and includes............
D.C.R. 65 provides for grant of permission for temporary
construction by the Commissioner and it reads as under :
65. Temporary Constructions.The
Commissioner may
grant permission for temporary construction for a period
not exceeding six months at a time in the aggregate not
exceeding for a period of three years. Such a permission
may be given by him for the construction of the following
namely:(
i) Structures for protection from the rain or covering
of the terraces during the monsoon only;
(ii) Pandals for fairs, ceremonies, religious function,
etc.;
(iii) Structures for godowns/storage of construction
materials within the site;
(iv)Temporary site offices and watchmen chowkies
within the site only during the place of construction
of the main building;
(v) Structure for exhibitions/circuses etc;
(vi)Structures for storage of machinery, before
installation, for factories in industrial lands within
the site;
(vii)Structures for ancillary works for quarrying
operations in conforming zones;
(viii)MAFCO stalls, milk booths and telephone booths;
(ix)Transit accommodation for persons to be
rehabilitated in a new construction;
(x) Structures for educational and medical facilities
within the site of the proposed building during the
phase of planning and constructing the said
permanent buildings;
Provided that temporary constructions for structures, etc.
mentioned at (iii), (iv), (vi), (ix) and (x) may be permitted
to be continued temporarily by the Commissioner but in
any case not beyond completion of construction of the
main structure or building, and that structure in (viii) may
be continued on annual renewable basis by the
Commissioner beyond a period of three years.
14] The structures covered by clauses (iii), (iv), (vi), (ix) & (x) above
could be made in bricks and cement and still they would be temporary structures. In some cases, the construction may be made in bricks and cement and still it would be development of a temporary nature having regard to its short duration. While in other cases, the construction may be made by using wood or tin sheets or tarpaulin and the structure may be standing for a substantially long period, still it would be development of a temporary nature. Thus, the material used for carrying out the construction is not a decisive factor while considering the expression “development of a temporary nature”. This conclusion is irresistible having regard to the provisions of Sections 3(s) and 3(sb) of the MMC Act, D.C.R. 2(11) and D.C.R. 65. Whether development is of a temporary nature or not would depend upon the facts and circumstances of each case.
15] In the light of this position, let us consider facts of the
present case. On 26th June, 2009, the third respondent gave reply to
letter dated 15th June, 2009 addressed by the shop owners. In that, it
has been specifically set out as under :“
Even the open spaces in front of the shops have
been unauthorised(ly) encroached upon for
commercial purposes by putting otlas outside the
respective premises.”
Thus, when the third respondent gave reply on 26th June, 2009, the
shop owners allegedly encroached upon the open spaces in front of
the shops by putting otlas outside the respective premises. In other
words, the petitioners at that time did not cover the front open spaces
with M.S.Grills, ply wood on sides and M.S.Gates etc. The petitioners
issued statutory notice under the provisions of the Maharashtra
Ownership of Flats Act, 1963 on 18th July, 2009 to the third respondent.
In paragraph 11 thereof, it was asserted that “the allegations with
regard to the unauthorised construction work, additions and
alterations/encroachment which are leveled by you in your various
correspondence are vexatious, far from the truth and the same is
nothing but a desperate attempt made by you in order to succumb to
your evil design by forcibly vacating my clients from their said
respective premises. My clients state that the building of the
respectively shop premises is in the same (condition) in which
my clients have respectively purchased the said premises since
inception and they have not carried out any additions and
alterations for the unauthorised work as alleged.
16] The MMC issued notice under Section 55 of the Act on 13th
August, 2010. This notice was replied by the petitioners on 16th
August, 2010. In that reply, they reiterated each and every statements,
averments and submissions made in their earlier notices dated 18th
July, 2009 and 14th August, 2009. We have already noted the
assertions made in paragraph 11 of the notice dated 18th July, 2009
issued on behalf of the petitioners. In paragraph 5 of reply dated 16th
August, 2010, the petitioners alleged that the shop premises are being
used since so many years and suddenly after lapse of almost 30
years, provisions of Section 55 of the Act are sought to be invoked.
Thus, from the material on record, it is evident that in the first place,
the third respondent in their reply dated 26th June, 2009 positively
asserted that the open spaces in front of the shops have been
unauthorisedly encroached upon for commercial purpose by putting
otlas outside the respective premises. Secondly, in the notice dated
18th July, 2009 and, in particular in paragraph 11 thereof, the
petitioners denied the allegations of unauthorised construction
work/alterations/encroachments and positively asserted that in the
building in which the petitioners have purchased the said shops, since
inception they have not carried out the additions and alterations as
alleged. From the perusal of photographs produced on record, it
appears that the petitioners have carried out unauthorised extensions
and covered the front compulsory open space with M.S.Grills, Plywood
on sides and M.S.Gates etc. From the material on record, we are
satisfied that the same is carried out after year 2009 and will squarely
fall under the expression “development of a temporary nature” as
employed in Section 55 of the Act. Even assuming that the alleged
unauthorised construction is in existence since inception, nonetheless
having regard to the material used for carrying out the same, it will fall in the expression “development of a temporary nature”. The
petitioners have not led reliable and cogent evidence to substantiate
their contention that Section 55 of the Act is not applicable. At any
rate, Section 55(2) of the Act declares that the decision of the Planning Authority on the question of what is development of a temporary nature is final. In view thereof, we do not find any substance in this contention.
17] It was further submitted by the petitioners that the first
respondent – MMC has regularised the unauthorised constructions
carried out by the owners of shop nos.4 and 5. Though the petitioners
repeatedly called upon respondent no.1 as also respondent no.3 to
supply information regarding regularisation of these shops, the said
information was not supplied deliberately. We are unable to accept this
submission. In the impugned order passed by the Assistant Municipal
Commissioner, there is a finding recorded that the MMC has not
regularised any unauthorised extensions as mentioned in the
representation made on behalf of the petitioners. In so far as shop
no.5 is concerned, permission was granted for construction of wooden
loft, that also, inside the shop. It has been further found that as per
the approved plans, shop nos.4 and 5 are reflected up to boundary line
of Dattani Shopping Centre building. Moreover, no extensions are
found carried out in front of shop nos.4 and 5 and, consequently, no
notices were issued to these shops. Even in the affidavit made on
behalf of the third respondent, there is positive assertion that at no
point of time, the third respondent either consented or submitted any
application for regularisation of any shop or premises as contended by
the petitioners. Apart from that, from the perusal of photographs
produced on record, it is evident that the extensions carried out by the
petitioners are beyond the building line and, that too, in front
compulsory open space of the building. In view of this, we do not find
any merit in this submission.
18] Lastly, it was submitted that the action of the first respondent
MMC in issuing notice under Section 55 of the Act as also passing of
the impugned order is malafide, as the offending structures are in
existence prior to 1962 and, consequently, cannot be termed as
unauthorised development. We do not find any merit in this
submission.
19] In the impugned order, the Assistant Municipal Commissioner
has clearly recorded a finding of fact that the petitioners have not
submitted any conclusive proof or authentic documentary evidence to
establish existence of the offending structures prior to datum line for
tolerating commercial structures i.e.prior to 01.04.1962 or to prove that
the notice structures i.e. extensions carried out on compulsory open
space of building in front of shop nos.1 to 3 and 6 to 11 are authorised
and constructed as per plans approved by MMC.
20] In view of this, we do not find that the impugned order suffers
from any error of law apparent on the face of record. It also cannot be
said that the impugned order is perverse. In our opinion, this is not a
fit case for invocation of extraordinary powers of this Court under
Article 226 of the Constitution of India. Writ Petition, therefore, fails
and the same is dismissed. Rule is discharged with no order as to
costs.
21] At this stage, counsel for the petitioners prays that the present
order be stayed as the petitioners are desirous of approaching the
Supreme Court. Counsel for the Respondents strongly oppose this
prayer.
22] In the circumstances of the case, the statement made on behalf
of the Corporation that the offending structure would not be
demolished during the pendency of the writ petition, shall continue to
be in force for a period of four weeks from today, subject to the
undertaking to be filed by the petitioners within two weeks from today
that in case their S.L.P. is dismissed, they will demolish the offending
structure at their own costs.
23] We must note and we take strong exception to the conduct of
petitioners’ counsel of filing the Chamber Summons in the proceedings
when this Court refuses to take it on file after the matter was reserved
for judgment. We have returned back the Chamber Summons to the
petitioners’ counsel.
[R.G.KETKAR, J.] [SMT.RANJANA DESAI, J.]
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