Hari Hotumal Tanwani vs Commissioner, Ulhasnagar ...
2005 Latest Caselaw 550 Bom

JUDGMENT

1. The petitioner has brought to the notice of the Court the large scale illegal constructions carried out in Ulhasnagar Municipal Corporation areas.

2. Before dealing with this case any further, we would like to recapitulate the law declared by the Apex Court.

3. In M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu and Ors., 1999(6) S.C.C. 464. The Supreme Court, in para 73 at page 529, observed as follows:

"The High Court has directed dismantling of the whole project and for restoration of the park to its original condition. This Court in numerous decisions has held that no consideration should be shown to the builder or any other person where construction is unauthorised. The dicta is now almost bordering the rule of law. Stress was laid by the appellant and the prospective allottees of the shops to exercise judicial discretion in moulding the relief, Such a discretion cannot be exercised which encourages illegality or perpetuates an illegality. Unauthorised construction, if it is illegal and cannot be compounded, has to be demolished. There is no way out. Judicial discretion cannot be guided by expediency. Courts are not free from statutory fetters. Justice is to be rendered in accordance with law. Judges are not entitled to exercise discretion wearing the robes of judicial discretion and pass orders based solely on their personal predilections and peculiar dispositions. Judicial discretion wherever it is required to be exercised has to be in accordance with law and set legal principles."

4. In para 81 of the judgment in the case of M.I. Builders Pvt. Ltd., the Supreme Court observed as follows :

"A number of cases come to this Court pointing to unauthorised constructions taking place at many places in the country by builders in connivance with the Corporation/Municipal Officials. In a series of cases, this Court has directed demolition of unauthorised constructions. This does not appear to have any salutary effect in cases of unauthorised construction coming to this Court. While directing demolition of unauthorised construction, the Court should also direct an enquiry as to how the unauthorised construction came about and to bring the offenders to book. It is not enough to direct demolition of unauthorised construction, where there is clear defiance of law."

5. In an earlier decision in Dr. G.N. Khajuria v. Delhi Development Authority, 1995(5) S.C.C. 762, the Apex Court has suggested action against officers of the statutory body who had allowed the unauthorised construction. In para 10, the Court observed as follows :

"Before parting, we have an observation to make. The same is that a feeling is gathering ground that where unauthorised constructions are demolished on the force of the order of courts, the illegality is not taken care of fully inasmuch as the officers of the statutory body who had allowed the unauthorised construction to be made or make illegal allotments go scot free. This should not, however, have happened for two reasons. First, it is the illegal action/order of the officer which lies at the root of the unlawful act of the citizen concerned, because of which the officer is more to be blamed than the recipient of the illegal benefit. It is thus imperative, according to us, that while undoing the mischief which would require the demolition of the unauthorised construction, the delinquent officer has also to be punished in accordance with law. This, however, seldom happens. Secondly, to take care of the injustice completely, the officer who had misused his power has also to be properly punished. Otherwise, what happens is that the officer, who made the hay when the sun shined, retains the hay, which tempts others to do the same. This really gives fillip to the commission of tainted acts, whereas the aim should be opposite."

6. In a recent decision in Friends Colony Development Committee v. State of Orissa and Ors., 2005(2) Bom.C.R. (S.C.)691 : A.I.R. 2005 S.C. 1 : 2004(8) S.C.C. 733, the Supreme Court observed that unwary purchasers of unauthorised structures should be adequately compensated by the builder. In para 20, the Supreme Court observed as follows :

"The pleadings, documents and other material brought on record disclose a very sorry and sordid state of affairs prevailing in the matter of illegal and unauthorised constructions in the city of Cuttack. Builders violate with impunity the sanctioned building plans and indulge in deviations much to the prejudice of the planned development of the city and at the peril of the occupants of the premises constructed or of the inhabitants of the city at large. Serious threat is posed to ecology and environment and, at the same time, the infrastructure consisting of water supply, sewerage and traffic movement facilities suffers unbearable burden and is often thrown out of gear. Unwary purchasers in search of roof over their heads and purchasing flats/ apartments from builders, find themselves having fallen prey and become victims to the designs of unscrupulous builders. The builder conveniently walks away having pocketed the money leaving behind the unfortunate occupants to face the music in the event of unauthorised constructions being detected or exposed and threatened with demolition. Though the local authorities have the staff consisting of engineers and inspectors whose duty is to keep a watch on building activities and to promptly stop the illegal constructions or deviations coming up, they often fail in discharging their duty. Either they don't act or do not act promptly or do connive at such activities apparently for illegitimate considerations. If such activities are to stop some stringent actions are required to be taken by ruthlessly demolishing the illegal constructions and non-compoundable deviations. The unwary purchasers who shall be the sufferers must be adequately compensated by the builder. The arms of the law must stretch to catch hold of such unscrupulous builders. At the same time, in order to secure vigilant performance of duties, responsibility should be fixed on the officials whose duty it was to prevent unauthorised constructions, but who failed in doing so either by negligence or by connivance."

In para 25, the Court has observed as follows :

"Be that as it may, the State Governments should think of levying heavy penalties on such builders and therefrom develop a welfare fund which can be utilised for compensating and rehabilitating such innocent or unwary buyers who are displaced on account of demolition of illegal constructions."

And further in para 26, the Court has observed as follows :

"The application for compounding the deviations made by the builders should always be dealt with at a higher level by a multi membered High Powered Committee so that the builders cannot manipulate. The officials who have connived at unauthorised or illegal constructions should not be spared. In developing cities the strength of staff which is supposed to keep a watch on building activities should be suitably increased in the interest of constant and vigilant watch on illegal or unauthorised constructions,"

7. Pursuant to the show cause notice issued by this Court, the fact of large scale unauthorised constructions has been admitted by the Ulhasnagar Municipal Corporation. As a matter of fact, Ulhasnagar Municipal Corporation has submitted a list of 598 cases of properties/houses having unauthorised constructions which are liable to be demolished. In this list, details of the properties have been given. The case number and the courts where cases pertaining to these properties are pending also have been indicated. This list is of the properties which have unauthorised construction and, therefore, there is no subsisting stay or injunction from any Court. There are two other similar lists prepared by the Municipal Corporation with regard to 181 and 76 properties.

8. The Acting Commissioner of Ulhasnagar Municipal Corporation has filed an affidavit on 28th March, 2005, in which it is mentioned that the survey conducted during 1965 to 1971 by the City Survey Department revealed that there were around 30714 encroachments. He has broadly categorised the unauthorised constructions into six categories i.e.

(i) encroachments and unauthorised constructions made on sites reserved for public purpose in development plan,

(ii) encroachments and unauthorised constructions made on proposed development plan reads,

(iii) encroachments and unauthorised constructions made on Government lands,

(iv) constructions made on private lands without permission of the Planning Authority,

(v) constructions made on private land after obtaining building permission but in violation of building permission and Development Control Rules, and

(vi) slums developed on Government land or reserved plot.

9. In the affidavit, it is mentioned that pursuant to the directions of this Court, the Corporation intended to appoint a professional agency to conduct the survey of entire unauthorised constructions within the city of Ulhasnagar through G.I.S. Technology. He submitted that the scope of the survey includes :

(i) procuring the latest satellite image for the entire Municipal Corporation limits and the satellite image to be resolution IM or better,

(ii) vectorising the satellite data using suitable ground control points with GPS.

(iii) vectorising the scanned survey sheets, town planning maps as available and any other data to prepare a geo-referenced G.I.S. base for the complete city of Devanagari's.

According to him, this survey will give details of all the buildings and unauthorised constructions in those buildings.

10. We direct the Commissioner of Ulhasnagar Municipal Corporation to get the survey conducted as expeditiously as possible.

11. We further direct the Ulhasnagar Municipal Commissioner to ensure that no fresh unauthorised constructions take place in the entire city of Ulhasnagar. He is directed to divide the entire city into several zones and zones in the wards and must personally supervise and take report from the concerned officials on a weekly basis. The Municipal Commissioner is also directed to take strict action against the erring officials who are found to be either encouraging or permitting unauthorised constructions in the various parts of the city. The Municipal Commissioner is directed to submit a report to this Court about the demolition of unauthorised constructions and action taken against all erring officials on or before 25th July, 2005.

12. We direct the Municipal Commissioner to create a Special Vigilance Cell headed by the Municipal Commissioner, who would identify the unauthorised constructions and fresh constructions, which are under way in various parts of the city of Ulhasnagar, and ensure that the same are immediately stopped and action is taken against erring officials without any loss of time.

13. The Ulhasnagar Municipal Corporation has provided a list of unauthorised constructions in 598 buildings and there are two other lists of 181 and 76 properties where there exist unauthorised constructions which are liable to be demolished. The list was prepared several years ago. Consequently, we direct the Ulhasnagar Municipal Corporation to ascertain whether the unauthorised constructions have been removed and if the unauthorised constructions are still in existence, then give notice to the property owners/occupiers to demolish the unauthorised constructions within a specified time. Notice to indicate that in case the unauthorised constructions are not removed within the stipulated period, the same would be removed by the Corporation at the costs of the property owners. The Municipal Commissioner is further directed to demolish unauthorised constructions.

14. There shall be no discrimination in demolition of unauthorised constructions. We direct the Commissioner of Police, Thane, to provide all necessary assistance to the Municipal Corporation, Ulhasnagar, in carrying out the demolition of unauthorised constructions.

15. The petitioner may be provided necessary police protection, it becomes imperative by the Commissioner of Police, Thane.

16. List this matter on 21st June, 2005 for further direction along with the connected matters viz. Writ Petition Nos. 3718 of 1987, 391 of 1988 and 198 of 1989.