Bombay High Court
Sonu Sood vs Municipal Corporation Of Greater ... on 21 January, 2021
Bench: P. K. Chavan
AO-ST-270-2021.doc
Shailaja
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER [STAMP] NO.270 OF 2021
A/W
INTERIM APPLICATION [STAMP] NO.271 OF 2020
IN
APPEAL FROM ORDER [STAMP] NO.270 OF 2021
1. Sonu Sood ]
Aged 48 years, Occupation: Actor ]
2. Sonali Sonu Sood ]
Age: 50 years, Occ: Household, ]
Both of Mumbai, Indian Inhabitant, ]
Having their address at Shakti Sagar, ]
Building C.T.S Nos.360 & 360/1 to 4 ]
Village Juhu, A.B. Nair Road, ]
Juhu, Mumbai - 400 049. ] Appellants
(Orig. Plaintiffs)
Versus
1. Municipal Corporation of Greater ]
Mumbai, a Body Corporate ]
Constituted under the Mumbai ]
Municipal Corporation Act, 1888, ]
Having its office at Mahapalika Marg, ]
Opp. C.S.T, Fort, Mumbai - 400 001. ]
2. Designated Officedr - IV, ]
Asst. Engineer (B & F), ]
K/West Ward, 6th Floor, Paliram, ]
Shailaja S. Digitally signed by Shailaja S.
Halkude
Halkude Date: 2021.01.22 17:41:38 +0530
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Path Off. BEST Bus Depot Road, ]
Opp. Andheri (W), Mumbai - 400 058. ] Respondents
.....
Mr. Amogh Singh i/b D.P. Singh, for Appellants.
Mr. A.Y. Sakhare Senior Counsel a/w Mr. Jeol Carlos, a/w Mrs.
Madhuri More, for Respondents.
.....
CORAM : PRITHVIRAJ K. CHAVAN, J.
RESERVED ON : 13th JANUARY, 2021.
PRONOUNCED ON : 21st JANUARY, 2021.
JUDGMENT:
1. By this appeal, the appellants/original plaintiffs have
impugned the order dated 19 th December, 2020 passed by the
learned Judge, City Civil Court, Mumbai rejecting the Notice of
Motion bearing No.1590 of 2020.
2. Facts are as follows:
On 23rd November, 2020, the appellants filed a suit under
sections 34, 37 to 39 of the Specific Relief Act, 1963 against the
respondents-Municipal Corporation of Greater Mumbai. They
have sought a declaration that the impugned notice under section
53 (1) of the Maharashtra Regional and Town Planning Act, 1966
(for short 'M.R.T.P Act") dated 24 th October, 2020 issued by
respondent No.2 be declared as illegal, bad in law, mala fide and
nullity, inter alia, seeking relief of permanent injunction.
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The appellants are claiming to be the owners and in
occupation of a building known as "Shakti Sagar" comprising
basement and ground plus six floors. (This building shall be
referred to as 'suit building' hereinafter for the sake of brevity.)
The appellants have acquired rights in respect of the suit building
through different agreements executed between them and the
erstwhile owners. However, a copy of agreement only in respect of
Flat No.606 on the 6th floor of the suit building is filed. The
appellants yet to get the said land and other record transferred in
their names. The appellants, however, have been paying electricity
bills which are being issued in their names.
It has been specifically averred in the plaint that they are
desirous of starting a residential hotel in the suit building for
which an application has been submitted somewhere in the year
2018, which is pending. The appellants, therefore, were carrying
out interior work for which, according to them, no permission is
required under sections 342 and 347 of the Mumbai Municipal
Corporation Act, 1888 (for short 'M.M.C Act') or under section 43
of the M.R.T.P Act.
It is averred that one Ganesh Shankar Kusmulu,
representative of a NGO demanded huge amount from the
appellants by threatening that if the appellants do not part with
such amount, he would lodge a complaint with the respondents in
respect of the alleged unauthorized and illegal construction carried
out by them. The appellants, however, declined the demand of
the said Ganesh resulting into a complaint being filed by him with
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the respondents. The said Ganesh succeeded in persuading the
respondents about the alleged illegalities of the appellants,
pursuant to which, the impugned notice dated 24 th October, 2020
under section 53 (1) of the M.R.T.P Act bearing No. KW/DO4KW/
069/53-I-MRTP ACT/KW230N001/24/1/2020 came to be issued.
By the said notice, the respondents intimated the appellants that
they have carried out unauthorized additions and alternations
beyond approved plan and changed the user from residential to
Residential Hotel without technical sanction. According to the
appellants, notice has been issued at the behest of Ganesh sans any
inspection of the suit building or without any prior notice. The
said Ganesh and the respondents acted in collusion.
The appellants being social activists and were busy during
lock down, there was a delay in approaching their Advocate to
give reply to the notice which, ultimately was given on 23 rd
November, 2020.
The suit also came to be filed on 23 rd November, 2020 itself
i.e the day on which the appellants sent reply. The appellants,
therefore, have an apprehension that in terms of the impugned
notice, the respondents would demolish the structure and,
therefore, they have approached the City Civil Court by filing a
suit, inter alia, claiming relief of temporary injunction as stated
hereinabove.
3. The learned City Civil Judge, however, by the impugned
order dated 19th December, 2020, after considering the contentions
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raised by the respective parties, by a reasoned order, dismissed the
Notice of Motion bearing No.1590 of 2020.
4. The respondents-M.C.G.M, in its affidavit-in-reply, have dealt
with each and every averment in the plaint. It is contended that
the appellants have approached the Court with unclean hands with
a mala fide intention and by abuse of process of the Court seeking
protection to illegal commercial hotel which came to be
constructed by them contrary to the sanctioned building plan and
in violation of the provisions of the M.R.T.P and M.M.C Act. The
hotel is being run without any licence under section 394 of the
Act. It is contended that the appellants have totally modified the
entire building unauthorizedly into a hotel which is being run
illegally without licence and thereby putting their customers at
great risk.
5. A prosecution has already been launched against the
appellants for contravening the provisions of section 394 of the
M.M.C Act. The appellants are consuming water and electricity
without paying charges at commercial rate. The appellants have
conducted serious violation of non payment of public revenue.
There is no compliance with the condition of NOC from MCGM.
6. While highlighting the series of illegalities and breaches
committed by the appellants, the respondents-M.C.G.M has placed
on record some material facts. It is contended that the first
inspection of the suit building and the first notice came to be
issued on 1st September, 2018 under section 354 (A) of the M.M.C
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Act directing the appellants to stop the unauthorized work. The
appellants, however, continued by ignoring the same and,
therefore, the structure was first demolished on 12 th November,
2018. However, the appellants again re-started the work of
unauthorized additions and alternations as well as change of user
despite there being existence of a notice under section 354 (A) of
the M.M.C Act. The demolition was carried out by virtue of self
operating provisions of section 354 (A) on 12th November, 2018.
7. On 4th February, 2020, a speaking order was passed under
section 354 (A) after analyzing the documents submitted by the
appellants. Despite directing the appellants to remove the said
unauthorized work, the appellants did not act accordingly and
started continuing with unauthorized additions and alternations as
well as change of user. The structure was demolished for the
second time on 14th February, 2020. Thus, it is contended that the
appellants are habitual offenders, who, without there being any
legal and necessary permission and authorization, went on
reconstructing the structures by continuing violation and,
therefore, they are not entitled for any equitable relief of
temporary injunction.
8. It is also contended that the learned Lokayukta, Maharashtra
took cognizance of the complaint dated 23 rd January, 2020 lodged
by the said Ganesh and directed the respondents-M.C.G.M to file a
report as to why action should not be taken against it and it's
officers for dereliction of duties.
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9. According to the respondents, the suit is premature in the
sense, the appellants have, without waiting for a mandatory period
of one month of the notice, filed a suit on the very day of replying
the notice, thereby, restricting the respondents from adjudicating
the case. This is a well thought strategy of the appellants to
continue with the illegal commercial hotel business in the suit
building.
10. The respondents have also specifically contended that there
is an express bar under section 149 of the M.R.T.P Act by which
no suit can be filed against the respondents and, therefore, on this
count itself the appeal deserves to be dismissed.
11. Heard Mr. Singh, the learned Counsel for the appellants at
length as well as Mr. Sakhare, the learned Senior Counsel for the
respondents-M.C.G.M.
12. The learned Counsel for the appellants would argue that the
impugned notice dated 24th October, 2020 under section 53 (1) of
the M.R.T.P Act is not only illegal, arbitrary and mala fide but also
a nullity which does not depict proper description of the alleged
offending structure. The notice does not say "not less than a
month" as contemplated under section 53 (1) of the M.R.T.P Act.
According to Mr. Singh, there is no speaking order nor there is any
mention of earlier demolitions, however, the appellants have
already applied for regularisation under section 43 of the M.R.T.P
Act.
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13. The learned Counsel for the appellants admits that earlier
notice issued by the respondents had been acted upon. The
impugned notice being independent which does not refer to earlier
demolition and, therefore, it cannot be said that the appellants
have suppressed those facts from the Court.
14. In support of his contention, the learned Counsel has placed
reliance upon some decisions, which shall be referred at the
appropriate stage.
15. On the other hand, while strongly opposing the reliefs
claimed by the appellants Mr. Sakhare, the learned Senior Counsel
appearing for the respondents took me through the series of facts
and documents on record in order to buttress his point to indicate
as to how the appellants are not only habitual offenders but have
been repeatedly violating the provisions of both the M.M.C Act and
the M.R.T.P Act by reconstructing the offending
structure/structures after it's demolition twice. It is vehemently
urged that the appellants have neither any prima facie case nor
balance of convenience tilts in their favour. There is no question of
irreparable loss as, in case, they succeed, they can claim damages.
16. According to Mr. Sakhare, the trial Court had rightly refused
equitable relief to the appellants since they had approached the
Court with unclean hands. He would argue that the suit building
was constructed in the year 1992 for residential purpose which is
evident from the inspection report at page 23. Despite issuance of
stop work notice, which came to be issued on 1 st September, 2018
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by the Designated Officer of the respondents qua offending
structure as well as Police report which came to be lodged on the
same date; the appellants did not pay any heed and continued
with the illegal activities of making unauthorized additions and
alternations.
17. In essence, Mr. Sakhare, would argue that several material
documents have been placed on record viz; notice under section
354 (A) of the M.M.C Act dated 1st September, 2018, a speaking
order dated 4th February, 2020, the appellant's letter dated 4th
August, 2018 and the mischief played therein as well as the factum
of earlier demolitions have been deliberately suppressed with an
ulterior motive. The photographs tendered on record and
cognizance of the complaint taken by the learned Lokayukta
further corroborates act of illegal and unauthorized alterations viz
the offending structures erected by the appellants.
18. The learned Senior Counsel would argue that in view of
section 149 of the M.R.T.P Act, there is express bar to file a suit in
any Court. Mr. Sakhare has placed reliance on a few case laws of
this Court as well as the Hon'ble Hon'ble Supreme Court. I shall
deal with the same at the appropriate stage.
19. It is an undisputed fact that the appellants are intending to
convert the suit building from residential to commercial use i.e for
a hotel as averred in paragraph 9 of the plaint. It is also an
undisputed fact that the appellants have started carrying out some
additions and alterations under the name of beautification from
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the year 2018 which is evident from the notice dated 1 st
September, 2018 sans any permission or sanctioned plan of any
competent authority. The appellants have also contended that
they have applied for regularization of the alleged unauthorized
construction and are not supposed to seek prior permission as per
section 43 of the M.R.T.P Act.
20. In the context of the challenge which is raised qua the
impugned notice under section 53 of the M.R.T.P Act, it would be
first necessary to briefly refer to the objects and reasons behind the
enactment. The underlined object of the M.R.T.P Act is to have a
proper and planned development in the areas to which it applies.
It is, therefore, the statutory obligation of a planning authority to
see that the development is carried out in terms of the
development plan. The planning authority is, therefore, vested
with requisite power under the M.R.T.P Act to take action against
unauthorized construction.
21. Having taken into consideration, the objects and reasons
behind enacting the M.R.T.P Act, it would be now apposite to refer
to section 53 of the M.R.T.P Act which is one of the provisions in
contention. The said provision is reproduced hereunder;
"53. Power to require removal of unauthorized development;
(1) (a)Where any development of land has been carried out
as indicated in clause (a) of (c) of sub-section (1) of section
52, the Planning Authority may, subject to the provisions of
this section, serve on the owner, developer or occupier a prior
notice of 24 hours requiring him to restore the land to
conditions existing before the said development took place;
(b)if the owner, developer or occupier fails to restore the
land accordingly, the Planning Authority shall immediately
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take steps to demolish such development and seal the
machinery and materials used or being used therefor,
[(1A) Where any development of land has been carried
out as indicated in clause (b) or (d) of sub-section (1) of
section 52, the Planning Authority may, subject to the
provisions of this section, serve one month's notice on
the owner, developer or occupier requiring him to take
necessary steps as specified in the notice.]
(2) In particular, such notice may, for purpose of sub-
section (1), require--
(a) the demolition or alteration of any building or works ;
(b) the carrying out on land of any building or other
operations ; or
(c) the discontinuance of any use of land.
(3) Any person aggrieved by such notice may, within the
period specified in the notice and in the manner
prescribed, apply for permission under section 44 for
retention on the land of any building or works or for the
continuance of any use of the land, to which the notice
relates, and pending the final determination or
withdrawal of the application, the mere notice itself shall
not affect the retention of buildings or works or the
continuance of such use.
(4) The foregoing provisions of this Chapter shall, so far
as may be applicable, apply to an application made under
sub-section (2).
(5) If the permission applied for is granted, the notice
shall stand withdrawn ; but if the permission applied for
is not granted, the notice shall stand ; or if such
permission is granted for the retention only of some
buildings, or works, or for the continuance of use of only
a part of the land, the notice shall stand withdrawn as
respects such buildings or works or such part of the land,
but shall stand as respects other buildings or works or
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other parts of the land, as the case may be; and
thereupon, the owner shall be required to take steps
specified in the notice under sub-section (1) as respects
such other buildings, works or part of the land.
(6) If within the period specified in the notice or within
the same period after the disposal of the application
under sub-section (4), the notice or so much of it as stand
is not complied with, the Planning Authority may--
(a) prosecute the owner for not complying with the
notice ; and where the notice requires the discontinuance
of any use of land any other person also who uses the
land or causes or permits the land to be used in
contravention of the notice ; and
(b) where the notice requires the demolition or alteration
of any building or works or carrying out of any building
or other operations, itself cause the restoration of the
land to its condition before the development took place
and secure compliance with the conditions of the
permission or with the permission as modified by taking
such steps as the Planning Authority may consider
necessary including demolition or alteration of any
building or works or carrying out of any building or other
operations ; and recover the amount of any expenses
incurred by it in this behalf from the owner as arrears of
land revenue.
(7) Any person prosecuted under clause (a) of sub-section
(6)shall, on conviction, 1[be punished with imprisonment
for a term 2[which shall not be less than one month but
which may extend to three years and with fine which shall
not be less than two thousand rupees but which may
extend to five thousand rupees, and in the case of a
continuing offence with a further daily fine which may
extend to two hundred rupees] for every day during
which such offence continues after conviction for the first
commission of the offence.]
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(8) The Planning Authority shall, by notification in the
Official Gazette, designate an officer of the Planning
Authority to be the Designated Officer for the purposes of
exercise of the powers of the Planning Authority under
this section and sections 54, 55 and 56. The Designated
Officer shall have jurisdiction over such local area as may
be specified in the notification and different officers may
be designated for different local areas"
22. Turning to the actions initiated by the respondents-M.C.G.M
against the appellants from time to time, which have been
suppressed by the appellants, can be described hereinbelow.
23. Document Exhibit-R-1 is the first inspection report dated 1 st
September, 2018 in respect of the suit building. In short, the said
report reveals that the owner-occupier refused to give permission
to enter into the premises. It indicates that there were additions
and alterations made by using sisporex block partition walls from
first floor up to sixth floor without any prior authentic permission
and removing of a brick masonary walls in Vinas Building, A.B.
Nair Road.
24. Exhibit-R-2 is the stop work notice issued by the respondents
under section 354 (A) of the M.M.C Act dated 1 st September, 2018.
Acknowledgment of receipt of this notice was made by the
Watchman of the building namely Rameshkumar, who had signed
thereof. A schedule was given indicating the description of the
unauthorized additions and alterations by using sisporex block
partition walls from the first floor up to the sixth floor without any
prior authentic permission and removing of brick masonary walls
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in Vinas Building, A.B. Nair Road. The notice indicates that the
owner-occupier was asked that if he is in possession of any
permission approved by the Competent Authority in favour of
execution of the aforesaid work, he shall produce the same within
24 hours in the office of the respondents, failing which, an action
under section 354 (A) would be initiated without any further
notice and the said additions and alterations would be removed or
pulled down at the cost of the owner-occupier.
25. A Police report has already been lodged with Police Station,
Juhu which has also been duly acknowledged on the same date.
The Police Authority was requested to assist by providing Police
Force, in case, there are some obstructions or resistance while
pulling down the unlawful and unauthorized structures in respect
of the suit building. The notice was simultaneously pasted on the
wall of the suit building. A photograph is on page No.29.
26. An interesting aspect surfaced from the record depicting as
to how, in a deceitful manner, appellant No.1 by his
communication dated 4th August, 2018 in reference to the
respondents' notice dated 1st September, 2019 informed the latter
that on 19th June, 2018 through his Architect namely Kalpesh Jain,
a proposal had been forwarded for the proposed change of user. It
appears that appellant No.1 even before issuance of the notice
dated 1st September, 2018 under section 354 (A) of the M.M.C Act
anticipated it's issuance and, therefore, on 4 th August, 2018 itself,
by the aforesaid communication had informed about the proposal
made to the Chief Officer by his communication dated 13 th July,
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2018. This itself is sufficient to refuse the relief of temporary
injunction, since the appellants have not approached the Court
with clean hands and it is apparent that their intention was mala
fide. The respondents had demolished the offending structure on
12th November, 2018 for the first time.
27. Exhibit-R-4 is a speaking order dated 4th February, 2020.
Having considered the response to the said notice by the
appellants on 12th September, 2018, the Authority had examined
and scrutinized the documents submitted on behalf of the
appellants. The documents submitted by the appellants and the
remarks given the Authority are as follows;
Sr. Documents/ Remarks
No. Evidence produced
1. Forwarding letter The document submitted by
dtd. 12.09.2018 you does not prove the
(039409) authenticity of the notice
structure because, to treat the
notice structure authorized, you
must have a permission issued
by the competent authority or
your structure must reflect plan
sanctioned by the competent
authority i.e M.C.G.M. Till date
you have failed to submit the
approval of competent
authority i.e Building Proposal
dept of MCGM for addition
alteration mentioned in the
notice.
2. The photocopy of The document submitted by
'Acknowledgment you does not prove the
letter' from Chief authenticity of the notice
Engineer, B.P. structure because, to treat the
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M.C.G.M dtd. notice structure authorized, you
19.08.2018 must have a permission issued
by the competent authority or
your structure must reflect in
plan sanctioned by the
competent authority i.e
M.C.G.M. Till date you have
failed to submit the approval of
competent authority i.e
Building Proposal dept of
MCGM for addition alteration
mentioned in the notice.
3. The photocopy of The document submitted by
letter under you does not prove the
no.CHE/TEMP/121 authenticity of the notice
87/342-CFO dtd. structure because, to treat the
13.07.2018 issued notice structure authorized, you
by Mumbai Fire must have a permission issued
Brigade dept. by the competent authority or
your structure must reflect in
plan sanctioned by the
competent authority i.e
M.C.G.M. Till date you have
failed to submit the approval of
competent authority i.e
Building Proposal dept of
MCGM for addition alteration
mentioned in the notice.
4. The photocopy of The document submitted by
'Occupation you does not prove the
Certificate' under authenticity of the notice
no.CE/6958/BS-II/ structure because, to treat the
AK of dtd. notice structure authorized, you
23.01.1992 must have a permission issued
by the competent authority or
your structure must reflect in
plan sanctioned by the
competent authority i.e
M.C.G.M.
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5. The photocopy of The document submitted by
plan 'Proposal for you does not prove the
regularization of authenticity of the notice
addition/alteration'. structure because, to treat the
notice structure authorized, you
must have a permission issued
by the competent authority or
your structure must reflect in
plan sanctioned by the
competent authority i.e
M.C.G.M. Till date you have
failed to submit the approval of
competent authority i.e
Building Proposal dept of
MCGM for addition alteration
mentioned in the notice.
Having considered the remarks, the Assistant
Commissioner of the Competent Authority concluded
thus;
CONCLUSION
As, it is ongoing construction work, you must have
produce prior permission issued by the competent
authority for construction of notice structure. Till date
you have failed to submit the approval/permission of
competent authority i.e Building Proposal dept of MCGM
for addition alteration mentioned in the notice. In view
of above, I came to the conclusion that construction
carried out by you is totally unauthorized and liable for
demolition. Hence, I pass the following order.
ORDER
You are hereby, directed to remove the said
unauthorized work at above mentioned address in the
above referred notice within seven days from the receipt
of this order, failing which, the unauthorized work will
be demolished at your risk & cost and the charges of the
demolition will be recovered from you through
assessment department".
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28. It can be seen that nothing has been disclosed by the
appellants in the plaint which, in normal course, they ought to
have disclosed all the facts in respect of the suit building and the
earlier notice, their reply as well as conclusion drawn by the
Authority and an order which came to be passed in accordance
with section 354 (A) of the M.M.C Act. Since the order dated 4 th
February, 2020 has not been challenged, it has attained finality.
29. Pursuant to the said order, vide document Exhibit-R-5,
unauthorized structure had been demolished by the respondents
on 14th February, 2020. The photographs annexed along with
Exhibit-R-5 demonstrate the work of demolition in progress which
were snapped on 14th February, 2020 itself. This fact has also been
suppressed by the appellants.
30. Exhibit-R-6 is the complaint lodged with Lokayukta
Maharashtra. The learned Lokayukta took cognizance of the said
complaint and after hearing the complainant and the Authorities
of the respondents, by it's communication dated 30 th January,
2020, directed the Assistant Commissioner, K-Western Zone,
M.C.G.M to remain present before him on 7 th February, 2020. The
learned Senior Counsel appearing for the respondents-Corporation
states that the learned Lokayukta had directed the respondents-
Corporation to initiate appropriate action against the concerned
officer of the respondents who had failed in his duties to initiate
appropriate action as per the law against the appellants in respect
of unauthorized additions and alterations.
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31. Exhibit-R-7 depicts the inspection report qua the suit
building. The Designated Officer and the Competent Authority in
view of the said inspection report directed to initiate action of
removing the unauthorized offending structures.
32. Subsequently, on 24th October, 2020 when the impugned
notice was served upon the appellants, the first inspection report
has been tendered which indicates that earlier, despite issuance of
a notice under section 354 (A) of the M.M.C Act, unauthorized
constructions were not removed. Subsequently, the respondents
demolished the structures. Inspection report depicts a sketch of
unauthorized additions and alterations which are beyond the
approved plans under No.CE/9656/BS-II/AK DATED 23.01.1992
as well as unauthorized change of user from residential to
residential hotel building without taking technical sanction from
the Competent Authority.
33. In view of this inspection report submitted by the Junior
Engineer of the respondents, the Designated Officer and Assistant
Commissioner proposed that notice under section 53-A of the
M.R.T.P Act has to be issued. The impugned notice has been
issued to the appellants. It's copy was also pasted on the outer
wall of the suit building. A description of the unauthorized
structure has been given in the said notice together with particular
of land directing the appellants to discontinue the use of
residential building for residential hotel purpose till there is
technical sanction from the Competent Authority.
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34. In the alternative, the appellants have been asked to apply
under section 44 of the M.R.T.P Act for retention of the work
before the Competent Authority within one month from the receipt
of the notice. It was further clarified that failure to comply with
the aforesaid directions, the appellants would be liable for
prosecution under the said Act.
35. Admittedly, neither the appellants discontinued or
dismantled the unauthorized structure qua the suit building nor
applied under section 44 of the M.R.T. Act. Rather, it is their
contention that they need not obtain such permission in view of
section 43 of the M.R.T.P Act.
36. The respondents have lodged a prosecution under section
394 of the M.M.C Act. Exhibit-R-10 reveals that after inspection of
the suit building and pursuant to a notice under section 354 of the
M.M.C Act, the premises were inspected by the Health Department
Staff on 24th January, 2019. It was noticed that the appellants are
conducting lodging (Guest House) without proper licence. They
were operating 23 rooms in the suit building and, therefore, they
are being prosecuted.
37. The learned Senior Counsel appearing for the respondents
has also drawn my attention to the second inspection report at
Exhibit-R-9 dated 4th January, 2021. The report indicates that
when the premises in question was inspected in accordance with a
notice under section 53 (1) of the M.R.T.P Act, it was observed
that the appellants have not complied with the notice. The
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photographs annexed along with Exhibit-R-9 at pages No.67 to 69
indicate different rooms depicting Room numbers 201, 203, 303,
404, 504, 601 and 602 in the suit building which are being used
as rooms for the purpose of lodging.
38. It may not be out of place to mention what the learned
Lokayukta has observed in his order dated 23rd January, 2020. I
quote paragraph 4 of the order which reads thus;
" In the circumstances, I direct the Assistant
Municipal Commissioner K/West Ward and the
then Designated Officer Shri Deepak Laxman
Gholam to file their respective affidavits as to
what prevented them from taking action pursuant
to the notice issued under Section 354-A".
39. Thus, it can be seen that the appellants have neither restored
the changes which have been made in the suit building without
permission of the Authority under the M.R.T.P Act, nor applied
under section 44 as contemplated in section 53 sub-section (3) of
the M.R.T.P Act. It is pertinent to note that the appellants cannot
take aid of section 43 by contending that no such permission is
necessary for the simple reason that the proviso to section 43
contemplates that such permission is not necessary for carrying out
a work of maintenance/improvement or other alteration of any
building or the work is being carried out in compliance with any
order or direction passed by any Authority. This is significant in
the light of the fact that the appellants themselves have come with
a case that they want to convert the offending structure into a
residential hotel.
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40. At this stage, it would be apposite to refer to a judgment of
this Court in case of Overseas Chiese Cuisine (India) Pvt. Ltd and
another Vs. The Municipal Corporation of Greater Bombay and
others, 2000 (1) Bom. CR 341. It this judgment, it has been held
thus;
"In case of unauthorized structure the Planning
Authority shall issue a notice calling upon to require
the demolition or alteration of any building or works
or the carrying out on land of any building or other
operations or the discontinuance or any use of any
land. The aggrieved person may, within the time
allowed by the notice and in the prescribed manner,
apply for permission under section 44 of the M.R.T.P
Act for "retention on the land of any building or works
or for continuance of any use of the land to which the
notice relates". Once this is done, pending the final
determination or withdrawal of the application, the
owner is given the liberty of retention of the offending
building or works. If such application is granted, then
the notice is deemed to have been withdrawn. If such
notice is dismissed then the owner is liable to carry out
what is directed under the notice, namely, demolition,
alteration of any building or works and so on. An
order made under section 44 is appealable under
section 47 to the State Government".
Thus, it can be seen that the appellants have neither discontinued
carrying out additions and alterations in respect of offending
structure but rather went on re-erecting the same in the absence of
any authorization or permission from the Competent Authority.
Since, there is no application seeking permission, there is no
question of retaining the offending structure.
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41. The learned Counsel for the respondents has,
therefore, placed a useful reliance on a decision of this Court in
case of Sarina Esmeralda Lopez Vs. Vijay Goverdhandas Kalantri
and another, 2015 (2) Mh. L.J, 603. A single Judge of this Court
while emphasizing the aim and object of the Maharashtra Regional
and Town Planning Act observed thus;
"Having heard the Applicant in person, the learned
Senior Counsel for the Respondent No.1 and the learned
Senior Counsel for the Respondent No.2, I have
considered the rival contentions. In the context of the
challenge which is raised and which revolves around the
bar as contained in Section 149 of the MRTP Act it would
be necessary to briefly refer to the objects and reasons
behind the MRTP Act. The MRTP Act has been enacted to
make provision for planning the development and use of
land in Regions established for that purpose and for the
constitution of Regional Planning Boards therefor; to
make better provisions for the preparation of
Development plans with a view to ensuring that town
planning schemes are made in a proper manner and their
execution is made effective, to provide for the creation of
new towns by means of Development Authorities; to
make provisions for the compulsory acquisition of land
required for the public purposes in respect of the plans.
The underlying object of the MRTP Act is therefore to
have a proper and planned development in the areas to
which it applies. It is therefore the statutory obligation of
a planning authority to see that the development is
carried out in terms of the development plan. The
planning authority is therefore vested with the requisite
power under the MRTP Act to take action against the
unauthorized construction. It is with a view to give
finality to the orders passed by the planning authority
that the bar under Section 149 of the MRTP Act is
provided. There can be no dispute about the fact that the
MMC is both the local authority and the planning
authority in so far as the provisions of the MRTP Act are
concerned".
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42. The learned senior Counsel Mr. Sakhare has also placed
reliance on a well-known judgment of this Court in case of Sopan
Maruti Thopte and another Vs. Pune Municipal Corporation and
another, 1996 (1) Mh. L.J., 963. While disposing of a group of Writ
Petitions, the Division Bench of this Court has elaborately
discussed the powers of the Commissioner under section 351 (1)
of the Bombay Municipal Corporation Act. The Division Bench has
taken survey of various case laws on the subject including the
aspect of audi alteram paretm i.e principle of natural justice and
the doctorine of hearing which, according to the said ratio is not
extended in every case. It would be apposite to reproduce
paragraph 19 of the judgment which contemplates broad features
to be considered before taking action under section 351 of the
erstwhile B.M.C Act. They are as follows;
"19. Hence, on the basis of the law as discussed
above, it is directed that after 1st May, 1996 the
Bombay Municipal Corporation or the Municipal
Corporations constituted under the B.P.M.C. Act
would follow the following procedure before taking
action under Section 351 of the B.M.C. Act or under
S.260 of the B.P.M.C. Act.
"(i) In every case where a notice under Section 351
of the B.M.C. Act/under Sec. 260 of B.P.M.C. Act is
issued to a party 15 days time shall be given for
submitting the reply. In case the party to whom
notice is issued sends the reply with the documents,
and shows cause, the Municipal Commissioner or
Deputy Municipal Commissioner shall consider the
reply and if no sufficient cause is shown, give short
reasons for not accepting the contention of the
affected party.
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(ii) It would be open to the Commissioner to
demolish the offending structure 15 days after the
order of the Commissioner/Deputy Municipal
Commissioner is communicated to the affected
person.
(iii) In case the staff of the Corporation detects the
building which is in the process of being constructed
and/or reconstructed and/ or extended without valid
permission from the Corporation, it would be open to
the Commissioner to demolish the same by giving a
short notice of 24 hours after drawing a panchanama
at the site and also by taking photographs of such
structure and/or extension. The photographs should
indicate the date when the same were taken.
(iv) In case where the Municipal Corporation has
followed due process of law and demolished the
unauthorised structure and/or extension, if the same
is reconstructed without valid permission within a
period of one year, it would also be open to the
Corporation to demolish the same by giving a short
notice of 24 hours.
(v) If the offending structure and/or extension which
is assessed by the Corporation for two years, notice
shall provide for 15 days time to show cause. If the
Deputy Municipal Commissioner comes to the
conclusion that he requires assistance of the party, he
may give an oral hearing if he deems fit and proper
before passing the order. It is made clear that oral
hearing is not at all compulsory but it is at the
discretion of the authority.
(vi) In any other case the Corporation is directed to
issue a show cause notice in case of any structure
and/or extension other than those mentioned in
clauses (i) to (iv) above. The Corporation shall
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provide for 7 days' time to show cause in such a
case."
22. Now, we would deal with the contention that in
most of cases, which are pending before the Courts,
ad interim relief is granted without proper
verification of plaintiff s right. In both the referring
judgments, the learned Judges have emphasised this
aspect and observed that unauthorised constructions
are mushrooming in this city every day and
unauthorised constructions are regularly put up and
the interim reliefs continue without any hindrance.
It is true that the stay order or interim relief in such
cases affects the society as a whole and
administration of Municipal Corporations. Further
the result is number of suits are filed and pending
against Municipal Corporations or Government
bodies restricting the authorities from removing the
unauthorised construction. Interim reliefs continue
for years, may be in some cases the authorities do
not file written statements or reply promptly or they
do not move the Court for vacating the interim
reliefs. The result is that implementation of law
suffers. This also tends to lower the Court's prestige
and clearly undermines the Rule of Law".
(emphasis supplied)
43. On the other hand, Mr. Singh has placed reliance on a
judgment of this Court in case of Kishor s/o Ramalu @ Rambhau
Telang Vs. Municipal Commissioner, Nagpur, 2015 (4) Mh, L.J. 836.
According to Mr. Singh, the respondents-MCGM has not issued the
impugned notice under section 53(1) of the M.R.T.P Act in its letter
and spirit. The Court below in the impugned order in paragraph 12
correctly appreciated it's scope. My attention is drawn by Mr. Singh
to the observations of the learned Single Judge of the Bombay High
Court, Bench at Nagpur in case of Kishor that there is an expression
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in section 53 (1) that the Planning Authority is required to serve on
the owner a notice requiring him to take such steps as may be
specified in such period 'being not less than one month'. Whereas,
the impugned notice depicts that the Authority had directed the
appellants to remove the structure "within one month from the date
of the notice".
44. As against this, in case of Sarina Lopez (supra), it is observed
by the learned Single Judge which reads thus;
"17. In so far as the allegation that principles of
natural justice are violated, the said ground is based
on the fact that straight way the notice of demolition
has been issued, the scheme as contained in Section
53 of the MRTP Act has been referred to herein
above. The said scheme does not contemplate any
hearing to be granted prior to issuance of a notice
under Section 53(1) of the MRTP Act as the
addressee of the notice is given time to carry out
corrections or make amends. As indicated above,
Section 53(3) provides for a representation or an
application to be made for regularization under
Section 44 and pending such consideration further
action pursuant to the notice is stayed. Admittedly
no representation is made by the Plaintiff and the
construction/development is sought to be justified
on the ground that it is sold to him by the Developer
who has also put up the wall. Hence when the
statute does not provide for hearing to be granted
prior to the issuance of the notice under Section
53(1), the question of violation of principles of
natural justice would not arise, and in fact the
Plaintiff without availing of the opportunity under
Section 53(3) has rushed to the Civil Court and
obtained injunction on the ground that there is a
threat of demolition. It is also required to be noted
that the authority of the officer issuing the notice or
the authority of the MMC to issue notice has not
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been questioned by the Plaintiff. In so far as whether
the notice could have been given by the MMC in
respect of the construction/development which has
been carried out at any earlier point of time, that is
even accepting for a moment the case of the Plaintiff
that the Developer has put up the brick masonry
wall and enclosed the open space, in view of the
amendment to Section 53, limitation of three years
which was prescribed for taking action has been
removed and therefore the MMC was within its right
to issue notice in respect of the alleged unauthorized
construction/ development assuming that it was put
up by the Developer.
"18. Hence if the case of the Plaintiff is tested, there
is no issue of jurisdiction which arises for
consideration. The Plaintiff has also not been able to
prima facie prove as to how the notice is bad and
illegal. Mere use of the words illegal, bad in law
without any substantiation would not aid the
Plaintiff to invoke the jurisdiction of the Civil Court
as the jurisdiction of the Civil Court can now be
invoked only if the action is a nullity on account of
there being an error of jurisdiction. The Trial Court
has erred in observing that since the word nullity is
used, the suit is maintainable. Though the Plaintiff
has not specifically attributed nullity to the said
order and since illegality cannot take place of nullity
assuming for a moment one takes place of the other,
the said ground is also not substantiated. The Trial
Court has further compounded the fact by holding
that the development of changing the position of the
doors amounts to internal work. How such a
conclusion could be arrived at by the Trial Court at
the preliminary stage, therefore begs an answer. In
my view, the Trial Court has therefore a committed
jurisdictional error in entertaining the suit in
question".
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Even otherwise, as already observed hereinabove, in view of
amendment to Section 53, phrase "being not less than one month"
does not exist and, therefore, the decision in case of Kishor (supra),
would not be of any assistance to the appellants.
45. The Hon'ble Supreme Court in a latest judgment in the case
of Municipal Corporation of Greater Mumbai and others Vs.
Sunbeam High Tech Developers Private Limited, (2019) 20
Supreme Court Cases, 781 reiterated the principles laid down by
this Court in Sopan (supra). The ratio laid down would be
squarely applicable to the present set of facts and circumstances.
46. Mr. Singh emphasized a legal principle which connotes that
'where a power is given to do a certain thing in a certain way the
things must be done in that way or not at all". In support of his
contention, he placed reliance upon a judgment of the Hon'ble
Supreme Court in case of Central Coalfields Limited and another Vs.
SLL-SML (Joint Venture Consortium) and others, (2016) 8 Supreme
Court Cases 622. I am afraid, I cannot buy the arguments of Mr.
Singh for the simple reason that this principle is mostly applicable in
contractual disputes, more particularly, in commercial
Bodies/contracts. The position of law was as has been contended by
Mr. Singh, then existed before the amendment on 15 th April, 2017.
Sub-section-(1) of Section 53 has been substituted with effect from
15th April, 2017 which would be applicable to the present case. As
already stated, the term "not less than one month" is no more in
existence as it has been deleted in view of the amendment to the said
section. The ratio laid down, therefore, will not be of any assistance
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to the learned Counsel for the appellants.
47. On the issue of equity, Mr. Singh has cited a judgment of
the Hon'ble Supreme Court in case of Nova Das Vs. Metropolitan
Transport Corporation and others, (2015) 13 Supreme Court Cases
287. My attention is drawn to paragraphs 45 to 47 of the judgment,
which according to Mr. Singh will have to be considered.
"45. In Raja Ram Mahadev Paranjype v. Aba Maruti
Mali, AIR 1962 sc 7353, A three-Judge Bench has
opined that
9.... "equity does not operate to annul a statute.
This appears to us to be well established but we
may refer to White and Tudor's Leading cases in
Equity (9th ed. P. 238), where it is stated:
'Although, in cases of contract between parties,
equity will often relieve against penalties and
forfeitures, where compensation can be granted,
relief can never be given against the provisions of
a statute."
46. In P.M. Latha V. State of Kerala, (2003) 3 SCC 541,
it has been opined;
"Equity and law are twin brothers and law
should be applied and interpreted equitably but
equity cannot override written or settled law"
47. In Raghunath Raj Bareja V. Punjab National Bank,
(2007) 2 SCC 230 the Court observed that it is well
settled that when there is a conflict between law and
equity, it is the law which has to prevail. The Court
further ruled that equity can supplement the law, but it
cannot supplant or override it. In this context, reliance
was placed upon Madamanchi Ramappa v. Muthaluru
Bojjappa, AIR 1963 SC 1633, Laxminarayan R. Bhattad v.
State of Maharashtra, (2003) 5 SCC 413, Nasiruddin v.
Sita Ram Agarwal, (2003) 2 SCC 577, E. Palanisamy v.
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Palanisamy, (2003) 1 SCC 123 and India House v. Kishan
N. Lalwani, (2003) 9 SCC 393.
Even, this ratio will not come in aid of the appellants, for, as
has been observed, 'equity' and 'law' are twin brothers and law
should be applied and interpreted equitably but equity cannot
override written or settled law. Here, there is no question of any
equity being granted to the appellants as the appellants have
approached the Court with unclean hands seeking relief of temporary
injunction against the respondents by repeatedly committing breach
of the provisions of the M.M.C Act as well as the M.R.T.P Act. Equity
cannot supplant the law.
48. Mr. Singh has also pressed into service a well-known
judgment of the Hon'ble Supreme Court in case of Mohinder Singh
Gill and another Vs. The Chief Election Commissioner, New Delhi and
others, (1978) 1 Supreme Court Cases 405. The Hon'ble Supreme
Court while dealing with the powers of Election Commission has,
inter alia, discussed the aspect of natural justice as well distinction
between administrative and quasi judicial functions. The learned
Counsel has drawn my attention to paragraph 8 of the judgment
which reads thus;
"8. The second equally relevant matter is that when
a statutory functionary makes an order based on
certain grounds, its validity must be judged by the
reasons so mentioned and cannot be supplemented
by fresh reasons in the shape of affidavit or
otherwise. Otherwise, an order bad in the beginning
may, by the time it comes to court on account of a
challenge, get validated by additional grounds later
brought out. We may here draw attention to the
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observations of Bose J. in Gordhandas Bhanji
(Commr. Of Police, Bombay Vs. Gordhandas Bhanji,
AIR 1952 SC 16) :
"Public orders, publicly made, in exercise of a
statutory authority cannot be construed in the light of
explanations subsequently given by the officer
making the order of what he meant, or of what was
in his mind, or what he intended to do. Public orders
made by public authorities are meant to have public
effect and are intended to effect the actings and
conduct of those to whom they are addressed and
must be construed objectively with reference to the
language used in the order itself."
49. In fact, it was not a core issue before the Hon'ble Supreme
Court, however, it has been observed that when a statutory
functionary makes an order passed on certain grounds, it's validity
must be judged for the reasons so mentioned and cannot be
supplemented by fresh reasons in the shape of affidavit or
otherwise.
50. In the case at hand, even for a moment, earlier breaches are
kept aside for a while, the impugned notice, as already discussed
hereinabove, has been duly served upon the appellants giving
them an opportunity to apply under section 44 of the M.R.T.P Act
or to pull down the offending structure which, the appellants
ignored and, therefore, I do not feel that the earlier orders passed
and the notices issued by the Respondents-Authority were bad in
law and by virtue of the impugned order get validated by the
additional grounds which are brought to the notice of the Court.
Here, the issue is whether the appellants are entitled to the relief
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of temporary injunction and whether they have established the
well-known principles while seeking equitable relief. The answer
as already discussed is emphatically in the negative. I am,
therefore, of the view that the said Authority can also be
distinguished accordingly.
51. Last but not the least, it is the contention of the respondents
that in view of section 149 of the M.R.T. P Act, there is an express bar
to question any action, every order, direction passed by other, the
State Government or by any Development Authority under the
M.R.T.P Act in any suit or other legal proceedings. Section 149 reads
thus;
"149. Finality of order- Save as otherwise expressly
provided in this Act, every order passed or directions
issued by the State Government or order passed or
notice issued by any Regional Board, Planning
Authority or Development Authority under this Act
shall be final and shall not be questioned in any suit
or other legal proceedings".
52. In case of Sarina Lopez (supra), position of law has
been again reiterated and has been expressed in the following
manner;
"The said provision posits that every order passed or
direction issued by the State Government or order passed
or notice issued by any Regional Board, Planning
Authority or Development Authority would be final and
would not be questioned in any suit or other legal
proceedings. Hence, the said section can be said to be
what is popularly known as "the Finality Clause", or "the
Clause of Exclusion".
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Needless to add that there is an express bar to question the
impugned notice in a Civil Court.
53. Since the learned Counsel for the parties have been
elaborately heard on each and every factual as well as legal aspect
on merits, the appeal needs to be finally disposed of.
54. For the foregoing reasons, in my view, the impugned order
needs no interference in appeal. The respondents are at liberty to
proceed further in accordance with law.
55. Upshot of the discussion and observations made hereinabove
is that the appeal is devoid of merits and stands dismissed.
56. In the circumstances, there is no order as to costs.
57. In view of dismissal of the appeal, pending applications, if
any, shall stand disposed of.
[PRITHVIRAJ K. CHAVAN, J.]
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