Public Interest Litigation No.84 of 2013

25th October, 2013

Petitioner Counsel: Mr. A.A. KUMBHAKONI, Ms. MEENAKSHI SAKHARE
Respondent Counsel: Mr. A.B. VAGYANI, Mr. N.V. WALAWALKAR, Mr. G.H. KELUSKAR, Mr. G.S. GODBOLE, R.S. KOHLI, Mr. VIKRAM R. CHAVAN

Cases Cited:
Esha Ekta Apartments Co-operative Hsg. Society Ltd. And others Vs. Municipal Corporation of Mumbai and others, 2013(2) ALL MR 901 (S.C.)=Civil Appeal No.7934/2012, Dt.27/2/2013 [Para 5]
Friends Colony Development Committee Vs. State of Orissa, (2004)8 SCC 733 [Para 5]
Mrs.Jayashree Suresh Dange Vs. The Member Secretary, MPCB and another, PIL No.207/2010, 4/10/2013 [Para 6]

JUDGMENT

DR. D.Y. CHANDRACHUD, J. :- Rule. Learned counsel for the Respondents waive service. The petition is taken up for hearing and final disposal, by consent and on the request of the learned counsel.

2. In these proceedings which have been filed in public interest, the grievance of the Petitioner arises out of the failure of the Pimpri Chinchwad Municipal Corporation ('PCMC') to take steps in accordance with law for demolition of an unauthorized structure. The Third Respondent is a municipal corporator while the Seventh Respondent is her spouse. The Eighth Respondent is the mother of the Seventh Respondent. The reasons why the PCMC has while ostensibly exercising its powers under the Maharashtra Regional Town Planning Act, 1996 and the Bombay Provincial Municipal Corporations Act, 1949 failed to take any steps for the demolition of a structure for which admittedly there is no building permission, are not difficult to seek. Unfortunately, the PCMC, as the facts would reveal, has lent a willing hand to tolerate a brazen violation of law.

3. A completely unauthorized RCC structure admeasuring about 810 sq.mtrs. consisting of a ground floor and two upper floors has been constructed within the jurisdiction of PCMC on Survey No.6/8 PWD (CTS No.1691). A notice was issued to the Seventh Respondent under Section 53 of the Maharashtra Regional Town Planning Act, 1966 on 13 May 2008. No action was taken for five years thereafter. On 19 March 2013, a notice to show cause was issued to the Seventh Respondent under Section 260(1) of the Bombay Provincial Municipal Corporations Act, 1949. In his reply, the Seventh Respondent by a letter dated 6 April 2013 stated that the property is joint family property. The Seventh Respondent applied for regularization of the structure. The application was rejected on 26 April 2013. Again a fresh notice was issued on 16 May 2013. On 22 May 2013, the Seventh Respondent applied for building permission under Section 44 of the Maharashtra Regional Town Planning Act, 1966. The building permissions department rejected the application for building permission and accordingly the Seventh Respondent was informed by a letter dated 15 July 2013. By this letter, the PCMC has required the Seventh Respondent, inter alia, to remove the existing structure. Initially by his letter dated 31 July 2013 the Seventh Respondent expressed readiness to demolish a portion of the building but even this was sought to be subsequently resiled from by a letter dated 28 July 2013 where it is stated that a portion of the building would be demolished after obtaining the building plan.

4. The fact that the structure is unauthorized is not disputed by the PCMC. Neither the Third, Seventh or the Eighth Respondents have produced the building permissions. In fact, in paragraph 4 of the reply, the PCMC has stated that the construction is "wholly unauthorized and illegal". However, in paragraph 5 of the reply it has been stated that the PCMC has sent a proposal to the State Government for regularization of all unauthorized constructions constructed prior to 31 March 2012.

5. In a recent judgment of the Supreme Court in Esha Ekta Apartments Co-operative Hsg. Society Ltd. And others Vs. Municipal Corporation of Mumbai and others Civil Appeal No.7934 of 2012 and group of appeals decided on 27 February 2013 : [2013(2) ALL MR 901 (S.C.)], the Supreme Court has followed its earlier decision including in Friends Colony Development Committee Vs. State of Orissa (2004)8-SCC-733, which had laid down the following principle :

"... . . Though the municipal laws permit deviations from sanctioned constructions being regularised by compounding but that is by way of exception. Unfortunately, the exception, with the lapse of time and frequent exercise of the discretionary power conferred by such exception, has become the rule. Only such deviations deserve to be condoned as are bona fide or are attributable to some misunderstanding or are such deviations as where the benefit gained by demolition would be far less than the disadvantage suffered. Other than these, deliberate deviations do not deserve to be condoned and compounded. Compounding or deviations ought to be kept at a bare minimum."

The principles which have been laid down in the earlier decisions have been reiterated.

6. The record before the Court would furnish no reasonable explanation on why PCMC has chosen to remain a silent spectator to the brazen illegality in the present case. Apart from issuing notices, PCMC has not taken action though admittedly the structure is without any building permission. In a judgment of this Court in Mrs.Jayashree Suresh Dange Vs. The Member Secretary, MPCB and another PIL No.207 of 2010 decided on 4 October 2013, this Court has observed as follows :

"9. The material which has been placed on the record leaves no manner of doubt that there is a complete breakdown of governance in the enforcement of urban planning legislation within the jurisdiction of PCMC. The PCMC is a planning authority within the meaning of the Maharashtra Regional Town Planning Act, 1966 and is duty bound to enforce those provisions. As many as 66,324 structures are found to be unauthorized. Even after issuing notices of demolition, the PCMC has taken action only against 225 structures. The illegalities are compounded by a proposal for regularization en masse. This is a virtual negation of the rule of law. Learned counsel for PCMC states that PCMC lacks adequate infrastruture and is dependent on the Police authorities to support its enforcement measures. What is disturbing is the complete absence of administrative will on the part of the authorities of the State including the planning authority to take cognizance of the serious dimensions of the unauthorized structures within the limits of PCMC. PCMC has compounded the illegalities by now proposing to regularize initially all structures which had come up prior to 31 March 2011 and subsequently all structures which have come up prior to 31 March 2012. The consequence of these proposals does not require any stretch of imagination to appreciate. What the PCMC has proposed to do in fact acts as an incentive for those who carry out unauthorized constructions, since the violaters of the law can be sanguine in that belief that their structures will not be demolished and in fact would be tolerated at a future date. We emphatically disapprove of the conduct and the decisions of the PCMC and hold the Commissioner of PCMC personally responsible for taking immediate steps and stringent action against unauthorized constructions including those which form the subject matter of the PIL before this Court."

7. We accordingly direct the PCMC to forthwith take action for the demolition of the offending structure. The PCMC shall recover all the costs, charges and expenses of the demolition from the owner of the illegal structure. The Commissioner of Police shall render all necessary assistance, if any, required by the PCMC to obviate any difficulty in compliance. The petition is accordingly disposed of by making rule absolute in these terms. No order as to costs.

8. In view of disposal of PIL, Civil Application No.224 of 2013 does not survive and stands disposed of as such.

Ordered accordingly.