Disposed

Dinesh Natvarlalmakani and Ors. v. the State of Maharashtra, through Secretary, Ministry of Housing and Urban Development and Ors.

Bombay HC26 Aug 2014CAW/271/2013

Case brief

AI extract

What is this about?

High Court directed Commissioner to hold inquiry regarding construction at Mahakali Niwas violating 1987 permissions. Ordered parties to appear for hearing and measurement. Clarified this does not affect Municipal Corporation's powers under section 264(1) to initiate demolition.

What did the court decide?

Directs parties to appear before Commissioner on 17.09.2014 for inquiry to determine unauthorized construction and order demolition if found illegal; clarifies no bar on Municipal Corporation's powers

Dinesh Natvarlalmakani and Ors. Vs the State of… — Writ and Judicial Review | Bombay HC (2014)

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pmw

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO.5939 OF 2010 WITH CIVIL APPLICATION NO.271 OF 2013 IN

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WRIT PETITION NO.5939 OF 2013

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Mr. Dinesh Natvarlal Makani and Ors. … Petitioners

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Vs.

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The State of Maharashtra & Ors. … Respondents

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Mr. Akshay Bobde a/w Mr. Bharat Punekar i/by M/s. India Legal Solutions, for the Petitioners and for Applicants in CAW No.271 of 2013.

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Mrs. M.P. Thakur, AGP, for Respondent No.1.

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Mr. Atul G. Damle, for Respondent No.3.

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Ms. Michelle Corrasco i/by M/s. Dave & Co., for Respondent No.4.

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CORAM : A.S. OKA & G.S. KULKARNI, JJ. DATE : 26^th AUGUST, 2014

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P.C.

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. Heard the learned counsel appearing for the Petitioners and

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the learned counsel representing Respondent No.3, learned counsel appearing for Respondent No.4 and learned AGP for the Respondent No.1. Considering the narrow controversy involved, the Petition is forthwith taken up for final disposal. The Petitioners in this Petition are

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relying upon the order dated 24^th March, 2012 passed by this Court in earlier Writ Petition filed by them being Writ Petition No.618 of 2003. The operative part of the said order reads thus :-

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“1. The Writ Petition and the documents annexed hereto shall be treated as representation to Virar Municipal Council;

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The Virar Municipal Council through its concerned authority shall hear the Petitioners and the Respondent No.4 and pass the appropriate order and take appropriate action if unauthorized and illegal construction is found in the building known as Mahakali Niwas, Vartak Road, Opposite Virar Railway Station, Virar(West) and if grievance of the Petitioners is to be found without merit, the matter should be filed.”

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The first substantive prayer in this Petition is for issuing a Writ of Mandamus enjoining the third Respondent to comply with the said order which was passed against the erstwhile Virar Municipal Council.

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The contention of the Petitioners is that the illegal construction has been carried out on the building known as “Mahakali Niwas” at Vartak Road, Virar (West), District Thane. A Writ of Mandamus is sought enjoining the third Respondent to produce the

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sanctioned plan in respect of the building. A relief is sought for initiating action of demolition of the said building.

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It will be necessary to make a reference to the earlier orders passed by this Court. The stand taken by the third Respondent is that the record of Virar Municipal Council in relation to the building permissions granted by the said Municipal Council cannot be traced. The fourth Respondent by filing a reply to the Civil Application No.271 of 2013 relied upon the permission dated 20^th November, 1987 granted by the erstwhile Virar Municipal Council and plans sanctioned by Virar Municipal Council. Inspection of the said permission or original sanctioned plan was given to the learned counsel appearing for the Petitioners.

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Today, the learned counsel appearing for the Petitioners, on instructions, states that though the permission dated 20^th November, 1988 as well as the sanctioned plan relied upon by the Respondents may be genuine, said permission records that there was an existing building consisting of ground plus first floor and a permission was granted to construct one additional floor. He urged that the construction is in excess of what is permitted.

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In order dated 11^th June, 2014, this Court has recorded that the first issue which arises for consideration is whether the Virar Municipal Council was competent to grant permission. Order dated 25^th June, 2014 records that a copy of Notification dated 31^st August, 1988 was placed on record by the learned counsel appearing for the third Respondent which shows that from that date, the erstwhile Municipal Council ceased to be the Planning Authority for the area falling within its jurisdiction. Thus, on 20^th November, 1987, the Virar Municipal Council was competent to grant development permission. Today, the contention of the learned counsel for the Petitioner is that the averments made in Civil Application No.271 of 2013 show that even ground floor has been extended by the fourth Respondent apart from additional construction made above the second floor. His submission is that the action needs to be taken as regards the said illegal construction.

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Today, an affidavit of Shri Jitendra Chaudhary, has been tendered on behalf of the third Respondent - Municipal Corporation. Shri Chaudhary is the Assistant Commissioner of the said Municipal Corporation. The affidavit records that inspection of the building in question was carried out. It was revealed that above second floor, there is no construction but there is only a temporary shed above the second

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floor. It records that on inspection it was found that the building was in dilapidated condition and, therefore, a notice under section 264 (1) of the Maharashtra Municipal Corporation Act, 1949 has been issued on 24^th October, 2013 calling upon the fourth Respondent to vacate the building and to demolish the same.

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Therefore, the issue which survives for consideration is whether the fourth Respondent has carried out any construction which is not covered by permission dated 20^th November, 1987. The second issue is whether action is required to be taken of demolition of the construction carried out in breach of the said permission.

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In our view, the said issues will have to be decided by the Commissioner of the third Respondent or any officer nominated by the third Respondent who shall be not below the rank of Assistant Commissioner. We make it clear that notwithstanding the order passed by this Court, it will be open for the Municipal Corporation to take action in accordance with law on the basis of the notice under section 264 (1) of the said Act of 1949.

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Hence, we dispose of the Petition by passing the following order :-

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ORDER

(i) We direct the Petitioners and the fourth Respondent or their respective authorized representatives to appear before the Commissioner of the third Respondent on 17^th September, 2014 at 11.00 am;

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(ii) The Commissioner of the third Respondent may himself hold an inquiry or direct any other officer not below the rank of Assistant Commissioner to hold the inquiry;

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(iii) The Commissioner or the officer appointed, as the case may be, shall hold inquiry to determine whether any construction has been carried out by the fourth Respondent contrary to the building permission dated 20^th November, 1987 and the sanctioned plan of the same date. Hearing shall be given to the Petitioners as well as the fourth Respondent. Opportunity shall be granted to both the parties to produce documents. If necessary, the Commissioner of the third Respondent or the officer concerned shall make site visit for determination of the said issue and may order measurement of the existing structure;

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(iv) Appropriate order shall be passed by the officer of the third Respondent - Municipal Corporation on or before 17^th November, 2014. If it is found that any part of the structure/building is unauthorized or illegal, appropriate action shall be initiated in accordance with law for demolition;

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(v) We make it clear that the direction issued in this order shall not affect the exercise of powers by the third Respondent Municipal Corporation under section 264(1) of the Maharashtra Municipal Corporation Act, 1949. This order will not prevent any further action on the basis of notice dated 24^th October, 2013 issued under section 264 (1) of the said Act of 1949;

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(vi) All contentions on merits are kept open. Civil application No. 271 of 2013 stands disposed of.

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(G.S. KULKARNI, J ) (A.S.OKA, J )

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Dinesh Natvarlalmakani and Ors. v. the State of Maharashtra, through Secretary, Ministry of Housing and Urban Development and Ors.

Case brief

What is this about?

What did the court decide?

Dinesh Natvarlalmakani and Ors. v. the State of Maharashtra, through Secretary, Ministry of Housing and Urban Development and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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Coram

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