Partly allowed

Baburao Kashiram Bhaltadak (Since Decd) through Lrs. Lazrus Baburao Bhaltadak and Ors. v. the Additional Director, Town Planning (a.D.T.P.), Nashik Municipal Corporation and Ors.

Bombay HC18 Feb 2016WP/3522/2016

Case brief

AI extract

What is this about?

The Court granted limited protection to petitioners holding unauthorized structures, allowing them one month to file regularization applications and undertake not to alter or transfer possession. Demolition was stayed pending disposal of applications, with a caveat that protection lapses if regularization is not sought or if the petitioners rely on pending slum declaration applications.

What did the court decide?

Granted one-month protection to file regularization applications; stayed demolition till disposal of applications subject to undertaking not to alter structures or create third-party rights.

Baburao Kashiram Bhaltadak (Since Decd)… — Pension and Retirement Benefits | Bombay HC (2016)

wpst3466

ssp

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELATE JURISDICTION
WRIT PETITION ST.NO.3466 OF 2016

¶5

Baburao Kashiram Bhaltadak
since deceased through L.Rs.
Lazrus Baburao Bhaltadak & Ors. ...Petitioners
vs.
The Additional Director, Town
Planning (A.D.T.P.) Nashik
Municipal Corporation & Ors. ...Respondents

¶6

Mr.R.M.Haridas i/b Mr.Tushar Sonawane for the
Petitioners in W.P.St.No.3466/2016

¶7

Ms Chaitrali Deshmukh for the respondent Nos.1 to 3
in W.P.St.No.3466/2016

¶8

Ms M.P.Thakur, AGP for respondent Nos.8 and 9 in
W.P.ST.No.3466/2016

¶9

CORAM : A.S.OKA, &
 C.V.BHADANG, JJ.
 DATE : FEBRUARY 18, 2016

¶10

P.C.:

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1The learned counsel for the petitioners states
that out of 65 petitioners, 61 petitioners have
filed affidavits stating that the structures subject
matter of this petition which are in their
possession have been constructed without obtaining
permission of the Competent Authority. He states
that the petitioners intend to apply for
regularization and they also intend to apply for
declaring the land on which they have constructed
structures subject matter of this petition as slum
within the meaning of the Maharashtra Slum Areas
(Improvement, Clearance and Redevelopment) Act,
1971 (for short `the said Act of 1971'). He states

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that the applications for regularization will be
made by the petitioners within a period of one month
from today.

¶14

2The first challenge in this petition is to the
final orders passed by the Nashik Municipal
Corporation by invoking provisions of 260, 261, 264,
267 and 478 of the Maharashtra Municipal
Corporations Act,1949 directing the demolition of
the structures in possession of the petitioners.
The second prayer in this petition is for
implementation of slum rehabilitation scheme and to
rehabilitate the petitioners in accordance with the
provisions of the said Act of 1971. Reliance is
placed on the Resolution No.141 dated 20th May 1997
passed by the General Body of the Nashik Municipal
Corporation.

¶15

3The learned counsel for the Nashik Municipal
Corporation has placed on record a letter dated 17th
February 2016 addressed by the Zonal Officer
(Western) of the Nashik Municipal Corporation to the
Executive Engineer of the Town Planning Department
of the said Corporation. It records that by a
General Body Resolution No.141 dated 20th May 1997,
it was resolved to grant approval for declaring the
property bearing CTS Nos.6875, 6883, 6886 and 6887
(final plot No.359) at Sharanpur Gaothan as a slum.
The letter records that no further steps have been
taken on the basis of the said Resolution.

¶16

4The impugned orders/notices dated 20th January

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2016 record that the structures in possession of the
respective petitioners have been constructed
unauthorizedly. It is accepted by all the
petitioners as recorded in the order dated 4th
February 2016 as well as subsequent affidavits that
the structures which are subject matter of the
impugned orders have been constructed without
obtaining permission of the Competent Authority. The
very fact that the petitioners desire to apply for
regularization shows that they have accepted that
the structures in their possession have been
constructed unauthorizedly.

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5Considering the peculiar facts of the case, a
limited protection deserves to be granted to the
petitioners to enable them to apply for
regularization. We make it clear that the
petitioners cannot be protected on the first ground
that they want to apply for declaring the land on
which they have constructed structures as a slum
under the said Act of 1971.

¶20

6To enable the petitioners to avail of the
limited protection, they will have to file specific
undertakings stating that they will not make any
addition or alteration and they will not create any
third party rights in respect of the structures and
they will not part with possession thereof.

¶21

7Hence, we dispose of the petition by passing
the following order:

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(I) It will be open for the petitioners to make separate applications for regularization of the structures subject matter of the notices/orders dated 20^th January 2016 to the Nashik Municipal Corporation within a period of one month from today. The applications shall be made in a prescribed format through a licensed Architect;

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(II) The applications for regularization made by the petitioners shall be decided as expeditiously as possible and preferably within a period of sixty days from the date of the applications;

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(III) Till the disposal of the applications for regularization and till the date of communication of the order passed on the applications to the petitioners or to their respective Architects whichever is earlier, the action of demolition shall not be taken by the Nashik Municipal Corporation on the basis of the notices/orders dated 20^th January 2016 subject to condition of the petitioners filing separate or joint affidavits accepting that the structures subject matter of this petition have been constructed without obtaining permission from the Competent Authority;

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(IV) The affidavit/affidavits shall also contain an undertaking that the petitioners shall not carry out any addition or alteration to the structures in question shall not create any third party rights and shall not part with possession thereof;

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(V)If such affidavits are not filed within a

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period of one month from today, the limited
protection granted to the petitioners shall
stand vacated without further reference to the
Court. In such event, the Nashik Municipal
Corporation shall take action of demolition of
the structures subject matter of this petition;

¶31

(VI)On the failure of the petitioners to make
applications for regularization within a period
of one month from today, it will be open for
the Nashik Municipal Corporation to take action
of demolition on expiry of period of one month
from today;

¶32

(VII)If the orders passed on the applications
for regularization be adverse to the
petitioners, the limited protection granted as
above shall continue for a period of six weeks
from the date on which the orders are
communicated to the petitioners or their
respective Architects, whichever is earlier;

¶33

(VIII)It will be open for the petitioners to
apply to the State Government for a declaration
of the land in question as a slum under the
said Act of 1971. If such application is made,
the same shall be disposed of as expeditiously
as possible and preferably within a period of
sixty days from the date of application;

¶34

(IX)We make it clear that the petitioners will
not be entitled to protection of their
structures on the ground that the applications
made by them for declaring the land in question
as a slum is pending with the State Government;

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(X) We make it clear that we have made no

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adjudication on the issue whether the land in
question can be declared as a slum under the
said Act of 1971;

¶38

(XI)All contentions on the applications for
regularization proposed to be made by the
petitioners are kept open;

¶39

(XII)Writ Petition is disposed of.

¶40

(C.V.BHADANG,J.)(A.S.OKA,J.)

Baburao Kashiram Bhaltadak (Since Decd) through Lrs. Lazrus Baburao Bhaltadak and Ors. v. the Additional Director, Town Planning (a.D.T.P.), Nashik Municipal Corporation and Ors.

Case brief

What is this about?

What did the court decide?

Baburao Kashiram Bhaltadak (Since Decd) through Lrs. Lazrus Baburao Bhaltadak and Ors. v. the Additional Director, Town Planning (a.D.T.P.), Nashik 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

Statutes considered

Parties & counsel

Coram

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