Sindhu Education Society vs Municipal Corporation of City of Ulhasnagar & others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2000 Supreme(Bom) 664

IN THE HIGH COURT OF BOMBAY
A.P. Shah V.C. Daga, JJ.
Sindhu Education Society.... Petitioner.
Versus
Municipal Corporation of City of Ulhasnagar others.... Respondents.
Writ Petition No. 3223 of 2000, decided on 28-8-2000.
Advocates appeared :
Abhay S. Oka, for the petitioner.
S.M. Paranjape, for respondent Nos. 1 and 2.
S.M. Gorwadkar, for respondent Nos. 3 and 4.
V.P. Malvankar, A.G.P., for respondent No. 5.

Headnote:Section 478-Maharashtra Regional and Town Planning Act, 1966, Section 53-Constitution of India, 1950, Article 226-Illegal construction-Regularisation of-Even though respondent had argued to demolish it-Against notice of contempt-Construction expected to effect rights of petitioner-corporation active in regularising it-The activity of corporation condemnable in regularising the illegal construction-Direction again for removal of construction-with a direction to State Government to keep watch a functioning of statutory body.-Under any circumstance, the unauthorized structure could not have been regularized, that too within a period of seventy-two hours. This Court failed to understand as to how the Corporation could deal with regularization application when this Court was seized of the matter. Indecent haste with which regularisation was granted is an indication of complete lack of bona fide on the part of the Municipal Authorities. The fact that structure was regularised was suppressed from this Court by the Corporation as well as respondents 3 and 4. Their conduct was not only atrocious, but totally uncalled for and unprecedented. The part played by the Municipal Authorities was equally unwarranted and we should not hesitate to use the term condemnable.
       Urbanization is, no doubt, a global phenomenon. Growth of major cities, however, is not a distinct reality in India. Other advanced and developed countries witnessed that phenomenon earlier. They too had their problems. In these countries, local authorities were held rigorously to the performance of their statutory obligations in the matter of supply of potable water, garbage collection, drains, conservancy and maintenance of streets, lighting, and even in providing parks and other amenities. The fiduciary duty which local authorities owe to rate payers had been acknowledged.
       An illegal construction resorted to by the respondents 3 and 4 has materially affected the right to or enjoyment of the property by the petitioner-Trust. The Municipal Authorities owe a duty and obligation under the statute to see that the residential or commercial area is not spoilt by unauthorized construction. Thus, in exercise of writ jurisdiction, Court directs removal of illegal construction in its entirety within a period of three months from the date of receipt of the writ by the Corporation from this Court.
       If need be, and if State Government is satisfied that the Municipal Officers have acted beyond their authority, bypassing the public interest, we expect the State Government to take appropriate disciplinary action against the responsible officers after affording them full opportunity of hearing.

JUDGMENT - V.C. DAGA, J.:---This writ petition under Article 226 of the Constitution of India is to seek a writ of Mandamus to compel respondent No. 1 Municipal Corporation of City of Ulhasnagar ("Corporation", for short) to discharge its duty and obligation under statute to see that the residential or commercial area of the town is not spoilt by unauthorised construction.

FACTS IN BRIEF

In order to appreciate the grievance of the petitioner against the Corporation, few relevant facts need to be noticed at the outset :---

2. The petitioner is an Educational Public Trust, duly registered under Bombay Public Trusts Act, 1950. Respondent No. 1 is a Corporation duly constituted under Bombay Provincial Municipal Corporations Act, 1949 ("said Act of 1949", for short). Respondent No. 1 is also a Planning Authority within the meaning of Maharashtra Regional Town Planning Act, 1966. Respondent No. 2 is the Commissioner of respondent No. 1 Corporation. Respondents No. 3 and 4 are the persons who have indulged in illegal constructions, which is a subject-matter of this writ petition. Respondent No. 5 is the State of Maharashtra.

3. The petitioner-Society is running a Girls High School and a Junior College. The said school is conducted in an old building situated at Ulhasnagar. The property, on which the said building is situated, has been acquired by the petitioner-Trust under a Deed of Conveyance, dated 8th February, 1980, executed by the Managing Officer and Assistant Administrative Officer of Ulhasnagar Township.

4. The petitioner-Trust stated that recently some portion of the property has been acquired by respondent No. 1 Corporation for road widening, as a result thereof, the area of the playground of the petitioner-Trust has been reduced. The petitioner-Trust brought it on record that there was a small single-storeyed structure in possession of respondent No. 3 in a public passage abutting the property of the petitioner-Trust. Front portion of the said structure was demolished by respondent No. 1 Corporation while implementing Road Widening Scheme framed by the Corporation. Immediately after demolition of front portion of the said structure, respondents 3 and 4 demolished and removed the remaining part of the old structure and constructed an altogether new R.C.C. building consisting of ground+two floors without containing any permission from the respondent No. 1 Corporation.

5. The aforesaid illegal construction has totally blocked more than half portion of the entry to the public passage leading to one of the entrance gates of the school run by the petitioner-Trust. Moreover, respondents 3 and 4 have constructed balconies in such a manner that the same are protruding on the property of the petitioner-Trust.

6. The petitioner-Trust having left with no other alternative, by their letter, dated 3-5-2000., brought to the notice of the respondent No. 2 the aforesaid illegal construction, and requested for urgent removal thereof. As no action was taken by respondents 1 and 2, a detailed representation, dated 15th May, 2000, was addressed to the respondent No. 2, pointing out the illegal construction and prejudice caused to the petitioner-Trust. However, respondents 1 and 2 have not taken any action, whatsoever against the illegal construction. The said respondents have not even bothered to give reply to the letter/notice sent by the petitioner-Trust.

7. In the aforesaid backdrop, the petitioner-Trust invoked the writ jurisdiction of this Court, finding that respondent No. 2 failed to discharge its statutory duty and obligations to ensure that no illegal constructions are made and that the illegal constructions, if any, are demolished or removed. The failure on the part of respondents 1 and 2 to perform their duty has resulted in substantial prejudice and inconvenience to hundreds of students taking education in the school run by the petitioner-Trust. The petitioner-Trust also brought it on record that respondents 3 and 4 have started ru

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2000 Supreme(Bom) 664

Cases Referred (1)