What is duty of Municipal Corporation when it has issued demolition notice?

In a judicial review exercise, the court is concerned not by the decision per se so long as it is not perverse or illegal, but decision making process. The decision making process must be fair and reasonable. It is elementary that every decision must be based upon the reasons. Thus, reasons become the foundations for the conclusions. At best they will indicate clearly the lines on which the mind of the competent authority has been applied and in the worst they will indicate the exclusion from the zone of consideration of irrelevant factors. Therefore, the impugned order is ex facie illegal for not supplying the live links to the conclusion, which in turn indicates non-application of mind to the objections stated. When I say that there must be reasons assigned, I am not expecting the administrative authority to deal with the objections in the same manner as a very well trained court would have done. But, at least, the objections must be seriously taken into account and consideration and an appropriate answer should be furnished thereto. Then alone, the usual attack of non-application of mind on the part of the competent authority can be neutralized. For sheer lack of reasons assigned in the impugned order dated 16.10.2012, it is set aside after hearing Sri Radha Krishna Reddy, leaned Standing Counsel for GHMC who in spite of a valiant effort put in by him could not satisfy me that the impugned order contained any reasons.  {Para 3}

 IN THE HIGH COURT OF ANDHRA PRADESH

Writ Petition No. 35976 of 2012

Decided On: 22.11.2012

 K. Ashok Kumar  Vs. The Greater Hyderabad Municipal Corporation

Hon'ble Judges/Coram:

Hon'ble Sri Justice Nooty Ramamohana Rao

Citation: MANU/AP/0908/2012

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Whether a party can claim protection from demolition if he has not complied with requirements of Gunthewari Act?

  As far as Second Appeal Nos. 48 of 2018,35 of 2018, 37 of 2018 & Second Appeal (ST) no.2243 of 2019 are concerned, learned counsel for the appellant would urge that Gunthewari Act prescribes a procedure for regularisation of unauthorised properties at the behest of holder of such unauthorised plots/structures.According to him, amongst other, concerned plot holder is required to place on record documentary proof of ownership or lawful possession of plot, existing lay out plan, plan of existing construction of such plot,rectification plan, an undertaking by the applicant to rectify uncompoundable infringements and demand draft of scheduled bank to cover the amount due as compounding fee and development charges. According to him, as far as appellants in the aforesaid four appeals are concerned, appellant has submitted an application for compounding alongwith location plan of the proposed site and also deposited the amount of compounding fees as is acknowledged by receipt no.1896 issued on 21/01/2010. {Para 10}

12. Learned counsel for the respondent-Corporation, Mr. Patil and other respondents would support the judgment of the Courts below, as according to them, both the Courts below have rightly held that the suit was not maintainable in view of bar under Section 433(A) of the Act.

13. By inviting attention of this Court on the various documents in the backdrop of pleadings, the submissions are, the appellant is trying to take disadvantage of certain procedural steps taken by erstwhile owner. According to him, even if presuming certain steps taken by erstwhile owner under the Gunthewari Act, for regularisation of the structure, the corresponding responsibility and the compliances are not reported. As such, the appellants are trying to take disadvantage of their own fault. As such, it is prayed in the given set of facts and documentary evidence on record, the suit is rightly held to be not maintainable. 

15. The appellant has placed on record acknowledgment depicting payment of Rs. 5275/- on 21/01/2010 under the head of Gunthewari for regularisation. However, this Court is required to take note of the fact that predecessor of the appellant on 16/05/2002 was served with a notice to comply with requirement under the Gunthewari Act and subsequent thereto, certain compliance not stricto sense in accordance with under Section 4 of the Act were sought to be relied. It appears that appellant after payment in 2010, has not complied with other terms of Gunthewari Act. Rather the appellant is trying to shift burden on respondent-Corporation to carve out the case of nullity in law for the issuance of impugned notice by the Corporation.

16. This Court has already observed that appellant cannot take undue advantage of its own wrong as appellant was not diligent in pursuing its case of regularisation under the Gunthewari Act.

18. Admittedly, there is no sanction from the Planning Authority i.e. respondent-Corporation to the structure in question and that being so, the appellant has come out with a case that regularisation proceedings were taken recourse to under Gunthewari Act.

20. Rather the documents produced on record demonstrates that except moving an application, no further steps are taken by the  appellant. Rather the plans which were called by the respondent- Corporation were not submitted. On one hand, the appellant is not pursuing the claim under the Gunthewari Act and on other hand are trying to take disadvantage of their own shortfall.

21. In the aforesaid background, considering the conduct of the appellant, the claim as is sought to be put-forth, based on the judgment in the matter of Akola Municipal Corporation and Yogesh Gada cited supra cannot be termed to be of no assistance. 

26. In view of the aforesaid observations that the predecessor- in-title of the appellant namely Shelke or the appellant himself has not complied with further requirement under the Gunthewari Act, the said ground of seeking protection under the Provisions of Gunthewari Act is not available to the appellant.

27. In the aforesaid background, in my opinion, the view expressed by both the Courts below of non-maintainability of suit, in view of statutory embargo under Section 433 (a) of the Maharashtra Municipal Corporations Act appears to be just and proper.

Bombay High Court

Sau.Sulochana Kantilal Shelke ... vs Shri.Prashant Pannalaji ... on 18 February, 2020

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Bombay HC: The court should refuse to grant a temporary injunction to restrain demolition of construction if it is unauthorized

  It is true that in cases relating to orders for demolition of buildings, irreparable loss may occur if the structure is demolished even before trial, and an opportunity to establish by evidence that the structure was authorised and not illegal. In such cases, where prima facie case is made out, the balance of convenience automatically tilts in favour of plaintiff and a temporary injunction will be issued to preserve status quo. But where the plaintiffs do not make out a prima facie case for grant of an injunction and the documents produced clearly show that the structures are unauthorised, the court may not grant a temporary injunction merely on the ground of sympathy or hardship. To grant a temporary injunction, where the structure is clearly unauthorised and the final order passed by the Commissioner (of the Corporation) after considering the entire material directing demolition, is not shown to suffer from any infirmity, would be to encourage and perpetuate an illegality. {Para 31}

Bombay High Court

JUSTICE PRITHVIRAJ K. CHAVAN

Shantilal Chhogalalji Doshi & Anr. Vs. Municipal Corporation of Greater Mumbai & ANr.

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Which rules will prevail in case of conflict between rules framed under MRTP Act and building bye-laws?

  In case of any conflict between the rules and regulations as framed under the provisions of the M.R.T.P. Act or the Development Regulation and Scheme Regulations in one hand and the building bye-laws framed by the provisions of Bombay Provincial Municipal Corporation Act, 1949, it is quite clear that regulations made under the MRTP Act would prevail. {Para 28}

Bombay High Court

JUSTICE PRITHVIRAJ K. CHAVAN

Shantilal Chhogalalji Doshi & Anr. Vs. Municipal Corporation of Greater Mumbai & ANr.

APPEAL FROM ORDER NO. 8 OF 2021

18th February 2021

Citation: 2021 NearLaw (BombayHC) Online 177

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Whether Municipal Corporation can reject application for regularization of Gunthewari without following proper procedure?

 It is seen from the impugned order that application of the petitioners for regularization of their plot bearing Nos.89 to 94 falling in Khasra No.254/4, Mouza Zingabai Takali, Nagpur located in Progressive Co-operative Housing Society having refused to be regularized under the Maharashtra Gunthewari (Regularization, Upgradation and Control) Act, 2001 by the impugned order dated 01.01.2020. The only ground taken in the impugned order is that the plots in question have been shown as lying within the open space in the approved layout plan and that these plots are not forming part of any approved layout plans. Section 3 of the Maharashtra Gunthewari (Regularization, Upgradation and Control) Act lists out the grounds on which Gunthewari Development can be disallowed. According to the learned counsel for the respondents, the contingencies envisaged in second proviso (e) to section 3(1) of the said Act are applicable to the case of the petitioners. These contingencies, relate to the circumstances when in the opinion of the Planning Authority, such regularization is not in the public interest or because of the matter being sub-judice or same being barred by some Court’s decision or order. These grounds do not form any part of the impugned order dated 01.01.2020. Therefore, even though these grounds have been stated in the reply filed on behalf of the respondents cannot be looked into to support the impugned order, as held in the case of Mohinder Singh Gill and another Vs. The Chief Election Commissioner, New Delhi and ors. Reported in (1978) I SCC, 405. Besides, it appears that no opportunity of hearing has been granted to the petitioners which ought to have been granted in such cases.

Bombay High Court

JUSTICE SUNIL B. SHUKRE JUSTICE AVINASH G. GHAROTE

Smt. Samsunnissa Wd/o Mohd Ismail Pathan & Ors. Vs. Nagpur Municipal Corporation & Anr.

WRIT PETITION NO. 1386 OF 2021

4th May 2021

Author: Sunil B.Shukre, J.

Citation: 2021 NearLaw (BombayHC Nagpur) Online 453

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Whether plaintiff can claim that he has deemed permission for construction if he intends to carry out construction in the flood line?

 However, so far as the present matter is concerned, it has to be held that the construction of theatre by Respondent No. 3 in CTS No. 417 is within the prohibited area. He had no authority to construct such theatre. He has faulted the provisions of the M.R.T.P.Act and the M.M.Act. There was no valid permission for construction of the theatre. No permission could have been granted for construction of the theatre by the Municipal Council, Rahuri. Furthermore, even taking into consideration the provisions of section 5(b) of the Cinema Regulation Act, no licence can be issued for having a cinema theatre in that building, because it is not safe place to have cinema theatre. In such circumstance, the licence has to be revoked. So also, the building has to be demolished.{Para 67}

68. The learned Counsel for Respondent No. 3 has argued that this floodline is only imaginary line. No proper survey was made before drawing the floodline. There were no floods since 1947 in the area, where the floodline is provided for; and in such circumstances, merely on technicalities, the reliefs sought in the writ petition should not be allowed. However, we do not agree with this argument. It is amply brought on record that the concerned authorities had taken the survey, especially by the Engineers of the Irrigation Department. The Government also considered the matter on every aspect; and though at one stage, the Government was thinking of removing the floodlines, after reconsideration of the entire matter, decided to retain the floodlines and then the Notification of 1981 was issued. It is a precautionary measure taken by the Government for the safety of the residents of Rahuri town. There were no floods in the past, that does not mean that the precautionary measures be thrown to winds. The construction is unauthorised construction and it has to be treated like that.

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)

V.K. BARDE AND D.S. ZOTING, JJ.

Vithal Ramchandra Devkhar & Anr. Vs. The State Of Maharashtra & Ors.

Writ Petition No. 187 of 1989

18th January, 2001

Citation: 2001(3) ALL MR 872

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Guidelines of Bombay high court for regularization of unauthorized construction

  We thus propose to dispose of the two petitions and interim applications therein by giving certain directions which flow from the discussion and the conclusions reached by us hereinabove.{Para 18}

19. It is thus directed that the tentative offers for regularisation in the 128 cases (111 cases where regularisation is proposed and 19 cases where regularisation was effected prior to the grant of interim relief, excluding the 2 cases mentioned in paragraphs 4(e) and 4(d) of this judgment) are not approved and these cases will be re-considered for regularisation/retention by the Municipal Commissioner in accordance with the following directions:

(a) That the power and duty to decide the question of retention/regularisation of any unauthorised development or grant of any modification/relaxation and which is required to be decided by this grant of a special permission will not be delegated by the Municipal Commissioner to any other officer. The Commissioner may take the opinion of the concerned Engineers but the final decision must be his for reasons to be recorded in writing (however the reasons may be brief, but they will be adequate).

(b) That while deciding such a question, the Municipal Commissioner will consider all representations made by affected parties on the questions in issue including any hardship or loss caused to them, which will include the affected residents/proposed buyers, and affected residents at least in the immediate neighbourhood.

(c) That if any unauthorised development is in violation of any dimensions pertaining to F.S.I, (unless where permitted by the Development Control Regulations), as on the date of decision, the same will not be regularised;

(d) If on the date of decision, the unauthorised development is found to be in violation of any rule, regulation or law, which violation cannot be waived/ relaxed, then the said development should not be regularised. T.D.R. will not be permitted to reduce the amenities under the D.C. Regulations without adequately and fully compensating the residents/purchasers of the regular part of the structure for good reasons to be recorded in writing by the Commissioner.

(e) That the final order allowing retention must reflect application of mind as regards the "demonstrable hardship" for which the retention of an unauthorised development has been permitted;

(f) That similarly the final order allowing retention must indicate that the relaxation/concessions granted will not affect the health, safety, fire safety, structural safety and public safety of the inhabitants of the building and the neighbourhood;

(g) Where a question of structural modification involving a further burdening of a structure is involved, the structural safety will be certified by a structural engineer of B.M.C., who will grant such a certificate after inspecting the premises.

(h) If there is any loss of a facility, requirement or amenity suffered by any person/persons having interest in the authorised part of any further unauthorised development of which is sought to be retained/regularised, then such loss should be assessed at the market value of the concession granted and must form an ingredient computing premium. Whenever possible this ingredient may be directed to be distributed to the persons who suffer such a loss. In addition the B.M.C. may also add to the premium any amount which may be reasonably required to be invested by it to put up additional infrastructure, if any, in or around the regularised structure. An amount of fine for violation of law should be the third ingredient of the premium. The overall premium to be levied should be sufficiently deterrent so as to discourage a tendency to violate rules and building regulations. In the future, it will be desirable that the consent of such persons who would suffer any loss of facility, requirement or amenity should be filed along with an application for retention.

20. Before we part we would like to impress upon the Commissioner that reg. 64 contains the discretionary powers and by their very nature these are powers to be sparingly exercised in specific cases where a demonstrable hardship is caused. Thus this provision is to be utilised as an exception and not by way of a rule. In normal cases the D.C. Regulations must be applied as they are. What we find here is an unfortunate phenomenon of a planned subversion of these regulations by persons who are beneficiaries thereof, 128 cases is not a small number and it clearly shows a modus operandi. Besides demonstrable hardship will normally mean a situation arising inspite of attempting to follow the regulations. If a plan of a builder is sanctioned on a certain layout for certain number of floors normally no additional floors can be permitted. This undermines the strength of the building affecting the health and safety. The Commissioner will appreciate that he represents the interests of the citizens and must function as a watchdog. He must appreciate that these departures from rules for the benefit of a few is severally undermining the quality of life in urban areas. 

Bombay High Court

Mr. Rajendra Thacker vs Municipal Corporation Of Gr. ... on 5 May, 2004

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Whether court can grant permanent injunction to restrain municipal corporation from demolishing suit house?

  Only question of law which involves is whether the relief of permanent injunction in the nature it is granted is sustainable in law. The learned trial court granted relief of permanent injunction as under:

"(iii) The defendant, its agents and servants are hereby restrained permanently from demolishing the suit house and to that effect permanent injunction is granted."

Ex-facie, in the facts and circumstances of the case, and particularly against the public authority, such relief cannot be granted. It should not have been in the nature of restraining the defendant permanently from taking steps of demolition in any circumstance. If such relief is allowed to operate, it would permanently restrain the defendant from taking steps despite the fact that the plaintiff carries out illegal alteration or construction against provisions of C.N.C. Act. In that view of the matter, the appeal will have to be allowed partly by modifying the Judgment and decree passed by the learned trial court and confirmed by the district judge as under:

Defendant, his agents, servants are permanently restrained from taking steps like demolition etc. of the suit house on the basis of the notice no.238/EPS/Z-10 dated 3.4.2002. {Para 8}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)

M.N. GILANI, J.

The City Of Nagpur Municipal Corporation Vs. Shailendra Kumar

Second Appeal No.39 of 2011

15th June, 2012

Citation: 2013(1) ALL MR 850,

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Can the plaintiff prove that his construction was before the datum line based on oral evidence without supporting documentary evidence?

 As a legal proposition, Mr. Diwan may be right that if evidence of the witness goes unchallenged the court may accept it. But the question is of existence of structure and ownership, and, as discussed by me, earlier, these two aspects cannot be said to have been proved only on the basis of oral evidence of P.W. 2. The plaintiff has to prove that his structure existed prior to 1964. He has no documents of any nature whatsoever for showing the structure to be in existence prior to 1962 and therefore the trial court rightly refused to believe the evidence of P.W. 2 regarding these two aspects. {Para 20}

26. The sum and substance of this discussion is that the plaintiff has no documentary evidence at all to prove that the structure was in existence since prior to 1977 or was in existence on 1.1.1962. The oral evidence of the plaintiff and his witness Kurmi P.W.2, cannot and does not, lead the court to come to the conclusion that the structure was so in existence since 1962. The so-called cross-examination of Pednekar the witness of the Corporation is not an admission and it does not help the plaintiff in any way much less in proving the case of the plaintiff about the structure in existence since 1962. Scores of other documents filed by the plaintiff are not required to be considered because they are subsequent to 1972. Therefore, conclusion is that the trial court was fully justified in holding the crucial issue against the plaintiff. Its finding about the failure of the plaintiff to prove the existence of the structure prior to 1977 or from 1962 are based on facts, sound reasoning and logic, and are not liable to be interfered with on any counts.

 Then in paragraph 12 the Gauhati High Court held that "The power under Section 337 of the Act cannot be utilised and/or used in respect of a building constructed on the own land of a person after completion of the same and after assessed by the Municipal Authority, and this power should be utilised within a reasonable time, though no time limit has been prescribed in section itself."

31. Though this judgment of the Gauhati High Court is repeatedly and strenuously relied upon by Mr. Diwan in support of his submission, it cannot be of any help to the plaintiff for the simple reason that in the case before the Gauhati High Court the construction was made by the person upon his land. That is the distinguishing factor in that case and in the present case the plaintiff - appellant is not the owner of the land. Land upon which the suit structure is there, does not belong to him. The owner is before the court as defendant No.2, who has proved his ownership over the land and therefore if the structure is erected on somebody else's land then the judgment of Gauhati High Court cannot be made applicable. It would amount to giving protection to a trespasser, to legalise an illegal act and would be detrimental to the interest of the owner.

32. Notice under Section 351 was given to the plaintiff. He gave reply with supporting documents. All those were considered and then the order of demolition is passed. Before the trial court, no issue was framed by the court whether the principles of natural justice were not followed by the Authorities nor any such submission was made.

35. Mr. Diwan also contended that order of demolition is a drastic step and particularly if the structure is in existence since 1972 then ordering demolition in 2000, was not at all proper in the circumstances. According to him some other form of penalty could have been imposed and structure could have been regularised.

36. The factual aspect of this matter is that land upon which the structure stands does not belong to the plaintiff. Even BMC has no authority to regularise the structure on somebody else's property. If the property is of the BMC and there is illegal structure, the BMC may in a given case regularise the structure but where the property does not belong to the BMC and the land is owned by somebody else, then even the BMC can not regularise the structure. No other penalty can compensate the real owner. It is equally true that when the plaintiff came before the court his dominant intention was to prevent demolition of the structure pursuant to 351 notice and BMC was concerned with only one aspect i.e. whether the plaintiff has necessary documents to show that the construction which he was making in 2001 is with the permission and on the basis of a sanction plan. The BMC found that there was no sanction plan and second aspect of the matter was that the plaintiff failed to prove before BMC Authorities that his structure was in existence before the datum line.

37. At this juncture, it is necessary to consider one more aspect. According to the plaintiff the suit structure as it was there on the date of filing of the suit has been in existence since 1972. This contention is also false, and, in any event, it is not supported by the document. He tendered, the agreement between him and the vendor Lallu Bhika. Even the agreement of 1972 with Lallu Bhika mentions the suit property as Zopda i.e. hut only. In the assessment extract, this structure is mentioned as CI shed only and the first date of assessment is shown as 1.4.1979. But whereas the photographs tendered by the BMC after part of the structure was demolished, pending appeal, for road widening clearly shows that all the bricks used are absolutely new. This clearly fortifies the case of the BMC that in 2001 the plaintiff constructed four rooms. Obviously this is done by the plaintiff after demolishing the old hut. New structure of the plaintiff, cannot be called as Zopda or hut as is referred in the document of 1972. It cannot be referred as to C.I. shed as is referred in the assessment bill. It is a new construction for which plaintiff has no approved plans nor he has any permission of the BMC for construction.

38. Counsel for the BMC and defendant No.2 submitted that even if all the documents of the plaintiff are accepted, they do not firstly prove that the structure was in existence prior to datum line, that these documents do not prove that the new structure erected by the plaintiff was with the permission of the BMC or on the basis of any approved plan. My attention was drawn to the order of the Commissioner, which is a detailed order, wherein each document of the plaintiff is considered by the Commissioner. In any case, what ultimately comes before the court is important and therefore when plaintiff has miserably failed to prove his title over the property and failed to prove existence of the structure prior to 1972, has failed to prove that when he re-erected the structure in 2001, it was done by him with the permission of the BMC on the basis of sanction and approved plans, then the trial court was fully justified in dismissing the suit and rejecting the claim and contention of the plaintiff.

39. Mr. Diwan also contended that there was no rationale behind fixing the datum line and no action was taken by the BMC from 1972 to 2001. Limitation, in my opinion, in view of the provisions of the BMC Act does not apply in this case. No doubt demolition is a drastic action, but looking to the tendency of the citizens of making illegal construction in the City of Mumbai, which are hundreds and thousands in numbers, BMC is required to be empowered with such drastic action and whether there is a rationale behind fixing the datum line, the court cannot go into this question, because this is a question of policy.

40. It is to be noted that Mr. Diwan had cited some authorities about the testimony of single witness and use of unregistered document for collateral purpose. There is no dispute about this proposition. But in the facts of the case neither the evidence of the single witness can be taken as a proof of the existence of the structure prior to 1972 even if the evidence of witness had gone unchallenged. I have already discussed and noted that illegality and validity of structure are required to be proved on the basis of documentary evidence otherwise that will create chaotic situation where everybody will examine numerable witnesses for proving these facts. There cannot be any substitute for written permission of the BMC for construction nor there cannot be any substitute for approved plan before construction. Therefore, for all these reasons, there is no merit in this Appeal.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

D.G. DESHPANDE, J.

Namdev Pandurang Panchal Vs. Mumbai Municipal Corpn. Of Gr. Bombay & Anr.

First Appeal No.1241 of 2005

16th September, 2005

Citation: 2005(4) ALL MR 689,2006(1) MHLJ 194

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Can the court strike off the entire notice of demolition issued by the Municipal Corporation if only part of the plaintiff's construction is authorized?

 After considering the entire oral and documentary evidence of the parties, the learned Judge came to the correct conclusion that the ground floor being authorized as being in existence prior to the datum line deserves to be protected against demolishing by virtue of its mention in the impugned notice as well as upon the DMC's order calling upon the Plaintiffs to remove the structure under the notice. The learned Judge has, therefore, protected that portion of the Appellants' structure by the order of injunction and partly decreed the Plaintiffs' Suit.{Para 11}

12. The Plaintiffs not having proved the existence of the first floor as having been constructed along with ground floor and after considering oral evidence of the parties showing even earlier litigation where the son of the 1st Plaintiff filed an Affidavit stating that the landlady allowed horizontal as well as vertical extensions to the structure of all the tenants and upon considering the further oral evidence relating to the permission, if any, granted by the landlady in the year 1992-93, the learned Judge correctly came to the conclusion that the construction of the first floor was unauthorized. Hence, the Suit has not been fully decreed. Upon part decree, it follows that the first floor premises of the Plaintiffs is not protected by the order or injunction in the Suit. Hence, this Appeal.

13. It is contended on behalf of the Appellants by Mr. V. A. Thorat, that once even part of the structure is authorized, the entire impugned notice is required to be struck down. He further contends that the notice cannot survive since atleast the ground floor structure of the Appellants' is seen to be authorized and protected by the order of the Trial Judge in the impugned judgment. That contention is incorrect. The Court can mould the relief in respect of any part of the structure and can consider the validity of a part of an order or notice which has been challenged in the Suit. The judgment and order of the Court is required to be on merits of the claim of the Plaintiff. If the Plaintiff succeeds in proving a part of the claim, the Plaintiff is entitled to have his or her Suit partly decreed. (This is more so, if the impugned action is severable as in this case). If the Plaintiff succeeds in proving the entire claim, the entire Suit would be required to be decreed.

15.  In this case, the Plaintiffs claimed that both the ground and first floors were authorised and hence, claimed the reliefs of declaration and protection of their possession. The reliefs could be granted for the ground floor premises which the Plaintiffs proved to be authorised, but could not be granted for the first floor premises which the Plaintiffs could not prove to be authorised. Upon proof of a part of the suit structure as authorized, the entire notice, therefore, cannot be struck down, just as upon not proving a part of the claim of the Plaintiffs, the entire suit cannot be dismissed. The judgment of the learned Trial Judge is, therefore, correct. No prejudice to the Appellants despite merits of their case is shown. For whatever the Plaintiffs merited, the learned Judge has granted the injunction. Part of the structure, for which no merits were shown, the learned Judge could not have and has not granted any reliefs to the Plaintiffs. The impugned judgment and order is correct.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

R.S. DALVI, J.

Pushpaben Mulji Kothari & Ors.Vs.Municipal Corporation Of Gr. Mumbai & Ors.

First Appeal No.198 of 2007

11th June, 2007

Citation:  2007(5) ALL MR 73,2007(5) MHLJ 712

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Whether court can appoint court commissioner if Municipal corporation has issued notice for removal of unauthorized construction?

 Learned counsel Shri Sonawane submitted that the Municipal Corporation has issued notice dated 6th August, 2018 calling upon him to demolish the illegal construction of compound wall made by the petitioner. He submitted that this application for appointment of Court Commissioner is filed with an object that the Commissioner will be able to elucidate whether construction is legal or illegal. He submitted that the application is not filed for collection of evidence. It is filed for elucidation of the matter in dispute. He submitted that notice has been issued indicating therein that petitioner has made encroachment and without measuring the land encroachment cannot be decided. He, therefore, prayed for appointment of Court Commissioner.

9. Learned counsel Shri Vaidya opposed the application contending that the Municipal Corporation has not issued notice for removal of encroachment. He submitted that the impugned notice clearly states that the petitioner has made construction without prior permission from the Municipal Corporation. For deciding whether construction is legal or illegal, appointment of Court Commissioner is not necessary. He, therefore, prayed for rejection of the application.

10. From the impugned notice dated 6th August, 2018, it cannot be inferred that the Municipal Corporation has issued notice for removal of encroachment. Notice specifically states that the petitioner has made construction of compound wall without obtaining prior permission from the Municipal Corporation. The notice nowhere indicates that the petitioner has made encroachment by constructing a compound wall. For deciding whether construction was without permission or with permission, appointment of Court Commissioner is not necessary.

Bombay High Court

JUSTICE M.G. SEWLIKAR

Amol S/o Bhalchandra Lad Vs. The Municipal Corporation Aurangabad & Anr.

WRIT PETITION NO.3876 OF 2020

6th August 2021

Citation: 2021 NearLaw (BombayHC Aurangabad) Online 1310

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Whether the applicant can claim the benefit of deemed permission for construction if he has not made an application for construction in the prescribed form?

From bare perusal of the provisions contained

in section 44 and 45 of MRTP Act it is clear that

for any person, intending to carry out any

development on any land, it is mandatory to make an

application in writing to the Planning Authority

for permission in the "prescribed form" and unless

the application made is in "the prescribed form",

as contemplated by section 44 of the said Act, in

our opinion, one cannot take benefit of the deeming

provision contained in subsection (5) of section 45

of the said Act and carry out any development,

claiming that there was no communication/ reply

from the Planning Authority within sixty days. In

other words, one can take benefit/ advantage of

deeming provision only if the application for

permission for development was made in the

"prescribed form" and if there was no communication

from the Planning Authority either granting or

refusing permission to the applicant within 60 days

from the date of receipt of his application. When

the statute mandates that one has to apply for

building/ development permission in the prescribed

form, the mandate of the statute has to be duly

observed. {Para 7}

10. From bare perusal of the prescribed form it is

clear that it has to be submitted on Rs.0.20 Stamp

and in the form of notice making the intent clear

to carry out development. It further provides that

the application should be accompanied by nine

documents, mentioned in the prescribed form. Thus,

if the application is in the prescribed form and

submitted along with all the relevant/ necessary

documents, then alone, as observed earlier, one can

claim benefit of the deeming provision. If the

prescribed form is compared with the application

dated 9th August, 2010, submitted by the

Petitioner, it is clear that the application was

not in the prescribed form. Therefor, it was not

open to the petitioner to proceed with the

construction of mobile tower treating the inaction/

silence of the Corporation, insofar as their

application dated 9th August, 2010 is concerned, as

deemed permission. In other words, the petitioners

were not obliged to construct the mobile tower

merely because there was no communication from the

Corporation in response to their application dated

9th August, 2010 within 60 days, treating the same

as deemed permission under subsection (5) of

section 45 of the MRTP Act. In the circumstances,

the challenge to the impugned notice on this ground

fails and rejected as such.

11. The next contention urged by Shri Dixit that

the notice under sections 260 and 478 of the BPMC

Act and under Sections 52 and 54 of the MRTP Act,

is illegal, also deserves to be rejected outright.

Shri Dixit urged that the provisions of Sections

260 and 478 would not apply to the facts of the

present case, since, the petitioner had made an

application for seeking permission for development

under Section 44 of the MRTP Act. We have already

taken a view that application dated 9th August,

2010 for development/ for erecting the mobile

tower, in our opinion, was not an application as

contemplated by Section 44 of the MRTP Act and,

therefore, it was not open to the petitioner to

treat the silence or inaction on the part of the

Corporation for sixty days and proceeded with

construction of the mobile tower.

12. A plain reading of Section 260 of the BPMC Act

shows that the procedure under this provision

presupposes a situation, whereby an application in

the prescribed form, has been made and it has

either been rejected or where the permission

granted has been exceeded or a situation, whereby

deemed permission is pleaded, but is not justified.

The case of the petitioner does not fall in any of

these categories. It is so observed by this Court

in the case of Nanasaheb Nagoji Bhosale (Supra).

Section 478 contemplates an entirely different set

of cases whereby the records of the Corporation

indicate that no application whatsoever was ever

made, and consequently, that it was neither

rejected nor granted nor was there any deemed

permission. In the present case, the application

dated 9th August, 2010 was no application as

contemplated by section 44 of the MRTP Act.

Therefore, there was no occasion for the

Corporation to either reject or to grant and no

reason for the petitioner to treat the silence on

the part of the Corporation as deemed permission.

Section 52 of the MRTP Act provides for penalty for

unauthorised development or for use otherwise than

in conformity with the development plan and section

53 confers power on the planning authority to

remove unauthorized development. A plain reading

of all these provisions, in the light of our

finding that application dated 9th August, 2010 was

not an application for development as contemplated

by section 44 of the MRTP Act, would show that the

Corporation is justified in issuing the impugned

notice against the petitioner.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH ATAURANGABAD

APPELLATE SIDE, CIVIL JURISDICTION

WRIT PETITION NO.: 48 OF 2011

GTL Infrastructure Ltd. V/s The Dhule Municipal Corporation and others

CORAM: D. B. BHOSALE AND S. B. DESHMUKH,JJ.

DATED:9th JUNE, 2011.

Citation: 2011(6) BOM CR 152: 2011(6) MHLJ 215

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What is difference between S 260 of BPMC Act and S 478 of BPMC Act?

 The short question that arises is as to whether the powers under S. 260 and S. 478 of the B.P.M.C. Act are in conflict with each other. I do not find any such difficulty arising. The procedure prescribed under S. 260 of the B.P.M.C. Act presupposes a situation whereby an application has been made and the application has either been rejected or where the permission granted has been exceeded or, lastly, a situation whereby deemed permission is pleaded, but is not justified. The basic distinction between these two sections is that a show cause notice will be required for purposes of ascertaining whether the aforesaid circumstance is warranted or not because the record of the Corporation will indicate that some application was, in fact, made and that there was, therefore, some basis for the situation that has come up. {Para 6}

7. Section 478 of the B.P.M.C. Act contemplates an entirely different set of cases whereby the records of the Corporation indicate that no application whatsoever was ever made and, consequently, that it was neither rejected nor granted nor was there any deemed permission. This is the basic distinction between the two sets of cases. In the latter category of cases, S. 478 of the B.P.M.C. Act provides that the structure shall be deemed to be unauthorised and under these circumstances there is no justification for its continuing in existence. The Municipal Commissioner, therefore, in all cases where he finds that there is no obligation would have been justified in invoking the provisions of Section 478 of the B.P.M.C. Act and ordering the demolition. There is no question in such a situation of issuing show cause notice nor does the law require it.

Bombay High Court

Pune Municipal Corporation, Pune vs Nanasaheb Nagoji Bhosale on 11 March, 1994

Equivalent citations: AIR 1995 Bom 164, 1995 (2) BomCR 162, (1994) 96 BOMLR 614, 1995 (1) MhLj 427

Bench: M Saldanha

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Whether Municipal Corporation can demolish compound wall on existing on the property prior to its inclusion within the PMC limits?

 (a) Bombay Provincial Municipal Corporation Act (59 of 1949), S. 478 — Appellant's property was outside the limits of Pune Municipal Corporation — Appellant constructed a compound wall on the said property in the year 1969 — Said property included within the PMC limits in the year 1997 — On 3-4-2001, a notice under section 478 of the Bombay Provincial Municipal Corporation Act was issued to demolish the said compound wall — Construction of the compound wall was admittedly done prior to the inclusion of the area within the PMC limits and hence, ex-facie section 478 has no application — Held, the action of the Corporation of issuance of notice under section 478 was without jurisdiction.

(Para 10)

(b) Bombay Provincial Municipal Corporation Act (59 of 1949), SS. 253, 254 and 260 — Section 260 cannot be read in isolation and must be read with sections 253 and 254.

Where the construction of the compound wall by the appellant in the year 1969 and the reconstruction of the wall in the year 1992, after it was demolished by the Collector Pune, was prior to the inclusion of the appellant's land within the PMC limit in the year 1997, to none of these constructions either section 253 or section 254 will have any application. Section 260 cannot be read in isolation and will have to be read with sections 253 and 254. Section 253 provides that the notice should be given to Commissioner of intention to erect a new building whereas section 254 provides for notice to be given to the Commissioner of intention to make additions etc. To the existing building unless and until section 253 or section 254 applies, section 260 which provides for proceedings to be taken, for contravention thereof, can have no application.

(Paras 11 and 12)

(c) Bombay Provincial Municipal Corporation Act (59 of 1949), S. 487 — Suit instituted against Pune Municipal Corporation challenging notice issued under section 478 for demolition of compound wall constructed by the appellant on his property prior to the inclusion of the said property within the PMC limits — Action of the Corporation in issuing of notice under section 478 was without jurisdiction and de hors the provision of the Act — Issuance of notice under section 487 prior to the institution of the suit was not necessary.

(Para 14)

In the High Court of Bombay

Bombay Provincial Municipal Corporation Act, Section 478 : Applicability

(Bombay)

(Before G.S. Godbole, J.)

Ninad Sahakari Gruharachana Sanstha Maryadit, Pune Vs Pune Municipal Corporation

S.A. (St.) No. 24695 of 2011 with Civil Appln. No. 1298 of 2011

Decided on October 19, 2011

2011 SCC OnLine Bom 1406 : (2012) 2 Mah LJ 665 : (2012) 1 AIR Bom R 527 : (2012) 3 Bom CR 669

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Important provisions of Maharashtra Municipal Corporation Act(Part 2)

 Works unlawfully carried on

267. Powers of 485[Designated Officer] to direct removal of person directing unlawful work.—(1) If 486[the Designated Officer] is satisfied that the erection of any building or the execution of any such work as is described in Section 254 has been unlawfully commenced or is being unlawfully carried on upon any premises he may, by written notice, require the person directing or carrying on such erection or execution to stop the same forthwith.

{Enforcement date of this sub-section is yet to be notified}

(2) If such erection or execution is not stopped forthwith, the 487[Designated Officer] may direct that any person directing or carry on such erection or execution shall be removed from such premises by any police officer and may cause such steps to be taken as he may consider necessary to prevent the re-entry of such person on the premises without his permission.

(3) The cost of any measure taken under sub-section (2) shall be paid by the said person.

488[267-A. Levy of penalty on unlawful building.—(1) Whoever unlawfully constructs or reconstructs any building or part of a building,—

Provided that, such levy and collection of tax and penalty shall not be construed as regularization of such unlawful construction or reconstruction for any period whatsoever of its such unlawful existence.

(2) Penalty payable under sub-section (1) shall be determined and collected under the provisions of this Act, as if the amount thereof were a property tax due by such person.]

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Under which circumstances Municipal Corporation can permit regularization of unauthorized Construction?

 The Judgment in the case of Esha Ekta (Supra) shows also the parameters for regularization of irregular structures. The case of Friends Colony (Supra) cited in the judgment shows that municipal laws permit deviations from sanctioned constructions being regularised by compounding "but that is by way of exception which, unfortunately, has become the rule". The Judgments holds that only such deviations which are bona fide and are attributable to some misunderstanding or which were such that the benefit gained by the demolition would be far less than the disadvantage suffered by demolishing could be regularized. It further holds that deliberate deviations did not deserve to be condoned and compounded. It also enjoins that the compounding of deviations should be kept to the bare minimum. It observes that professional builders stand on different footing from an individual constructing his own building. A professional builder is supposed to understand the laws better and deviations by such builders can be safely assumed to be deliberate and done with the intention of earning profits and hence would deserve to be dealt with sternly so as to act as detriment for its future. {Para 14}

15. The Supreme Court further observed that only marginal, accidental violations, unconsciously made, after trying to comply with  all requirements of the law can alone qualify for regularization.

 Bombay High Court

Shubh Apartments Chs Ltd vs The Municipal Corporation Of ... on 24 July, 2013

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