Back
High Court of Judicature at Bombay
D.Y. CHANDRACHUD & S.C. GUPTE, JJ.
Sandeep Sharadchandra Thakur
Versus
State of Maharashtra & Others
Public Interest Litigation No.53 of 2013
Decided on: 05-07-2013
Unauthorised construction on property belongs to CIDCO without permission of Planning Authority, directed to be removed by respondent 7 within 2 weeks. - In the present case, under sub-section (1) of Section 44 of Maharashtra Town Planning Act, 1966 any person intending to carry out development on land has to make application in writing to planning authority for permission. Section 45(1) stipulates that on receipt of application under Section 44, planning authority may, subject to provisions of Act, grant permission unconditionally or subject to conditions or refuse permission, by an order in writing. Section 46 requires planning authority, while considering application for permission, to have due regard to provisions of any draft or final plan or proposal. Section 52(1) makes it offence to commence, undertake or carry out development without permission. Section 53 provides that where development of land has been carried out as indicated in Section 52(1), planning authority may serve on owner notice, inter alia, requiring restoration of land to its condition before development took place. Section 54 empower planning authority to stop unauthorised development. Section 55 empowers planning authority to direct removal of unauthorised temporary development summarily.
Structure is unauthorised. Law relating to urban planning in State-Maharashtra Regional Town Planning Act, 1966 applies to every person who intends to carry out development. That brazen violations of nature involved in this case take place in area where there is planning authority is clearly indicative of dereliction of public duties.
Worse, there is malaise which is eating under very nose of public bodies and such state cannot come to pass without complicity of those entrusted with control over menace of unauthorised constructions in urban areas of State. Nothing can be more destructive of rule of law than misplaced belief that some are above law.
No one is above law. It is time that the Count indicated in no unmistakable terms, both to those within and outside sphere of public governance that law brooks no exceptions based on position or affluence.
Maharashtra Regional and Township Planning Act, 1966 - Section 55 - Encroachment on property.
Since period specified in notice for removal of unauthorised construction on property belong to MIDC, has expired hence MIDC can take action against respondent 6 in accordance with law. - MIDC has filed an affidavit in these proceedings to the effect that there is an encroachment by the sixth respondent on open space No. 12 in ’C’ block of the Trans Thane Creek (TTC) Industrial Area to the extent of 1,119.82 sq. metres. MIDC has stated that the Deputy Engineer of the special planning authority issued a notice on 26th February, 2010 under the Maharashtra Regional Town Planning Act, 1966 followed by notices under Section 55 on 8th November, 2010 and 8th February, 2013. The trustees have denied that there is any encroachment and stated that the temple is old. Here again, the extent of t he encroachment and the absence of any permission of MIDC indicates that a property vesting in the MIDC as special planning authority has been encroached upon on a large scale.
Apart from issuing notices since 2010, the officials of MIDC have not taken any steps till date. Encroachment on such a massive scale cannot be possible without the complicity and active connivance of the officials of MIDC. The period which has been specified in the notice under Section 55 has already expired but no action has been taken.
Dr. D.Y. Chandrachud, J.
1. Rule. Learned counsel for the Respondents waive service. By consent, the Rule is made returnable forthwith. The writ petition is taken up for hearing and final disposal, by consent and on the request of learned counsel.
2. The petition has been filed in the public interest by a citizen who is a resident of Navi Mumbai. The Petitioner has stated that he has been actively involved in social causes and is also a Vice President in a multi-national company. The grievance of the Petitioner relates to encroachments made on lands belonging to City and Industrial Development Corporation (CIDCO), the Fourth Respondent, and Maharashtra Industrial Development Corporation (MIDC), the Third Respondent. The Fifth Respondent is a Minister in the State Government holding the portfolio of Excise and Non-conventional Energy. The Sixth Respondent is a trust registered under the Bombay Public Trusts Act. The Seventh Respondent is a nephew of the Fifth Respondent and a trustee of the Sixth Respondent.
3. The encroachment in respect of the CIDCO property consists of a bungalow which is described as a glass house. CIDCO has stated in its affidavit-in-reply that the plot in issue is formed out of old survey no.456-A admeasuring 62 acres. Though the Petitioner had described the plot as Plot no.27, CIDCO's affidavit clarifies the correct description of the plot. The land, as stated by CIDCO, falls under the no development zone and is described as `Khajan' land into which sea water would flow. Hence the land would also be affected by the Coastal Regulation Zone. According to the reply filed by CIDCO, there were originally some old chawl like structures standing on the land. The land was handed over to the CIDCO for the purposes of planning and development when the authority was constituted as the new town development authority for Navi Mumbai under the Maharashtra Regional Town Planning Act, 1966 under a possession receipt dated 30 June 1973. In 1992, Navi Mumbai Municipal Corporation came into existence and is now designated as the planning authority for the area. CIDCO has stated that it has not granted either a no objection certificate or any permission for development or construction on the plot. However, according to CIDCO, since the Municipal Corporation is now the planning authority, it is for the latter to take action.
4. An affidavit has been filed on behalf of Navi Mumbai Municipal Corporation, the Second Respondent, by the Deputy Municipal Commissioner in which it has been stated that the CIDCO property is assessed for municipal taxes in the name of the Seventh Respondent since 1 January 1992. A copy of the assessment extract has been annexed to the affidavit. The Municipal Corporation has also not granted permission for the construction.
5. The contention of the Petitioner is that the land has been encroached upon and a structure has been erected thereon by the Fifth and/or Seventh Respondents brazenly and without any permission.
6. The affidavit of the Seventh Respondent purports to state that the structure belongs to him and is not situated on land belonging to CIDCO. According to the Seventh Respondent, a body by the name of "Maharashtra Merry Time Board" (sic), presumably the Maharashtra Maritime Board, had allotted the plot at Ulve creek long back for the storage of sand. According to him, the structure has been in existence prior to the incorporation of Navi Mumbai Municipal Corporation. The affidavit of the Seventh Respondent does not either annex any letter of allotment nor for that matter has the Seventh Respondent even stated that there was any permission for the erection of the structure. No permission has been produced.
7. Even assuming, as the Seventh Respondent submits, that land was allotted to him for the storage of sand, that would not justify or furnish authority for the construction of a structure (such as the residential structure in question) without any permission. Moreover, it is clea
SupremeToday
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
