Bombay High Court
Pradipkumar S/O Premsukhdas ... vs State Of Maha. Thr. Urban ... on 24 January, 2023
Bench: A.S. Chandurkar, Vrushali V. Joshi
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 2083 of 2021
Pradipkumar s/o Premsukhdas Rathi,
Age : 64 years, Occupation-Business,
R/o Anikat Road, Khamgaon,
Tq. Khamgaon, District Buldhana.
....... PETITIONER
...V E R S U S...
1. State of Maharashtra,
Through Urban Development-Ministry of
Housing and Urban Affairs, Mantralaya, Mumbai-32.
Through its Secretary.
2. State of Maharashtra,
Through Collector,
Buldhana.
3. Municipal Council, Khamgaon
Through Chief Officer, Khamgaon,
Tq. Khamgaon, District Buldhana.
4. Manoj Jagdish Modi,
Age : 48 years, Occ. Business.
R/o Samta Colony, Bagat Singh Chowk,
Main Road, Khamgaon, District Buldhana.
5. Munawwar Ali Saifuddin Babji,
Age 50- years, Occ. Business.
R/. Babji Villa, Talao Road,
Khamgaon, District Buldhana.
6. Ashfaq Hussain Saifuddin Babji,
Age 58 years, Occ. Business,
R/o. Babji Villa, Talao Road, Khamgaon,
District Buldhana.
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7. Vijaykumar Ratanlalji Rathi,
Age 57 years, Occ. Business,
R/o Swami Samartha Complex, Nandura Road,
Khamgaon District Buldhana.
8. Satish Ratanlalji Rathi,
Age 48 years, Occ. Business,
R/o Swami Samartha Complex, Nandura Road,
Khamgaon District Buldhana.
9. Ashok Shamrao Sonone,
Age 58 years Occ. Business,
R/o Shankar Nagar, Khamgaon, District Buldhana.
Amended as per 10. Gajanan Ishwar Bharate,
order dated
12.10.2022.
R/o.Yashodhara Nagar, Khamgaon,
Sd/- District Buldhana.
Counsel for
Petitioner.
(R.Nos. 1O to 18
11. Vilas Kashiram Ghyar
added as per Courts R/o.Yashodhara Nagar, Khamgaon,
order
dated.12.10.2022) District Buldhana.
12. Sunita Santosh Chincholkar,
R/o.Civil Lines, Kela Nagar, Khamgaon,
District Buldhana.
13. Kirtikumar Chapasi Sangani,
R/o.Vasantwadi, Khamgaon,
District Buldhana.
14. Prafull Krantilal Budhadev,
R/o. Near Central Bank, Khamgaon,
Buldhana.
15. Rahul Harikisan Dangra,
R/o. Near Madan Mohan Mandir, Sarafa, Khamgaon,
District Buldhana.
16. Aashish Vinayakrao Misale,
R/o. G.S.College, Krushi Nagar, Wadi,
Khamgaon,District Buldhana.
17. Prasad Kailash Agrawal,
R/o. Balaji Plot, Khamgaon,
District Buldhana.
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18. Monika Prasad Agrawal,
R/o. Balaji Plot, Khamgaon,
District Buldhana. ... RESPONDENTS
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Shri Anand Jaiswal, Senior Advocate with Shri S.S.Sharma, Advocate for
petitioner.
Shri A.S.Fulzele, Additional Government Pleader for respondent nos. 1 & 2.
Shri D.M.Kale, Advocate for respondent no.3.
Shri A.C.Dharmadhikari, Advocate for respondent nos. 4 to 9.
Shri M.G.Bhangde, Senior Advocate with Shri Dhruv Sharma, Advocate for
respondent nos. 10 to 18.
Shri H.R.Gadhia, Advocate for intervenor.
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CORAM :- A.S.CHANDURKAR AND MRS. VRUSHALI V. JOSHI, JJ.
DATE :- 24.01.2023
JUDGMENT ( AS PER A.S.CHANDURKAR, J.)
By this writ petition filed under Article 226 of the Constitution of
India the petitioner seeks a declaration that the permission granted to the
respondent nos. 4 to 9 by Municipal Council, Khamgaon for construction of a
commercial complex is contrary to the Development Control Rules and hence such
permission be revoked and consequentially the offending construction be directed
to be demolished. In view of the notice for final disposal, the learned counsel for
the parties have been heard by issuing Rule and making it returnable forth.
2. The facts relevant for considering the prayers as made in the writ
petition are that it is the case of the petitioner that Plot No.3/3 which is situated at
Sheet No.25 admeasuring 1206.10 square meters at Khamgaon, District Buldhana
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was owned and possessed by one Devkuwarbai Ghanshyamdas Rathi. On
11.07.1990 she sold eastern portion of the said land to the extent of 1097.42
square meters to one Suryakant Selarka by a registered sale deed. Remaining land
admeasuring 108.68 square meters remained in her possession as owner. On
13.07.2012 Suryakant Selarka sold 1097.42 square meters to the respondent nos. 4
to 9 herein. After demolishing the existing structure standing on the said land, the
respondent nos. 4 to 9 intended to construct a shopping complex thereon. The
petitioner having inherited the remaining land admeasuring 108.68 square meters
sought information with regard to the construction proposed on the land purchased
by the respondent nos. 4 to 9. Such information as sought on 11.08.2020 was
denied on 19.08.2020. It was thereafter sought on 14.10.2020 but the same was
also denied on 10.11.2020. The petitioner got knowledge that on 24.12.2020 a
completion certificate came to be issued by an Architect certifying the construction
having been completed on 01.01.2020. It is the case of the petitioner that since
the said construction is not in conformity with the Standardized Development
Control and Promotion Regulations (for short, Development Control Regulations)
and especially Clause 6.2.6.1 thereof, the same has given a cause of action to the
petitioner to approach this Court. The petitioner learnt that on 18.12.2018 the
Municipal Council had issued a construction commencement certificate and
thereafter on 24.12.2020 completion of the structure came to be certified. The
respondent nos. 10 to 18 being the persons who have purchased portion of the
aforesaid property, they have been impleaded as the respondents herein.
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3. Shri Anand Jaiswal, learned Senior Advocate for the petitioner
submitted that the construction undertaken by the respondent nos. 4 to 9 was in
complete contravention of various provisions of the Development Control
Regulations. Inviting attention to the provisions of Clause 6.2.6.1, 6.2.12, 6.2.2
and 12.6 thereof it was submitted that the width of the road adjoining the plot was
relevant in the context of the construction undertaken. Its exact width was not
disclosed by the Municipal Council as per its communication dated 18.12.2020. In
view of the measurements taken by the petitioner, it could not be said that the
construction undertaken was in accordance with the Development Control
Regulations. The height of the said construction being less than 15 meters there
was violation of Clause 12.6 thereof. A site plan had not been brought on record
even in the present proceedings though copy of the sanctioned plan had been filed.
The Municipal Council in its reply did not indicate the width of the road despite
specific averments made in the writ petition. To substantiate its contention that
such unauthorized construction ought not to be permitted to stand, the learned
Senior Advocate for the petitioner sought to rely upon the decisions in Dipak
Kumar Mukherjee vs. Kolkata Municipal Corporation and others [2012 (8) Mh.L.J.
107] and Supertech Limited vs. Emerald Court Owner Resident Welfare
Association and others [(2021) 10 SCC 1].
Referring to the stand taken by the Municipal Council and the other
respondents in their reply that there was a remedy of preferring an appeal under
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Section 47 of the Maharashtra Regional and Town Planning Act, 1966 (for short,
the said Act) that could be invoked by the petitioner for challenging building
permit, it was submitted that such remedy could be invoked only by a person who
was seeking such permission in view of use of the words "any applicant". Since the
petitioner was not an applicant in the matter of grant of permission, the remedy of
filing an appeal was not available. The civil suit filed by the petitioner pertained to
the alleged encroachment committed by the respondent nos. 4 to 9 and the same
did not preclude the petitioner from filing the present proceedings. Further
absence of site plan as well as failure to deny the measurements indicated by the
petitioner substantiated the stand of the petitioner. This was also clear from the
fact that till date the Municipal Council had not issued an occupancy certificate for
the said building. The Municipal Council had been favouring the respondent nos. 4
to 9 in the said matter. It was thus submitted that the prayers made in the writ
petition deserve to be granted.
4. Shri D. M. Kale, learned Advocate for the respondent no.3-Municipal
Council opposed the aforesaid submissions. He submitted that till date the
petitioner had not approached the Municipal Council raising a grievance against
the construction in question. The petitioner had approached this Court directly
without approaching the Municipal Council. If such grievance would have been
raised by the petitioner, the same could have been considered by the Municipal
Council. Referring to the reply filed on behalf of the Municipal Council, it was
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denied that there was any violation of Clause 12.6 of the Development Control
Regulations. The said clause was applicable only to a special building. Since the
construction undertaken by the respondent nos. 4 to 9 was of a building with
height of 14 meters, it was not a special building. It was denied that the Municipal
Council had in any manner favoured the respondent nos. 4 to 9.
5. Shri M.G. Bhangde, learned Senior Advocate for the respondent nos.
10 to 18 opposed the writ petition. It was submitted at the outset that there was
considerable delay and absence of proper diligence on the part of the petitioner in
filing the writ petition. Building permission was issued by the Municipal Council
on 18.12.2018 and the same was valid for a period of one year as per Clause 26
thereof. The construction in question was completed on 01.01.2020 as per the
completion certificate. The writ petition was filed only on 18.02.2021 which was
beyond the period of two years from grant of building permission. The petitioner
had thus acquiesced in the construction and failed to take prompt steps when the
construction was going on. It was further submitted that on 28.09.2020 Special
Civil Suit No. 53/2020 came to be filed by the petitioner which indicated that he
was aware of the construction in question as per pleadings in paragraph 8 of the
plaint. In the said civil suit the respondent nos. 4 to 9 were the defendant nos. 1 to
6. Therein, an application for temporary injunction had been moved and the same
was dismissed by the trial Court. In Miscellaneous Civil Application preferred by
the plaintiff-petitioner before the appellate Court there was a direction to measure
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the land in question so as to facilitate proper adjudication of the civil suit. This
direction was challenged by the petitioner in Writ Petition No. 4137 of 2020 and
the said writ petition was dismissed on 06.01.2021. The actual measurement of
the land in question was undertaken on 05.01.2021 as per the report of the Deputy
Superintendent of Land Records. It was only thereafter that the present writ
petition was filed and this indicated that the same was with a view to get over the
aforesaid. The petitioner had failed to point out infringement of any legal right as
he had failed to make any request to the Municipal Council seeking redressal of his
grievance and there was considerable delay in approaching the Court. In absence
of any impeachable material to indicate that the width of road was 12 meters, no
relief could be granted to the petitioner. It was then submitted that on 0 2.12.2020
the State Government had brought into force Unified Development Control and
Promotion Regulations for State of Maharashtra. Since these Regulations were in
force when the writ petition was filed, the validity of the construction would be
required to be considered in the light of the new Regulations. In any event, it was
submitted that the construction undertaken by the respondent nos. 4 to 9 was legal
and proper and the respondent nos. 10 to 18 having purchased portion thereof,
they could not be prejudiced by the act of the petitioner of belatedly challenging
the construction. In support of said submissions, the learned Senior Advocate
placed reliance on the decisions in Sheshrao Jangluji Bagde vs. Bhaiyya s/o
Govindrao Karale and others [1991 Supp(1) SCC 367], Mathew M. Thomas and
others Vs. Commissioner of Income Tax [(1999) 2 SCC 543], Beg Raj Singh Vs.
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State of U.P. and others [(2003) 1 SCC 726], Ram Kumar Barnwal vs. Ram Lakhan
(dead) [(2007) 5 SCC 660], Sawaran Lata and others Vs. State of Haryana and
others [(2010) 4 SCC 532], R.S.Madireddy and another vs. Union of India and
others [2022 SCC Online Bom 2657], Writ Petition No.481 of 1998 (Vithaldas Hirji
Thakkar (since deleted) Bhalchandra Sitaram Fadnaik and anr. vs. Rao S.
Wankhede(since deleted) Rajesh Rao S. Wankhade and others) with connected
writ petition decided on 05.09.2017 and Writ Petition No. 9040 of 2021(Prasad
P.Tapkir and anr. vs. The Asst. Director of Town Planning, Pune and others)
decided on 17.11.2022 at the Principal Seat.
Shri A.C.Dharmadhikari, learned Advocate appearing for the
respondent nos. 4 to 9 adopted the submissions made on behalf of the respondent
nos. 10 to 18.
6. After hearing the learned counsel for the parties and after giving due
consideration to the rival submissions, we are of the considered view that the
petitioner is not entitled to the reliefs sought in the writ petition for the following
reasons:
(a) The petitioner seeks a direction to be issued to the State of
Maharashtra through the Collector, Buldhana as well as the Municipal Council,
Khamgaon through its Chief Officer to perform its duty by demolishing the
construction of the commercial complex undertaken by the respondent nos. 4 to 9
on the ground that it is contrary to the provisions of the said Act as well as the
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Development Control Regulations. In effect the petitioner seeks a writ of
mandamus to be issued to the said respondents to compel them to perform their
statutory duty. It is however seen that it is the specific stand of the Municipal
Council in paragraph 5 of the additional submissions filed on its behalf vide
affidavit dated 08.11.2022 that till the said date neither the petitioner nor any
other person had lodged any complaint about alleged illegal construction made by
the respondent nos. 4 to 9. Since no complaint was received by the Municipal
Council, it has not made any enquiry in that regard. For seeking a writ of
mandamus so as to compel the respondent nos. 1 to 3 to carry out their statutory
duty, it would be necessary for the petitioner to first approach the said respondents
with a complaint/request to enquire into the matter and consider the grievance
with regard to alleged illegal/excess construction undertaken by the respondent
nos. 4 to 9. Since such grievance has not been raised by the petitioner before the
respondent nos. 1 to 3, no writ of mandamus can be issued to them as it has not
been shown that the said respondents have failed to carry out their statutory
obligations or any legal duty cast upon them. No such representation or complaint
made by the petitioner in that regard has been pointed out.
(b) The building permit has been issued by the Municipal Council on
18.12.2018 through its Chief Officer. Based on this building permit, the respondent
nos. 4 to 9 have undertaken the construction work and the building in question is
said to be completed on 01.01.2020 as certified by their Architect. The Municipal
Council has certified the aforesaid on 24.12.2020. Prior thereto, on 28.09.2020
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the petitioner had filed Special Civil Suit No.53 of 2020 in which the respondent
nos. 4 to 9 herein have arrayed as defendant nos. 1 to 6. In paragraph 8 of the
plaint, it has been averred as under:
"8. ............ It is learnt that the defendants have now started
construction of commercial complex/mall viz. Mohan Market since
about one and half years. It also appears that the construction of
commercial market/mall is either without permission of the
competent authority or at least much in excess of the so called
permission if any. Moreover the structure which is now seen on
the property is and cannot be in accordance with the permission if
any and it is in much excess of FSI Rules and Regulations. The
structure appears to be more than 4 storied besides underground
basement. It is submitted that the entire construction interior and
exterior is illegal and in contravention of Municipal Building Bylaws
and Rules and Regulations under MRTP Act. In fact, the said entire
structure is liable to be demolished or dismantled."
The aforesaid pleadings indicate that the plaintiff-petitioner was aware that since
about one and half years the construction of the commercial complex had been
undertaken by the respondent nos.4 to 9. The plaint is dated 28.09.2020. The
plaintiff has sought demolition of the suit property described in paragraph 1(c) of
the plaint. The suit property is a building standing on Plot No.3/3 admeasuring
1206.10 square meters which is also the subject matter of the present writ petition.
It can thus be seen from the said averments that the petitioner was aware of the
construction undertaken by the respondent nos. 4 to 9 but has filed present writ
petition only on 18.02.2021. There is no explanation by the petitioner as to why
immediate steps were not taken to seek the reliefs sought in the writ petition. The
observations in Sawarn Lata and others (supra) support the stand of the private
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respondents.
(c) Another relevant aspect that has material bearing on the conduct of
the petitioner is that the appellate Court on 22.12.2020 passed an order below
Exhibit 12 in MCA No.14/2020 under the provisions of Order XXVI Rule 9 of the
Code of Civil Procedure, 1908 by which a Commissioner came to be appointed for
measuring the suit property. The petitioner was aggrieved by the said order and
challenged the same in Writ Petition No. 4137 of 2020. The learned Single Judge
refused to interfere with the said order and dismissed the said writ petition on
06.01.2021. It is only thereafter that the present writ petition has been filed. In
the meanwhile, measurement of the property was carried out by the Competent
Authority on 05.01.2021. It would thus be clear from the aforesaid that the
plaintiff has raised a grievance with regard to the alleged illegal construction
undertaken by the respondent nos. 4 to 9 before the Civil Court and the matter is
being pursued therein. Unless any declaration is obtained by the petitioner, the
reliefs sought in the present writ petition cannot be granted. Though it was urged
by the learned Senior Advocate for the petitioner that the petitioner had sought
removal of encroachment at the instance of the respondent nos. 4 to 9 in the said
civil suit and not demolition of the property, we find from the prayers made in the
plaint that the petitioner has sought demolition of the structure in question as per
prayer clauses (B) and (C) therein. It is true that the Municipal Council is not a
party in the said civil suit but as stated above in absence of any complaint made to
it by the petitioner, its absence in the civil suit would not come to the aid of the
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petitioner to urge that the present writ petition can be maintained for seeking the
reliefs sought in it. In this factual backdrop, the decisions relied upon by the
learned Senior Advocate for the petitioner cannot come to his aid.
7. For aforesaid reasons, we are not inclined to entertain the writ
petition in exercise of extra ordinary jurisdiction under Article 226 of the
Constitution of India. We have therefore not gone into the contention raised by the
learned Senior Advocate for the respondent nos. 10 to 18 that the legality of the
said construction needs to be adjudicated in the light of the Development Control
Regulations that have come into force from 02.12.2020 and not the earlier
Development Control Regulations that were existing when the building permit was
granted on 18.12.2018. That aspect is kept open for being raised in appropriate
proceedings if the occasion arises.
8. By observing that the petitioner is free to seek enforcement of his
legal right in accordance with law and in the light of the observations made
hereinabove, the writ petition stands dismissed leaving the parties to bear their
own costs.
Pending civil application also stands disposed of.
(MRS. VRUSHALI V. JOSHI, J.) (A.S.CHANDURKAR, J.)
Digitally Signed byJAYANT S
ANDURKAR
Personal Assistant
Signing Date:
24.01.2023 14:57
Andurkar..
