Writ Petition No.3472 of 2002

18th January, 2018.

Petitioner Counsel: Shri S.S. DEWANI
Respondent Counsel: Ms. A.R. KULKARNI, Shri V. DAHAT h/f Shri J.B. KASAT

Cases Cited:
Sopan Maruti Thopte & anr. Vs. Pune Municipal Corporation & anr., 1996(2) ALL MR 383=AIR 1996 Bombay 304 [Para 5]

JUDGMENT

B. P. DHARMADHIKARI, J. :- The four petitioners have approached in this petition claiming declaration that demolition of their respective shop blocks on 21/4/2002 by respondent no.2 Municipal Corporation is highhanded and illegal. Prayer, therefore, is to direct Municipal Corporation to restore the same and to compensate petitioners for loss of livelihood. Petitioners in paragraph 57 of the petition states that from their respective businesses in those shop blocks, they were earning monthly income of Rs.50,000/-. They have claimed compensation of Rs.20 lakhs in all, i.e. Rs.5 lakhs per petitioner.

2. We have heard Adv. Dewani for petitioners, Ms. Kulkarni, learned Assistant Government Pleader for respondent no.1 and Adv. Dahat holding for Adv. Kasat for respondent no.2

3. At the outset it is not in dispute that on piece of land where shop blocks were standing, further development has been carried out by respondent no.2 and since 2007, the said plot/piece of land is not in existence. It has been used for road widening/beautification.

4. After hearing respective Counsel, we find that petitioners/evacuees from Pakistan were allotted certain plots as per Resolution of Planning and Development Committee passed in a meeting held on 10/11/1974, which was confirmed on 13/12/1974. This Resolution is of predecessor-in-title of respondent no.2, namely, Municipal Council, Amravati. However, thereafter a formal agreement of lease was never registered or executed between parties. On the basis of that Resolution, petitioners continued to pay monthly rent and rent receipts on record show that the rent has been paid lastly on 1/12/2001 or 24/1/2002. The rent appears to be charged annually.

5. The petitioners approached this Court earlier in Writ Petition No. 540/2001 and it was disposed of on 2/3/2001 with direction to Municipal Corporation to abide by law laid down in the case of Sopan Maruti Thopte and another vs. Pune Municipal Corporation and another (AIR 1996 Bombay 304) : [1996(2) ALL MR 383]. After this adjudication, on 13/3/2001 respondent no.2 Municipal Corporation served notices under Sections 260, 267 and 478 of the Bombay Provincial Municipal Corporations Act, 1949 and asked petitioners to show cause as to why their illegal construction should not be demolished. The extent or nature of illegal structure is also described in these notices. After receipt of these notices, within two weeks petitioners made a detailed representation and one such representation dated 27/3/2001 is annexed with the petition. There they have pointed out why their structures are not illegal. They also sought for its regularisation. The respondent no.2 Municipal Corporation on 15/5/2001 passed a speaking order and rejected their request for regularisation. Against that order, petitioners filed appeal before State Government under Section 47 of the Maharashtra Regional and Town Planning Act, 1966 and on 13/7/2001 the State Government through its Minister decided that appeal. Names of deceased petitioner no.1 and petitioner no.2 appear in the copy of order passed by the State Government in the matter. There are three other names also in the said order.

6. The operative part of the aforesaid order passed by the State Government is as under :

"(1) The Amravati Municipal Corporation should give permission for construction in all the said four cases on verification/fulfillment of the following points :

(A) Whether the lease of the said plots is in existence and if not, renew the lease.

(B) Get it ascertained from the competent Authority whether the lease of the said plots are transferred in the names of the appellants as per Rule.

(2) As per the existing provision, necessary exemption be given in the front side margin after ascertaining that there will be no obstruction to the traffic and other service facilities.

(3) The said constructions should be regularised as per the other provision in the existing provisions of Development Rules. Similarly, while regularising the constructions, penal action should be taken as per existing policy/rules."

7. In order to expedite above mentioned appeal pending before State Government, Writ Petition No.1678/2001 was filed before this Court and in it, names of deceased petitioner no.1, petitioner no.2 and petitioner no.3 appeared as petitioners along with other persons. Petitioner no.4 is father of petitioner no.3.

8. After orders were passed in appeal, petitioner nos.1 and 2 moved an application on 24/7/2001 for sanction of plan for construction of shops on plot nos. 2, 4 and 6 to 8. Respondent no.2 on 14/8/2001 wrote back to petitioners and pointed out directions issued by the State Government. It called upon petitioners to satisfy those directions. On 28/8/2001 petitioner nos. 1and 2 separately submitted their reply. It is claimed that shop block of petitioner no.2 then came to petitioner nos.3 and 4. On 21/1/2001 respondent no.2 called upon petitioners to submit necessary documents to substantiate their claims.

9. By the impugned communication dated 26/2/2002, the request of petitioners for construction/sanction was rejected on the ground that their names do not figure in Nazul property register card as leaseholders. After this rejection letter dated 26/2/2002, impugned action of demolition has been carried out on 21/4/2002.

10. In this writ petition filed on 12/9/2002, on 11/10/2002 while adjourning the matter for two weeks, this Court directed the parties to maintain status quo in the meantime. Rule came to be issued on 9/7/2003 and on that day, interim order has been continued.

11. In view of the admitted event that since 2007, the site at which shop blocks stood has been used for road widening and beautification and, therefore, not in existence, it is apparent that petitioners are not in possession after 2007 till date. The petition has not been amended to claim relief of restoration of possession. On the contrary, in paragraph 57 of the petition, petitioners have pointed out that they sustained loss of furniture, fixture and to structure worth Rs.15 lakhs. They also submit that they are deprived of income of Rs.50,000/- per month from their business carried from said shops. Their prayer in the petition is to restore the position of shop premises in the same manner as before and to compensate them for loss sustained. Thus, all four petitioners together pleaded loss of furniture, fixture, etc. worth Rs. 15 lakhs and together loss of monthly income of Rs.50,000/-. It is in view of this submission that total compensation of Rs.20 lakhs has been prayed in the petition.

12. Respondent no.2 Municipal Corporation has also not pointed out the date on which it has taken possession. Certainly demolition of unauthorised structure does not result in dispossessing the petitioners. They have mentioned that debris and damaged material was lying on the plot as it is. From pleadings in the petition, it appears that they also made efforts to obtain permission to construct as per sanction given by Chief Officer of Municipal Council way back in 1971. Thus, material on record shows possession of petitioners only till 2007.

13. Adv. Dahat for respondent no.2 submits that construction was demolished after serving a proper notice dated 26/2/2002 and after waiting for reasonable time. He states that there was no stay or any other interim order brought by petitioners and hence, as per law, the demolition of shop blocks was carried out. He further states that petitioners were not recorded as leaseholders of respective plots in property register and hence, the action is legal.

14. Adv. Dewani for petitioners has urged that action was highhanded because demolition was not the only solution. He has also urged that possession in any case could not have been taken forcibly.

15. As we have already noted that there is no grievance about loss of possession before us, in the absence of specific pleadings in this respect by petitioners and an opportunity to respondents, we cannot comment upon the possession aspect at all.

16. The respondents had earlier also served a notice for removal of unauthorised structure/illegal construction and after directions of this Court dated 2/3/2001, they have again proceeded further to comply with those directions. The notice dated 26/2/2002 of demolition was during that exercise. After issuing that notice, respondent no.2 had waited till 21/4/2002 and then demolition was done. The petitioners have not urged any malafides on the part of either Municipal Corporation or any of its Officers or servants.

17. The petitioners did not challenge notice dated 26/2/2002 within reasonable time and permitted action threatened in that notice to be completed. After completion of that action, they are before this Court and claiming compensation for the same. It is no doubt correct that normally demolition is not the only solution in such matters. However, then petitioners have not pointed out what other action could have been taken against their structures. They have not pointed out any lease deeds in their names. They have also not pointed out Nazul property register, which contains their names as leaseholders and they have also not pointed out any sanctioned map. They are not urging that their structures, which have been demolished, were as per sanction given by the Municipal Council way back in 1971.

18. In this situation, taking overall view of the matter, we are not inclined to grant any relief to petitioners. After 2007, they have already started their activities elsewhere. The loss of possession has not been brought on record by any of the parties.

19. We, therefore, discharge rule and dismiss writ petition. No costs.

Petition dismissed.