Baburao Mahadik & Ors Vs. Subhash Krishna Kanitkar & Ors  Insc 176 (16 March 2005)
Singh & S.B. Sinha
W I T
H CIVIL APPEAL NO. 2734 OF 2001 S.B. SINHA, J:
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.
factual matrix is being noticed from Civil Appeal No. 2733 of 2001.
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
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.
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.
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.
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.
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.
State of Maharashtra in its affidavit contended that it
was not inclined to approve the aforementioned resolution passed by the
impugned judgment, the High Court held:
The First Respondent was entitled to inspection of documents as also grant of
certified copies on payment of requisite charges;
Recovery of taxes in respect of unauthorized construction does not amount to regularisation
The Resolution dated 12th
October, 1998 passed
by the Municipal Council on a wholesale basis is wholly unsustainable in law.
relating to unauthorized or illegal constructions cannot be compounded and,
thus, structures have to be demolished.
Regularization 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.
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.
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.
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.
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 period of four weeks from the date of vacation of interim relief.
The Commissioner of Police, Thane is directed to provide adequate police
protection to the municipal staff in carrying out demolition of the building.
The resolution dated 12th
October, 1998 is
quashed and set aside. Respondent nos. 1 and 2 are directed to take immediate
steps to demolish the unauthorized structures in Bhivandi in accordance with
Naphde, learned senior counsel appearing on behalf of the Appellants
principally raised the following two contentions in support of these appeals:
Having regard to the statutory scheme contained in Sections 52 and 53 of the
MRTP Act read with Section 189 of the Maharashtra Municipal Councils, Nagar Panchayats
and Industrial Townships Act, 1965 (the Municipal Act), the Municipal Council
had the requisite jurisdiction to pass the resolution dated 12th October, 1998
and in that view of the matter the direction of the High Court to demolish the
structure is manifestly unjust, as pursuant to or in furtherance of such scheme
of regularization, the Appellant could have filed an application praying for
regularization of the constructions raised by them.
any event, the High Court should not have exercised its discretionary power in
directing demolition of the structure. Strong reliance, in this Agarwalla
[(1955) 2 SCR 995] Dr. N.M. Ghatate, learned senior counsel appearing on behalf
of the Appellants in Civil Appeal No. 2734 of 2001 and Respondent Nos. 2 &
3 in Civil Appeal No. 2733 of 2001 supported the contention of Mr. Naphde and
furthermore urged that although a notice had been served upon the Appellants,
no demolition could be carried out in view of the order of status quo passed by
the Civil Court.
to Dr. Ghatate, the Municipal Council has the requisite jurisdiction to
regularize such unauthorized constructions by compounding offences upon
accepting compounding fees prescribed therefor.
V.A. Mohta, learned senior counsel appearing on behalf of the First Respondent,
on the other hand, would submit that the Appellants are guilty of commission of
fraud and even in this Court got up documents have been filed and wrong
statements have been made to bolster their cases.
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
relevant provisions of the MRTP Act are as under:
"local authority" means
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.
Council and a Nagar Panchayat constituted under the Maharashtra Municipal
Councils, Nagar Panchayats and Industrial Townships Act, 1965
"Planning Authority" means a local authority; and includes
Special Planning Authority constituted or appointed or deemed to have been
appointed under section 40;
respect of the slum rehabilitation area declared under section 3C of the Maharashtra
Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971, the Slum
Rehabilitation Authority appointed under section 3A of the said Act;
Except as otherwise provided by rules made in this behalf, any person not being
Central or State Government or local authority intending to carry out any
development on any land shall make an application in writing to the Planning
Authority for permission in such form and containing such particulars and
accompanied by such documents, as may be prescribed:
that, save as otherwise provided in any law, or any rules, regulations or
by-laws made under any law for the time being in force, no such permission
shall be necessary for demolition of an existing structure, erection or
building or part thereof, in compliance of a statutory notice from a Planning
Authority or a Housing and Area Development Board, the Bombay Repairs and
Reconstruction Board or the Bombay Slum Improvement Board established under the
Maharashtra Housing and Area Development Act, 1976.
(1) Any person who, whether at his own instance or at the instance of any other
person commences, undertakes or carries out development, or institutes, or
changes the use of any land
permission required under this Act; or
is not in accordance with any permission granted or in contravention of any
condition subject to which such permission has been granted;
the permission for development has been duly revoked; or
contravention of any permission which has been duly modified.
on conviction, be punished with imprisonment for a term which shall not be less
than one month but which may extend to three years and with fine which shall
not be less than two thousand rupees but which may extend to five thousand
rupees, and in the case of a continuing offence with a further daily fine which
may extend to two hundred rupees for every day during which the offence
continues after conviction for the first commission of the offence.
Any person who continues to use or allows the use of any land or building in
contravention of the provisions of a Development plan without being allowed to
do so under section 45 or 47, or where the continuance 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.
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.
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
cases specified in clause (b) or (d) of sub-section (1) of section 52, to
secure compliance with the conditions or with the permission as modified:
that, where the notice requires the discontinuance of any use of land, the
Planning Authority shall serve a notice on the occupier also.
particular, such notice may, for purposes of sub- section (1), require
demolition or alteration of any building or works;
carrying out on land of any building or other operations; or
discontinuance of any use of land.
Any person aggrieved by such notice may, within the period specified in the
notice and in the manner prescribed, apply for permission under section 44 for
retention on the land of any building or works or for the continuance of any
use of the land, to which the notice relates, and pending the final
determination of withdrawal of the application the mere notice itself shall not
affect the retention of buildings or works or the continuance of such use.
the permission applied for is granted, the notice shall stand withdrawn; but if
the permission applied for is not granted, the notice shall stand; or if such
permission is granted for the retention only, of some buildings, or works, or
for the continuance of use of only a part of the land, the notice shall stand
withdrawn as respects such buildings or works or such part of the land, as the
case may be, and thereupon, the owner shall be required to take steps specified
in the notice under sub-section (1) as respects such other buildings, works or
part of the land.
(2) The Authority shall, on such application being made or if no such
application is made, by a person instituting or changing any use of any land or
building, then after serving a notice in writing on the person liable to such
payment and after calling for a report in this behalf from the concerned
officer of the Authority, after taking into consideration the report aforesaid,
determining whether or not and if so, what development charge is leviable in
respect of that development or, institution of use or change of use and after
giving the person concerned an opportunity to be heard, shall then assess the
amount of development charge payable by such person and give to such person a
notice in writing of such assessment.
(1) The Regional Board or Planning Authority or Development Authority concerned
or any person authorized in 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.
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." Sub-sections (2), (8) and (9) of Section 189 of
the Municipal Act are as under:
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, and the location of the building with reference
to any existing or projected streets, the means of access to such building and
the purpose for which the building will be used:
that, if the bye-laws of the Council so require, such notice shall be in such form
as the Council may from time to time prescribe and such plans shall be signed
by a person possessing the qualifications laid down in the bye-laws or licensed
under the bye-laws so to sign such plans.
any person begins any construction of a building of which notice is required to
be given under sub-section (2)
without the permission of the Chief Officer under sub- section (4) or of the
Council under sub-section (5), save as otherwise provided under sub-section
having received permission under clause (a) of sub- section (4), contrary to
the plans and information furnished under sub-sections (2) and (3); or
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
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 therefor shall be recoverable from the person concerned in the same
manner as an amount due on account of a property tax.
Any person who fails to comply with the notice issued by the Chief Officer
under sub-section (8), shall, on conviction, be punished with fine which may
extend to five thousand rupees."
OF THE STATUTORY PROVISIONS:
terms of Section 44 of the MRTP Act, a person intending to raise any
construction is required to make an application in respect thereof to the
Planning Authority for permission in such form and containing such particulars
and accompanied by such documents, as may be prescribed.
of such application and obtaining such permission concededly are imperative in
character. Such permission, if granted, remains in force for a period of one
year unless extended by the Planning Authority.
52 contains penal provisions. Section 53 authorizes the local authority to
direct removal of unauthorized development. Sub-section (1) of Section 53
authorizes the local authority to issue a notice where a development of land
has taken place in violation of the conditions indicated in Sub-section (1) of
terms of Sub-section (7) of Section 53, a person prosecuted under Clause (1) of
Sub-Section (6) of Section 53 will be inflicted with the punishment specified
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.
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.
this Court the Appellants have produced a letter of the Municipal Council dated
4th December, 1986 addressed to the Appellant herein
wherein it is contended:
is to inform you that your land on the southern side from C.T.S. 3331 is given
to the Municipal Council after demolishing the compound wall for Road widening
and the work of drainage is in progress.
lieu of compensation for the said land the Municipal Council shall give full
cooperation and concessions." Such a statement has also been made in the
synopsis and list of dates at page B of Civil Appeal No. 2733 of 2001.
while filing the additional documents, a copy of the said letter dated 4th December, 1986 had been annexed which reads as
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.
note that necessary cooperation will be given in the matter of compensation
(price) for affected land from Municipal Council." 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 payment of compensation for affected land.
therefore, apparent that the Appellants have made incorrect statements and
annexed a wrong document before this Court.
Municipal Council, moreover, granted only repair permission to the Appellants,
as would appear from its letter dated 5th May, 1995 wherein it is stated:
Repairs/ Constructions permission in respect of remaining land upon demolition
carried out for road widening.
Reply letter No. TP/2021 dt. 4.12.86.
For the purpose of road widening you out of your own initiative demolished your
premises and handed over the land affected thereby to the Municipal Council.
permission for the old house, leaving the portion of land falling under road
widening, is hereby granted as under:- Location: Mauje Bhiwandi, City Survey
No. 3331 Scope of Construction: In lieu of the land lost in road widening, on
remaining land the construction of ground + 2 story could be made, leaving the
distance of 5 feet from Municipal drainage.
East 68', West 38', North 71'.
constructions made over and above the aforesaid measurement, appropriate legal
action will be taken against you entirely at your risks as to costs and
consequences thereof. Similarly in the event of any objections on ownership,
possession, easement etc. being taken, resulting in civil as well as criminal
proceedings, the Municipal Council shall not be responsible for the same."
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.
Schedule appended to the said notice, the structure in question was described
repair permission No. TP/87 dated 5.5.95, unauthorized construction is in
progress at land bearing City Survey No. 3331 at Bhiwandi Mauje Ground + six
East 68 ft. West 38 ft. North 71 ft." 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..
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.
have, therefore, no option but to hold that only repair permission had been
granted to the Appellants.
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-section (3) of Section 53 of the MRTP Act but they
took recourse to neither.
within a period of one month from 6.6.1998 no such application was filed, the
Municipal Council was under a statutory obligation to carry out demolition of
the structure in question. It did not discharge its statutory obligation. On
the other hand, it adopted the following resolution on 22.10.1998 :
Common disposal of cases of unauthorized/ without permission constructions by
imposing penalty under the provisions of Municipal Council Rules.
city, it is observed that there are unauthorized/ without permission
constructions made in large scale. Proceedings against the unauthorized
constructions are already afoot. However, inspite of the actions pursuant to
the decisions of the courts of law and due to inadequate strength of municipal
staff, there is no reduction noticed in unauthorized constructions.
it is observed that the people are residing in/ using the unauthorized
construction. Hence, only because the constructions are unauthorized, from the
point of view of humanity it is deemed impracticable / improper to demolish the
said constructions. Hence, the unauthorized constructions which are not opposed
to the Development Planning Scheme and are within the FSI, the cases of such
constructions can be commonly disposed off by imposing penalty under the
provisions of section 143 of Maharashtra Regional and Town Planning Act, 1966.
For dealing of such cases the powers of Planning Authority are given to the
Chief Officer, Bhiwandi Nizampur Municipal Council, who may take further
appropriate action in that regard under the guidance of respected Dy. Director,
Town Planning, Kokan Division, Kokan Bhawan.
approved unanimously." The Appellants did not file any application for
regularization of the unauthorized constructions raised by them in terms of the
aforementioned resolution dated 22.10.1998 within a reasonable time. They,
thus, were not entitled to obtain any order of regularization from the
Municipal Council, pursuant to the said purported resolution.
view of the matter, the State of Maharashtra having not approved the said
Resolution, the question of giving effect thereto by the Municipal Council in favour
of the Appellants, as was submitted by Mr. Naphde does not arise.
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.
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
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.
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.
appears that the Municipal Council itself in terms of a letter dated 20.11.1998
sought for guidance of the Dy. Director Town Planning stating:
Common disposal of cases of unauthorized/ without permission constructions made
within Municipal Council limits by imposing penalty under the provisions of
Section 143 of Maharashtra Regional and Town Planning Act, 1966.
Council's Resolution No. 134 dt. 12.10.98.
With reference to above, it is seen that in Bhiwandi city there are large
number of unauthorized/ without permission constructions made. Proceedings
against the said unauthorized constructions are a foot already.
inspite of the action taken pursuant to the decisions of the courts of law and
due to inadequate strength of Municipal staff, there is no reduction noticed in
the unauthorized constructions. Similarly, it is observed that the people are
residing in/ using the unauthorized constructions. Hence, only because the
constructions are unauthorized, the demolition of the same is not deemed
proper/ possible. Hence, in this regard the Municipal Council has passed a
unanimous Resolution dated 12.10.90 in General meeting, being Resolution No.
134. Such cases can be disposed off commonly under the provisions of section
143 of Maharashtra Regional and Town Planning Act, 1966, considering
Development Planning Proposal, FSI etc.
for dealing such cases on behalf of the Planning Authority is delegated to the
Chief Officer. Copy of the Resolution is annexed hereto for perusal. Hence, it
is requested that necessary legal and technical guidance in that regard be
kindly given." A reference to the Government also appears to have been
made by the Director, Town Planning by a letter dated 29th July, 2000 addressed
to the Head Secretary of the Government of Maharashtra in the following terms:
Recovery of development fees on unauthorized constructions.
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.
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 124- E(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." 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. [See
Chairman and MD, NTPC Ltd.
of development charges by itself, therefore, did not lead to exoneration from
the consequence of commission of an offence or regularization of unauthorized
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
[(2004) 8 SCC 733], this Court opined:
Though the municipal laws permit deviations from sanctioned constructions being
regularized by compounding but that is by way of exception.
the exception, with the lapse of time and frequent exercise of the
discretionary power conferred by such exception, has become the rule. Only such
deviations deserve to be condoned as are bona fide or are attributable to some
misunderstanding or are such deviations as where the benefit gained by
demolition would be far less than the disadvantage suffered. Other than these,
deliberate deviations do not deserve to be condoned and compounded. Compounding
of deviations ought to be kept at a bare minimum. The cases of professional
builders stand on a different footing from an individual constructing his own
building. A professional builder is supposed to understand the laws better and
deviations by such builders can safely be assumed to be deliberate and done
with the intention of earning 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.
6 SCC 464], this Court observed:
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.
construction, if it is illegal and cannot be compounded, has to be demolished.
There is no way out.
discretion cannot be guided by expediency.
are not free from statutory fetters. Justice is to be rendered in accordance
with law. Judges are not entitled to exercise discretion wearing the robes of
judicial discretion and pass orders based solely on their personal
predilections and peculiar dispositions. Judicial discretion wherever it is
required to be exercised has to be in accordance with law and set legal
principles. As will be seen in moulding the relief in the present case and
allowing one of the blocks meant for parking to stand we have been guided by
the obligatory duties of the Mahalaplika to construct and maintain parking lots."
A discretionary power must be exercised having regard to the larger public
Consumer Action Group and Another vs. State of T.N. and Others [(2000) 7 SCC
425], this Court held :
exercising such a power the authority has to keep in mind the purpose and the
policy of the Act and while granting relief has to equate the resultant effect
of such a grant on both, viz. the public and the individual. So long as it does
not materially affect the public cause, the grant would be to eliminate
individual hardship which would be within the permissible limit of the exercise
where it erodes the public safety, public convenience, public health etc. the
exercise of power could not be for the furtherance of the purpose of the Act.
abrasion here and there to eliminate greater hardship, may in a given case, be
justified but in no case affecting the public at large. So every time the
Government exercises its power it has to examine and balance this before
exercising such a power. Even otherwise, every individual right including
fundamental right is within, reasonable limit but if it makes inroads into
public rights leading to public inconveniences it has to be curtailed to that
extent. So no exemption should be granted affecting the public at large.
Various development rules and restrictions under it are made to ward off
possible public inconvenience and safety. Thus, whenever any power is to be
exercised, the Government must keep in mind, whether such a grant would recoil
on the public or not and to what extent. If it does then exemption is to be
refused. If the effect is marginal compared to the hardship of an individual
that may be considered for granting" Mr. Naphde, therefore, is not correct
in contending that the High Court should have taken a lenient view.
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:
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."
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 work, although were found to
be inapplicable, but in the fact situation obtaining therein, it was opined:
then, it is now nearly five years since the building was completed, and though
section 363(2) which directs that no application for demolition shall be
instituted after a lapse of five years from the date of the work does not, in
terms, apply as the proceedings have been started in time, we do not feel that
after the lapse of all this time, an order for demolition is called for in the
interests of the public. We also take into account the fact that the orders in
question would not have come before us in the normal course by way of appeal,
were it not that the appellant desired that the decision of this Court should
be obtained on certain questions of importance, and that purpose has been
achieved. On a consideration of all the circumstances we do not think that this
is a fit case in which we should pass an order for demolition." The said
decision, therefore, does not support the contention of the Appellants.
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.