Disposed

Shashikant Anant Adhyapak and Ors. v. the City Engineer - Pune Municipal Corporation and Ors.

Bombay HC25 Jul 2014PIL/123/2008

Case brief

AI extract

What is this about?

The High Court directed the Pune Municipal Corporation to conduct an inquiry and hearing for slum dwellers on specific lands to determine their protection status under the Slum Areas Act before proceeding with demolition of unauthorised structures.

What did the court decide?

Direction to appoint an officer for hearing slum dwellers, issue personal and public notices, examine documents, and pass a reasoned order before initiating demolition.

Shashikant Anant Adhyapak and Ors. Vs the… — Pension and Retirement Benefits | Bombay HC (2014)

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pil-123.08

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE

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PUBLIC INTEREST LITIGATION NO.123 OF 2008

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WITH CIVIL APPLICATION NO.98 OF 2014

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WITH CIVIL APPLICATION ST. NO.19716 OF 2014 WITH CIVIL APPLICATION ST.NO.19808 OF 2014 IN

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PUBLIC INTEREST LITIGATION NO.123 OF 2008

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Shashikant Anant Adhyapak & Others. .. Petitioners Vs The City Engineer, Pune Municipal Corporation and Others. .. Respondents

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Shri Kiran Shinde i/by Shri Nitin P. Deshpande for the Petitioners. Shri Abhijit P. Kulkarni for the Respondents.

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CA NO.98 OF 2014

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M/s.Prathamesh Constructions. .. Applicant In the matter between - Shashikant Anant Adhyapak & Others. .. Petitioners Vs The City Engineer, Pune Municipal Corporation and Others. .. Respondents --

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Shri G.S. Godbole i/by Shri Drupad Sopan Patil for the Applicant. Shri Kiran Shinde i/by Shri Nitin P. Deshpande for the Petitioners. Shri Abhijit P. Kulkarni for the Respondents.

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CA ST.NO.19716 OF 2014

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Shailesh Bhagavant Salunkhe & Others.	..	Applicants
In the matter between -
Shashikant Anant Adhyapak & Others. Vs	..	Petitioners
The City Engineer, Pune Municipal Corporation and Others. --	..	Respondents

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Shri Vijay D. Patil along with Shri Nikhil Chavan for the Applicants. Shri Kiran Shinde i/by Shri Nitin P. Deshpande for the Petitioners. Shri Abhijit P. Kulkarni for the Respondents.

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CA ST.NO.19808 OF 2014

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Smt. Reshma Ramesh Sutar and Others.	..	Applicants
In the matter between -
Shashikant Anant Adhyapak & Others. Vs	..	Petitioners
The City Engineer,
Pune Municipal Corporation and Others.	..	Respondents

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Shri Siddharth R. Ronghe for the Applicants. Shri Kiran Shinde i/by Shri Nitin P. Deshpande for the Petitioners. Shri Abhijit P. Kulkarni for the Respondents.

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CORAM : A.S. OKA & A.S. CHANDURKAR, JJ.

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DATE : 25TH JULY 2014.

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ORAL JUDGMENT: (PER A.S.OKA,J)

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. Heard learned counsel appearing for th Petitioners. We have heard learned counsel appearing for the Applicants in Civil Application No.98 of 2014 as well as Civil Application Stamp Nos.19716 of 2014 and 19808 of 2014.

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The case of the Petitioners is that there are illegal hutments erected on the lands bearing Survey Nos.89 and 90, situated at Lokmanya Colony, Kothrud, Pune ( for short “the said land”). The Petitioners are relying upon an order dated 27^th April 2001 passed by this Court in Writ Petition No.5422 of 2000. It is pointed out that by the said order, this Court directed the Pune Municipal Corporation to ascertain whether the construction made on the said land is in accordance with the Development Control Rules or not. Moreover, a direction was issued that if such construction is found in contravention of the Development Control Rules ( for short “DCR”), the Pune Municipal Corporation will proceed in accordance with law. The prayer in this Petition is for issuing a writ of mandamus to the Municipal Corporation to remove the illegal hutments on the said land.

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Civil Application No.98 of 2014 has been filed by the Applicant who is claiming to be the owner of the said lands. It is contended that there is no reservation provided on the said land in the sanctioned development plan and the observation made by this Court in the last order dated 2^nd July 2014 that the said land is reserved in the sanctioned development plan is factually incorrect. The submission of the learned counsel appearing for the Applicant in the said Application is that the Applicant desires to implement the Slum Rehabilitation Scheme on the said land. He invited our attention to an amendment made to the

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Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 ( for short “the said Act of 1971”) which is published in the Government Gazette dated 2^nd May 2014. His submission is that in view of the said amendment, the slum dwellers who were in possession on 1^st January 2000 will have to be protected. Further submission is that in the draft development plan which is already published, the said land is shown as reserved for slum redevelopment.

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Learned counsel appearing for the Pune Municipal Corporation submits that in fact the said land is a privately owned land and, therefore, it was the responsibility of the owners of the privately

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owned land to protect the said land and the Municipal Corporation is not expected to protect the said land.

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The learned counsel representing the Applicants in Civil Application Stamp No.19716 of 2014 and Civil Application Stamp No.19808 of 2014 submitted that the hutments occupied by the Applicants on the said lands are protected inasmuch as they have been in possession of the respective hutments on or before 1^st January 2000.

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We have considered the submissions. It is not in dispute that earlier a Writ Petition No.5422 of 2000 was in relation to the said land bearing Survey Nos.89 and 90. The said Writ Petition was disposed of by the judgment and order dated 27^th April 2001. While disposing of the said Writ Petition, this Court directed an inquiry by the Pune Municipal Corporation to ascertain whether unauthorised constructions are on the public land or privately owned land.

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The stand which is taken before this Court by the Pune Municipal Corporation shows that as the said land is a private property, the Corporation is under no obligation to remove unauthorised constructions thereon. If that be so, a direction issued to the Pune

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Municipal Corporation in Clause (iii) of Paragraph 5 of the said order dated 27^th April 2001 is relevant which reads thus:-

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“(iii) On the other hand, it is found that the alleged construction is on the private property, obviously, the respondents shall not have any power to remove such unauthorised occupants but at the same time, the respondents will find out whether such construction is in accordance with the Development Control Rules or not. If such construction is found in contravention of Development Control rules, the respondents shall proceed in accordance with law.”

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(Underline added)

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Thus, the direction is very clear. If the Municipal Corporation finds that any constructions have come up on the said land in contravention of the DCR, the Municipal Corporation shall proceed in accordance with law. The clear meaning of the said direction is that the Pune Municipal Corporation was under an obligation to ascertain whether the structures erected on the said land were illegal being constructed without obtaining a valid permission. The Pune Municipal Corporation was directed to take action in accordance with law against such structures which were found to be illegal. The action was obviously an action of demolition. Now, therefore, in view of the binding order of a Division Bench of this Court, it is not open for the Municipal Corporation to refuse to take an action of demolition as it is the duty of the said owners of the land to protect the same. In fact, a note has been

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taken on record on the last date which records that the action of demolition was taken by the first Respondent in the past as regards total 200 hutments.

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We must note here that apart from the directions issued under the order dated 27^th April 2001, a Division Bench of this Court on 8^th October 2012 in the present Petition issued certain directions which are in Paragraph 3 of the said order which reads thus:

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“3. The learned counsel for the petitioners has submitted that after the said order came to be passed, the planning authority has issued requisite notices to the concerned hutment dwellers for removal of unauthorised structure. However, after issuing such notices, no steps were taken to demolish the unauthorised hutment till this date nor the respondent-Corporation has filed any affidavit in this regard. The counsel for the Corporation is absent today and, therefore, we grant further time of three weeks to the Corporation/planning authority to file appropriate affidavit in respect of the issue referred to hereinabove as well as what steps the planning authority/Corporation has taken pursuant to the direction issued by this Court vide order dated 27.4.2011. We direct the Commissioner of the respondent -Corporation to file the affidavit.”

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In terms of the said order, the Pune Municipal Corporation

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has not filed any affidavit setting out the steps taken. Moreover, the

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Pune Municipal Corporation has not filed any affidavit in compliance with the directions issued on 2^nd July 2014.

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Apart from the directions of this Court, under the Maharashtra Municipal Corporations Act, 1949 and under the Maharashtra Regional and Town Planning Act, 1966, there is a vast power vesting in the Municipal Corporation to demolish unauthorised structures on the private properties in its limit. Being the Planning Authority, the Municipal Corporation is under an obligation to demolish such unauthorized structures.

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We must make it clear that the observations made in the order dated 2^nd July 2014 that the said land is affected by a reservation in the sanctioned development plan are only tentative observations made on the basis of the submissions made across the bar on 2^nd July 2014. We make it clear that this Court has not finally decided the issue whether the said land is subject matter of reservation in the sanctioned development plan and it is for the Municipal Corporation to decide the same on perusal of the said sanctioned development plan. However, when it comes to demolition of unauthorized constructions, this issue has no relevance.

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The fact remains that in terms of the earlier order of this Court and even otherwise, the Pune Municipal Corporation is under an obligation to take action of demolition.

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There are several huts constructed on the said land. The hutment dwellers are seeking protection on the ground that they were in possession of the respective hutments on or before 1^st January 2000. A submission has been made across the bar by the learned counsel appearing for the Intervenors in Civil Application No.19716 of 2014 that as has been done in the case of Thane District, a proper machinery will have to be provided for adjudication of the cases of the protected slum dwellers and even a provision will have to be made by creating an appellate authority.

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In this Petition, we are concerned with the binding directions issued by this Court against the Pune Municipal Corporation to take action of demolition in accordance with law. The Pune Municipal Corporation has abundant powers under the Maharashtra Regional and

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Town Planning Act, 1966 and under the Maharashtra Municipal Corporation Act, 1949 to take action of demolition of illegal structures.

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However, in the present case, the issue is about the protection granted by the said Act of 1971 to the slum dwellers. Therefore, an opportunity will have to be granted by the Pune Municipal Corporation to the slum dwellers to produce documents to show that they are protected under the amended provisions of the said Act of 1971.

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Therefore, the Commissioner of the Pune Municipal Corporation will have to appoint an Officer of the Municipal Corporation to give hearing to all the affected slum dwellers and thereafter to pass an

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appropriate order in that regard. In none of the Applications for intervention filed by the alleged slum dwellers before this Court, a case has been made out that the hutments have been constructed after obtaining a valid permission from the Planning Authority. Therefore, the Officer appointed by the Commissioner of the Municipal Corporation will have to hold an inquiry whether the hutments are protected in the light of the recent amendment to the said Act of 1971.

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Hence, we dispose of this Public Interest Litigation by passing the following order:

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ORDER :

(a) We direct the Commissioner of Pune Municipal Corporation to appoint an Officer of the Pune Municipal Corporation to give hearing to all the affected slum dwellers who have made constructions or who have been in possession of the hutments on the said lands bearing Survey Nos.89 and 90, Lokmanya Colony, Kothrud, Pune;

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(b) The officer appointed by the Commissioner of the Pune Municipal Corporation shall issue personal notices to the Applicants in the Civil Application Stamp Nos.19716 of 2014 and 19808 of 2014 of the date fixed for hearing regarding all the alleged illegal structures on the said lands;

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(c) The Pune Municipal Corporation shall also publish a public notice in more than one leading newspapers having large circulation in the City of Pune about the date fixed for hearing;

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(d) The Officer so appointed by the Pune Municipal Corporation shall give a reasonable opportunity to all the persons who appear in pursuance to the notices issued as aforesaid to produce documents;

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(e) The Officer concerned after perusal of the documents and after hearing all the concerned shall examine whether the occupants of the illegal structures are protected by any of the policies of the State Government and/or the provisions of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971;

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(f) After completion of the said exercise, the Officer nominated by the Commissioner of Pune Municipal Corporation shall pass a reasoned order;

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(g) It is obvious that in case of the illegal structures which are not protected, the Municipal Corporation shall take action of demolition in accordance with law as expeditiously as possible;

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(h) The parties to act upon an authenticated copy of this order.

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( A.S. CHANDURKAR, J )

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(A.S. OKA, J.)

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Shashikant Anant Adhyapak and Ors. v. the City Engineer - Pune Municipal Corporation and Ors.

Case brief

What is this about?

What did the court decide?

Shashikant Anant Adhyapak and Ors. v. the City Engineer - Pune Municipal Corporation and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

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Coram

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