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2010 Supreme(Bom) 1078
In the High Court of Bombay at Aurangabad
MR. JUSTICE B.R. GAVAI & THE HONOURABLE MR. JUSTICE S.V. GANGAPURWALA
Mohansing Uttamsing Tanwani & Others
Versus
The State of Maharashtra & Others
WRIT PETITION NO.2297 OF 1996 With WRIT PETITION NO. 2306 OF 1996 WITH WRIT PETITION NO. 2307 OF 1996 With WRIT PETITION NO. 2308 OF 1996 WITH WRIT PETITION NO. 2309 OF 19967 With WRIT PETITION NO 2324 OF 1996 With WRIT PETITION NO. 2325 OF 1996 With WRIT PETITION NO. 2343 OF 1996
Decided on: 04-08-2010
For the Petitioners:R.B. Raghuwanshi, V.A. Nimbalkar, A.B. Girase, D.S. Bagul, Advocates. For the Respondents:R1 to R4, R.K. Ladda, AGP, R5 & R9 & R7, Mukul Kulkarni, Parag Barde, R8 & R13, P.M. Shah, Senior Counsel, S.P. Shah, R6, Parag Barde, R11 & R12 & R14, V.D. Sonawane, Advocates.
Headnote:Maharashtra Municipal Councils, Nagar Panchayats and Industrial Township Act, 1965 - Promissory Estoppels and legitimate expectation - Cross-petitions - Political party seeking directions only - Shopkeepers seeking stay of order on ground that they are settled at place from way back - All are paying rent - Courts stay order continuously followed contention - They encroached upon metal road and streets contrary to municipal Act and Rules - Permission to encroachment on roads and streets cannot be granted by Municipal councils - No promissory estoppels against statute - Petitioner therefore have no relief - Plea of being in occupation over years cannot be accepted as it is contrary to provisions of Municipal Act considering fact that Municipal Council in similar cases at other places has provided alternate accommodation - Court sees no reason as to why similar provision cannot be sustained respondent will consider claims on actual facts of occupation - Petition of shopkeepers dismissed. - Though the petitioners do not have a right to continue on the unauthorized occupation, since the petitioners are carrying on their business on the premises which were allotted to them by the Municipal Council for a period of 60 years, Court finds that the petitioners are entitled to have the benefit of doctrine of legitimate expectation for considering their claim for allotment of an alternate site, so that they can continue to earn their livelihood.
The Apex Court, in the matter of Navjyoti Co-operative Housing Society etc. v. Union of India and others, reported in 1992 DGLS (soft) 607 : AIR 1993 SC 155, has held that the doctrine of legitimate expectation imposes in essence a duty on the public authorities to act fairly by taking into consideration the relevant factors relating to such legitimate expectation.
In view of the doctrine of legitimate expectation, the petitioners would also be entitled for consideration of their claim for alternate accommodation on the same terms and conditions which have been made applicable to the similarly circumstanced persons.
On account of constructions of the shops on the road in question, there is not only heavy congestion on the road, but there is also a possibility of great inconvenience to the citizens since the shops are constructed on the road, adjacent to the central prison, civil hospital, office of the Superintendent of Police, bus stand etc. Court finds that larger public interest of the citizen should outweigh the personal interest of the petitioners. The unauthorized constructions which were demolished in the year 1995, have been continued only on account of the interim orders passed by the Court, in 1995. Court finds that in view of the larger public interest, the petitioners are not entitled for continuation of the interim relief. The prayer in that regard is therefore rejected.
B.R. GAVAI, J.
1. Since all these petitions involve common questions of fact and law, they are heard together and disposed of by this common judgment.
2. Writ petition No. 2297/1996 has been filed by the petitioner who claims to be a social worker and activist of Shiv Sena, praying for a writ of Mandamus directing the respondent Nos. 1 and 2 to take action against the respondent Nos. 3 to 7. Writ petition No. 2307/1996 and 2309/1996, have been filed by the petitioners claiming to be in a representative capacity on behalf of other shop owners, since all the shops are situated at Jail Road, Dhule. Rest of the petitions are filed in individual capacity by the occupiers of the shops situated in the same vicinity. These petitioners pray for a declaration that the demolition of their construction by the Municipal Council was not permissible in law and for a direction that the Municipal Council should not demolish the constructions carried out by them.
3. We have heard Shri Raghuwanshi, the learned counsel appearing on behalf of the petitioners in W.P. No. 2297/1996 and Writ Petition No. 2325/1996, Shri Girase, learned counsel appearing on behalf of the petitioners in all other petitions, and Shri P.M. Shah, learned Senior counsel on behalf of the respondent Municipal Corporation.
4. Shri Raghuwanshi, submits that the petitioners were lawfully put in possession of the premises in question way back in the year 1953. He submits that though some of the petitioners were carrying on their business in the other areas of the municipal Council, they were persuaded by the Municipal Council to shift to the jail road. Thereafter, a resolution was passed by the Municipal Council, way back on 24/9/1954, whereby, it was resolved by the Municipal council to allot shops to the petitioners on both the sides of the Murlai Road and to the western side of the technical school.
5. He further submits that not only this, but the petitioners had applied for grant of permission in accordance with the relevant bye laws and the plans for construction were duly sanctioned by the Municipal council. He further submits that thereafter, the petitioners have been regularly paying rent to the Municipal council. It is submitted that though the occupation of the premises in question is from 1953-54, the Municipal Council has charged rent from 1951. Shri Raghuwashi, therefore, submits that the petitioners were lawfully inducted in the sites on jail road and as such, they cannot be termed as trespassers. It is submitted that on the basis of the allotment of the sites by the municipal council, the petitioners have constructed their shops and are carrying on business for a period of more than half a century. It is submitted that the Municipal Council is, therefore, estopped from taking any action against the petitioners. He submits that the so called anti-encroachment drive which was carried out in the year 1995 was totally illegal and nothing else but a colourable exercise of power. He submits that, however, by virtue of the interim order passed by this court, the petitioners have reconstructed their shops and are carrying out their business for a period of last more than 13 years after reconstruction. He, therefore, submits that the law requires that the action taken by the Municipal Council of demolition of the construction is declared ultravires and that the interim relief granted in favour of the petitioners made rule of this court. The learned counsel relies on the judgment of the Apex court in the matter of “Olga Tellis Vs. Municipal Council ad others” reported in AIR 1986 SC 180.
In so far as W.P. No. 2325/1996, Shri Raghuwanshi submits that the petitioner therein was allotted the premises in the year 1958, where he had initially constructed a restaurant. It is submitted that thereafter he had started a permit room in the year 1986. He submits that while granting the permit room, necessary formalities viz. NOC of the Municipal Council, NOC of the Pr
