Disposed

Shri. Dattatraya Pandurang Pawar and Anr. v. State of Maharashtra and Ors.

Bombay HC8 Apr 2014PIL/57/2013

Case brief

AI extract

What is this about?

In a PIL regarding illegal construction of 72 shops on government land reserved for public use, the Court rejected the respondent's claim of deemed permission under the MRTP Act due to draft plan violations. It ordered immediate demolition directed the District Superintendent of Land Records to investigate revenue record manipulation and granted temporary protection pending compliance.

What did the court decide?

Directions for demolition of illegal constructions within three months; inquiry into revenue record manipulation; temporary stay on demolition execution for six weeks.

Shri. Dattatraya Pandurang Pawar and… — Constitutional and Fundamental Rights | Bombay HC (2014)

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PIL57.13

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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APPELLATE SIDE

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PUBLIC INTEREST LITIGATION NO.57 OF 2013

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Shri Dattatraya Pandurang Pawar & Anr. : Petitioners V/s. State of Maharashtra & Ors. : Respondents

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Mr.Rahul S. Kadam for the Petitioners.

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Mr.V.S. Gokhale, Asstt, Govt. Pleader for Respondent nos.1,4 & 5. Mr.Rahul S. Kate for Respondent nos.2 & 3.

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Mr.Sushant P. i/b. Mr.Bhalchandra Shinde for Respondent nos.6 & 7.

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Mr.Jitendra Gaikwad for the Interveners.

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…. CORAM : A.S. OKA & A.A. SAYED, JJ.

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DATE : APRIL 08, 2014.

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P.C.:

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Heard the learned counsel appearing for the Petitioners; learned Asstt. Govt. Pleader for Respondent nos.1, 4 and 5; learned counsel for Respondent nos.2 and 3; and the learned counsel for Respondent nos.6 and 7. We have also heard the learned counsel appearing for the third parties, viz., Mr.Tejsingh Bhumsingh Rathod and Mr.Ravindra Dadasaheb Patil, who are the Interveners.

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The case made out in this PIL in brief is that there is a land known as “Koktale” which is a water pond. In the city survey, the said land was assigned City Survey no.3699 having an area of 8942.8 sq. mtrs. The allegation in the PIL is that by manipulating the revenue/City Survey records, the name of one Sudhakar Ranghnath Gosavi was entered in the revenue records and city survey records. It is alleged that on the basis of a Sale Deed dated 07.02.1990, the sixth Respondent and her husband-the seventh Respondent encroached upon the said land, which is a Government land. A suit was filed by the sixth and seventh Respondents against the second Respondent Municipal Council for a declaration and injunction. A Second Appeal arising out the said suit being Second Appeal no.152 of 2004 is pending in this Court. The said Second Appeal has been admitted and an injunction has been granted against the second Respondent Municipal Council, preventing the Municipal Council from disturbing the possession of the sixth and seventh Respondents in relation to the suit property which is the subject-matter of the Second Appeal.

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It is alleged that the earlier illegal constructions made by the sixth and seventh Respondents were demolished by the second Respondent and, thereafter, in the year 2010, the said Respondents again started

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construction without obtaining permission. Notices were issued under sections 52, 53, 54 and 55 of the Maharashtra Regional and Town Planning Act, 1966 (for short the “MRTP Act”) by the Municipal Council. The grievance made in the PIL is that no action has been taken by the Municipal Council on the basis of the said notices. Accordingly, various prayers have been made for restoration of the said land to its earlier condition as well as for taking action against the Municipal Council officials and revenue officials.

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The submission of the learned counsel appearing for the sixth and seventh Respondents is that the application dated 22.04.1979 made for grant of development permission under section 45 of the MRTP Act was neither granted nor rejected within the time specified under sub-section (5) of section 45. He invited our attention to the letter dated 16.09.2009 addressed by the second Respondent to the sixth Respondent. He submits that in fact a copy of the property card showing the name of the sixth Respondent along with survey map were produced along with the application for seeking permission. He did not dispute that in the draft development plan, the said land was reserved for a public purpose. He urged that in view of sub-section (5) of section 45, a development permission is deemed to have been granted. He submitted that there is a

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complete neglect on the part of the Municipal Council in dealing with the application for development permission made by the Petitioners. He pointed out that the notices issued under section 53(1) by the Municipal Council are illegal. In one of the notices, the description of the property has not been mentioned. He urged that in one of the notices, the Municipal Council has erroneously alleged that the land is vested in the Municipal Council. He urged that the illegal construction has been made by the Municipal Council itself and under cover of the said illegal construction, the Municipal Council wants to take action against the sixth and seventh Respondents. He submitted that the PIL proceeds on the footing that the land in question is a Government land which is contrary to the City Survey records. Therefore, in such a PIL, no relief can be granted, especially when there is a neglect on the part of the Municipal Council.

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The learned counsel appearing for the Interveners submitted that the Interveners should be granted time to produce documents. On instructions, the learned counsel appearing for the sixth and seventh Respondents states that the said Respondents have carried out construction of 72 shops forming part of a shopping centre on the land in question.

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We have carefully considered the submissions made by the learned counsel and perused the documents annexed to the PIL and the annexures to the affidavits on record. It is not in dispute that the sixth Respondent applied on 22.04.2009 to the second Respondent for grant of development permission in relation to land bearing survey no.1 and City Survey nos.3699 and 3697. It is an admitted position that permission was not granted by the second Respondent. It is also an admitted position that the land in question is shown as reserved for a public purpose in the draft development plan which is pending for approval. It is pointed out that in the draft development plan, the land in question is shown reserved for a maternity home and earlier there was a reservation for shopping centre and library.

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The entire argument of Respondent nos.6 and 7 is based on deeming fiction under sub-section (5) of section 45. Sub-section (5) of section 45 reads thus:

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“(5) If the Planning Authority does not communicate its decision whether to grant or refuse permission to the applicant within sixty days from the receipt of his application, or within sixty days from the date of receipt of reply from the applicant in respect of any requisition made by the Planning Authority, whichever is later, such

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permission shall be deemed to have been granted to the application on the date immediately following the date of expiry of sixty days.

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Provided that, the development proposals, for which the permission was applied for, is strictly in conformity with the requirements of all the relevant Development Control Regulations framed under this Act or bye-laws or regulations framed in this behalf under any law for the time being in force and the same in no way violates either the provisions of any draft or final plan or proposals published by means of notice, submitted for sanction under this Act:

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Provided further that, any development carried out in pursuance of such deemed permission which is in contravention of the provisions of the first proviso, shall be deemed to be an unauthorized development for the purposes of sections 52 to 57.”

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As stated earlier, in the draft proposed development plan, there is a reservation provided on the said land. While granting development permission, in view of section 46 of the MRTP Act, the Planning Authority is under an obligation to consider even the reservation shown in a Draft Development Plan. Hence, in view of reservation of the land in question, the Planning Authority could not have granted permission for development. The proposals submitted by the sixth Respondent under section 45 of the MRTP Act for constructing a shopping centre was in violation of the draft development plan. In view of the proviso to sub-

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section (5), the benefit of deeming fiction will not be available to the sixth Respondent. Apart from this, there is no assertion in the affidavit-in-reply filed by the sixth Respondent that the property register card along with survey map was produced with the application for development permission.

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The admitted position is that development permission was not granted. The admitted position is that there is a reservation in the draft development plan. The sixth Respondent cannot take benefit of a deemed permission.

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Thus, the position which emerges is that the sixth and seventh Respondents have not obtained a development permission under the MRTP Act to construct a huge shopping centre consisting of 72 shops. Another contention that was raised is that even the Municipal Council is of the view that the order of injunction dated 30.09.2004 in Second Appeal No.152 of 2004 which is operating against the Municipal Council comes in the way of action of demolition and, therefore, the Municipal Council has filed a Civil Application in the Second Appeal.

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Our attention is invited to the judgment and order dated 08.12.2011

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passed by this Court in Contempt Petition no.137 of 2008 filed by the sixth Respondent in which a categorical finding has been recorded that on account of injunction granted by this Court, the sixth Respondent cannot be dispossessed. In the present case, admittedly, the illegal construction of 72 shops is carried out by the sixth and seventh Respondents after an order of injunction was granted by this Court. Therefore, the order of injunction does not come in the way of the Municipal Council exercising statutory power of demolition and performing statutory obligation of demolition of the illegal structure.

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We have perused the application for intervention filed by the third parties Applicants. Admittedly, they are claiming through Respondent no.6. The averment made in the application is that they are the licensees of the Respondent no.6 in relation to the shop premises. Even assuming that what is stated in the application is correct, the said Applicants cannot have better right than the sixth and seventh Respondents. Therefore, we decline the prayer made on behalf of the Interveners to grant time to produce documents inasmuch as the Applicants have taken the shop premises on leave and licence basis.

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The other aspect is regarding manipulation of the revenue records.

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On this aspect, we must make a reference to paragraphs 5 and 6 of the affidavit filed by Mr.Balasaheb Shrikrishna Bhosale, Deputy Superintendent of Land Records, Indapur. Paragraphs 5 and 6 of the said affidavit read thus:

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“5. With reference to Para 8 and 9 of the PIL, I say that as per the record since the year, 1986, it appears that CTS No.3699, occupational status “C” owned by Sudhakar Rangnath Gosavi at the time city survey of the Indapur City. Thereafter, the name of Sudhakar Rangnath Gosavi was deleted as per the order dated 27/2/1997 passed by Superintendent of Land Records, Pune and the said property was recorded in the name of Government of Maharashtra being “Koktale (Mulki Pad)”, which falls in category “G”. However, the name of Sudhakar Rangnath Gosavi was shown as per the 7/12 extract. However, there is no Mutation Entry to that effect.

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I say that as of today, the property stands name of Government of Maharashtra as a “Koktale (Mulki Pad)” and Lilavati Sopan Pawar, who has purchased the said property from Sudhakar Rangnath Gosavai. I say that as per the order dated 27/2/1997, though the property was restored in the name of Government of Maharashtra “Koktale (Mulki Pad”, the name of Sudhakar Rangnath Gosavi was recorded on the basis of 7/12 extract and therefore, the property is required to be stand in the name of Government of Maharashtra “Koktale (Mulki Pad).”

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What is alleged is that though there is no mutation entry, the name of Sudhakar Rangnath Gosavi was entered in the revenue records. The sixth

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Respondent has purchased the land from Shri Gosavi. It is contended that the land in question is a Government land and it must stand in the name of the Government.

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We propose to direct the District Superintendent of Land Records

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to hold an inquiry on the aspect of manipulation in the revenue records and take action in accordance with law for correction of the revenue records. The District Superintendent of Land Records will also have to fix the responsibility on the concerned staff members as regards the manipulation in the revenue as well as city survey records.

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Thus, this is a case where the construction of a huge shopping centre consisting of 72 shops has been made without obtaining a permission of the Planning Authority. If the sixth and seventh Responders have encroached upon the Government land, the State Government has abundant power under section 51 of the Maharashtra Land Revenue Code, 1966 to take steps for removal of the encroachments.

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Hence, we dispose of the PIL by issuing the following directions:

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(i) We direct the second Respondent Municipal Council to take action of demolition of illegal construction carried out by the sixth and seventh Respondents, in accordance with law. The action of demolition shall be carried out within a period of three months from today.

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(ii) We direct the District Superintendent of Land Records to hold an inquiry as regards the manipulation and/or changes in the revenue as well as City Survey records. After holding an inquiry, if the District Superintendent of Land Records finds that there is a manipulation, he shall take necessary remedial steps. The inquiry shall be completed and a report shall be submitted to this Court within three months from today.

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(iii) The District Superintendent of Land Records as well as the Chief Officer of the second Respondent shall file compliance affidavits in this Court on or before 19.07.2014.

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(iv) We make it clear that on the basis of the report of the inquiry, it will be open for the State Government to initiate proceedings under section 51 of the Maharashtra Land Revenue Code, 1966. We make it clear that the Interveners are claiming through the sixth Respondent as licensees of the sixth Respondent and, therefore, they have no independent rights.

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(v) The PIL is disposed of on the aforesaid terms.

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(vi) The PIL shall be listed on 21.07.2014 under the caption “For Direction” for reporting compliance.

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Learned counsel for the sixth and seventh Respondents seeks protection against demolition for a period of six weeks from today. While we grant protection as prayed, we make it clear that all earlier steps which precede the demolition can be taken by the Municipal authorities and inquiry as directed shall also proceed which will not be affected by the limited protection granted under this order. Needless to add that if the Municipal Council needs police protection for demolition of the shop premises, the concerned local police station shall provide necessary police protection on production of an authenticated copy of this order.

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Shri. Dattatraya Pandurang Pawar and Anr. v. State of Maharashtra and Ors.

Case brief

What is this about?

What did the court decide?

Shri. Dattatraya Pandurang Pawar and Anr. v. State of Maharashtra and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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