Court disposed of multiple writ petitions challenging road widening plans. Finding the Corporation assured adherence to legal procedures and minimum damage, no further directions were issued to stall public work.
No further directions issued; writ petitions disposed of.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
wp221214.odt
{1}
IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD
WRIT PETITION NO.2212 OF 2014
Sanjay s/o Ramrao Sude and others
Petitioners
Versus
The State of Maharashtra & others
Respondents
Mr.T.M.Venjane, advocate for petitioners.
Mr.S.V.Kurundkar, Government Pleader for Respondents No.1, 4 & 5. Mr.A.M.Karad, advocate for Respondent No.2. Mr.A.S.Bajaj, advocate for Respondent No.3.
WITH
WRIT PETITION NO.2023 OF 2014
Dhondiram Maroti Dumale
and others
Petitioners
Versus
The State of Maharashtra & others
Respondents
Mr.P.S.Pawar, advocate for petitioners.
Mr.S.V.Kurundkar, Government Pleader for Respondents No.1, 4 & 5. Mr.A.M.Karad, advocate for Respondent No.2. Mr.A.S.Bajaj, advocate for Respondent No.3.
WITH
WRIT PETITION NO.2205 OF 2014
wp221214.odt
Gangubai Appasaheb Jadhav and others
Petitioners
Versus
The State of Maharashtra & another
Respondents
Mr.S.V.Mundhe,, advocate for petitioners. Mr.S.V.Kurundkar, Government Pleader for Respondent No.1. Mr.A.M.Karad, advocate for Respondent No.2.
WITH
WRIT PETITION NO.2069 OF 2014
Ashok s/o Murlidhar Gore
and others
Petitioners
Versus
The State of Maharashtra & others
Respondents
Mr.S.S.Thombre, advocate for petitioners.
Mr.S.V.Kurundkar, Government Pleader for Respondent No.1. Mr.A.M.Karad, advocate for Respondent No.2. Mr.A.S.Bajaj, advocate for Respondent No.3.
WITH
WRIT PETITION NO.2208 OF 2014
Tatyarao s/o Vishwanath Rautray and others
Petitioners
Versus
The Aurangabad Municipal Corporation,
wp221214.odt
Aurangabad & others Respondents
Mr.N.K.Chaudhari, advocate for petitioners. Mr.A.M.Karad, advocate for Respondent No.1. Mr.S.V.Kurundkar, Government Pleader for Respondents No.2 & 3.
WITH
CIVIL APPLICATION ST.NO.8969 OF 2014 IN
WRIT PETITION NO.2069 OF 2014
Omprakash s/o Motilal Verma
Applicant
Versus
Ashok s/o Murlidhar Gore & others
Respondents
Mr.Milind M. Joshi, advocate for the applicant.
CORAM : R.M.BORDE &
A.M.BADAR, JJ. Reserved on : 03rd April, 2014 Pronounced on: 5th May, 2014.
ORDER (Per R.M.Borde, J.):
1 Civil Application St.No.8969 of 2014 for intervention is allowed in terms of prayer clause (B).
2 In Writ Petitions No.2023 of 2014 and 2212 of 2014, petitioners are praying for issuance of directions to the Municipal Corporation to carry out construction of 24 meters wide
{4}
wp221214.odt
Development Plan (DP) Road from Jalna Road through Shivaji Chowk to Mukundwadi Railway Station in strict adherence to the plan prepared by the Cidco authorities.
3 The petitioners, in Writ Petition No.2069 of 2014, also supports the alignment of road as proposed in the plan prepared by the Cidco and seeks further direction that the residential premises of the petitioners shall not be demolished while taking up work of road widening, without following due process of law.
4 In Writ Petition No.2208 of 2014, a prayer is made by the petitioners for a declaration that joint measurement survey and intended line of work for the proposed widening of existing street from 18 meters to 24 meters between Shivaji Chowk to Mukundwadi Railway Station and consequent steps for demolition of properties situate alongside the road is in breach of provisions of Sections 203 and 206 of the Bombay Provincial Municipal Corporations Act, 1949, and Sections 4 and 7 of the Maharashtra Gunthewari Developments (Regularization, Upgradation and Control) Act, 2001, and, therefore, illegal. A prayer is made for clamping restraint order against the Corporation from carrying out further joint measurement survey and intended line of work for the proposed widening of existing street from 18 meters to 24 meters and consequent steps for demolition of the properties. A prayer is made for issuance of directions to Respondent No.1-Municipal
{5}
wp221214.odt
Corporation to proceed with the regularisation of the properties (gunthewari developments) legally owned and possessed by the petitioners as per the provisions of the Gunthewari Act.
5 In Writ Petition No.2205 of 2014, a prayer is made for issuance of directions to the Municipal Corporation to demarcate the properties situate on both sides of the road in equal proportion and fix the centre point for the purposes of construction of road accordingly.
6 Since the subject matter of all the petitions is one and same, all the petitions are heard together. The Municipal Corporation proposes to construct road connecting Shivaji Chowk to Mukundwadi Railway Station having 24 meters width. A petition was presented in public interest by one Shri Omprakash Warma, bearing W.P.No.1493 of 2011 seeking directions to the Municipal Corporation as well as Cidco to construct the road. It was contended in the petition that the road, which is existing and in present shape, is quite inadequate to meet the requirements. The width of the road is so narrow that it becomes difficult for the citizens to have proper access to the Railway Station. The situation has arisen as a result of raising illegal construction on both the sides of the road. The Writ Petition was taken up for hearing and taking into consideration the affidavits presented by the Municipal Corporation, same was disposed of in view of the
{6}
wp221214.odt
assurance given by the Municipal Corporation to complete the construction of road within a period of six months. The text of the order passed by the Division Bench on 29.11.2012 is as quoted below:
“1 The petitioner in this petition is seeking a writ of mandamus or appropriate directions to the respondent No.1 Aurangabad Municipal Corporation, to remove the encroachments on the road and to complete the construction of D.P. Road having width of 24 Meter connection Shivaji Chowk to Mukundwadi Railway Station, at Aurangabad, within a stipulated period.
2 In response to the notice issued by this Court, the Commissioner of Municipal Corporation, Aurangabad is personally present before this Court and has tendered an additional affidavit in reply through counsel appearing for the Corporation. It is recorded in the affidavit in reply, in paragraphs 2 to 7, as under:-
“2 That, in the said meeting it is decided to construct 24 Mtrs width road from Shivaji Chowk to Mukundwadi Railway Station, Aurangabad as per D.P. Plan of CIDCO authority.
3 That, in order to execute the work of construction of the said road the joint measurement survey (J.M.S.) from the office of Taluka Inspector of Land Record Aurangabad will have to be carried out and for the said purpose the letter was
wp221214.odt
{7}
already sent to the said office to communicate the required amount of fees for joint measurement survey (J.M.S.) of the said road.
4 That, the Corporation will deposit the requisite amount of fees immediately after getting communication from the office of Taluka Inspector of Land Record, Aurangabad.
5 That, it is also decided in the said meeting to seek necessary assistance from the office of CIDCO authority as the said area has been denotified by them in their development plan prior to handing over CIDCO area to the Municipal Corporation, Aurangabad.
6 That, I say and submit that the Corporation has already spent 61 Lacs, rupees approximately for the construction of existing Black Topped Road (B.T. Road) running from Shivaji Chowk to Mukundwadi Railway Station, Aurangabad. The recent photographs of the said road are annexed hereto and marked as Exh-R-1 colly.
7 That, I further say and submit that, construction of 24 Mtrs. width road as per CIDCO plan will be completed within a period of 6 months i.e. soon after carrying out the joint measurement as per CIDCO plan.”
{8}
wp221214.odt
3 In view of the statements made in the aforesaid paragraphs 2 to 7, we are of the view that the grievance of the petitioner in the petition is substantially redressed. The affidavit in reply sworn by the Commissioner is taken on record and accepted.
4 Petition is disposed of in view of the reply tendered on behalf of the respondent No.1.”
7 The petitioners contend that since there was an assurance given by the Commissioner, Municipal Corporation, Aurangabad, to construct the road in accordance with the Cidco plan, it is not permissible for the Corporation to make any deviation and change alignment of the road. It is contended that change in the alignment, as proposed, would cause grave prejudice to the petitioners and their properties are likely to be affected while widening the Development Plan Road. One of the petitioners i.e. petitioner in Writ Petition No.2205/2014, however, prays for acquisition of the properties from both the sides of the existing road in equal proportion. It is pointed out that after disposal of the writ petition, there was joint measurement of the properties by Deputy Superintendent of Land Records and markings for development plan road are made in accordance with the map prepared by the Survey authorities.
8 There does appear to be slight variation in the map as proposed by the Cidco authorities in the development plan
{9}
wp221214.odt
prepared by the Cidco and present alignment post joint measurement by the Deputy Superintendent of Land Records. The prayers made by the petitioner in the petition have been controverted by the Municipal Corporation. An affidavit-in-reply has been presented by the Assistant Director of Town Planning, Aurangabad. It is stated that in the writ petition presented by Shri Omprakash Warma, an affidavit-in-reply has been presented by one Sayed Faimoddin on behalf of the Municipal Corporation wherein it has been categorically mentioned that the road is already constructed by the Cidco authorities connecting Jalna Road to Shivaji Chowk. The road from Shivaji Chowk to Mukundwadi Railway Station is also required to be constructed by the Cidco authorities, however, same is not constructed due to residential and commercial constructions and the said area came to be declared denotified by the Cidco authorities. The Municipal Corporation assumed jurisdiction over the said area since April 2006 and since the road was shown in Cidco denotified area, boundaries of the road are not confirmed or fixed and same was shown by the Cidco authorities in their development plan by way of showing street and, therefore, the Municipal Corporation could not construct the road connecting Shivaji Chowk to Mukundwadi Railway Station. In pursuance to the directions issued by the Division Bench of this Court in the said Writ Petition, the Commissioner, Municipal Corporation, Aurangabad, personally remained present before the Court and filed affidavit in reply on
wp221214.odt
{10}
behalf of the Corporation on 29.11.2012. In the additional reply presented by the Commissioner, it is stated as below:
“1 That, I have gone through the contents of aforesaid Writ Petition and documents annexed thereto and in pursuance to the said subject matter, the meeting was called by me on 28.11.2012 to discuss and resolve the issue as regards construction of 24 Mts. Width road as per CIDCO plan which is running from Shivaji Chowk to Mukundwadi Railway Station, Aurangabad with the concerned officers including City Engineer, Assistant Director Town Planning, Deputy Engineer Town Planning, Legal Advisor Municipal Corporation, Aurangabad and Advocate S.N.Pagare.
2 That, in the said meeting it is decided to construct 24 Mtrs width road from Shivaji Chowk to Mukundwadi Railway Station, Aurangabad as per D.P. Plan of CIDCO authority.
3 That, in order to execute the work of construction of the said road the joint measurement survey (J.M.S.) from the office of Taluka Inspector of Land Record Aurangabad will have to be carried out and for the said purpose the letter was already sent to the said office to communicate the required amount of fees for joint measurement survey (J.M.S.) of the said road.
4 That, the Corporation will deposit the requisite amount of fees immediately after getting communication from the office of Taluka
wp221214.odt
{11}
Inspector of Land Record, Aurangabad.
5 That, it is also decided in the said meeting to seek necessary assistance from the office of CIDCO authority as the said area has been denotified by them in their development plan prior to handing over CIDCO area to the Municipal Corporation, Aurangabad.
6 That, I say and submit that the Corporation has already spent 61 Lacs, rupees approximately for the construction of existing Black Topped Road (B.T. Road) running from Shivaji Chowk to Mukundwadi Railway Station, Aurangabad. The recent photographs of the said road are annexed hereto and marked as Exh-R-1 colly.
7 That, I further say and submit that, construction of 24 Mtrs. width road as per CIDCO plan will be completed within a period of 6 months i.e. soon after carrying out the joint measurement as per CIDCO plan.”
9 It is, thus, contended that in order to execute the work of construction, joint measurement survey from the office of Taluka Inspector of Land Records, Aurangabad, was necessary and for that purpose, already request is made for joint measurement survey of the road. It is contended by the Municipal Corporation that since the Cidco authorities have denotified the area, it was essential for the Corporation to take up joint measurement survey which has been undertaken and boundaries of the road have been fixed. It is further contended that the measurement has been
{12} wp221214.odt
conducted in due regards to the centre line of the road and with a view to cause minimum damage to the constructions raised on both the sides of the road.
10 We have perused the map prepared by the Office of Deputy Superintendent of Land Records and we are satisfied that the alignment of the road, as proposed, causes minimum damage to the existing constructions raised on both the sides. It has further been brought to our notice in the affidavit presented by one Rajiv Narsoji Sandha, Deputy Engineer (Gunthewari Cell), Aurangabad Municipal Corporation, that pursuant to the joint measurement carried on 06.01.2014 for construction of 24 meters wide road, the authorities of the Corporation have completed marking on the structures which are likely to be affected by road widening. It is further recorded that on both sides of the existing road from Shivaji Chowk to Mukundwadi Railway Station, the structures erected are unauthorised except the construction of Shankar Babu Tawade, Sarita Narayan Salunke and Sanjay Dinkar Hire. The structures in the name of above referred persons were regularised on 13.08.2009, 29.01.2008 and 01.04.2009, respectively. It is also stated that while regularising the aforesaid structures under the provisions of Act of 2001, a specific condition has been incorporated that in future if the structure is affected in road widening, possession of the same shall have to be handed over without claiming any compensation. An undertaking, to that
{13}
wp221214.odt
effect, has also been given by the three occupants. It is, thus, contended that the structures erected on both sides of the road are unauthorised one and as such occupants of the premises do not have any entitlement to make grievance against the Municipal Corporation.
11 The contentions raised on behalf of the Municipal Corporation in respect of unauthorised nature of constructions has been seriously disputed by the petitioners.
12 Having regard to the order passed by the Division Bench of this Court while disposing of Writ Petition No.1493 of 2011, the assurance given by the Commissioner of Municipal Corporation, Aurangabad, to this Court during the course of hearing of Writ Petition No.1493 of 2011, the Corporation is duty bound to complete the construction of the road connecting Shivaji Chowk to Mukundwadi Railway Station, expeditiously.
13 That, so far as alignment of the road is concerned, the Municipal Corporation shall have to construct the road in accordance with joint measurement survey and after observing the legal provisions incorporated in Maharashtra Regional & Town Planning Act and the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965.
{14} wp221214.odt
14 That, so far as apprehension expressed by the petitioners that the constructions raised by them lawfully would be pulled down without following the procedure prescribed in law, is unfounded. During the course of hearing, learned Counsel appearing for Respondent-Corporation, on instructions, has assured that steps would be taken in respect of demolition of construction in adherence to the provisions of law and after observing due procedure and the authorised constructions would not be pulled down without following due process of law. The Municipal Corporation has also assured that while constructing Development Plan Road, as directed by this Court, the Corporation shall have due regard for the procedure prescribed under law.
15 In view of above, we do not deem it necessary to cause interference in the petitions. The work undertaken by the Municipal Corporation, which is in the interest of public at large, need not be stalled. It has also been assured that while undertaking the work, the Municipal Corporation would ensure that minimum damage is caused to the existing structures raised on both the sides of the road. It has also been assured that the procedure prescribed under law would be adhered to while undertaking the public work. In view of above, no further directions need be issued.
16 So far as grievance raised by the petitioners in W.P.No.
{15}
wp221214.odt
2208 of 2014 is concerned, it would be open for the petitioners to take up proper steps, in accordance with law, for protecting their interest and at this stage, the work, which is undertaken in the interest of public at large, need not be stalled.
17 In view of above, all the writ petitions are disposed of.
A.M. BADAR
R.M.BORDE
JUDGE JUDGE
adb/wp221214
3 issues framed by the court
Whether the Municipal Corporation is directed to resume construction of a Development Plan road connecting Shivaji Chowk to Mukundwadi Railway Station following joint measurement survey.
Whether lawfully constructed structures can be demolished without following due legal procedure during road widening.
Whether the petitions seeking restraint from further joint measurement survey or directions for road demarcation require further judicial intervention.
Colour shows how this judgement treated each authority
Writ Petition No.1493 of 2011Referred¶7
Writ Petition No.1493 of 2011
Sanjay s/o Ramrao Sude and others
Dhondiram Maroti Dumale and others
Gangubai Appasaheb Jadhav and others
Ashok s/o Murlidhar Gore
Tatyarao s/o Vishwanath Rautray and others
The State of Maharashtra
R.M.BORDE
A.M.BADAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
