Writ Petition No.557 of 2011

26th April, 2011

Petitioner Counsel: Mr. M.M. VASHI
Respondent Counsel: Mr. S.U. KAMDAR, Ms. GHORPURE
Other Counsel: Mr. D.A. NALAWADE

JUDGMENT

SMT. RANJANA DESAI, J. :- The petitioner has challenged Notice dated 25/11/2009 issued by respondent 3 i.e. Assistant Commissioner, F/North Ward, Mumbai under Section 55 of the Maharashtra Regional & Town Planning Act, 1966 (for short, "the MRTP Act") and order dated 18/11/2010 passed by him confirming the said notice. The petitioner has also challenged the inaction/decision of respondent 1 i.e. the Municipal Corporation of Greater Mumbai (for short, "the Corporation") in refusing to attorn the petitioner as its tenant though the petitioner fulfills the eligibility criteria and complies with the requisite conditions of attornment policy of the Corporation.

2. The case of the petitioner needs to be shortly stated:

The Corporation is the owner of plot bearing No.507 admeasuring 664 sq. yards., situated at Scheme No.57, Sewri-Wadala Road, Road No.37, Behind Sigma Laboratory, Wadala, Mumbai - 400 031. The Corporation has acquired the said land in the year 1930 from a Trust created by Tatas. The said plot was bounded by other plots bearing old C.S. No.336 in the East, C.S. No.506 in the North, Road No.37 in the West and C.S. No.508 in the South.

3. In or about 1960, C.S. No.507 admeasuring about 664 sq. yards, which is adjoining C.S. No.336 and C.S. No. 506 was allotted on vacant land tenancy (for short, "VLT") to one M.R. Apte by the Corporation. The allotment was made for the purpose of parking school buses. The said M.R. Apte constructed a structure on the said land and sub-let part of the said land to one S.V. Deshpande, who used to carry on the business of repairing motor vehicles. According to the petitioner, since S.V. Deshpande needed helpers, he engaged the petitioner to do the tin work in his garage. In or about 1975, the petitioner also erected structures and started residing and carrying on business independently in the premises under the name and style of "Sharda Auto Works". According to the petitioner, he has been carrying on his business in the structure admeasuring about 46.35 sq. mtrs. and residing there since his childhood in shed admeasuring 18.750 sq. mtrs. standing partly on plots bearing C.S. Nos.336(part) and 507 (part) from prior to 1980.

4. The Corporation initiated eviction proceedings under Section 105(B) of the Mumbai Municipal Corporation Act, 1888 against the heirs of M.R. Apte on the grounds inter alia of subletting, change of user, etc. On 27/12/1986, the Inquiry Officer of the Corporation held that all the occupants are in unauthorized occupation of the premises in question and passed an order directing them to quit, vacate and hand over vacant possession of the said premises within one month. Heirs of the said M.R. Apte preferred appeal to the Principal Judge, City Civil Court at Mumbai against the said order. According to the petitioner, the heirs of M.R. Apte withdrew the appeal because they had applied to the Corporation for lease of the property. The Corporation did not take any action to execute the eviction order passed against the occupants. The petitioner along with other occupants continued to carry on their business without any objection or hindrance from the Corporation. The Corporation kept on accepting the rent from the VLT holder and was, in fact, considering granting lease to the heirs of M.R. Apte.

5. It is the case of the petitioner that the petitioner is residing and carrying on business to the knowledge of the respondents right from prior to 1980 without any hindrance, obstruction or objection from the respondents. Though the eviction orders have been passed, the respondents have not executed the said orders. The conduct of the respondents in not initiating action for the past more than 30 years amounts to acquiescence and, therefore, they are now estopped from taking any action on the ground that the structure is unauthorized. According to the petitioner, since past more than 35 to 40 years and in any event prior to 1/1/1995, the structure is in existence, he is protected under the respondents' policies. The grievance of the petitioner is that despite this, the respondents issued Notice dated 25/11/2009 under Section 55 of the MRTP Act alleging that the petitioner had carried out temporary unauthorized construction without permission of the respondents The petitioner was directed to forthwith remove the unauthorized construction, failing which the respondents proposed to take action as per law.

6. The petitioner challenged the said notice in the City Civil Court at Bombay being L.C. Suit No.2687 of 2009. The City Civil Court granted ad-interim stay. The Corporation carried the matter in appeal to this court. On 20/9/2010, learned Single Judge disposed of the appeal by directing that the petitioner shall submit his explanation along with all the relevant documents on which he wants to rely before the Assistant Commissioner, F/North Ward within four weeks from the date of the said order treating the impugned Notice dated 25/11/2009 as show cause notice. The Assistant Municipal Commissioner was directed to fix a date for the hearing. He was further directed to pass appropriate orders within four weeks from the date when the petitioner files his explanation and documents. It was further directed that in case, the decision goes against the petitioner, the Corporation shall issue fresh order of demolition under Section 55 of the MRTP Act. A further direction was given that in case, the decision goes against the petitioner, the Corporation shall not act upon the same for a period of eight weeks from the date of communication of the said order. In view of these directions, the petitioner was to withdraw the suit pending before the trial court. It is pertinent to note that this order was passed by consent of the parties. The petitioner has withdrawn L.C. Suit No.2687 of 2009 as per the said order.

7. Pursuant to this order, the Assistant Commissioner, F/North Ward gave hearing to the petitioner. The petitioner's counsel appeared before him and produced documents. After considering the documents and after hearing the arguments, the Assistant Commissioner observed that the structure in question which is made up of bamboo and tarpaulin, even if it is in existence since 25 years, cannot be treated as a permanent nature. It was further held that the documents submitted by the petitioner as well as oral submissions made on his behalf could not prove the authenticity of the notice structure prior to the datum line i.e. prior to 1/4/1962 prescribed by the Corporation for the structure to be in tolerated category. The petitioner was, therefore, directed to remove the unauthorized structure within eight weeks from the date of communication of the said order. Aggrieved by the said order, the petitioner has preferred this writ petition.

8. We have heard Mr. Vashi, learned counsel appearing for the petitioner. Mr. Vashi submitted that the impugned notice is illegal and must be quashed and set aside. He submitted that admittedly, the structure is in existence since 1970. Even if it is partly made up of tarpaulin and bamboo, it can by no stretch of imagination be treated as structure of a temporary nature. He submitted that the nature of the structure is determined by its user and not by the material which is used for its construction. For all these years, the structure has been used by the petitioner as a permanent structure and the Corporation has erred in treating it as a temporary structure. Counsel drew our attention to Section 52 and 53 of the MRTP Act. Section 53(1) states that where any development of land has been carried out as indicated in sub-section (1) of Section 52, the Planning Authority may, serve a notice on such person. Sub-section (3) states that any person aggrieved by such notice may, apply under Section 44 of the MRTP Act for permission for retention on the land of any building or for continuance of any use of the land, to which notice relates. Sub-section (5) states that if the permission is granted, notice issued under Section 55 of the MRTP Act stands withdrawn. Counsel submitted that Section 55 of the MRTP Act, however, does not contemplate any notice. Counsel submitted that since the Corporation treated the impugned notice dated 25/11/2009 as show cause notice and gave hearing to the petitioner, the notice should be treated as one under Section 53 of the MRTP Act. It would be open therefore to the petitioner to get the structure regularized or to get the necessary permission from the Corporation. Counsel further submitted that the Corporation erred in treating the datum line as 1/4/1962 and not 1/1/1995. Counsel submitted that the voluminous documents produced by the petitioner were completely ignored. Counsel submitted that in any case, the petitioner ought to be given benefit of the policy of the Corporation. In this connection, he drew our attention to Circular dated 26/6/2009 issued by the Corporation which lays down guidelines for attornment of occupation of structure/hut/chawl on municipal land. Under the policy, the occupants of municipal lands who are in possession of tolerated structures are protected and they are entitled for attornment of tenancy. Counsel submitted that the case of the petitioner falls in Category V of the said policy under which occupation of a tolerated structure is protected. He submitted that under Category V, the occupant's structure must be in existence on acquired properties prior to 1/1/1995. The petitioner should have, therefore, got the benefit of the policy circular of the Corporation. The Corporation ignored the circular and issued order under Section 55 of the MRTP Act to evict the petitioner. Counsel submitted that the Corporation also ignored the proposal for redevelopment of the land submitted by the Shivsmruti Co-operative Housing Society (Proposed) formed by the petitioner and other occupants under Development Control Regulation No.33(7). Counsel submitted that order dated 18/11/2010 passed by the Assistant Commissioner deserves to be set aside because he has not considered the documents submitted by the petitioner in their proper perspective. He has ignored the policy of the Corporation. Ignoring the documents which the petitioner had produced, the Assistant Commissioner has highhandedly confirmed the impugned notice dated 25/11/2009. Counsel submitted that therefore this court should quash and set aside the said order.

9. Mr. Kamdar, learned senior counsel appearing for the Corporation drew our attention to the affidavit of Mr. Savalkar, Assistant Engineer (B&F), F/N Ward of the Corporation. He submitted that the order passed by learned Single Judge dated 20/9/2010 is an order by consent of the parties. Counsel for the petitioner had consented that that notice should be treated as show cause notice and the Assistant Municipal Commissioner shall give a hearing to the petitioner. From this order, it cannot be concluded that the impugned notice issued under Section 55 of the MRTP Act should be treated as one under Section 53 of the MRTP Act. The order passed by consent of the parties, cannot be used by the petitioner to get out of the clutches of Section 55 of the MRTP Act. Counsel submitted that the challenge raised in the petition is to the notice issued under Section 55 of the MRTP Act and the petitioner must restrict his submissions to that challenge. As per the policy of the Corporation, the datum line so far as the structure of the petitioner is concerned is 1/4/1962 and not 1/1/1995. The petitioner has admittedly not been able to establish that the structure was in existence prior to 1/5/1962 and, therefore, his structure will have to be demolished. Counsel submitted that this is not a proceeding for eviction. This is a proceeding for removal or discontinuance of unauthorized structure summarily. Assuming that M.R. Apte's VLT was terminated in the year 1986, the petitioner cannot draw any advantage from that fact. The heirs of M.R. Apte may be treated as tenants holding over. The petitioner is not concerned with the action which the Corporation may take against the heirs of M.R. Apte or the stand of the Corporation viz-a-viz M.R. Apte's heirs. The petitioner is a rank trespasser. Counsel submitted that there is no substance in the petitioner's contention that the nature of the construction is determined by the user and not the material, which is used to construct it. A structure made of bamboo and tarpaulin can never be treated as a permanent structure. So far as the policy of the Corporation for attornment of the petitioner is concerned, the petitioner can never get the benefit of the same. Counsel submitted that his case can never fall in Category V of the circular. It would fall in Category IV of the said circular, which says that the occupiers of the structure falling under the vacant land tenancies existing prior to datum line of 1962-64 would be eligible for attornment. Category V does not refer to VLT. In any case, admittedly, the petitioner has filed a suit in this court claiming adverse possession against the Corporation. In that case, the petitioner has taken a stand that he is owner by adverse possession. Counsel submitted that adverse possession and tenancy can never go hand in hand and, therefore, this court should dismiss the petition.

10. Admittedly, the Corporation is the owner of the plot in question. It is also admitted that C.S. No.507 admeasuring about 664 sq. yards, which is adjoining to C.S. No.336 and C.S. No.506 was allotted on VLT to M.R. Apte. M.R. Apte was allotted the said land for the purpose of parking school buses. M.R. Apte constructed a structure on the said land and sub-let part of the said land to S.V. Deshpande, who was carrying on business of repairing of motor vehicles. The said S.V. Deshpande needed helpers and, therefore, the petitioner was allowed to do tin work in his garage. It is the petitioner's case that in or about 1975, he erected structures and started residing and carrying on business independently in the said premises under the name and style of Sharda Auto Works. Thus, the petitioner has no right to occupy the structure constructed by him in the land in question because he was never permitted by any authority to construct a structure on the said land.

11. It must be borne in mind that the petitioner is aggrieved by order dated 25/11/2009 issued by the Corporation under Section 55 of the MRTP Act and the petitioner will have to restrict his challenge to that issue. He is trying to widen the scope of his challenge which he cannot do. The impugned order states that the petitioner has carried out development of temporary nature on the land in question unauthorizedly without any permission as required under the MRTP Act. The structure is described overleaf as construction of tarpaulin and bamboo. The measurement of the said structure is given in the map. Under Section 55 of the MRTP Act, if a person has carried out any development of a temporary nature unauthorizedly, the Planning Authority may by an order direct that person to remove the said structure or work erected or discontinue the use of the said land made unauthorizedly, within 15 days of receipt of the order and thereafter if he does not comply with the order within the said period, the Planning Authority may require the District Magistrate or the Commissioner of Police to have such work summarily removed or such work summarily discontinued without any notice as directed in the order.

12. Thus, Section 55 of the MRTP Act, in fact, contemplates an order to be served on the person who has carried out unauthorized construction giving him time to remove the same failing which the said person is liable for prosecution and the said unauthorized structure is liable to be removed without any further notice to him. Thus, Section 55 of the MRTP Act does not contemplate any hearing. It is a provision which enables the Corporation to remove or discontinue any unauthorized temporary development of land summarily. It can never be given the character of long drawn eviction proceedings. The important requirement of Section 55 is that the unauthorized structure must be of a temporary nature. In this case, admittedly, the structure is made of tarpaulin and bamboo. It is contended by learned counsel for the petitioner that some part of it is of a permanent nature and since it is in existence for more than 35 years, it is of a permanent nature. We have no hesitation in rejecting this submission. In our opinion, the use to which the structure is put and the existence of the structure for number of years is not relevant. The structure would come within the ambit of Section 55 of the MRTP Act if it is constructed of bamboo, tarpaulin and such materials. In this case, because of the type of material used for the construction of the structure, it will have to be characterized as a temporary structure though we may not be understood to have expressed that if bricks or mortar is used, the structure is of permanent nature because in this case it is not necessary to go into that aspect. The use to which the structure is put is immaterial. Section 55 of the MRTP Act nowhere speaks of the user and this concept in our opinion cannot be imported in Section 55 of the MRTP Act. Similarly, the section nowhere says that to decide that a structure is temporary or permanent, the years for which it is in existence will have to be taken into account. That concept cannot be also imported in Section 55 of the MRTP Act. Whether the structure is temporary or permanent will depend on facts and circumstances of each case and at any rate, the decision of the planning authority on the question as to what is development of temporary nature is final as per Section 55 (2) of the MRTP Act. The petitioner has admitted that he was helping S.V. Deshpande in his garage and he erected structures and started residing and carrying on business independently in the premises. The structure is made of bamboo and tarpaulin. Therefore, there is no doubt about the unauthorized and temporary nature of the construction. It is indeed covered by Section 55 of the MRTP Act.

13. It is contended that the Corporation gave hearing to the petitioner. Therefore, the notice/order dated 25/11/2009 which the petitioner received is not one issued under Section 55 of the MRTP Act but is a notice issued under Section 53 of the MRTP Act, which contemplates notice and hearing. It is contended that therefore, the structure can be regularized by taking permission. We have no hesitation in rejecting this submission. The hearing was given to the petitioner pursuant to the order passed by learned Single Judge dated 20/9/2010 in appeal from order filed by the Corporation. It was an order taken by consent of the parties. By consent of the parties, the notice dated 25/11/2009 was treated as show cause notice and hearing was given to the petitioner. Such a consent order cannot make a notice under Section 55 a notice under Section 53 of the MRTP Act. Though it was a notice under Section 55 of the MRTP Act, it appears that because the petitioner showed willingness to withdraw the suit, which he had filed before the City Civil Court, Bombay, which is undoubtedly not maintainable, the Corporation appears to have agreed to give hearing to the petitioner. It is unfortunate that the petitioner should turn around and now argue that this hearing has changed the very nature of the notice issued under Section 55 of the MRTP Act and it has now become a notice under Section 53 of the MRTP Act. What is sought to be conveyed is that the petitioner can now move for regularization of the said structure. We are unable to accept the submission that the hearing given in the aforementioned circumstances has changed the nature of notice dated 25/11/2009. In fact, learned Single Judge has observed in the same order that if after hearing the petitioner, the decision goes against the petitioner, the Corporation shall give fresh notice to the petitioner. The words "fresh notice" undoubtedly imply that the first notice was a notice under Section 55 of the MRTP Act., Learned Single Judge treated it as notice under Section 55 of the MRTP Act and parties understood it as a notice under Section 55 of the MRTP Act. This submission is, therefore, rejected.

14. It is further contended that M.R. Apte's tenancy/leave and licence agreement was terminated in the year 1986. It is contended that the petitioner must be given benefit of the Corporation's policy reflected in Circular dated 26/6/2009. It is contended that the said circular lays down the guidelines under which the tenancy can be attorned. Reliance is placed on Category V of the said circular. We find no substance in this submission also. First of all, the petitioner can draw no mileage from the dispute which the Corporation may have against the heirs of M.R. Apte or the proceedings which may be pending between the two or the stand which the Corporation may take vis-a-vis the heirs of M.R. Apte. The petitioner is an unauthorized occupant and his status can never change. The petitioner's argument that the tenancy must be attorned to him because his case falls in Category V must be rejected. Category IV refers to structures prior to datum line of 1962-64 falling under VLT. The petitioner's case is completely covered by this category because his structure is falling under VLT. The occupiers of structures falling under this category, which were in existence prior to datum line of 1962-64 are eligible for attornment. He must establish that his structure existed prior to datum line of 1962-64. Therefore, the datum line is 1962-64. The petitioner does not have a single document to show the existence of the structure prior to 1962-64. His tenancy, therefore, cannot be attorned. Since the petitioner's structure falls in VLT, category V is not applicable to him. The termination of VLT of M.R. Apte in 1984 has no relevance to this case. As urged by Mr. Kamdar, it is possible that the heirs of M.R. Apte are tenants holding over. We, however, need not go into that aspect of the matter because we have clearly stated that these are not proceedings of eviction. We are, therefore, not expressing any final opinion on this aspect. The court or the authority which may be concerned with this issue will have to independently examine it and decide it in accordance with law. Suffice it to say that the petitioner's case stands on an independent footing. It cannot be linked to the case of heirs of M.R. Apte. There is yet one more significant fact, which must throw the petitioner's case for attornment of tenancy overboard. The petitioner has filed a suit in this court claiming ownership by adverse possession against the Corporation. If he is claiming ownership by adverse possession then surely he cannot claim to be a tenant of the Corporation. These two claims cannot stand side by side. One is destructive of the other. This argument of the petitioner must, therefore, be rejected.

15. In our opinion, the impugned notice is perfectly legal and justified. After hearing was given to the petitioner, the Assistant Commissioner, F/North Ward, Bombay, i.e. respondent 3 herein considered all the documents submitted to him by the petitioner's counsel and came to the right conclusion that the structure in question cannot be treated as a structure of permanent nature and that the documents submitted by the petitioner's counsel could not prove the authenticity of the structure. Those documents could not prove that the structure was in existence prior to 1/4/1962 being the datum line prescribed by the Corporation for the structure to be in tolerated category. The said order which is impugned in this petition is also perfectly legal and justified. In the circumstances, we find no substance in the petition. The petition is dismissed.

16. At this stage, counsel for the petitioner seeks stay of the order. Counsel for the Corporation vehemently opposes the application for stay. In the circumstances of the case, as directed by this court on 13/1/2011, both sides shall maintain status quo prevailing as of today, for a period of four weeks from today.

Petition dismissed.