Kamlakar Ganpat Kote vs The State Of Mah & Ors
2017 Latest Caselaw 9811 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                               BENCH AT AURANGABAD
                      WRIT PETITION NO. 3174 OF 2005


 1.       Kamlakar s/o Ganpat Kote
          aged 32 years, occup. Agril
          and Councillor of Shirdi
          Municipal Council, r/o Shirdi,
          Taluka Rahata, District Ahmednagar

 2.       Prakash s/o Jairam Shelke
          aged 44 years, occup. Agril.
          r/o Shirdi, Taluka Rahata,
          District Ahmednagar                           .. Petitioners

                  versus

 1.       The State of Maharashtra,
          (through its Principal Secretary
          Urban Development Department,
          Mantralaya, Mumbai)

 2.       The Divisional Commissioner and
          Director of Municipal Administration,
          Nasik.

 3.       The Collector,
          Ahmednagar

 4.       The Director of Town Planning,
          Maharashtra State,
          Central Office, Pune 411 001.

 5.       The Assistant Director,
          Town Planning, Ahmednagar

 6.       The Chief Officer,
          Municipal Council,
          Shirdi, Tq. Rahata,
          District Ahmednagar




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 7.       Vasturachana Engineers
          and Contractors, Kopargaon,
          Tq. Kopergaon, District :
          Ahmednagar

 8.       National Highway Authority
          of India, through its
          Chief General Manager (Co-ordination)
          (Ministry and Shipping Road Transport
          and Highway) G-5/6, Sector-10, Dwarka,
          New Delhi-110075. Tel: 011-25074100/
          25074200

 9.   Maharashtra State Road Development
      Corporation through its
      Chief Administrative Officer,
      (Located at MSRDC Mumbai office)
      MSRDC, Opp. Dena Bank, Adjacent to
      Priyadarshini Park, Nepean Sea Road,
      Mumbai - 36
      Tel : 23686112/ 23696109/23695618    .. Respondents
                         -----

Ms Pradnya Talekar, Advocate h/f Mr. Kiran M. Nagarkar, Advocate for petitioners Mr. Shashibhushan P. Deshmukh, Assistant Government Pleader for respondents no. 1 to 5 Mr. V. D. Hon, Senior Advocate instructed by Mr. A.V. Hon, Advocate for respondent no. 6 Mr. R. L. Kute, Advocate holding for Mr. Vikram R. Dhorde, Advocate for respondent no. 7 Respondent no. 8 served and is absent Mr. S. V. Adwant, Advocate for respondent no.9

WITH CIVIL APPLICATION NO. 14883 OF 2015 (For early hearing of writ petition)

Vasturachana Engineers and Contractors, Kopargaon, Tq. Kopargaon, Dist. Ahmednagar,

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Through its Proprietor Ravikiran Prabhakar Dake.

Age : 48 years,Occu: Business, R/o Chhatrapati Plaza, Dharangao Road, Kopargaon, Tq. Kopargaon, Dist. Ahmednagar .. Applicant

versus

1. The State of Maharashtra, Through its Principal Secretary, Urban Development Department, Mantralaya, Mumbai

2. The Divisional Commissioner and Director of Municipal Administration, Nasik

3. The Collector, Ahmednagar

4. The Director of Town Planning, Maharashtra State, Central Office, Pune - 411 001

5. The Assistant Director of Town Planning, Ahmednagar

6. The Chief Officer, Municipal Council, Shirdi, Tq. Rahata, Dist. Ahmednagar

7. Kamlakar s/o Ganpatrao Kote, Age: 42 years, occup. Agri. & Councillor of Shirdi Municipal Council, R/o Shirdi, Tq. Rahata, Dist. Ahmednagar

8. Prakash s/o Jairam Shelke Age : 54 years, occu. Agri.

          R/o Shirdi, Tq. Rahata,
          Dist. Ahmednagar





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 9.       Executive Engineer,
          World Bank Project,
          Public Works Department,
          Ahmednagar, Dist. Ahmednagar

 10.  Executive Engineer,
      National Highway,
      Division No. 9,
      Trimbak Road, Nasik.                .. Respondents
                    -----

Mr. R. L. Kute, Advocate holding for Mr. V. R. Dhorde, Advocate for applicant Mr. Shashibhushan P. Deshmukh, Assistant Government Pleader for respondents no. 1 to 5 and 9 Mr. V. D. Hon, senior advocate i/by Mr. A.V. Hon, Advocate for respondent no. 6 Ms Pradnya Talekar, Advocate for respondents no. 7 and 8

WITH CONTMPT PETITION NO. 45 of 2010 IN WRIT PETITION NO. 3174 OF 2005

1. Kamlakar s/o Ganpat Kote aged 32 years, occup. Agril and Councillor of Shirdi Municipal Council, r/o Shirdi, Taluka Rahata, District Ahmednagar .. Petitioner versus

1. Shri Benjamin P. C.

The State of Maharashtra, (through its Principal Secretary Urban Development Department, Mantralaya, Mumbai)

2. Shri Jayant Gaikwad The Divisional Commissioner and Director of Municipal Administration, Nasik.

 3.       The Collector, Dr. P. Albalgan
          Ahmednagar





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 4.       Shri Landge
          The Director of Town Planning,
          Maharashtra State,
          Central Office, Pune 411 001.

 5.       Shri Manohar Bhargave
          The Assistant Director,
          Town Planning, Ahmednagar

 6.   Shri Chandrkant Shivaji Khose
      The Chief Officer,
      Municipal Council,
      Shirdi, Tq. Rahata,
      District Ahmednagar
 7.   Shri Ravikiran Dake,
      Vasturachana Engineers
      and Contractors, Kopargaon,
      Tq. Kopergaon, District :
      Ahmednagar                          .. Respondents
             ----

Ms Pradnya Talekar, Advocate h/f Mr. Kiran M. Nagarkar, Advocate for petitioner Mr. Shashibhushan P. Deshmukh, Assistant Government Pleader for respondents no. 1 to 5 Mr. V. D. Hon, Senior Advocate instructed by Mr. A.V. Hon, Advocate for respondent no. 6 Mr. R. L. Kute, Advocate holding for Mr. Vikram R. Dhorde, Advocate for respondent no. 7

----

CORAM : SUNIL P. DESHMUKH AND SANGITRAO S. PATIL, JJ Judgment reserved on : 25-09-2017 Judgment pronounced on : 20-12-2017

JUDGMENT : (PER : SUNIL P. DESHMUKH, J. )

1. Heard learned counsel for the parties.

The petition mainly concerns construction of shopping

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complex carried out over land bearing survey number

170/A2/1 abutting Nagar - Manmad highway seeking

declaration that permission granted for development/

construction of shopping complex over said land being

within prohibited area of 37 metre of the centre of the

highway is illegal and void-ab-initio and directions to

respondents no. 1 to 6 to take appropriate action including

demolition of said construction. The petitioners, inter alia,

also seek directions to respondents to produce record in

respect of permission for shopping complex over aforesaid

land as also permissions for development/construction

within prohibited area of 37 metre from Nagar - Manmad

highway passing through Shirdi.

2. Petitioners no. 1 and 2 are residents of Shirdi town.

Petitioner no. 1 was a councillor and petitioner no. 2's

mother was also a councillor during relevant period.

Respondent no. 1 is the State of Maharashtra through

Principal Secretary, Urban Development Department,

respondent no. 2 is the Divisional Commissioner and

Director of Municipal Administration, Nasik, respondent no.

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3 is the Collector, Ahmednagar, respondent no. 4 is the

Director of Town Planning, Maharashtra State, Central

Office, Pune, respondent no. 5 is the Assistant Director of

Town Planning, respondent no. 6 is the Municipal Council,

Shirdi, respondent no. 7 is builder - contractor, whereas

National highway authority of India and Maharashtra State

Road Development Corporation ('' MSRDC '') have been

added as party respondents no. 8 and 9 respectively

pursuant to amendments made in 2016 as per order dated

22-01-2016 passed in civil application no. 14883 of 2015.

3. While the petitioners pray for reliefs as aforesaid, it

would be worthwhile to refer to events taking place giving

rise to the writ petition as well as further events occurring

during its pendency.

4. Nagar Panchayat, Shirdi under administration of the

administrator had passed a resolution on 07-07-2001 to

utilize land survey no. 170/A2/1 for erection of a shopping

complex. It appears, on 16-07-2001, a communication had

been sent by the Nagar Panchayat to the office of Town

Planning, Ahmednagar seeking approval / recommendation

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to permission for construction with a condition to obtain no

objection certificate. Said communication had been

responded to on 01-08-2001 by the Assistant Director of

Town Planning, Ahmednagar, pointing out various

deficiencies and further that the proposed construction is

required to be at a distance of 37 metre from the central

line of the highway and also that approval to plans cannot

be recommended without obtaining no objection

certificate, on the condition of obtaining no objection

certificate, further referring to that the development over

the entire area of land will have to be shown and upon

removal of deficiencies as referred to in aforesaid

communication, proposal for recommendation for approval

can be considered.

5. A general body meeting of the Nagar Panchayat,

Shirdi, had been convened on 21-06-2002 for discussion of

subjects on the agenda, inter alia, at serial no. 11 about the

construction of shopping complex over land survey number

170/A2/1 on build, operate and transfer (B.O.T.) basis.

Accordingly, on 21-06-2002, a resolution had been passed

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deciding to construct shopping complex on said land on

certain conditions therefor. Thereafter, tender notice had

been issued in marathi daily 'Loksatta' on 07-09-2002. From

the bids received, the one by respondent no. 7 -

Vasturachana Engineers and Contractors had been accepted

and an agreement for construction of commercial complex

on survey number 170/A2/1 had been arrived at between

Nagar Panchayat and Vasturachana Engineers and

Contractors and had been executed in November, 2002. It

is claimed pursuant thereto, construction of shopping

complex over said survey no.170/A2/1 had commenced in

2003.

6. Petitioners contend that in a special meeting of

municipal council, Shirdi, held on 30-09-2003, a resolution

was purportedly passed providing for two staircases in

place of lift.

7. Petitioners had submitted application on 21-10-2003

to respondent no. 3 - the office of Collector, Ahmednagar

and for inquiry into the permissions and construction over

the lands belonging to Nagar Panchayat and seeking certain

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information. Petitioners had been informed by the Collector

under communication dated 18-08-2004 that enquiry

pursuant to their application has been made by the Sub

Divisional Officer, Shrirampur and Deputy Engineer, Public

Works Department, Loni, Taluka Rahata and the deficiencies

noted in the enquiry report in respect of building Saisuvida

have been brought to notice of Chief Officer, Nagar

Panchayat, Shirdi, Sub Divisional Officer, Shrirampur and

Deputy Engineer, Public Works Department, Loni, Taluka

Rahata and that the Chief Officer has been given

instructions to take action in respect of the same, further

communicating that section 308 is not applicable to their

application.

8. Petitioners had also sent an application on

05-06-2004 to respondent no. 6 - Chief Officer seeking

certain information. Responding to the same, on

28-06-2004, petitioners had been been communicated that

in 7x12 extract land survey number 170/A2/1 is shown in

the ownership of Nagar Panchahayat, Shirdi and further

that the construction over said land had been sanctioned

by the Chief Officer, Nagar Panchayat and a proposal was

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sent to Assistant Director, Town Planning, Ahmednagar,

however, plans were not approved by his office, further

referring to that the work had been given to respondent

no. 7- contractor on F.B.T. basis to construct. He has to

construct 40 galas (shops) on F.B.T. basis and that about six

shops would be given to Nagar Panchayat, three on ground

and three on first floor. The same are to be auctioned or

rented out by Nagar Panchayat on deposit and that the

entire building would be in ownership of Nagar Panchayat.

The letter further refers to that a distance of 37 metre

is necessary to be kept from Nagar - Manmad highway,

however, construction has been proposed at a distance of

25 metres from the central line of the highway and also

that tender notice had been published in daily ' Loksatta ' on

07-09-2002.

9. In the meanwhile on 19-06-2004, it appears, some

communication had been made by the Chief Officer, Nagar

Panchayat, to the office of the Director of Town Planning,

Maharashtra State, Pune. The same was responded to on

15-07-2005 by the Director, Town Planning, Maharashtra

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State, Pune, with that, relaxation sought in obligation under

bye-law no. 28.02 of building bye-laws for construction of

shopping complex over land survey no.170/A2/1 at a

distance of 25 metres cannot be allowed. It had further

been referred to in the letter by the Director, Town

Planning, that under prevailing rules relaxation would not

be possible without approval therefor by the highway

authorities. As such, it would be necessary to obtain a

prior permission/consent from the Public Works Department

for the distance to be kept between central line of the road

and the proposed construction.

10. The petitioners had through advocate issued notice to

the respondents in writ petition on 03-03-2005 seeking

cancellation of permission for construction of shopping

complex over survey no. 170/A2/1 belonging to Shirdi

Municipal Council and till such time, to stop construction

over the same, expecting to do needful within a fortnight.

However, it is the contention of the petitioners that since no

action pursuant to their notice had been taken, they have

approached this court under present writ petition.

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11. The petition has been moved based on observations in

the decision of Supreme Court, in the case of M. I. Builders Pvt.

Ltd. v. Radhey Shyam Sahu, reported in AIR 1999 SC 2468, on the

premise that natural resource viz; air, water and the forests

should be freely available to every one and the doctrine

enjoins upon the government to protect said resources for the

enjoyment of general public rather than to permit their use

restricted for private ownership or commercial purposes as

the government is the trustee of all natural resources and

public at large is the beneficiary of the same.

12. It is submitted in writ petition that aforesaid public trust

doctrine as emerging from the citation referred to above finds

its incorporation in various enactments, inter alia,

Maharashtra Regional Town Planning Act, 1966 ("MRTP")

obligating the planning authority not to grant permission for

construction/development within prohibited/restricted area

and that illegal permissions granted are required to be

revoked and cancelled and illegal/irregular construction is

required to be demolished but, respondents no. 1 to 6 are

alleged not to have lived upto aforesaid public trust doctrine.

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13. Despite development / construction is not allowed,

permitted and not possible within area of 37 metres from the

central line of the State highway, petitioners complain that

respondent no. 6, flouting relevant regulations, rules and

conditions had undertaken construction and development of a

shopping complex over the land belonging to Shirdi municipal

council bearing survey no. 170/A2/1 abutting Nagar-Manmad

State highway.

14. It is averred in the petition that the Assistant Director of

Town Planning had refused to grant permission to construction

of shopping complex. It has been alleged, despite aforesaid,

municipal council is proceeding with construction with a view

to see adverse orders, of revocation of permission for

development are not passed and subsequently a possible

demolition order may be met with an argument of irreparable

loss being caused to municipal council and respondent no. 7.

The petitioners had become aware of rumours in the Municipal

Council's office that the construction undertaken by the

Council is illegal and unauthorized since being stated to be

within 37 metres from the central line of the State highway.

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 15.      According        to   petitioners,   thus,     it   is   obvious       that

permission granted by respondent no. 6 to respondent no. 7

for construction of shopping complex is illegal and void ab initio.

The construction under such illegal permission is also illegal

and unauthorized and therefore liable to be demolished and

the events call for a criminal action against the responsible

persons / officers.

16. In its reply, filed in January, 2006, respondent no. 6 -

the then Chief Officer of the Nagar Panchayat has resisted the

claims in the writ petition, contending that all relevant and

correct facts were not referred to in the writ petition and the

petitioners have kept back certain facts. It is claimed that the

petitioners have alternate remedy under section 308 of the

Maharashtra Municipal Councils, Nagar Panchayats and

Industrial Townships Act, 1965. It has been further averred

that the petitioners are residents of Shirdi and have been

aware of the resolution passed by Council granting

permission for construction way back in 2003 whereas the

petition has been filed in 2005. In the meanwhile, two years

have elapsed and the construction is almost on the verge of

completion.

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17. It is contended that in view of Build, Operate and

Transfer (''BOT'') tenders had been invited by the State

Government in the year 2004 for construction of bypass,

four-laning Kopargaon-Ahmednagar road, the shopping

complex being at a far off distance from said bypass, the

contention about construction of the shopping complex being

within 37 metres from central line of the highway is

misconceived. It is contended that upon bypass being

constructed to existing road, the existing road would naturally

become an internal road and would vest in Nagar Panchayat

according to the government resolution dated 09-03-2001. It

is contended that the petitioners despite being aware of it,

have kept the same away. It is contended that Collector's

letter dated 18-08-2004 was concerning Saisuvidha building

and not shopping complex involved in the writ petition.

18. Respondent no. 6 has submitted that an application had

been moved to respondent no. 4 - Director of Town Planning,

Pune on 19-06-2004, him being competent authority under

the Building Bylaws for B and C class of Municipal Councils

and, in turn, said authority under communication dated 15-

 07-2005 had conveyed              that it would be necessary for





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Municipal Council to approach the Executive Engineer, Public

Works Department for relaxation of the necessary conditions.

Accordingly, the Nagar Panchayat had approached the Public

Works Department on 16-06-2005 with a detailed proposal.

19. Along with reply, government resolution dated

09-03-2001 Exhibit R-2 is relied on which has been issued

with a view to bring uniformity in building line and control line

across the State. Said government decision refers to building

line for urban and industrial area to be 20 metres from the

centre of road or 4.5 metres from side borders of the road

whereas the same is 4 metres for non urban area. Said

resolution also refers to control line for factory, cinema hall,

commercial go-down, market etc. where there would be

crowd for State highway, is of 37 metres from the centre of

the road.

20. In his affidavit in reply filed in May, 2007 on behalf of

respondents no. 1 and 3 to 5, the Assistant Director, Town

Planning has referred to that as per the standard building

bye-laws and development control rules relating to B and

class Municipal Councils, the building line shall be 25.0 metres

for residential and for commercial public / semi-public area, it

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shall be 37 metres from the centre of the Nagar - Manmad

highway and urban development rules could be relaxed only

with approval of the highway authorities. Said reply further

refers to that the shopping complex constructed by

respondent no. 6 is at a distance of 25 metres from the

central line of Nagar - Manmad State highway. He further

purports to refer to that permission had been refused in 2001

by respondent no. 5, for, shopping complex was not at a

distance of 37 metres from the centre of Nagar - Manmad

State highway and that the same is against the Urban

Development Rules which can/shall be relaxed only with

approval of the State highway authorities.

21. Respondent no. 7 in affidavit in reply filed in June, 2007

through its proprietor has submitted that the petition has

been moved with ulterior motive to have unlawful gains for

the petitioners and the petition tantamounts to misuse of

process of law and is liable to be dismissed in limine.

Respondent no. 7 contends that the petitioners are very much

aware of the happenings of events in the Municipal Council. It

has been referred to that the administrator had been

functioning till December, 2001 over respondent no. 6 which

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then was a Nagar Panchayat. During his period, resolutions

for appointing architect for survey of concerned land for

shopping complex over the same had been passed. In the

general body meeting held in January, 2002, petitioner no. 1

and mother of petitioner no.2, who were councillors of

Municipal Council while resolution had been passed to give

work of construction of shopping complex on B.O.T. (F.B.T)

basis, had been present. Subsequently, in June, 2002, a

meeting was convened to decide terms and conditions of

allotment of work. Thereafter, tenders were invited in

September, 2002. In the meeting held in October, 2002, it had

been resolved to accept offer of respondent no. 7 pursuant to

which an agreement came to be executed in November, 2002

and work order was issued also in 2002. A meeting thereafter

had been convened in September, 2003 for modifications in

the work, such as, cancellation of lift and providing certain

stair-cases and resolution accordingly was passed. In said

meeting, petitioner no.1 himself had been proposer for

modifications and mother of petitioner no. 2 had also

attended the meeting. It is contended that in all these

proceedings, petitioner no. 1 and mother of petitioner no. 2

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had participated and had been party to the resolutions being

passed.

22. It is further contended that by July, 2004, major portion

of construction had already been over and a part completion

certificate had also been issued. Accordingly, respondent no.

7 has dealt with quite some portions of the construction and

has executed agreements in favour of other persons/

allottees. Agreements have been signed by respondent no. 6

- Municipal Council. It is submitted that the petitioners are

estopped from making grievance in respect of said

construction being illegal and void-ab-initio. Obvious malafides

of petitioners are involved in approaching the court. Their

underlying intention is writ large to have unlawful gains and it

appears to be their modus operandi. The petition is misuse of

process of law. It is contended that the petitioners cannot be

permitted to turn around and now claim it to be illegal while

they had participated in meetings hitherto taking decision to

develop the property on F.B.T. Basis, bringing up shopping

complex, granting contract, entering into agreement.

23. It is submitted that the construction cannot be dubbed

as illegal. It is at a distance of 25 metres from the central

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line of the State highway. The road is within municipal limits

of Shirdi Nagar Panchayat. Moreover, with the bypass having

been decided on and tender and work order also having been

issued, the road in question in the petition ceases to be a

highway. Along with reply, tender notice therefor has been

annexed by respondent no. 7 with an extract of a newspaper.

It is submitted that huge sum of about Rs. 45 lac has been

spent on the construction which is partly completed and

respondent no.7 accordingly has been allowed to take further

steps. Petition suffers delay and laches.

24. It, in the alternative, appears to have been suggested in

the reply that petitioners be directed to deposit entire cost of

construction for prosecution of present writ petition as they

have raised various objections to the construction. It is

submitted that huge amount is locked in the construction

which has been raised by taking loan from the different

sources and interest thereon is mounting. In the

circumstances, petition deserves to be dismissed.

25. Petitioners have filed a common rejoinder to replies by

respondents no. 1, 3, 4, 5, 6 and 7. It is purportedly

contended in the rejoinder that averments in the writ petition

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about sections 44 and 45 of the MRTP Act have not been

denied by the Respondents, further contending that it is

obligatory on the Town Planning authorities to take

appropriate action and to demolish the construction for non-

compliance of section 44. A grievance is made that instead of

taking action contemplated pursuant to the provisions under

the MRTP Act, particularly sections 44, 45, 52 to 59,

alternatives have been suggested. It is contended that,

having regard to sections 44, 45 and 52 to 59 of the MRTP

Act, the activities of respondents are illegal. The Municipal

Council being a local authority and creature of statute, ought

to act and function according to law and cannot be excused

for any unauthorized construction. Further Municipal Council

has no reason much less justifiable, to forward application to

the Town Planning Department after completion of

construction. The illegal construction at a distance of 25

metres from the central line of highway frustrates the object

underlying the control line and its concept. In the

circumstances, a demolition order would be justifiable.

Alternatively, it has been submitted that even rule 28.2 of

standardized rules for B and C classes of municipal council

does not provide for relaxation for construction within

prohibited area of highway. Even rule 6 of the Bombay

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Highways Rules, 1958 contemplates application pursuant to

section 21(1) as to the State Highway authority and no such

application had been made under the Maharashtra Highways

Act, further referring to that the provision is not for erection

of permanent construction.

26. It is alleged, the construction in question also violates

the purport underlying the Motor Vehicles Act. Further it is

contended that the Highway authorities under sections 20 and

21 of the Maharashtra Highways Act, 1955 cannot be said to

be competent to grant permission or relaxation in conditions

and Municipal Council has no power or authority to grant any

relaxation on the basis of Urban Development Rules. So is the

case under the Maharashtra Highways Act where-under no

relaxation is contemplated or is available. The contention of

respondent No.7 of having entered into agreements with other

persons is refused to be believed for want of requisite

documents on record. It is submitted otherwise also, no legal

right can be said to have been bestowed upon respondent

No.6 to enter into any such transaction. It is submitted that

respondent No.7 is not supposed to and is not competent to

take objections as have been referred to in its affidavit in

reply, particularly about petitioner No.1 being councillor and

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member and mother of petitioner No.2 also being councillor,

and further that in the capacity of contractor respondent No.

7 is not supposed to take up such defences. The contentions

of the respondents are fallacious.

27. It is contended that there is reference by respondents to

construction activities having been commenced and as such,

it tantamounts to admission and two years thereafter,

relaxation had been sought which is not permissible in law.

Rule 28.2 of the Standardized Rules for B & C Class municipal

councils does not provide for relaxation of conditions in

respect of construction in prohibited area of highways and

pursuant to decision in M.R. Builder's case (supra) unauthorized

construction is required to be removed.

28. In January, 2010, contempt petition bearing No. 45 of

2010 had been lodged, alleging utilization of shopping

complex in breach of order dated 16-07-2007 passed by high

court in writ petition no. 3174 of 2005, contending that the

shops have been rented out and given to other persons for

business. The shopping complex is being used for commercial

purposes in spite of the orders of this court. It had further

been contended that respondents no. 1 to 5 being competent

and superior authorities ought to have controlled and

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restrained such activities of respondents no.6 and 7. It has

been alleged that there is commission of willful disobedience

by respondents no. 6 and 7 of the order passed by high court

in writ petition.

29. An affidavit in reply filed by respondent no. 6 on

05-05-2010 to the contempt petition makes reference to

communication dated 19-11-2007 by the Executive Engineer,

World Bank Project, stating particularly that while the

municipal council had approached competent authority to

relax condition of 37 metres, a communication has been made

by the competent authority that it has relaxed condition and

Nagar Panchayat is directed to carry on construction beyond

24.35 metres from the central line of the highway.

30. In rejoinder by petitioner filed on 02-11-2010 to

aforesaid reply affidavit in contempt petition of respondent

no. 6, it has been pointed out that the communication dated

19-11-2007 has not been annexed along with reply by

respondent no.6.

31. In affidavit in reply dated 23-06-2010 filed on behalf of

respondents no 1, 4 and 5 to contempt petition, said

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respondents i.e. the State, Director of Town Planning,

Maharashtra State, Pune and Assistant Director, Town

Planning, Ahmednagar have replied the contempt petition but

the reply does not make reference to communication dated

19-11-2007 nor to any relaxation or permission to change of

user to respondent no. 6 nor there is any reference to the

application by respondent no. 6 for relaxation.

32. In the rejoinder to reply by respondents no. 1, 4 and 5,

it has been contended by petitioners that after letter had been

given by one of the petitioner viz; Prakash Jairam Shelke on

17-08-2009, respondent no. 1 had issued letter in September,

2009 to all concerned in respect of order of the high court

passed on 16-07-2007, asking them to take appropriate

action. According to the rejoinder, letters dated 15-09-2009

and 10-11-2009 have been elusive contending that as the

superior authorities, respondents have not tried to implement

the order of the high court in the matter as required and only

issued letters as aforesaid without taking steps expected from

them and , as such , there is gross failure on their part in

discharge of their duties and obligations. Petitioners contend

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that the respondents cannot sneak away from realities,

stating that the contempt relates to respondents no. 6 and 7.

33. Respondent no. 7 had around August, 2012 filed its

affidavit in reply to aforesaid contempt petition. It has been

contended that the contempt petition has been moved with

ulterior motive by petitioners to gain undue advantage. The

reply purports to arrange events in chronological order,

submitting that from 40 shops, 34 shops had been allotted by

respondent no. 7 as per agreement and 6 shops were given to

municipal council. Allotment of 34 shops had been in

consideration of amounts spent by respondent no. 7, stating

further that 9 shops were leased out and handed over before

16-07-2007 and not a single shop has been leased out

thereafter. Municipal council has been receiving rent from the

shops and this position had been pointed out before the order

came to be passed by the high court. As such, the contempt

petition was resisted with a request to dismiss the same.

34. Till middle of December, 2014 no material in respect of

communication dated 19-11-2007 had been placed forth

despite there being orders of this court directing respondents

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for production of the same. There being reference in 2010

order in contempt petition pursuant to which respondent no. 6

was required to submit record with regard to relaxation order,

and under orders dated 13-08-2012 and 16-04-2014

extending time to comply with said directions, the same had

not been complied with and on 11-08-2014, the Division

Bench of this court had directed to produce the same upto 01-

09-2014. On 26-11-2014, the court had noticed that order

dated 13-08-2012 in contempt petition directing to produce

relaxation order as submitted by respondents had not been

complied with and nobody had appeared on behalf of

respondent no. 6 before the court, in the circumstances, the

court had issued bailable warrant in the sum of Rs.25,000/-

making it returnable on 17-12-2014.

35. While contempt petition no. 45 of 2010 in writ petition

no. 3174 of 2005 was on board on 18-12-2014, the Division

Bench passed an order, observing in paragraphs no. 3, 4, 5

and 8, thus;

'' [3] While hearing this matter, on 13 th August, 2012 this court recorded a statement that, condition of 30 Mtrs. Distance from center of the roadline was relaxed and construction has been permitted beyond 24.35 Mtrs. This court directed Respondent No. 6

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to submit on record the relaxation order as also allotment order, if any. The matter was then adjourned to 27 th August, 2012. This relaxation order has not been produced till date. It is, in this background, this court was constrained to issue Bailable Warrant. Things appears to have started moving after Bailable Warrant was issued.

[4] Yesterday, when the matter was heard, efforts was to show that, relaxation order was already on record. When the petitioner pointed out that the Competent Authority is prescribed under the National Highways Act, adjournment was sought and today additional affidavit is being pressed into service. It is urged that user of building, as such, has been changed by the Town Planning Deptt. And, therefore, from 12/12/2014 entire construction has become legal. It is submitted that as per new user, the construction can be done after leaving 24.35 Mtrs. Open space from center of the road.

[5] It is, therefore, apparent that the Chief Officer of the Municipal Council, Shirdi as also the Asstt. Director of the Town Planning have attempted to mislead this court. When the matter is pending before this court, we fail to understand, how change of user could have been asked for and granted. At present, it appears that grant of such permission is only on paper and the actual or physical user has not been altered. Thus, the activity which is going on since prior to 12/12/2014, continues unabetted even today.

[8] Before proceeding to pass further orders, in the matter, against the Chief Officer, we direct the other respondents, namely, - Divn. Commissioner and Director of Municipal Administration,

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Nashik as also the Dist. Magistrate [present incumbents] to file their responsible affidavits. Similarly, present incumbents working as Director of the Town Planning Maharashtra State, Pune and the Asstt. Director, Town Planning, Ahmednagar shall also file their personal affidavits. After receipt of their affidavits, court shall pass suitable orders in the matter. ''

36. Thereafter, respondents no. 4 and 5 in their affidavit

in reply filed on 20-12-2014 to contempt petition have

referred to respondent no.6's communication dated 05-12-

2014 which is at page 175 of contempt petition. Affidavit

refers to that on scrutiny of plans submitted, those were

found to be in order for lodging and dormitory and partial

convenience commercial use on ground floor can be

recommended for commencement of construction. The

affidavit in reply further makes a clear reference in paragraph

no. 7 to that communication dated 12-12-2014 by

deponent's office is only a recommendation and not

permission. Reference to order dated 16-07-2007 of the high

court has been made. It is also said that in the letter dated

12-12-2014 office of the deponent had given recommendation

for change of user for already constructed building for the

purpose of dormitory and particular convenience shopping on

the ground floor on certain conditions. It has been pointed

31 wp-3174-05.doc

out that the Municipal Council has forwarded the letter after

almost about seven years. It has been purportedly clarified in

the affidavit that grant of permission or refusal to change of

user is a domain of Municipal Council as it is a planning

authority. It is stated that appropriate authorities were given

liberty to decide the issue of application / representation of

the Municipal Council in accordance with law and with

reference thereto, letter dated 12-12-2014 had been issued.

37. Respondent no. 3 - Collector had filed an affidavit in

reply to the contempt petition pursuant to order of high court

dated 18-12-2014 making reference to submission of proposal

by respondent no. 6 dated 16-06-2005, requesting for

issuance of no objection certificate for construction of

commercial complex and a proposal dated 01-08-2006 by

respondent no. 6 to Executive Engineer, World Bank Project,

Ahmednagar for issuing no objection certificate to

construction for residential purpose. The reply further refers

to no objection having been issued by the Executive Engineer

for residential purpose, further referring to a proposal dated

05-12-2014 to Assistant Town Planning Officer, Ahmednagar

to give recommendation to construction for residential

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purpose and that said authority had given recommendation

on 12-12-2014 on certain terms and conditions. It has been

made clear in the affidavit by the Collector that respondent

no. 6 or the Executive Engineer, World Bank Project had never

submitted any proposal in respect of construction. The

Collector in his affidavit further makes reference to that for

relaxation in urban rules, procedure required to be followed is

as referred to in the circular dated 13-11-1995 and that no

such proposal had been received for relaxation by his office

from any of the authorities, stating further that in the

circumstances there was no question to forward proposal to

the government.

38. An affidavit has been filed by contempt petitioner on

22-12-2014 asserting that shopping complex is within 37

metres of control line of the State highway and contending

that more than 25 shops have been handed over to

shopkeepers for running business along with certain

photographs of the complex in order to buttress his

submission that the building is being used for commercial

purpose.

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39. Added respondent No.8 - National Highways Authority of

India has in June, 2016 filed its reply stating that Central

Government has declared stretch of road starting from Sinnar

to Ahmedngar, via Shirdi as National highway No.160 vide

Gazette Notification S.O.814(A) dated 22.03.2013, further

pointing out that though there is such declaration, but the

same is not entrusted to the National Highway Authority of

India yet. It has further been pointed out that the Ministry of

Road Transport & Highways under its Circular dated

22-12-2003 communicated that henceforth, land acquisition

for right of way would be minimum of 60 metres for all

projects under National Highway Development Project (NHDP)

and that the right of way is that no construction on national

highway in prohibited area is allowed. It is further submitted

that the claims and grievances in the petition are not against

national highway authorities.

40. Respondent No.5 has filed additional affidavit in

September, 2016, referring to that his office under letter

dated 12-12-2014 recommended building permission and

communicated the same to the Nagar Panchayat, Shirdi and

while making such recommendation for permission, a letter

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dated 19-11-2007 by Executive Engineer, World Bank Project,

Ahmednagar to Nagar Panchayat, Shirdi, had been referred to

in which no objection to change of user from commercial to

residential was considered. It is submitted that a request had

been received from Nagar Panchayat, Shirdi on 5-12-2014 for

revised building construction permission for lodging and

dormitory use since user of lodging and dormitory is

permissible in residential area under Development Control and

Promotion Regulations in Maharashtra State which came into

force in 2013. His Office had recommended the permission for

construction of building beyond 24.35 metres from the central

line of State Highway, pointing out further that the permission

is given for residential purposes making it clear that for any

change of user otherwise than from the permission

recommended by his Office, Chief Officer, Nagar Panchayat,

Shirdi would be responsible. The power to relax obligatory

conditions regarding construction of building from central line

of State highway vests in Respondent No.8- National Highway

authority and respondent No.9-State Highway Authority.

41. Respondent No.3 - Collector has also subsequently filed

one more affidavit in reply on 30-01-2017 through District

Administrative Officer, pointing out that there is no relaxation

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as claimed by the respondents purportedly allowing the

construction to be made at a distance of 24.35 metres from

the central line of the State highway, further referring to that

the panchanama reveals that on the ground floor, there are

shops and as such, the construction is a commercial complex.

42. An affidavit in reply has been filed on 30-01-2017 by

Assistant Engineer, Grade-I, World Bank Project Division

(Public Works), Ahmednagar, purporting to be on behalf of

Respondent no. 8, Executive Engineer, Public Works

Department, Nashik Region, Nashik, stating that though his

office is not party to the petition but affidavit is being filed

pursuant to the order passed by this court on 18-08-2016,

pointing out that the deponent had no power to grant or

authority to relax conditions and no relaxation has been

granted by his office, further pointing out that commercial

complex has to be at a distance of 37 metres from the center

of State highway and spot panchanama reveals that on ground

floor of the building there are shops and as such there is a

commercial use of the complex. The deponent also states that

he had personally visited the spot and the panchanama reveals

36 wp-3174-05.doc

that building is at a distance of 24.35 metres from the central

line of the State highway.

43. Respondents No. 1, 4 and 5 have filed additional

affidavit in reply on 02-02-2017 through Assistant Director of

Town Planning, Ahmednagar, referring to that on 12-12-2014,

his office had recommended the plan to Nagar Panchayat

Shirdi for change in use, partly residential and partly

commercial, on certain conditions for construction at a

distance of 24.5 metres from central line of State highway and

on visiting the spot, it was found that the construction is not

as per the plan recommended by his office and that the

inspection revealed that the construction of the total building

till today is commercial and a commercial building has to be

constructed at a distance of 37 metres from the central line of

the State highway.

44. One more affidavit in reply sworn on 07-02-2017

appears to have been filed on behalf of the Chief Engineer,

Public Works Department, Nashik Region, Nashik by Executive

Engineer, World Bank Project Division (Public Works)

Ahmednagar, stating the same being filed pursuant to order of

the high court passed on 4-01-2017. The deponent refers to

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that his office had no power or authority to grant relaxation in

conditions and had not granted any relaxation as claimed by

some of the respondents, allowing the construction of

commercial complex at a distance of 24.35 metres from the

centre of the highway, further pointing out that such

construction can be made at a distance of 37 metres from the

central line of the State highway. The deponent had visited in

person, the spot and panchanama reveals that building is at a

distance of 24.35 metres from central line. It is further

purported to be communicated that pursuant to the spot

panchanama drawn in January, 2017, at the ground floor, there

are shops and as such, it may be a commercial building.

45. While the matter was on board on 19-06-2017, learned

counsel appearing for respondents no. 6 and 7 stated that

they had been informed that a bypass road of national

highway is created and due to that road, the road over which

construction which is claimed to be illegal will not be used as

highway. The court observed that this statement may have

some importance and had directed the State to collect

information. It had also been referred to that in the affidavit

in reply of local body, there is reference to the same and such

information and record needs to be supplied. However, it

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appears no such information subsequently had been made

available.

46. Learned counsel Ms Pradnya Talekar appearing on behalf

of petitioners submits that the use of words '' flout'',

''breaches'', "contravention" of ''law'', ''rules'', ''regulations''

and ''procedure'' is too euphemistic in present scenario as the

actions and whole process indulged into by respondents,

particularly respondent no.6 has absolutely supplanted rule of

law. She submits that not even the words and assurances in

replies given and made during pendency of writ petition have

been kept up. She submits the truth has been ripped open

and exposed by averments/admissions in the affidavits filed.

47. Learned counsel Ms. Talekar submits that foremost thing

that should be taken into account is, the control line

prescribed pursuant to decision of the State government

dated 09-03-2001 (writ petition page 37) shows that any

commercial building has to be at a minimum distance of 37

metres or farther from the central line of the State highway.

The situation has not altered at all hitherto nor does any

change has taken place as contended about concerned

particular stretch of highway has ceased to be a highway.

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48. Ms. Talekar puts emphasis on that prior permission of

the Town Planning department is a mandatory compliance

before issuance of commencement certificate and thus claims

that aforesaid deficiency had not been brought forth to the

notice of petitioner no.1 and in the circumstances, the

question of locus standi, suppression and estoppel would not

arise in present matter specially when petitioner no. 1,

despite being party to resolution, was kept unwary of

relevant fact of approval / recommendation not having been

granted. She submits that the arguments by respondents

about estoppel for petitioners has no legs to stand on, for,

there can be no estoppel against law.

49. She submits, with the affidavits in reply true state is

ripped open and is exposed that building in question is

constructed and is utilized as commercial building, no amount

of acrobatics and aerobic exercise is going to save the

situation and let respondent no.6 sneak out of clutches of

law extending now for administration. She submits that

change of user and relaxation of conditions turn out to be

subterfuge.

40 wp-3174-05.doc

50. She points out and emphasizes that Assistant Director

of Town Planning had on 01-08-2001 rejected the request for

recommendation for approval to plans on the condition of

obtaining no objection certificate to develop shopping complex

over the land bearing survey no.170/A2/1, pointing out

various deficiencies in the proposal, viz; construction was

within prohibited area of 37 metres of central line of the State

highway. Measurement map does not disclose boundaries of

the proposed building and layout of entire area would be

required and that the building plans are incomplete and

requires details referred to in the communication. It had

been made further clear under the communication that upon

removal of deficiencies, scrutiny would be made and

thereupon approval may be considered, however, in the

present state of affairs no recommendation of shopping

complex would be possible.

51. She submits tender notice is as vague as it could be,

and it does not mention the area of layout or

sanction/approval provided by the Assistant Director of Town

Planning, apart from the commencement certificate.

According to her, it is with obvious intention that respondent

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no. 7 could be favoured in allotment of the tender. She

submits that even the terms and conditions of the contract

are lopsided in favour of the contractor-respondent no. 7 and

are inequitable whereunder Municipal Council is to be

provided with only three shops on ground floor and three

shops on the first floor whereas rest of the 34 shops will vest

in respondent no.7-contractor reaping profits. She submits,

the agreement is also ambiguous and not determinative

allowing the contractor - respondent no. 7 indefinite period of

exploitation of the building at a prime location in Shirdi.

52. Petitioners realized illegalities involved in the

construction when there were whispers around Municipal

Council that the construction is being carried out without

permission and approval of the concerned department

particularly by the Assistant Director of Town Planning. Even

inspection of documents had not been allowed to the

petitioners. The petitioners, as such, had to resort to written

applications to the Collector and Chief Officer of the Municipal

Council seeking relevant information. Thereupon, the

petitioners came to know about the blatant manner in which

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decision of illegal construction of shopping complex had been

taken and the project was being executed.

53. According to learned counsel, while petitioners realized

about not only blatant illegalities have been involved but also

that the entire public in the process was put in peril and their

safety was at stake, the petitioners had tried to dissuade the

municipal authorities viz; Chief Officer and the President of

the Council, however, their attempts turned out to be exercise

in futility. Under the circumstances, petitioners had been

constrained to approach this court through present writ

petition.

54. Ms. Talekar, learned counsel submits, interim relief had

been granted by this court in present writ petition, the same

had been discontinued for want of report about service on the

respondents initially, and, the high court on 16-07-2007 had

issued rule in the writ petition and further by way of interim

order restrained respondents no. 6 and 7 from using the

portion of shopping complex within 37 metres from the

central line of Nagar-Manmad State highway passing through

Shirdi, or from disposing it of in any manner. Yet, nonchalant

43 wp-3174-05.doc

respondents no. 6 and 7 went ahead dealing with portion of

shopping complex within 37 metres of central line of Nagar -

Manmad State highway.

55. Learned counsel submits, while it had been given to

understand that Municipal Council had approached

appropriate authority seeking relaxation in condition of

construction of shopping complex within prohibited distance,

the court had observed that it is for the authorities to consider

such a request in accordance with law and the relevant rules.

Municipal Council had been restrained from issuing completion

certificate until further orders.

56. Learned counsel contends that there had been restraint

imposed not to use and deal with in whatsoever manner the

portion of building falling within 37 metres of central line of

the State highway, it did not mean at all that user of the

portion of the building within 37 metres from central line of

the State highway which has been leased out before the date

of order under so-called transactions had been allowed.

Despite that, respondents no. 6 and 7 continued to willfully

and deliberately disobey unambiguous interim order of the

high court and permitted not only the use of already leased

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out shops but also of all the shops on the ground floor without

entering even formal lease agreement. Such a conduct of

respondents, she claims to have led to filing of contempt

petition no. 45 of 2010.

57. She submits that even filing of the contempt petition in

this court had not deterred respondents no. 6 and 7 at all

from continuing to use the building within 37 metres of

center line of State highway and both the respondents were

found collecting rent from the lessees to whom shops were

earlier leased out.

58. She submits, approach of respondents is blatant and

fallacious, inviting attention to that during the course of

hearing of contempt petition, it had been purportedly

submitted on behalf of respondent no. 6 that the condition of

construction of building not to be within 37 metres of the

State highway has been relaxed. Thereupon, the high court

had granted respondents time to produce relaxation order,

however, the time limit given by the court had not been kept

up and on 26th November, 2014, the high court had passed

order to issue bailable warrant in the sum of Rs.25,000/-

against the incumbent Chief Officer of the Municipal Council.

45 wp-3174-05.doc

It is thereupon, an additional affidavit came to be filed,

submitting that the Town Planning Department has allowed to

alter the user of building and under the circumstances the

construction is now legal.

59. Learned counsel submits that so-called communication

purporting to be by the Executive Engineer, Public Works

Department, Ahmednagar dated 19-11-2007 claiming to

inform change of user from commercial to residential beyond

24.35 meters from central line of State highway is a

handwritten communication, stamped as having been issued

by the Executive Engineer without letterhead or name of the

signatory. Letter although bears date of 2007, it took about

further seven years for it to come on record. Said letter dated

19-11-2007 is purportedly in response to application by

Municipal Council dated 01-08-2006.

60. She goes on to submit that such a communication from

the Executive Engineer is not competent taking into account

circular dated 13-11-1995 and could not issue no objection

certificate without forwarding it to the Chief Engineer and the

Collector and with their recommendations to Revenue and

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Forest Department, and relaxation is not possible which in

any case has to be prior to commencement of construction.

61. Learned counsel points out order dated 18-12-2014 of

this court in contempt petition and lays emphasis on

paragraph 5 thereof whereunder, according to her, it has

been observed that the Chief Officer, Municipal Council as well

as Assistant Director, Town Planning have attempted to

mislead the court and the court further has taken note of the

fact that the grant of permission is only on paper and actual

and physical user of building as commercial has not been

altered at all and the court had further observed, the activities

which had been going on before 12-12-2014 continued

unabated even today.

62. Learned counsel Ms Talekar goes on to submit that it

can thus be very well gathered that the liberty as may be

operating under order dated 16-07-2007 was confined only

with respect to taking decision on the application made by the

Municipal Council with regard to relaxation of condition of

construction to be beyond 37 metres of central line of the

highway. Thus, Municipal Council could not have sought from

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other authorities any order other than relaxation of condition

and much less change of user was at all contemplated. A

change of user having been purportedly granted is an attempt

to come out of the apparent illegalities and to avoid resultant

consequences and to avoid action and order upon the same

by the court.

63. Respondent no. 4 and 5 i.e. the Director of Town

Planning, Maharashtra State and Assistant Director of Town

Planning, Ahmednagar and respondents no. 2 and 3 i.e.

Divisional Commissioner, Nashik and Collector, Ahmednagar

have filed their affidavits in contempt petition on 20-12-2014

and 21-12-2014 respectively, denying that any permission or

relaxation of condition had been granted by them. She

submits that the Collector has pointed out the procedure for

relaxation of condition for construction to be within 37 meters

of central line of the State highway under circular dated 13-

11-1995 which has necessarily to be routed through Executive

Engineer to the Chief Engineer who shall forward the same to

the Collector and the Collector, in turn, would send the same

to the Revenue and Forest Department as said department

alone can grant relaxation after obtaining remarks from Public

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Works Department. She draws attention to that the Collector

points out in his affidavit that no such procedure had been

followed and no proposal had ever been received by his office.

Thus, according to her, letters dated 19-11-2007 and 12-12-

2014 are illegally obtained and have no efficacy in law and

are manufactured to get out of the mess and procurement of

letters in such a manner is an attempt to wriggle out of

situation and escape enforcement of law.

64. She points out that three additional affidavits have been

filed by three authorities in January/February, 2017 making it

clear that panchanamas show that user of the building is still for

commercial purpose and all the three authorities

unequivocally clarified that no relaxation had ever been

granted by them and that, in fact, they were not empowered

to grant any such relaxation. She, therefore, submits that

observations as had been recorded by the Honourable High

Court in its order dated 18-12-2014 in contempt petition had

emerged to be true and prophetic. In the circumstances,

according to her, flagrant actions and acrobatic attempts of

respondents no. 6 and 7 to come out of the mire, rigour of

contempt, deserves stern action. She submits that an action

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for contempt is warranted by the circumstances because

respondents' approach is unabashed and does not indicate

even a semblance of remorse. There is no tender of genuine

apology. In fact, what is tried is an attempt to wriggle out of

the contempt by misleading the court.

65. Learned counsel relies on two decisions of the supreme

court, one Debabrata Bandopadhyay and others vs. The State of West

Bengal and another, 1969 1 SCR 304, and she particularly refers to

paragraphs no. 9 and 10 from the same and another Priya

Gupta and another vs. Additional Secretary, Ministry of Health and Family

Welfare, (2013) 11 SCC 404.

66. She submits that taking into account the rationale as

reflected in aforesaid two judgments of the supreme court,

the situation in present matter calls for a very serious action

against the contemnors. She submits that in stead of taking

corrective and recouping action, the intention of respondents

no.6 and 7 has been to sneak out of the situation and justify

their act of bringing up illegal construction giving friable and

untenable excuses which do not at all stand the test of any

reason or rationale. She submits, spurious excuse had been

put forth referring to that since a bypass has been proposed,

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the Nagar-Manmad highway passing through Shirdi would be

an internal road, however, no notification as yet has come

forth. Nothing to that effect is proposed. On the contrary,

the State highway is now declared as national highway. She

submits that respondents no. 6 and 7 were in haste and in

trance for reaping benefits from illegal construction. Nothing

could affect them, not even the orders of the high court. The

construction and user of complex poses danger to safety of

people coming to Shirdi and/or passing through Shirdi. The

area is being used as parking place for buses and user is

causing congestion to traffic and is fomenting road accidents,

even fatal ones.

67. Ms Talekar submits that the Maharashtra Highways Act,

under section 7, provides for determination of control line and

empowers the State Government to issue notification.

Section 9 of the Act prohibits construction, erection of any

building within the building line and control line without prior

permission of Highway Authorities. Government Resolution

dated 09-03-2001 prescribes 20 metres building line in urban

areas from the centre of the road while control line is of 37

metres from the centre of the road. Construction of shopping

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complex in present matter is at a distance of 25 metres from

the centre of the road as has been referred to in the joint

panchanama undertaken by the Public Works Department and

the Collector. She submits that even the permission to change

the user from commercial to residential within control line is

not legal and is impermissible without prior permission of the

Highway authorities. Even a residential building is forbidden

without such permission. She submits, distances for building

line and control line are necessarily required to be

implemented, which are not a mere formality or technical

requirement. There are many aspects underlying, viz; human

safety, scientific considerations, traffic, avoidance of

congestion, inconvenience.

68. For aforesaid purpose, learned counsel places reliance

on decision of this court rendered in its Principal Seat in the

case of Satyanarayan Dayma v. State of Maharashtra, reported in

2009 (4) MH.L.J. 544, which refers to the object of the

Maharashtra Highways Act and observes about, mandatory

nature of section 9 of the statute which forbids any

construction within the control and building lines without prior

permission of the Highway authorities.

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69. She particularly emphasizes the change of user as has

been purportedly allowed by the Assistant Director of Town

Planning would seldom be reliable alteration and would not at

all legalise regularization of unauthorized construction under

the Maharashtra Highways Act. She submits that seeking

prior permission under section 9 of the Act is the mandatory

condition. The same is in public interest and any breach in

seeking such prior permission affects fundamental rights of

all, particularly of residents around and passers-by over the

road. Waiver of such mandatory condition is not possible. The

legislature has carefully drafted said provision beginning with

non-obstante clause and in such cases, relaxation of condition

with retrospective effect is not possible. The provision is clear

and unambiguous and any other interpretation may crush the

clear intention of the legislation.

70. She refers to and relies on decisions of the supreme

court in the case of Krishnan Lal v. State of Jammu and Kashmir,

(1994) 4 SCC 422 and Ritesh Tewari v. State of Uttar Pradesh, reported

in (2010) 10 SCC 677.

71. Learned counsel further buttresses her claim with

reference to a Supreme Court decision in the case of Oswal

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Agro Mills vs. Hindustan Petroleum Corporation Limited and another,

reported in (2014) 2 SCC 491, putting emphasis particularly on

paragraph no. 23 thereof, contending that the provisions will

have to be consistently and purposively interpreted and not

disjunctively and a change of user without regard to the

object and purport underlying the provisions would not be

accommodated.

72. She further refers to a case of Deepak Kumar Mukherjee v.

Kolkata Municipal Corporation and another, reported in (2013) 5 SCC

336 to emphasize that illegal / unauthorized construction

causes public hazards and violation of fundamental rights of

other citizens and it cannot be regularized by the court,

pointing out paragraphs 8 and 29 of said judgment.

73. She, referring to the case of Vinayak Shankar Bapat and

another vs. Superintendent of Police and another; ALL MR (Cri.) 2044

particularly paragraphs no. 18, 19 and 20 therein, stresses

on the problems caused by traffic, congestion and the risk to

human lives having become severe by the illegal construction

of respondents no. 6 and 7. She for said purpose also points

out the case Tamil Nadu vs. K. Balu and others (2017) 2 SCC 281

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banning liquor shops in 500 metres from all State and

National Highways.

74. Learned counsel contends, the case of Syyed Ratanbhai

Sayyed and others vs. Shirdi Nagar Panchayat , reported in (2016) 4

SCC 631, that it effectively brings before court the importance

of building line and control line and the Supreme Court has

upheld the decision of the Shirdi Nagar Panchayat to evict the

tenants of the shops which were built within the control line

and points out paragraphs no. 24, 25, and 48 to 56

therefrom.

75. Learned counsel in the backdrop of aforesaid submits

that high court would not be able to regularize something

which is not permissible in law since it would amount to giving

premium over illegalities and tantamount to perpetuate the

same.

76. According to her, decision in the case of Syyed Ratanbhai

Sayyed and others vs. Shirdi Nagar Panchayat (supra) has considered

that it is not only enough to direct demolition of building but it

is equally important to bring the offenders to the book. She,

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therefore, urges this court to order demolition of the

construction of shopping complex and along with the same,

an inquiry by police to investigate into offences committed by

raising construction, in order to bring the offenders to the

book. She desires a court monitored inquiry since, according

to her, authorities appear to work hand in glove.

77. Learned counsel reiterated that section 9 of the

Maharashtra Highways Act, 1955 read with Government

Notification dated 09-03-2001 would show that it is not

possible to differentiate between residential and commercial

user for the purpose of restriction to construct building within

control line and building line and mere change in user cannot

be a ground to relax or exempt conditions for regularization of

such illegal construction. She submits that a thing which is

not possible to be done directly under the law shall not be

allowed to be done indirectly and this court should not allow

the same. She submits that section 9 of Maharashtra

Highways Act with the employment of non-obstante clause

requiring prior permission will not be and ought not be

interpreted with leniency and would not at all allow

retrospective relaxation of condition and in this case,

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compounding sought of illegal construction raised not with

due procedure, and required prior permission, is not possible

and cannot be made possible.

78. She submits that the arguments on behalf of

respondents no. 6 and 7 to let compounding of illegalities by

permitting change of user from commercial to residential is

illusory, for, the events thus far show respondents no. 6 and

7 have no real and honest intention in seeking such change

and the arguments are merely a subterfuge. She submits,

even residential user of the building is not possible with the

structure as has come up on the prohibited land. Besides,

many other interests are stated to have developed in respect

of shops which can hardly be put to any residential use.

79. Learned counsel submits that though respondent no. 7

has attempted to exemplify that change of user from

commercial to residential may be allowed as it would undergo

heavy financial losses, in fact, there is no such real intention

of respondent no. 7. Written submission on this reads, thus;

'' But his utmost willingness to undergo losses seems to be a mere charade to get out of this litigation and keep using the building for commercial purpose, as has been done from 2007- 2017, despite the alleged change in use granted by Executive Engineer PWD. ''

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80. Communication of the Assistant Director of Town

Planning had been ignored by Nagar Panchayat. Fraudulently,

Nagar Panchayat had taken a decision to go ahead with illegal

and unauthorized construction of shopping complex on F.B.T.

basis. She submits, thus it is apparent that Chief Officer of the

Municipal Council and respondent no. 7 were acting hand in

glove.

81. She submits, the situation calls for a direction to the

concerned authorities under the Maharashtra Regional Town

Planning Act, 1966 to stop user and occupation of and remove

unauthorized construction and also to penalize the concerned

for the same pursuant to sections 52 to 55 including section

56A which stipulates punishment for failure to take action

against unauthorized construction, including against the

Municipal council, Shirdi for high handed actions. She

submits, with the State highway now being declared national

highway, the shopping complex being at 25 metres and

developments having come up in breach of mandatory

provisions, inter alia, section 9 of the Maharashtra Highways

Act, the same is ab-initio illegal and fortiori deserves

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demolition along with initiation of criminal proceedings fixing

responsibility on persons / officers concerned.

82. Mr. V. D. Hon, learned senior advocate appearing on

behalf of respondent no. 6 - Chief Officer, Municipal Council,

Shirdi submits that a hue and cry over so-called and referred

to as illegality in raising construction of building over the land

belonging to municipal council is nothing but making

mountain out of a mole hill. He submits, the construction as

it subsists as on the date cannot be dubbed as illegal at all.

83. He submits that had permission been taken for

residential purpose then it would not have posed any

difficulty. Earlier intention underlying construction assuming a

concession can be possibly had may have been a mistake but,

respondent no. 6 has resiled with the circumstances and

mistake has now been rectified, as such, no action against

respondents, particularly respondents no. 6 and 7, is called

for and court may not indulge into request being made by

petitioners.

84. Mr. Hon, learned senior advocate submits that

respondent no. 6 had applied to the Director of Town

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Planning, Pune, on 19-06-2004 seeking relaxation of

application of rule 28.2 and further that Nagar Panchayat had

also sent a detailed proposal on 16-06-2005 to allow

construction of the building at a distance of 25 metres from

centre of the highway for residential use. Communication

dated 19-06-2004 had been responded to by the Director of

Town Planning, Pune on 15-07-2005, stating that relaxation

would not be possible and respondent no. 6 may approach the

Public Works Department. The request under communication

dated 16-06-2005 was followed by letter dated 01-08-2006

and on 19-11-2007 no objection to change of user had been

duly given.

85. He submits that there had been initially an aberration in

seeking permission for construction, for, a building referred to

as shopping complex, however, having realized that the

building would not legitimately be possible to be used for

commercial purposes, a change of user had been sought

which has been granted. He submits that as on the date, the

building has been allowed residential user which takes within

its fold as allowed some activities for convenience. According

to his instructions, the activity under the style of shops,

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appears to have impressed upon the authorities that the

building is being used for commercial purposes but it would

not be the factual position, for such an activity being for

convenience of occupants is permissible. The building now

being used as a dormitory requires convenience shopping as

allowed for residential user of the building and it cannot be

said that the building is being used for commercial purpose.

A convenience shopping would take different form in different

activities in different circumstances. While the building is

abutting a highway and is being used as dormitory, the shops

in the building in majority are ticket vending outlets of the

transporters making it convenient to dormitory occupiers. A

few other shops of medicines and dispensary of a doctor also

serve purpose of dormitory occupiers. He submits, since the

building is allowed to be used for residential activities, initial

position of breaches or contravention in following certain

procedure pale away.

86. He submits that it is not a case that now it is a

commercial building within 37 metres from the centre of

Nagar-Manmmad State highway. It being not commercial

building, the consideration of 37 metres control line put forth

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by petitioners would not have any role to play in the present

matter. He submits that even otherwise a bypass has been

suggested, as such, in all certainty present highway would

be an internal road and would be free from restrictions of

building and control lines. He submits, demolition would be a

huge public exchequer loss coupled with that Municipal council

will have to face action from stake-holders in the construction

and may endanger existence of municipal council.

87. Mr. Hon submits, affidavits filed by authorities in 2017

are under erroneous impression about ticket vending outlets

of transporters is a commercial activity which, in fact, having

regard to use of the building as dormitory is a matter of

convenience shopping for a person lodging in the dormitory

and, therefore, the statements and averments in that context

shall not sway the court to consider the real user of the

building to be for commercial purpose. He, therefore, urges

this court not to indulge into the request made by petitioners

and prays for dismissal of writ petition.

88. He submits, even M.I. Builder's case (supra) on which

reliance is placed by petitioners shows that demolition had

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been directed in said case, of only such portion of the building

over such area in which it cannot be allowed to stand under

the rules whereas petitioner in the present case is seeking

demolition of entire construction.

89. He submits, here, it is not the case that the building as

is existing cannot be allowed to stand for the purposes for

which it is now being put to use and as such, a demolition

which is not only a harsh action but would also put the

respondents to heavy financial loss/detriment as lot of money,

labour and time has been spent in the construction and would

not be justified as it would result into public loss. While the

building is allowed residential user and the same is being used

as such, harsh action of demolition of the building is not called

for. He, therefore, submits that with the developments as

aforesaid especially of alteration in user, challenge purportedly

posed in the writ petition is unsustainable and writ petition be

dismissed.

90. Learned counsel Mr. R. L. Kute appearing on behalf of

respondent no. 7 - contractor submits that land survey

no.170/A2/1 abutting Nagar - Manmad highway was owned

by the then Shirdi Nagar Panchayat. The same had been

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encroached upon by various persons and in order to remove

the encroachments, it had been decided to erect shopping

complex under a resolution by Nagar Panchahayat.

Subsequently, elections to Shirdi Nagar Panchayat were held

and petitioner no. 1 and mother of petitioner no. 2 were

elected as councillors. They had participated in the meetings

held in January, 2002 to discuss subject of construction of

shopping complex over the land on F.B.T. basis. Thereafter in

June, 2002, general body meeting had been called to decide

on terms and conditions of construction of shopping complex.

Resolution accordingly had been passed on 21-06-2002 by

general body allotting the work on F.B.T. basis. In all these

meetings petitioner no. 1 and mother of petitioner no. 2 had

been present and had participated in the proceedings. In

September, 2002, public advertisement had been issued in

newspaper, inviting tenders for construction of shopping

complex and a community hall. In the same construction of

area of 1073.965 square metres had been proposed and an

area of 566 metres had been reserved for Nagar Panchayat,

including a community hall and about 507.315 square metres

area had been kept for construction of shops.

                                        64                      wp-3174-05.doc



 91.      He     submits       that,   thereafter,     bids    received        were

discussed in general body meeting in October, 2002 and a

resolution had been passed to accept tender of respondent

no. 7 since it was found to be most profitable for the Municipal

Council wherein a community hall had been agreed in favour

of Municipal Council along with six shops, i.e. shops no. 9,

13 and 20 on ground floor and three shops bearing no. 25, 33

and 40 on the first floor. Accordingly, an agreement was

executed and work order had been issued. In all these

proceedings, petitioner no. 1 and mother of petitioner no. 2

had been present and had participated. Subsequently, plan

also was amended by calling a general body meeting in

September, 2003 wherein also petitioner no. 1 and mother of

petitioner no. 2 had been present and had signed register

concerned.

92. Suddenly after about two years, in 2005, a notice came

to be issued by petitioners making allegations of building

construction being within 37 metres area of control line of

Nagar-Manmad State highway and without permission for

shopping complex. Before the same, in general body meeting

held in November, 2004, a resolution had been passed by

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Municipal Council wherein it had demanded four shops on the

ground floor in stead of earlier three and had retained two

shops on the first floor.

93. Mr. Kute submits, on 15-07-2005, the Director of Town

Planning purported to reject permission on the ground that

relaxation of condition for construction of shopping complex

within 37 metres of central line of State highway had not

been possible without permission from the State highway

authorities and had suggested to take prior permission of the

public works department. The rejection was in response to

application dated 19-06-2004 by the Nagar Panchayat to the

Town Planning Department for relaxation of condition of

construction to be beyond 37 metres from central line of State

highway. He submits that in the meanwhile despite being

participants in the meetings held hitherto, petitioners had

moved present writ petition seeking demolition of shopping

complex.

94. Mr. Kute submits that the Government has under its

resolution dated 09-03-2001 prescribed 20 metres distance

from central line of State highway for construction of

residential building in urban area and maximum of 37 metres

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control line for the commercial complex in urban area. He

submits, a tender notice had been issued on 01-03-2005 by

the Executive Engineer, World Bank Project Division,

Ahmednagar who is also the Executive Engineer and the

Highway Authority to construct four laning Kopargaon -

Ahmednagar State Highway with construction of two lane

Shirdi bypass on BOT basis and work of Shirdi-Rahata bypass

has started immediately and is under progress.

95. He submits that Nagar Panchayat, Shirdi is a planning

authority under M.R.T.P. & Municipal Councils Act and as such

is competent to grant permission for construction and user of

building. Competent authority had granted permission for

change of user from commercial to residential in order to

bring the construction in tune with the law and the relevant

rules.

96. Mr. Kute submits that on 01-08-2006, the Chief Officer

of Nagar Parishad had made an application to the Executive

Engineer, World Bank Project under the Highway Act, seeking

permission to change, user of building constructed on survey

no.170/A2/1 from commercial to residential. He submits that

allegation by respondent no. 7 of suppression of material facts

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by petitioners have not been denied in the rejoinder filed by

the petitioners.

97. Learned counsel submits that while issuing rule in writ

petition in July, 2007, the high court had permitted the

Municipal Council to approach the authorities to seek

relaxation of condition of construction to be not within

prohibited distance from central line of the State highway and

had also given liberty to appropriate authority to decide on

the application by Municipal Council in accordance with law.

98. He submits, accordingly on 19-11-2007 the Executive

Engineer under the Highways Act had granted permission to

change user of the building from commercial to residential in

pursuance to application submitted by Nagar Panchayat on

01-08-2006. He submits, said permission is not challenged

by the petitioners. He further refers to that on 05-12-2014,

the Municipal Council had applied to the town planning officer

to sanction building and construction plan for lodging and

dormitory for residential purpose with convenience shopping.

99. He submits that the petitioners have not come to the

court with clean hands and have, in fact, suppressed material

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facts. He submits that it has been suppressed by petitioner

no. 1 and mother of petitioner no. 2 that they as councillors

had participated in the meetings and had been instrumental in

passing resolutions from time to time for construction of

shopping complex for commercial purpose. He submits, this

particular aspect not only has not been denied by petitioners,

but has been suppressed from being disclosed in the writ

petition. He submits that passing reference to any document

is not sufficient and all documents need to be placed on

record, else the proceedings are liable to be dismissed. He

submits that for suppression of facts and not coming to the

court with clean hands and making only stray references, the

writ petition is liable to be dismissed. He submits that there

is nothing on record to show that any notification had been

issued by the State Government in the official gazette

prescribing building line, control line from central line of the

State highway and much less after calling objections and

deciding the same.

100. Mr. Kute submits that the government resolution dated

09-03-2001 is general resolution prescribing control lines and

building lines, 20 metres building line for residential purpose

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and 37 metres of control line for commercial purpose,

however, said Government Resolution would not take place of

of notification pursuant to section 7 of the Maharashtra

Highways Act. In the circumstances, according to him,

requirement of prior permission was not obligatory. He

submits that if a statute prescribes notification to be published

in government gazette and if the same has not been done,

the alleged non compliance of prior permission pursuant to

section 9 cannot be insisted upon and would not render the

proposal and construction illegal. If statute prescribes a

particular act to be done in a particular manner, the same

shall be done in such manner only and as such, the allegation

of breach of section 9 is absolutely untenable.

101. He submits that prior permission is not envisaged in

Government Resolution dated 09-3-2001 in which prescribed

are the building and control lines for State Highway and

National Highway. Hence, the case of the petitioners about

there being no prior permission of the Executive Engineer,

Highways shall stand razed to the ground. He submits, the

Municipal Council has subsequently resolved on 18-07-2006

to change user of building from commercial to residential.

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Said resolution has not been challenged at all and the same

has thus become final. As a matter of fact, Executive

Engineer, World Bank Project - State highway authority had

allowed change of user from commercial to residential on 19-

11-2007 and said permission by the highway authority is not

challenged by the petitioners till date.

102. Relying on decision of the supreme court in the case of

Managing Committee, Khalsa Middle School and another v/s Mohinder

Kaur (Smt) and another reported in 1993 Sup. (4) SCC 26, learned

counsel Mr. Kute contends that a resolution takes effect

immediately on the date of its passing and in view of the

same since the resolution with regard to change in user had

been passed on 18-07-2006, effect of change of user had

already taken place prior to the date of order passed by the

high court on 16-07-2007 and the respondents have not

changed user after 18-07-2006.

103. He purports to submit that the land concerned is in

yellow zone of erstwhile Shirdi Gram Panchayat since 1992.

He submits, initial construction had been at a distance of

24.35 metres from the central line of the State highway but

in view of Government Resolution dated 09-03-2001,

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commercial construction was not permissible, however, while

the purpose itself has undergone change from commercial to

residential, the construction now is beyond 20 metres

stipulation under aforesaid Government Resolution dated 09-

03-2001. In the circumstances, residential purpose of

construction is outside impermissible distance of 20 meters

under Government Resolution dated 09-03-2001 and is not

affected by the Maharashtra Highways Act or for that matter

Government Resolution dated 09-03-2001. The same is also

not affected by development plan it being in residential zone.

In the circumstances, taking into account decision of the

supreme court in the case of M.I. Builders (supra) subject action

can be compounded for the reason that the same now is in

compliance with requirements of provisions of the MRTP Act

and the rules as also other laws and rules and the same

belongs to Shirdi Nagar Panchayat.

104. He submits, respondents no. 6 and 7 undertake the

user of the building only for residential purpose including

convenience shopping and the same would not be utilized for

commercial purpose. He submits that though change of user

has been allowed, actual user for residential purpose could

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not take place in view of order passed by this court on

16-07-2007. He submits, town planning officer has already

sanctioned residential use of said building. He submits that

with subsequent events taking place during pendency of writ

petition and the same having not been challenged by the

petitioners, those have become final and the petition is, in the

circumstances, rendered infructuous and as such requests for

dismissal of the same.

105. Learned counsel submits that shops were given to

concerned respondents long before the order dated 16-07-

2007 had been passed by this court. Agreements allotting

shops had been before 16-07-2007, however, save a very few

shops, rest of the shops have not been allotted. He, therefore,

submits that respondents no. 6 and 7, in the circumstances,

are not liable to be attributed commission of any contempt of

the order of this court dated 16-07-2007. The Municipal

Council is receiving rent pursuant to agreements executed

before the date of said order. He submits, respondent no. 7

has expended huge amount over the construction of the

building and has completed the same and if the user of the

building is not allowed as per change, the same would put

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everybody's right to peril and loss. He, therefore, seeks

compounding of building and to permit the same for

residential user. He submits that the decisions relied on, on

behalf of the petitioners, would not be applicable to the

present facts and circumstances since in those decisions issue

with regard to conversion of commercial building into

residential as in the present case was not involved.

106. Although learned counsel for respondent No. 7 Mr.

Kute purports to rely on the case of Managing Committee,

Khalsa Middle School and another Vs. Mohinder Kaur (Smt.) and another,

1993 Supp (4) Supreme Court Cases 26, to impress upon that

resolution would be effective from the date of passing itself.

The case appears to have been on a different factual

background altogether and may have little relevance to the

present matter.

107. Learned Assistant Government Pleader Mr.

Shashibhushan Deshmukh has submitted that there has been

no relaxation given by the concerned authorities for

construction of a commercial complex at a distance of 25

metres from central line of highway as would emerge from the

affidavits filed on their behalf from time to time. However,

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while the Standardized Development Control and Promotion

Regulations for municipal councils as enforceable since 2013,

upon communication dated 05-12-2014 from Nagar Panchayat

and with reference to letter dated 19-11-2017, letter dated

12-12-2014 had been issued.

108. The Government had taken a decision dated

09-03-2001, stipulating building line and control line

uniformly applicable across the State. On 16-07-2001 Nagar

Panchayat had sent a communication to town planning office

seeking approval / recommendation for permission to

construct a shopping complex over land survey no. 170/A2/1

with condition to obtain no objection certificate. Response to

the same had been sent back on 01-08-2001 from the

Assistant Director, Town Planning, Ahmednagar, pointing out

various deficiencies and that the proposed construction will be

required to be at a distance of 37 metres from the central line

of highway and stating clearly that merely on the condition of

obtaining no objection certificate, approval to plans cannot be

recommended.

109. Nagar Panchayat convened a meeting on 28-01-2002

including on agenda discussion on construction of shopping

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complex over land survey number 170/A2/1 and passed a

resolution to go ahead with construction of shopping complex.

Construction it appears was proposed at a distance of 25

metres from central line of the Highway. On 07-09-2002, a

paper publication had been given in Marathi daily 'Loksatta'.

Pursuant to the same, tender of Respondent no.7 was

accepted and agreement came to be executed with

respondent no. 7 in November, 2002. It is stated that the

construction had accordingly commenced in 2003. At the end

of September, 2003, a resolution was purportedly passed

altering the construction by providing for two staircases

substituting lift.

110. It appears, petitioner had made an application to the

Collector in October, 2003 asking for enquiry into the

permission and construction over the lands belonging to

Nagar Panchayat and for certain information. Collector issued

letter dated 18-08-2004 in respect of aforesaid application.

111. Petitioners had applied to Nagar Panchayat on

05-06-2004 for information. On 19-06-2004, Nagar Panchayat

had written to Director of Town Planning, Pune. Subsequently

under letter dated 28-06-2004, petitioners had been

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communicated by Nagar Panchayat about that distance of 37

metres is necessary to be kept from Nagar - Manmad

highway, however, construction has been proposed at a

distance of 25 metres skipping reference to communication

dated 19-06-2004 to Director, Town Planning, Pune.

112. On 03-03-2005, petitioners issued notice to

respondents. Present writ petition is filed on 06-05-2005.

113 High court had initially issued notice on 06-05-2005

along with interim relief. Subsequently, since certain

compliances had not been made, interim relief had ceased to

operate.

114. Respondents had filed their responses to the writ

petition. Respondent no. 6, Chief Officer, Nagar Panchayat,

filed reply in January, 2006, alleging petitioners having kept

back certain information from the court and contending that

the concerned Nagar-Manmad Highway, as bypass was being

constructed, would cease to be a highway. In this reply, it has

been referred to that Nagar Panchayat had written on 19-06-

2004 to Director, Town Planning, Maharashtra State, Pune,

seeking relaxation referring to rule 28.2 of the Standardized

building bye-laws. Nagar Panchayat has stated that a detailed

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proposal had been sent on 16-06-2005 to give no objection to

construction for commercial building at a distance of 25

metres from centre of road. This communication was made to

the Executive Engineer, Public Works Department, World Bank

Project. Although it is stated in the affidavit in reply of

January, 2006 by Nagar Panchayat that accordingly it had

approached the Public Works Department on 16-6-2005, in

the meanwhile, the Director of Town Planning, Maharashtra

State, Pune, under communication dated 15-07-2005

responding to request of Nagar Panchayat dated 19-06-2004

had conveyed that relaxation is not possible and municipal

council will have to approach Executive Engineer, Public Works

Department for a prior consent.

115. In May, 2007, respondents no. 1 and 3 to 5 had filed

affidavit in reply to writ petition, referring to requirements

under various rules and particularly to that requirement of

keeping distance of 37 metres from central line of the

highway can be had relaxed only from highway authorities

and that the shopping complex constructed by respondent

no.6 is at a distance of 25 metres. 16-06-2005 approach of

respondent no. 6 appears to have been followed by sending a

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letter requesting for no objection to conversion to residential

user to Executive Engineer, World Bank Project.

116. Respondent no. 7 filed reply to the writ petition in

June, 2007, contending ulterior motive of writ petitioners

etc. and that by July, 2004, major portion of construction of

shopping complex had already been over, further contending

that the construction cannot be dubbed as illegal as it is at a

distance of 25 metres from central line of State highway and

not 37 metres.

117. Thereafter, petitioners had filed rejoinder to the

replies in June, 2007, terming the construction to be illegal

and to take action pursuant to sections 44, 45 and 52 to 59 of

the Maharashtra Regional Town Planning Act.

118. Thereafter, the high court had passed an order on 16-

07-2007 injuncting respondents from utilizing premises

within 37 meters from the central line of the highway for any

purpose and also directed not to issue completion certificate,

further, letting the authorities to decide on applications/

representations made by respondent no. 6.

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119. In affidavit in reply filed by respondent no. 6 in 2010

to contempt petition no. 45 of 2010, it has been referred to

that under communication dated 19-11-2007 by Executive

Engineer, World Bank Project while municipal council had

approached competent authority for relaxation of condition of

37 metres distance, a communication had been received back

from competent authority relaxing condition, directing Nagar

Panchayat to construct beyond 24.35 metres.

120. In rejoinder thereto in November, 2010 petitioner had

pointed out that communication dated 19-11-2007 has not

been annexed along with reply by respondent no. 6.

121. Respondents no. 1, 4 and 5 in their reply to the

contempt petition have not made reference to communication

dated 19-11-2007 nor to any relaxation or permission for

change of user to respondent no.6.

122. It appears that till middle of December, 2014,

communication dated 19-11-2007 had not been placed on

record before the high court despite there being orders for its

production from time to time. The court had noticed in

November, 2014 that despite order in 2012 for production of

relaxation order, the same had not been complied with nor

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respondent no. 6 had appeared before the court and as such

court was impelled to issue bailable warrant against him. The

court had been, in the circumstances, constrained to pass an

order on 18-12-2014 making observations referred to

hereinbefore.

123. There has been an affidavit-in-reply by respondents

no. 4 and 5 filed on 20-12-2014 in contempt petition, referring

to that communication dated 12-12-2014 is only a

recommendation and not permission allowing chage of user of

the building, further pointing out that, the same was in

response to forwarding by municipal council a letter after

about seven years, clarifying that grant of permission or

refusal to change of user is domain of municipal council.

124. Added respondent no. 8 - National Highway Authority

had in its reply of June, 2016 pointed out that Central

Government had declared a stretch of road starting from

Sinnar to Ahmedngar, via Shirdi as national highway No.160

vide Gazette Notification S.O.814(A) dated 22.03.2013, albeit,

the same had yet not been entrusted to national highway

authority and had also referred to that a right of way would

be minimum of 60 metres for all projects under the national

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highway development projects whereunder no construction on

national highway in prohibited area is allowed.

125. Despite aforesaid being the position, it appears that

respondent no. 5 had filed additional affidavit in 2016

referring to that recommendation dated 12-12-2014 had been

issued with reference to communication dated 19-11-2007

and request for revised building construction permission dated

05-12-2014 had been considered as the same would have

been permissible under the Development Control and

Promotion Regulations brought into force in 2013 and further

making it clear that power to relax obligatory condition

regarding construction at a particular distance from central

line of highway rests with respondents no. 8 and 9.

126. In January-February, 2017, further affidavits have

been filed by Collector - respondent no. 3 and National

Highway Authority - respondent no. 8 pointing out that there

is no relaxation as erroneously claimed by respondents no. 6

and 7 for construction at a distance of 24.35 metres from

central line of highway and further that a commercial building

has to be at a distance of 37 metres from central line of

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highway and also that building in question appears to be used

for commercial activities.

127. Further affidavit had been filed on 02-02-2017, on

behalf of respondents no. 1, 4 and 5, stating that user of

building partly for residential and partly for commercial had

been allowed on certain conditions, however, on visiting the

spot, it was found that construction is not as per the plan

recommended by their offices and pointing out that

inspection revealed that construction of the building is

commercial and that commercial building has to be

constructed at a distance of 37 metres from central line of

highway.

128. Further, one more affidavit has been filed on behalf of

Chief Engineer, Public Works Department, dated 07-02-2017,

stating that no relaxation in the condition has ever been

granted as claimed by respondents no. 6 and 7 and that the

construction of building is at a distance of 24.35 metres from

central line of highway, stating that building is a commercial

complex. Said affidavit also refers to that commercial

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construction according to prevailing rules has to be at a

distance of 37 metres from central line.

129. While the matter had been before this court in June,

2017, it had been given to understand that a bypass road of

national highway is created and as such concerned dispsuted

road would not be used as highway. Thereupon, the court

had considered that this assumes some significance and such

information and record needs to be supplied to the court,

however, no such information had ever been subsequently

given nor any record in this respect had been placed before

the court.

130. Letter dated 19-06-2004 has not appeared on record

from respondent no. 6 or for that matter respondents no. 3 to

5 which had been claimed to have been issued requesting for

relaxation which appears to have been replied under letter

dated 15-07-2005 rejecting said request.

131. There had been a long hiatus between the

communication/letter by the authority dated 19-11-2007 and

its mention in affidavit in reply filed by respondent no. 6 in

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2010 in contempt petition. Not only this, reference has been

made rather casually and cursorily that relaxation order has

been passed while it does not appear to be so. Even

communication dated 01-08-2006 by respondent no. 6 to the

authority of the World Bank Project has emerged only in 2014

along with affidavit by Collector in contempt petition at page

188. This so called communication of 01-08-2006 purportedly

seeks no objection certificate for change of user of

commercial building pursuant to resolution passed in the

special meeting held on 18-07-2006, bearing no. 54. It has

to be taken into account that said letter is dated 01-08-2006

and affidavit in reply to writ petition has been filed on behalf

of respondent no. 7 in June, 2007 and yet in the affidavit,

there does not appear to be any reference either to such

resolution nor any communication being issued based thereon

to the competent authority nor there is any reference in the

affidavits subsequently filed on behalf of respondent no. 6 to

the meeting dated 18-07-2006 or resolution number no. 54 or

even the communication to concerned authority. It only

makes a reference to that the municipal council had

approached the Executive Engineer, World Bank Project for

relaxation of condition whereas document at page 188 of the

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contempt petition clearly bears that only no objection had

been sought. Yet, the position is that calling of meeting,

passing of resolution, issuing communication to the Executive

Engineer, World Bank Project and response thereto had not

been placed before this court at any time before December,

2014.

132. An aspect that needs attention to is about despite 19-

11-2007 letter / communication by concerned authority

neither respondent no. 6 nor respondent no. 7 had moved in

furtherance of the same while order had been passed by high

court in 2007 and it is the contention on behalf of respondent

no. 7 majority of shops in the building could not be used.

Thus, overall situation suggests that everything had not been

alright as is sought to be put forth in the affidavits in reply

from time to time on behalf of respondents no. 6 and 7.

133. Further, it does not appear that any action pursuant to

so-called permission for change of user by competent

authority had ever been thereafter pursued by respondents

no. 6 and 7 till affidavits came to be filed around

December - 2014.

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134. Additional affidavit filed in writ petition in September,

2016 on behalf of respondent no. 5 refers to that

recommendation is given for permission to construct within

24.35 metres from central line of highway for residential use,

further referring to that power for relaxation is with State

Highway Authority - respondent no. 8 and National Highway

Authority - respondent no. 9 as have been referred to in said

affidavit whereas, affidavit in reply on behalf respondent no. 8

filed in January-February, 2017 in writ petition has explicitly

made it clear that respondent no. 8 has no power to grant any

relaxation and had not granted any relaxation to respondent

no. 6 allowing construction of commercial complex building at

a distance of 24.35 meters from central line. According to

prevailing rules, commercial complex/building can be only

had at a distance of 37 metres from central line of the

highway. Affidavit further makes reference to that spot

inspection had been carried out on 29-01-2017 by concerned

Circle Officer, Shirdi in presence of two representatives of the

office of World Bank division, Ahmednagar and that the

panchanama refers to that it is a commercial complex and

building and further that distance of the same should be 37

metres from the central line of highway.

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135. The conduct of respondents no. 5, 6 and 7 in the

matter does not appear to be in keeping with their positions

and tends to be rather overbearing and casual, for, it appears

to be now the case of respondent no. 6 that pursuant to

order dated 16-07-2007 of this court an application

purportedly had been moved with the World Bank Project

Officer. It is being projected that the same had been

responded to by communication dated 19-11-2007. Despite

that, till 2010 neither respondents no. 5 and 6 nor respondent

no. 7 had brought forth the same and much less had placed

any material in respect of the same on record till 2014. In

reply to contempt petition, respondent no. 4 purportedly

referred to communication by the Executive Engineer, World

Bank Project, allowing change of user from commercial to

residential. Reply by respondent no. 7 to contempt petition

does not make reference to the same. While order was

passed in July, 2007 by high court imposing restraint on

respondents no. 6 and 7 for putting the building in question

to any user, finances were claimed to be at stake in

construction, yet neither respondent no.7 nor respondent no.

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6 appear to have moved on with reference to communication

dated 19-11-2007.

136. Along with reply, respondent no. 6 has annexed and

relied on government resolution dated 09-03-2001 Exhibit R-2

which has been issued with a view to bring uniformity in

building line and control line across the State under various

enactments and rules and guidelines.

137. Aforesaid resolution dated 09-03-2001 shows, there

has been a decision by the State Government for bringing in

uniformity throughout the State, in respect of building line

and control line, under the rules and Maharashtra Highways

Act, 1955, Maharashtra Land Revenue Code, 1966, guidelines

dated 13-01-1977 issued by the Central Government and

standard building and development control rules for municipal

councils in categories A, B and C since there was absence of

the uniformity. The Government had taken decision directing

the building line and control line across the State shall be as

given under said resolution, specifying certain exceptions to

the same.

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138. Said government decision prescribes building line for

urban and industrial area to be 20 metres from the central

line of road or 4.5 metres from side borders of the road. Said

resolution also prescribes control line for factory, cinema hall,

commercial go-down, market etc. where there would be

crowd, for urban and industrial area, distance would be of 37

metres from the central line of the State Highway.

139. The situation further shows among authorities that

there is no dispute that the building line and control line

stipulated under Government Resolution dated 09-03-2001

holds the field and apply in the present case.

140. As a matter of fact, it is not the case that respondent

no. 6-Nagar Panchayat had been unaware of that the

proposed construction would have to be and is governed by

conditions, terms and stipulations issued by the Government.

Thus, when proposal was put up for commercial building,

there had been an attempt by respondent no. 6 to seek

requisite approval and/or recommendation from town

planning authority and Assistant Director, Town Planning,

Ahmednagar had sent a communication in response stating

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that construction shall be at a distance of 37 metres from the

central line of the State highway and that approval to the

plans cannot be recommended on the condition of obtaining

no objection certificate.

141. While the petitioners sought certain information,

respondent no. 6-Nagar Panchayat had clearly communicated

to the petitioners that proposal forwarded for sanction to the

Assistant Director, Town Planning, Ahmednagar, had been

rejected and that it was obligatory to carry out the

construction beyond 37 metres of the central line of the State

highway and the proposed construction is just at a distance of

25 metres from the centre of the highway.

142. However, it may have to be noted that it is only after

petitioners application dated 05-06-2004, Nagar Panchayat

had requested on 19-06-2004 to Director of Town Planning to

grant relaxation in condition of keeping distance according to

rules. Yet, this was not referred to in communication to

petitioners dated 28-06-2004. Further the purported letter

seeking relaxation was responded to on 15-07-2005, refusing

to accede to request and guiding to seek permission of other

authority.

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143. Purportedly, before 15-07-2005, a proposal had been

stated to be sent under communication dated 16-06-2005

seeking no objection to construction of commercial building

at a distance of 25 metres. It was followed by letter dated

01-08-2006 with reference to which the Executive Engineer

issued letter dated 19-11-2007 purporting to grant no

objection to change of user.

144. While respondent no. 6 had been submitting that

relaxation had been given to it for construction of commercial

complex, yet it does not appear to have any basis. The

relaxation sought does not appear to have come through at

any point of time. All along after institution of writ petition, it

had been tried to be impressed upon that relaxation has been

given by concerned authority, yet, no such relaxation order

had been produced.

145. No relaxation order could ever be produced on behalf

of respondent no. 6 at any point of time, and what has been

produced before the court seven years after institution of writ

petition and four years after contempt petition is, no objection

by concerned authority to change of user. The authority in its

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so called communication purporting to give no objection does

not appear to have taken into account considerations required

while issuing such communication/letter, relevant provisions

of law and its power. It has not made reference to the

provisions of law at all.

146. Attention may be had to that the communication by

Assistant Director, Town Planning, Ahmednagar, dated

12-12-2014 recommending construction of the building from

commercial to residential with convenience shopping beyond

distance of 24.35 metre from the central line of the State

highway has been issued only after bailable warrant was

issued on 26-11-2014 against Chief Officer of Nagar

Panchayat and upon a letter by Nagar Panchayat, Shirdi dated

05-12-2014, it is explained by the Assistant Director of Town

Planning in his affidavit filed on 20-12-2014 in reply to

contempt petition that it was not relaxation of condition as

sought to be interpreted by respondents to permit

construction within 37 metres from the central line of the

State highway.

147. Further, the Collector - respondent no. 3 has, in his

affidavit in reply of December, 2014 in the contempt petition,

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clarified the position that the procedure has been prescribed

in the circular of 1995 and that there had been no proposal

received at his end from any of the authorities for any

relaxation of condition and he had not forwarded any proposal

to the government therefor.

148. Repeatedly, it has been stated by respondents that

there has been no relaxation granted. However, respondent

no. 5 purports to state in an affidavit that no objection for the

change of user pursuant to some rules has been given since

that may be permissible. It is further being stated by him

that communication dated 12-12-2014 in response to letter of

05-12-2014 is only a recommendation and not a permission.

149. While respondents no. 4 and 5 have purportedly issued

communication dated 19-11-2007, giving no objection to user

of shopping complex for residential purpose, in their affidavit

in reply filed in December, 2014 to contempt petition, they

purported to clarify that grant of permission or refusal to

change of user is a domain of municipal council as it is a

planning authority. In such a case, if that is so, the

communications so made on 19-11-2007 as well as on

12-12-2014 with reference to communication of 05-12-2014

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communication of respondent no. 6, appear to have been

issued pursuant to demand made by respondent no.6 despite

respondent no. 6 being a planning authority and according to

respondents no. 4 and 5, change of user of building is a

domain of planning authority. Thus, the question arises not

only about power, authority of respondents no. 4 and 5 and/or

validity and/or efficacy of no objection to change of user but

also about propriety of such communication while it does not

appear to be that such an action is relatable to any provisions

of law. The submissions on behalf of the petitioners about

efficacy of communication dated 19-11-2007 appear to carry

a lot of weight. The communication dated 19-11-2007

appears to be obviously issued in an attempt to alleviate

severity of illegality and its perpetration in causing

construction of commercial complex despite refusal to give

relaxation in condition. Such an acrobatic exercise by the

authorities appears to have been indulged into under a

perception that the illegalities committed would be shrouded

under the same.

150. Queerly, respondent no. 7 defends change of user of

building from commercial to residential when his commercial

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interests are at stake and with the change in user it is unlikely

that respondent no. 7 would be able to secure its interest.

This conduct by respondent no.7, in the circumstances, gives

rise not only to suspicion but also gives re-enforcement to the

position that the building is not only being used for

commercial purpose but in all certainty is likely to be

continued to be used for commercial purpose.

151. Section 9 of the Maharashtra Highways Act, 1955

forbids any construction, erection of any building or alteration

in existing building or means of access to or from a highway

or a layout upon any land lying between building line or

control line even proposed to be fixed without previous

permission.

152. Admittedly, there has been no prior permission by the

highways authorities as required under section 9 of the

Maharashtra Highways Act. It is not the case of any of the

respondents that the highway authorities are invested with

powers to give no objection to such construction. It does not

appear that the procedure prescribed under the Maharashtra

Highways Act for obtaining permission has been followed. It

is not the case at all that construction of shopping complex

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can be said to be covered under section 11 of the Maharashtra

Highways Act nor it is a case that section 12 of said Act can

be invoked in present matter.

153. It does not appear that pursuant to Government

Resolution dated 09-03-2001, such permission could have

been granted and received.

154. If the authority is not vested with power to permit a

construction for intended purpose, no objection to change of

user of building from commercial to residential given in the

circumstances would not be compatible with the purpose for

which it is vested with power and authority. It does not

appear to be in accordance with provisions of law. Section 9

does not give any allowance to such an exercise of powers in

the authority. It does not appear that under the provisions of

the Maharashtra Highways Act, such an exercise of powers by

contemplated. It further emerges that purported no objection

for residential user issued on 19-11-2007 had been long

before letter dated 12-12-2014 which is stated to be with

reference to Standardised Development Control and

Promotion Regulations as enforceable from 2013 and

19-11-2007 letter. Even otherwise, ambivalent approach of

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respondent no. 5 has been exposed with the progress of the

matter.

155. Intriguingly, while it has been referred to that on

16-06-2005 a communication had been made by respondent

no. 6 seeking permission to have construction at a distance of

25 metres from central line of highway purportedly pursuant

to section 9 of the Maharashtra Highways Act yet, it does not

appear to be case at all of any of the respondents that such a

communication had ever been made with reference to any

meeting of Nagar Panchayat or any resolution therefor.

156. It may be noted that 16-06-2005 was a proposal of

Nagar Panchayat for construction at a distance of 25 metres

from central line of highway purporting to be pursuant to

section 9 of the Maharashtra Highways Act. Going by the

cases on behalf of respondents themselves, building had been

almost completely constructed by 2004 and in such a case

while section 9 provides for a previous permission of the

authorities concerned, said proposal by Nagar Panchayat to

the Public Works Department would not be consistent with the

provisions, the object, the intent and the purpose underlying

the provisions of the Act. This was an attempt by Nagar

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Panchayat to put a gloss over its unauthorized and illegal

action, which in its estimate would dilute and diffuse the

flagrant breaches and contraventions and violations. It does

not appear at all that despite legal provisions, stipulations,

conditions, rules, regulations and the prevailing position of

law, Nagar Panchayat had ever intended to use the

construction which is illegal and unauthorized for other

activities than the commercial ones.

157. The authorities through their affidavits have conveyed

that they have no power to relax and had not relaxed any

condition. The authorities have consistently referred to that it

had not granted any relaxation. As such, no objection would

hardly enure any benefit legalising or regularizing an act

which is incompatible with and untenable in law and

surrounding circumstances. On the other hand it has the

effect of making it far more incongruous to rule of law and its

fragility vivid.

158. Decision in the case of Arun Krishna Patil and ors. vs. State

of Maharashtra and ors., 2008 (4) ALL MR 345 cited to lay stress on

that since atleast ostensibly there is no procedure followed

according to section 7 of the Maharashtra Highways Act, there

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would be no binding efficacy to stipulation dated 09-03-2001,

since if a thing is to be done in a particular manner under a

statute, the thing will have to be done in that manner alone.

159. Aforesaid submission made on behalf of respondent

no. 7 about there being want of following procedure pursuant

to the Maharashtra Highways Act is rather pedantic and has

been taken with a view to avoid the liability and face

consequences. The decision as appearing under resolution

dated 09-03-2001 is a decision which embraces various State

laws taking into account the Central Government guidelines

and has been taken with a view to maintain uniformity in

building line and control line all over the State. Thus, the

combined effect of section 9 read with decision of the

government referred to above would show that the protective

cover would hardly be available to the actions taken by

respondents no. 6 and 7 for so called non observance of

procedure under section 7. In such an event, although it is

contended that there is no notification published in the official

gazette as prescribed under section 7 of the Maharashtra

Highways Act, yet, there has been a clear Government

Resolution covering the field and all the concerned persons,

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citizens or legal entities/authorities are supposed to abide by

the same. Nagar Panchayat, in fact, while dealing with cases

of eviction of encroachers over its land on Nagar - Manmad

highway had referred to and relied on the distance of 37

metres to be kept between central line of the road and the

occupation by encroachers. It is not open to Nagar Panchayat

now to go back from the same and take a different stand.

Stickler's insistence in respect of so called non appearance of

the procedure as required cannot be insisted on now by

respondent no. 7. The plea at instance of respondent no. 7

would not be pertinent. Even, respondent no. 6 has been

treating said Government Resolution to be applicable and

binding on it and accordingly permission, no objection were

being sought. Thus, it is not open nor respondents would be

able to take up such a plea / ground to defend the

construction. The declaration of building line and control line

in the government resolution dated 09-03-2001, indeed, has

strong nexus and bonding to various enactments and

guidelines including the Maharashtra Highways Act. The

stipulations and terms are with reference to the statutory

requirements. The respondents would not be able to avoid,

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and/or extricate themselves from, liabilities and consequences

for breaches, contraventions and violations.

160. In the face of aforesaid situation it would not be open

for respondents no. 6 and 7 to contend that keeping of 37

metre distance for a commercial building cannot be insisted

upon for want of notification while respondents on their own

have treated a distance of 37 metres from central line of

highway as control line and shall intervene for a commercial

construction.

161. The respondents themselves, in respect of very same

highway, have been treating distance of 37 metres from

central line of the Highway to be a binding stipulation all

along, as can be gathered from their approach earlier on, as

is reflected in the decision of the Supreme Court in the case of

Sayyed Ratanbhai Sayeed deceased, through legal representatives vs.

Shirdi Nagar Panchayat, 2016 (4) SCC 631 cited by petitioners. As

such, it would not be open for the respondents to contend

that the stipulation under the resolution dated 09-03-2001

would not bind them or in this case that would not apply, for,

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the very stipulations have been referred to and relied on in

the case before the Supreme Court of India.

162. It may not be out of place to refer to the case cited on

behalf of the petitioners viz; Sayyed Ratanbhai Sayeed deceased,

through legal representatives vs. Shirdi Nagar Panchayat, reported in

2016 (4) SCC 631 in which, following observations occur in

paragraphs no. 34, 51, 52 and 56.

'' 34. As is discernible from the pleaded stand of the respondent- defendants and endorsed by the nagar Panchayat/Municipal Council, the shops of the appellants have not only encroached upon the Palkhi Road (9 m. width) but also the adjoining road (15 m. width) adjacent to their plots and used as service road to the Temple. Further, their constructions also come within the prohibited distance of 37 m. from the centre of the Ahmad nagar Manmad Road, State Highway No. 10 i.e. the control line fixed under the Highways Act. Such encroachments, according to the respondents, being in derogation of the provisions of the 1965 Act, the 1966 Act and the Bombay Highways Act as well as in conflict with the Development Plan are required to be removed not only to promote the development of the area but also to secure the convenience and safety of the surging volume of devotees in particular and the local population in general.

--------------------------

--------------------------

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51. From the additional documents laid before this Court on behalf of the Nagar Panchayat/Municipal Council, it would transpire that by Notification No. BHA.3765/116348 dated 19-4-1967 of the Buildings and Communication Department, Sachivalaye, Bombay, the Malegaon - Manmad - Ahmednagar - Dhond - Patas Road, as specified therein, was declared as a State highway and that the said notification was published in the Official Gazette. By a Resolution of the State Government dated 9-3-2001, the building line and the control line amongst others of the State highway and main State highway were fixed as hereunder:

          Sr. Status of        Building line                  Control line (places like factory,
          No. road                                            cinema      hall,    commercial
                                                              godown, market etc.) where
                                                              crowd takes place.
                               Civil and       | Non-civil    Civil and      Non-civil
                               industrial      | section      Industrial     section
                               section         |              Section
          3     State          20 m from the | 40 m. from     37 m. from | 50 m from
                highway        centre of road | the centre    the centre of | the centre
                and main                      | of the road   the road      |of the road
                State
                highway

52. The declaration of Ahmad Nagar Manmad Highway 10 and the fixing of the building line and the control line under the Highways Act are also matters of record and supported by above documents.

--------------------------

--------------------------

56. As the recorded facts demonstrate, the growingly felt exigency of clearing the area of the structures and encroachments in conflict with the statues involved is in the preponderant public

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interest and it would thus be apparently inexpedient to trivialise the aspects of safety, security and convenience of the burgeoning devotees and the local population as persistently highlighted by the respondents. Any contrary view, in disregard to this otherwise salutary cause, would signify a retrograde step in the context of greater public import. ''

163. Observations aforesaid appear to be with reference to

the stand of the very Nagar Panchayat in that case. It may

not thus be open for respondents no. 6 and 7 to contend that

commercial construction shall be allowed within a distance of

37 metres from the central line of highway. From the case

cited it appears that the same Ahmadnagar - Manmad

highway passing through Shirdi has been considered. Nagar

Panchayat, Shiri appears to have opposed the claims of the

appellants therein on the grounds as appearing under

aforesaid observations. Having regard to the situation as

appreciated, the appellants before the supreme court were

not given any relief by the supreme court and it was directed

that the appellants be paid compensation by the respondents.

164. Thus, the contention on behalf of respondents no. 6

and 7 that a distance of 37 metres would be required to be

kept is not mandatory or binding condition/stipulation, is not

sustainable.

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165. Other thing that will have to be looked into is in the

matters of such importance, technical approach with obstinate

insistence would let erring persons roam with impunity while

there is sufficient material indicating that there have been lot

of breaches and contraventions and actions which are not

legal and legitimate at all.

166. Learned counsel for respondent no. 7 had also

referred to decision of Supreme Court in the case of Bhaskar

Laxman Jadhav and others Vs. Karmaveer Kakasaheb Wagh Education

Society and others, (2013) 11 Supreme Court Cases 531 , contending

that there is no disclosure of all the material facts and the

petitioners having not approached the Court with clean hands,

as they were parties to the resolutions passed deciding

construction and bringing up the same, however, this decision

as well would not dissuade us, since it has emerged on record

that as stated above, there are lot of breaches and

contraventions. Approach of the respondents does not appear

to be in consonance with prevailing position under rules,

regulations, law, guidelines and their own earlier acts in other

matter.

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167. It is, therefore, apparent that the observations as are

appearing from time to time in various orders passed by this

court, all along reference was being made up to 2014 that

there has been a relaxation order by concerned authority.

Yet, the situation had not been altered nor it is case of

respondents that a commercial construction can be allowed or

has been allowed within 37 metres area from central line of

highway.

168. Thus, situation clearly emerges that respondent no. 6

had gone ahead with its decision to construct commercial

complex despite being warned by respondents no. 4 and 5

that there can be no approval and/or recommendation with

the deficiencies pointed out in the communication dated

01-08-2001 drawing attention as well to requirement of

keeping distance of 37 metres from central line of highway for

the shopping complex. Despite this being position, respondent

no. 6 ventured to go ahead with its decision to construct

commercial complex within 37 metres to which it appears, to

quite a large extent, even petitioner no. 1 and mother of

petitioner no. 2 had been parties. While construction as

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resolved went ahead, it appears that some equations have

changed for petitioners and they have revolted.

169. It emerges that the building in question has been

conceived and treated right from beginning as commercial

project and has been put to use and consumption as such.

170. It is being submitted on behalf of respondents no. 5, 6

and 7 that no objection had been given for a building for

residential purpose allowing change of user from commercial

to residential yet, it would have to be taken into account that

no objection would not tantamount to compliance of section 9

of the Maharashtra Highways Act. Section 9 of the Act ordains

a prior/previous permission for any construction within

building line and control line. Thus, an admitted position

emerges that there had been no prior permission sought and

thus even going by the cases being developed by respondents

no. 5, 6 and 7, no legality or legitimacy can be accorded to

the construction which has come up in breaches, violations

and contraventions of rules, regulations, provisions of law,

stipulations and conditions prevailing.

171. Respondent no. 6 purports to lay emphasis on

paragraph number 5 of resolution dated 09-03-2001, reading

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thus :

'' वेगवेगळया शहराचया बाबतीत जयावेळी वगीकृत रसतयासाठी वळण रसतयाची बांधकाम पूणर होतील, तया तया वेळी शहरातून जाणारे वगीकृत रसते अवगीकृत (de-classify) करणारी अिधसूचना सा.बा.

िवभागामाफरत पिसद करणयात यावी अशा पकारे वगीकृत रसते अवगीकृत होताच सदर रसतयाचा ताबा संबंधीत महानारपािलका / नगरपिरषदेला दावा. ''

and as such, according to him, in view of the bypass being

constructed, present writ petition does not carry any force.

However, neither notification declassifying the Highway nor

anything is placed on record that Nagar-Manmad road ceased

to be a Highway.

172. While authority which had been approached, had

refused to give approval/recommendation, a body

incorporated under a statute had not been and is not

expected at all to act recklessly and blatantly disregarding

and digressing from the prescribed procedure considering that

the legality and legitimization and compliances can be

brought about. A statutory authority is expected to be

conscious and cautious about that the compliances of

requirements, legal and other ones, will have to be strictly

abided by and adhered to. While the town planning authority

had declined to grant approval/ recommendation for

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commercial building and had made certain suggestions yet, it

appears that Nagar Panchayat went nonchalantly ahead and

had caused to issue tenders as if the body had unbridled

power to do so and the persons then in charge went ahead

unabashedly making commercial construction. It appears that

it had been thought by the persons comprising the body that

they are law unto themselves and would be able to do and

undo law and flex the law to their wishes and desires. In the

process, disregarding the statutory requirements and rules

and regulations, they went ahead with the intended action like

vandals. It does not appear that it is a case where persons at

the helm in the body can be said to be unaware and ignorant

of that they would have to abide by the law, rules, provisions,

regulations, stipulations, conditions, guidelines especially it

being a public body and persons representing cause of people

at large.

173. It appears that there are too casual approaches by

respondents particularly no. 5, 6 and 7 in the matter, for,

they purported to casually seek and allow conversion of user

of building from commercial as had been intended and had

been planned by simply saying that it now can be used for

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residential purpose with a convenience shopping. Even

remotely, viability and feasibility of such a building being now

sought to be used for residential purpose has not been

brought forth. There had been binding prescription that no

commercial construction can come up within control line of 37

metres from central line of the State highway. Yet, it has

been considered by respondents no. 6 and 7 and other

authorities, a residential construction permission is

retrospectively possible and while building has come up as

commercial complex. Permitting change in its' user now for

residential purpose appears to be an eyewash and an attempt

to get approval to what is patently illegal. This is amply borne

out from affidavit of respondents no. 1, 4 and 5 filed on

02-02-2017 which refers to that the building is not as per plan

recommended and the construction is commercial.

174. The things are even more grave in the matter with the

affidavits coming up and filed by responsible authorities

before this court in January / February, 2017 referring to that

the building is being used for commercial activity. To turn

Nelson's eye to the activities by persons then constituting

respondents no. 6 - body and at its helm, which are flagrant

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and violent would be giving a premium to the undeterred and

brazen activity of constructing a commercial building. Legal

provisions had not deterred the men who could not control

their urge and had taken brash actions and the same is

now casually tried to be justified and protected, contending

that the building would be used for residential purpose. If

people who are supposed to represent people and public at

large and further their cause, do not control themselves and

try to overcome barriers unabashedly and do not respect law,

administration of justice would not let such people go scot-

free without realizing impact and consequences of their

brazen action, especially those persons who at the relevant

time were at the helm and those who have connived at and

were trying to justify the illegal action, should have lessons

from long arms of law.

175. It thus emerges that the building in question which has

been constructed as commercial building indisputably appears

to be between the control line and central line of highway and

being prohibited cannot be allowed to stand not only for the

reason that there have been affidavits that despite conversion

of building being allowed now for residential purpose, the

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building is yet used for commercial purpose but also for, the

very initiation of the proposal and construction of building and

its execution even after realizing that the same is not

recommended or approved and being casually allowed change

of user dehors the law and rules, and in complete disregard to

relevant rules, law, conditions, guidelines in that respect.

Under the circumstances, we consider that this is a grave case

wherein court shall intervene directing the law shall take

course against erring persons.

176. In this case, it appears to have been considered that

acrobatics would stay put to the action in accordance with

law. If the matter is given legitimacy by simply and casually

allowing commercial construction to be used now for

residential purpose, justice in such case would not be met

with to people at large.

177. All the acrobatics, in order to legitimize and regularize

illegal and blatant violation of the rules and the laws fall too

short to wriggle out of nonchalant, brazen illegality. Scruples

are conspicuous by their absence in the whole process and in

the projections, representations before this court.

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178. We would not commend the petitioners' role, them

being aware of the functions of the Nagar Panchayat, had

travelled with the body to quite some distance and may be

for the reasons best-known to them purport to bounce back

on the decisions to which they are stated to be parties. Thus,

though we are not lauding petitioners, however, once they

have brought nonchalant, illegal and supercilious action of

undeterred and brazen body before this court, we do not

think weakness, deficiencies and defects of the persons

approaching would dissuade us from going ahead and decide

the matter since there appear to be blatant and flagrant

breaches of rules, law, stipulations, conditions, guidelines,

requirements under the rules and law.

179. However, in this matter it appears that the authority

which is supposed to take action itself is involved in

construction in question. It would, therefore, be for

appropriate and/or higher and/or superior authorities to take

action for removal/demolition of the construction in

accordance with law.

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180. The concerned authorities / respondents, apart from

respondent no. 6, would have ample powers, including under

the provisions of various enactments viz. Maharashtra

Regional Town Planning Act, Maharashtra Highways Act,

Municipal Councils, Nagar Panchayats and Industrial

Townships Act, and relevant rules and regulations which to

quite a large extent prohibit illegal, unauthorized and/or

irregular construction and provide for appropriate action

including for demolition of such construction.

181. Damages to public property/exchequer in such cases

may have to be recouped and recovered from the responsible

persons and the persons who were at the helm at the

relevant time and whose actions / connivance has led to the

same. Leniency in such matters is seldom going to serve the

purpose and earn respect for law. The huge amount of

investment/loss being referred to by respondents no. 6 and 7

shall not be a consideration in such case, for, respect,

solemnity and abiding by law, onus and responsibility for the

same which in turn facilitates civil life, civic sense and

civilization which are invaluable and are priceless and not

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computable in material terms would not and shall not cede its

place and position to monetary consideration. Civilization

necessitates such a course of action against wrong doers.

182. In the circumstances, we deem it appropriate to direct

the authorities to take action in accordance with law and

demolish the construction in question.

183. Writ petition, as such, stands allowed in terms of prayer

clause (B). The appropriate and/or higher and/or superior

authorities to take action in right earnest. Damages/loss to

public property / exchequer and/or burden on the same be

recovered, from the persons concerned then at the helm and

responsible, by following a proper procedure. Rule made

accordingly absolute. Writ petition is disposed of.

184. In view of aforesaid, civil application seeking early

hearing of writ petition stands disposed of.

185. So far as contempt petition is concerned, we wish to

give further opportunity of hearing to respondents.

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 186.        At this stage,    there is a request by Mr. P. S. Dighe,

learned counsel holding for Mr. R. L. Kute, learned counsel

appearing on behalf of respondent no. 7 to stay operation of

this order for a period of eight weeks.

187. As such, the effect and operation of this order is stayed

for the period as requested for.

 SANGITRAO S. PATIL                               SUNIL P. DESHMUKH
      JUDGE                                            JUDGE




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