Important point
The Municipal Council being a creature of statute is not possessed of any statutory power to regularize unauthorized constructions. Payment of development charges by itself does not lead to exoneration from the consequence of commission of an offence or regularization of unauthorized constructions.

Headnote:Maharashtra Regional and Town Planning Act, 1966—Section 43 rw/s 52—Indian Penal Code, 1860—Sections 119 and 217 rw/s 34—Unauthorised constructions—No action taken thereupon nor any certified copy of assessment register/book was supplied —Writ petition filed in the nature of a Public Interest Litigation—Prayer for issuance of an appropriate direction upon the Bhiwandi Nizampura Municipal Council to demolish a building consisting of ground and six upper floors constructed by appellants—A further prayer was made that the Municipal Council be directed to furnish certified copies of extracts of assessment register/book—On the plot there existed a single storied structure—Appellants managed to obtain a repair permission—High Court held that offences relating to unauthorized or legal constructions cannot be compounded and, thus, structures have to be demolished—It was further held that regularization of such unauthorized structures would defeat the very purpose of introducing rules of planned development of the city and thus cases of such unauthorized constructions must be dealt with sternly—Whether order of demolition is justified—(Yes)—Appellants having sought to mislead this Court, they are directed to deposit a sum of Rs. 50,000/- with National Legal Service Authority.
       Held : The First Respondent herein in the writ petition categorically stated that the original structure standing on the site in question was not of permanent nature and was a single storeyed one. Only the open land in front of the said structure on its southern side had been taken over by the Municipal Council for the purpose of road widening, whereafter the Appellants made an application to the Municipal Council for grant of repair permission which was granted for carrying out the repairs of ground as also two upper floors, despite the fact that no upper floor was ever in existence. Although in terms of such permission, only repairs of the existing structure could have been carried out and that too within a period of one year from 5th May, 1995, the Appellants herein started altogether new construction in the year 1998. They had erected R.C.C. framework of a building consisting of ground plus six upper floors but have not yet finished the work. The said averments of the Respondents in the Writ Petition were not denied or disputed. In fact, as noticed hereinbefore, the Appellants herein did not file any return before the High Court. (Para 20)
       Thus, if permission had been granted only for carrying out repairs of an existing building and if, in fact, there existed only ground floor, question of grant of any permission for new construction or for that matter permission for carrying out repairs in ground plus two storey could not have been issued. It, furthermore, appears that the Municipal Council on or about 6.6.1998 issued a notice asking the Appellants herein to comply with the directions contained therein failing which it was threatened that necessary action would be taken in terms of the provisions of the MRTP Act and the Municipal Act and the unauthorized construction/development would be demolished. (Para 27)
       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 therefor. 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. 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. The Municipal Council being a creature of statute was bound to carry out its functions within the four-corners thereof. Being a statutory authority, it was required to follow the rules scrupulously. Concededly, the Municipal Council is not possessed of any statutory power to regularize unauthorized constructions. Its power is confined to compounding the offences in certain cases. Moreover, even development charges could not be recovered from the Appellant in respect of unauthorized constructions in terms of Section 124E(2) of the MRTP Act. (Paras 37 to 39)
       It may be true that certain demands were made upon the Appellants herein to deposit the development charges by the Municipal Council but the same were made without prejudice to their rights, as would appear from the notice dated 3.11.1998. Demand of the development charges without prejudice to the rights of the Municipal Council did not, thus, create any legal right in favour of the Appellants. (Para 42)
       Payment of development charges by itself, therefore, did not lead to exoneration from the consequence of commission of an offence or regularization of unauthorized constructions. (Para 43)
       The jurisdiction of a local authority is confined only to deal with application for grant of permission for construction as contained in Section 44 of the MRTP Act whether at the initial stage or when a notice is served under Sub-section (2) of Section 53 of the MRTP Act. The power to grant such permission could be exercised only within the purview of the Building Bye-laws. Therefore, being beyond the scope of Section 44 of the MRTP Act, the Municipal Council did not have any jurisdiction to direct regularization of such unauthorized constructions by reason of the said resolution or otherwise. The power of the Municipal Council, it is trite, being confined to the provisions of the said Acts, no action could be taken by them contrary thereto or inconsistent therewith. (Para 44)
       For the reasons aforementioned, these appeals, being devoid of any merit, are dismissed. The Municipal Council is hereby directed to carry out the order of the High Court, as expeditiously as possible and not later than four weeks from date. Having regard to the fact that the Appellants have sought to mislead this Court, we think it appropriate to impose costs upon them. The Appellants are hereby directed to deposit a sum of Rs. 50,000/- (Rupees Fifty Thousand) with National Legal Services Authority within four weeks from date and deposit the receipt thereof in the Registry of this Court. (Para 52)

Judgment

S.B. Sinha, J.—These two appeals arising from a common judgment and order dated 31st July, 2000 passed by a Division Bench of the High Court of Judicature at Bombay in writ petition No. 4675 of 1999 were taken up for hearing together and are being disposed of by this common judgment.

Facts :

2. The factual matrix is being noticed from Civil Appeal No. 2733 of 2001.

3. The First Respondent herein, an advocate, is said to be associated with various social activities and had been acting as Chief Trustee of Ganpati Devasthan, Bhiwandi. He filed a writ petition in the nature of a Public Interest Litigation inter alia for issuance of an appropriate direction upon The Bhiwandi Nizampura Municipal Council (hereinafter referred to ‘Municipal Council’) to demolish a building consisting of ground and six upper floors constructed by the Appellants 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 on the said property but the same was denied to him on the premise that the property in question did not stand in his name. It was furthermore contended that the officials of the Municipal Council colluded with the Appellants herein. It was urged that such constructions had come up solely owing to negligence and default on their part. It was further contended that no F.S.I. was available on the plot for constructing such a huge building and, thus, the same being unauthorized was liable to be demolished.

7. Before the High Court the Appellants did not file any return. The Municipal Council, however, contended that in relation to the said property a civil suit had been pending in the Court of Civil Judge, Junior Division, Bhiwandi wherein the Appellants had obtained an order of status quo. It was further disclosed that a First Information Report in relation to the aforementioned unauthorized construction was lodged on 4th June, 1999 under Section 43 read with Section 52 of the Maharashtra Regional and Town Planning Act, 1966 (MRTP Act) and Sections 119 and 217 read with Section 34 of the Indian Penal Code wherein the Appellants as also the officers of the Municipal Council including the then Chief Surveyor and Chief Engineer were named as accused therein.

8. Before the High Court, reliance was also placed upon a purported resolution of the Municipal Council dated 12th October, 1998 in terms whereof all unauthorized constructions within the municipal area were sought to be regularized upon imposition of penalty and compounding of offences in terms of Section 43 of the MRTP Act.

9. The State of Maharashtra in its affidavit contended that it was not inclined to approve the aforementioned resolution passed by the Municipal Council.

Judgment Of The High Court :

10. In the impugned judgment, the High Court held:

(i) The First Respondent was entitled to inspection of documents as also grant of certified copies on payment of requisite charges;

(ii) Recov

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2005 Supreme(SC) 481

Cases Referred (4)