2013(5) ALL MR 499
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
D.Y. CHANDRACHUD AND S.C. GUPTE, JJ.
Aziz Amir Shaikh & Anr. Vs. Ulhas Nagar Municipal Corporation & Ors.
Public Interest Litigation No. 27 of 2010
28th June, 2013
Petitioner Counsel: Mr. S.M. Gorwadkar
Respondent Counsel: Mr. S.M. Kamble,Mr. Samir Patil
Maharashtra Regional and Town Planning Act (1966), Ss.37A, 154, 52, 53 - Development plan - Breach of - Construction of transit camps on land reserved for playground and primary school - Authorising such construction in breach of Development Plan is illegal - State Government is directed to take action against responsible authority. (Para 5)
DR. D.Y. CHANDRACHUD, J. :- The petitioners, who are residents of Ulhasnagar, have challenged a resolution of the Standing Committee of the First Respondent dated 25 August 2009 and the resolution of the First Respondent dated 13 November 2009 for the construction of transit camps on plots of land (Plot 705, Sheet No. 60/61, Camp No.2 Sector No.3 and Plot 103, Camp no.5, Sector 8) at Ulhasnagar. Under the sanctioned Development Plan of 1974, the land comprised in plot 705 on sheet no.60 and 61 admeasuring 19540 square yards is reserved for a playground and the land comprised in plot 103, sheet no. 54 admeasuring 7366 square yards is reserved for a primary school and for a playground. In breach of the sanctioned Development Plan, the First Respondent decided to construct tenements for the residents of Rahul Nagar and Valmiki Nagar slums, a project which is being implemented with the help of the Union Government. Following the resolution of the Standing Committee, the General Body of the First Respondent approved the proposal and a work order was issued on 25 August 2009.
2. The contention of the Petitioners is that the construction of transit camps on lands which have been reserved as a playground, and in part for a primary school and playground is in violation of the provisions of Section 37A of the Maharashtra Regional and Town Planning Act, 1966. Section 37A empowers the State Government or the Planning Authority, in respect of any land reserved for a playground in a draft or final Development Plan to allow its use for a period not exceeding twelve days at a time and in any case, not exceeding 30 days in a calender year, for the organisation of functions and events including the Independence Day and Republic Day. There is no doubt about the legal position that the construction of a transit camp on land which is reserved for the public purposes of a playground is in violation of Section 37A. Though Counsel for the First Respondent submitted that under sub-section 1AA of Section 37, it is open to the State Government to issue a notice for the modification of a Development Plan where it is necessary to do so on an urgent basis, admittedly, no recourse has been taken to that power by the State Government.
3. The First Respondent in its affidavit-in-reply has stated that the Municipal Corporation had in 2008 obtained approval for work on a project called "Basic services to the Urban Poor" from the State Government and from the Union Government in 2009 for the construction of tenements under the Jawaharlal Nehru National Urban Renewal Mission (JNNURM). The Government of India is stated to have sanctioned the project under JNNURM on 3 February 2009 at a cost of Rs.35.38 crores. What the First Respondent has clearly overlooked is that any development or use of land must be consistent with the sanctioned Development Plan. The ends can never justify the means. However, laudable the public project may be, the implementation of the project has to be in accordance with the governing principles of law and in matters of town and urban planning, the provisions of the MRTP Act, 1966 cannot be breached. The First Respondent as a Planning Authority is duty bound to enforce its obligations and to comply with the provisions of the Act. What has been done by the First Respondent is a brazen act of illegality which must be deprecated in the strongest possible terms by directing the removal of the transit camps forthwith. However, in the affidavit dated 10 May 2013, which has been filed by the Executive Engineer, a statement has been made that the temporary transit camps will be demolished and removed by the end of March 2014. The Municipal Corporation is, in the meantime, completing the construction of the project, which envisages permanent accommodation at the alternate location. Though the Court would have been justified in directing removal forthwith, we have borne in mind the fact that the transit camps are in the occupation of the occupants of the Rahul Nagar and Valmiki Nagar slums on a temporary basis until their permanent homes are ready for occupation. They would be put to serious hardship particularly in the ensuing monsoon if demolition is directed at this stage.
4. We make it clear that while we accede to the statement which has been made on behalf of the First Respondent, the time which has been granted for the removal and demolition of the transit camps by 31 March 2014 shall not be extended any further and the transit camps shall be removed on or before 31 March 2014.
5. In the circumstances, we dispose of the petition by holding that the action of the First Respondent in authorising the construction of transit camps on the lands in question in breach of the Development Plan was contrary to law and the resolutions which have been passed by the Standing Committee and the General Body are ultra-vires and illegal. We direct, in consequence, that the transit camps shall, in terms of the statement which has been made on affidavit by the First Respondent, be removed by 31 March 2014. The State Government is, under the provisions of Section 154, vested with overall control over the planning authorities in the State which are bound to carry out directions or instructions as may be issued by the Government for efficient administration of the Act. Section 52 of the Act makes it an offence to continue to use or allow the use of any land or building in contravention of the provisions of a Development Plan. Under Section 53, the Planning Authority has been vested with the power to require the removal of unauthorised development and is vested with the jurisdiction to launch a prosecution for non-compliance. In the present case, it is the Planning Authority itself which has acted in breach of the principles of law. We hence direct the State Government to consider this aspect of the matter as part of its overall control over the First Respondent and to take an appropriate decision in accordance with law. The State Government shall take or, as the case may be, direct the taking of action against those responsible for this brazen violation of law.