TaxTMI 
TaxTMI 
2005 (3) TMI 806
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....pellants herein on the land bearing City Survey No. 3331 and House Property No. 358 and 358/1 of Kaskar Alley, Bhiwandi, District Thane. A further prayer was made that the Municipal Council be directed to furnish certified copies of extracts of assessment register/book and permission dated 5th May, 1995 granted to the Appellants herein in relation to the aforementioned property. WRIT PROCEEDINGS : 4. In his writ petition, the first Respondent complained of illegal constructions made in the town of Bhiwandi on private as well as Government lands but despite the same neither any action was taken thereupon nor any certified copy of the assessment register/ book was supplied. 5. In the writ petition, it was contended that on the aforementioned plot there existed a single storied structure but the Appellants managed to obtain a repair permission dated 5th May, 1995' for carrying out repairs on the ground floor and two upper floors, but construction of ground plus six floors was started on the basis thereof. 6. The First Respondent herein sought for copies of extracts of the assessment register for the purpose of establishing the nature of the original structure standing ....
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....egularization of such unauthorized structures would defeat the very purpose of introducing the rules of planned development of the city and, thus, cases of such unauthorized constructions must be dealt with sternly. 11. It was directed: "(i) The Respondent nos. 1 and 2 are directed to issue certified copies of the documents within four weeks as per the applications filed by the Petitioners subject to payment of charges. (ii) Civil Judge (J.D.) Bhiwandi is directed to decide the application for interim relief by Respondent nos. 4 to 6 in Reg. Civil Suit No. 321 of 1999 within a period of eight weeks. The parties shall appear before the Civil Court on 4th September, 2000 and thereafter the Civil Court shall hear the matter on day to day basis without granting any adjournments to either side. (iii) Appeal filed against the order of the Trial Court, if admitted and ad-interim or interim relief is granted, shall be disposed of within a period of six weeks without insisting for formal paper book. (iv) In case the Civil Court vacates the interim order the Municipal Council shall demolish the building constructed by Respondent nos. 4 to 6 within a per....
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....ng to learned counsel, Section 143 of the MRTP Act refers only to offences and in that view of the matter, by reason thereof, except as expressly provided for in the MRTP Act or the Municipal Act, no general order of regularization could be issued in terms of the purported resolution dated 12th October, 1998 or otherwise. Provisions of Sections 52 and 53 of the MRTP Act, Mr. Mohta would contend, would apply only during development and not thereafter. STATUTORY PROVISIONS: 16. The relevant provisions of the MRTP Act are as under: "2(15) "local authority" means -- (a) the Bombay Municipal Corporation constituted under the Bombay Municipal Corporation Act or the Nagpur Municipal Corporation constituted under the City of Nagpur Municpal Corporation Act, 1948, or any Municipal Corporation constituted under the Bombay Provincial Municipal Corporation Act, 1949. (b) a Council and a Nagar Panchayat constituted under the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 (19) "Planning Authority" means a local authority; and includes -- (a) a Special Planning Authority constituted or appointed or deemed to have been appointed....
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....inuance of such use has been allowed under that section continues such use after the period for which the use has been allowed or without complying with the terms and conditions under which the continuance of such use is allowed, shall, on conviction be punished with fine which may extend to five thousand rupees; and in the case of a continuing offence, with a further fine which may extend to one hundred rupees for every day during which such offence continues after conviction for the first commission of the offence. (1) Where any development of land has been carried out as indicated in sub-section (1) of section 52, the Planning Authority may, subject to the provisions of this section, serve on the owner a notice requiring him, within such period being not less than one month, as may be specified therein after the service of the notice, to take such steps as may be specified in the notice. (a) in cases specified in clause (1) or (c) of sub-section (1) of section 52, to restore the land to its condition existing before the said development took place, (b) in cases specified in clause (b) or (d) of sub-section (1) of section 52, to secure compliance with the condit....
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.... this behalf by general or special order may either before or after the situation of the proceedings compound any offence made punishable by or under this Act or rules made thereunder. (2) When an offence has been compounded, the offender, if in custody, shall be discharged: and no further proceedings shall be taken against him in respect of the offence compounded." 17. Sub-sections (2), (8) and (9) of Section 189 of the Municipal Act are as under: "(2) Before beginning to construct any building, the person intending so to construct shall give to the Chief Officer notice thereof in writing and shall furnish to him at the same time, if required by a bye-law or by a special order to do so, a plan showing the levels, at which the foundation and lowest floor of such building are proposed to be laid, by reference to some level known to the Chief Officer, and all information required by the bye-laws, or demanded by the Chief Officer regarding the limits, design, ventilation and materials of the proposed building and the intended situation and construction of the drains, privies water-closets, house- gullies and cess pools, if any, to be used in connection therewith, ....
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....nder clause (a) of sub- section (4), contrary to the plans and information furnished under sub-sections (2) and (3); or (iii) having received permission under clause (b) of sub- section (4) contrary to the conditions imposed under that clause or contrary to the plans and information submitted under sub-sections (2) and (3) in so far as such plans and information are not modified by such conditions; or (iv) contrary to the provisions of sub-section (6), when construction is begun under that sub-section, the Chief Officer may, by a written notice, require such person to stop such construction and to alter or demolish any construction already made as specified in the notice. If, within fifteen days, from the service of such notice for demolishing any such construction, the work of demolishing is not commenced, the Chief Officer may cause such work to be done and the expenses incurred therefore shall be recoverable from the person concerned in the same manner as an amount due on account of a property tax. ANALYSIS OF THE STATUTORY PROVISIONS : 18. In terms of Section 44 of the MRTP Act, a person intending to raise any construction is required to make an applicat....
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....olishing the compound wall for Road widening and the work of drainage is in progress. In lieu of compensation for the said land the Municipal Council shall give full cooperation and concessions." 23. Such a statement has also been made in the synopsis and list of dates at page B of Civil Appeal No. 2733 of 2001. 24. However, while filing the additional documents, a copy of the said letter dated 4th December, 1986 had been annexed which reads as under: "By this letter it is to inform you that on the part of your land bearing City Survey No. 3331 towards South a portion of land is taken for road widening purpose. In the said land surrendered by you the Municipal Council has broken the compound and undertaken the work of laying drainage, and developed a road. Kindly note that necessary cooperation will be given in the matter of compensation (price) for affected land from Municipal Council." 25. The Municipal Council, therefore, in terms of its aforementioned letter dated 4th December, 1986 did not make any promise to give full cooperation and concession in lieu of compensation. What was promised was that cooperation will be given in the matter of pa....
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....n progress at land bearing City Survey No. 3331 at Bhiwandi Mauje -- Ground + six floors. Measurement: East 68 ft. West 38 ft. North 71 ft." 30. It appears that the Appellants had prayed for assessment of house tax by a letter dated 25.06.1998. In the said letter, permission was sought for construction of new houses for ground plus four more floors purported to be by way of compensation for the land lost by them by way of equalization thereof for road widening. There is nothing on record to show that Mr. R.R. Patil had made any such application for carrying out the repairs. There is also nothing on record to show that the said Shri R.R. Patil had any F.S.I.. 31. If the Municipal Council in fact had granted any permission to make new constructions of ground and two storeyed building, there was no reason as to why the same had not been produced before the High Court or before us. 32. We have, therefore, no option but to hold that only repair permission had been granted to the Appellants. 33. The Appellants herein in terms of the said notice dated 6.6.1998 had the option of complying with the directions contained therein or file an appropriate application in terms of Sub-s....
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..... The writ petition was filed by the First Respondent herein on 29.6.1999 and even during pendency thereof, no such application was filed by the Appellants nor any contention was raised to the effect that they were entitled to take recourse to the benefits contained in the said resolution. 38. Once such a notice under Section 52 is served, the persons aggrieved within the period specified therein, which in the instant case is one month, must apply for permission for retention on the land of the building or works under Section 44 of the MRTP Act. Only when a permission is granted, the notice would stand withdrawn. The question of grant of any permission would arise only if an application is made therefore. As the Appellants herein had not filed such application, the Municipal Council was obliged not only to prosecute the owner but also to carry out the demolition in terms of the aforementioned notice dated 6.6.1998. 39. The Municipal Council is a 'local authority' as well as planning authority within the meaning of the provisions of Sections 2(15) and 2(19) of the MRTP Act. 40. The Municipal Council being a creature of statute was bound to carry out its functions wi....
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....nauthorized constructions. Ref: 1) Letter dt. 27.7.99 of Chief Officer, Bhiwandi Nizampur Municipal Council ) Letter No. TPS -- 1299-1105/CD-12, dt. 29-3-2000 of City/ Development Department, Govt. of Maharashtra. Sir, With reference to above referred letter of Bhiwandi Nizampur Municipal Council, guidance is sought for recovery of development fees on unauthorized construction. Considering the provisions of Section 124E(2) of Maharashtra Regional and Town Planning Act, 1966, proceedings of recovery of development fees on unauthorized constructions by Municipal Councils is not proper. Instead of that, the Municipal Councils should take actions under the provisions of Sections 52, 53 and 54 of the aforesaid Act with respect to unauthorized constructions. And only the constructions which can be regularized in accordance with rules, actions for such constructions should only be taken to regularize and recovery of development fees in such cases would be proper. Accordingly, the Municipal Councils may be advised." 43. It may be true that certain demands were made upon the Appellants herein to deposit the development charges by the Municipal Council ....
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....ng profits and hence deserve to be dealt with sternly so as to act as a deterrent for future. It is common knowledge that the builders enter into underhand dealings. Be that as it may, the State Governments should think of levying heavy penalties on such builders and therefrom develop a welfare fund which can be utilized for compensating and rehabilitating such innocent or unwary buyers who are displaced on account of demolition of illegal constructions." 47. In M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu and Ors. : [1999]3SCR1066, this Court observed: "73. The High Court has directed dismantling of the whole object and for restoration of the park to its original condition. This Court in numerous decisions has held that no consideration should be shown to the builder or any other person where construction is unauthorised. This dicta is now almost bordering the rule of law. Stress was laid by the appellant and the prospective allottees of the shops to exercise judicial discretion in moulding the relief. Such a discretion cannot be exercised which encourages illegality or perpetuates an illegality. Unauthorised construction, if it is illegal and cannot be compounded, has....
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....dered for granting....." 50. Mr. Naphde, therefore, is not correct in contending that the High Court should have taken a lenient view. 51. In Mulchand Agarwalla (supra), whereupon strong reliance has been placed by Mr. Naphde, this Court upon taking into consideration the provisions of the Calcutta Municipal Act and in view of the terminologies contained in Section 449 thereof noticed that that the Magistrate had a discretionary jurisdiction to pass an order of demolition and held: "....The conduct of the respondent in adopting a hide- and-seek attitude in completing the constructions in deliberate defiance of the law calls for severe action. It would be most unfortunate, and the interests of the public will greatly suffer, if the notion were to be encouraged that a person might with impunity break the building rules and put up a construction and get away with it on payment of fine. All this would be good justification for making an order for demolition....." 52. However, keeping in view the provisions of Sub-section (2) of Section 363 of the Act which directs that no application for demolition shall be instituted after a lapse of five years from the date of the w....