Bombay High Court
Mohd Anwar Mohd Ishaque Momin vs Bhiwandi Nizampur City Municipal ... on 16 March, 2023
Bench: G. S. Kulkarni, R. N. Laddha
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 7084 OF 2021
Mohd Anwar Mohd Ishaque Momin ... Petitioner
Versus
Bhiwandi Nizampur City Municipal
Corporation & Ors. ... Respondents
******
Mr. Mayuresh Surendra Lagu for the Petitioner.
Mr. N. R. Bubna for the Respondent Nos. 1 and 2.
Mr. Abdul Hafeez Kotwala for the Respondent No.4.
Mrs. Rupali Shinde, AGP for the Respondent No.5.
******
CORAM: G. S. KULKARNI &
R. N. LADDHA, JJ.
DATE : 16th MARCH, 2023
P.C. :-
. We have perused the orders dated 6 March 2018 and 21 March
2018 passed by the Division Bench of this Court [Coram: A. S. Oka (as
His Lordship then was) and Riyaz I. Chagla, JJ.] in Writ Petition No.
8744 of 2017. The Division Bench has observed that there is lethargy
on the part of some of the officers of the Bhiwandi Nizampur
Municipal Corporation in discharge of their duties, on no action being
taken on unauthorized constructions.
2. As observed by the Division Bench, it is seen that there are
number of matters reaching this Court on the rampant unauthorized
construction arising within the jurisdiction of the Bhiwandi Nizampur
Municipal Corporation.
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3. If this be so, then certainly it is need of the time that the
Municipal Commissioner through the machinery of the Municipal
Corporation without fear or favour, discharge the duties of his office
and initiate action against unauthorized construction in accordance
with law. In making these observations, we are also guided by the
observations of the Division Bench of this Court in the Suo Moto PIL
No. 1 of 2020 in case of High Court on its own motion (In the matter
of Jilani Building at Bhiwandi) v/s. Bhiwandi Nizampur Municipal
Corporation, being a case coming from this very municipal
corporation. This was a case in which the Court was concerned in
regard to a collapse of a building in which there was unauthorized
construction, killing 38 people. However, it appears that things have
not improved, despite serious observations of the Division Bench, in
such judgment of the Division Bench which are in the nature of a
continuous mandamus being issued to the Municipal Corporations.
4. The relevant extract of the operative orders as passed by the
Division bench in such decision are required to be noted, which reads
thus:-
" ...................
v) Municipal Commissioner and/or the competent authority of a
designated planning authority, is directed to take a review of the
illegal buildings/structures in every ward and actions taken thereon,
periodically between the 25th to 30th day of every month.
vi) Except for an acceptable and lawful reason, if an illegal and
unauthorized construction is found to have subsisted and/or its non-
removal is aided and/or abetted by the municipal officers or its
employees for a substantial time of more than six months, the
Municipal Commissioner shall take penal action against such erring
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municipal officers including lodging of prosecution under the
Municipal laws, in addition to the relevant provisions of the Indian
Penal Code, apart from initiating disciplinary proceedings.
vii) In so far as the notified slum areas are concerned, in respect of
all illegal and unauthorized constructions, in accordance with the
provisions of Section 3Z-2 (7) of the Slums Act, the State
Government is directed to lodge prosecution including against the
competent authority and the other officers of the SRA for having
aided or abetted the construction of unauthorized or illegal
structures and also against the persons responsible for putting up
these structures. In the event there is a collapse of a
structure/building in the slum area, the direction in (vi) above shall
be applicable against the competent authority and other officers who
are in-charge of supervising and taking actions on illegal
constructions in slum areas.
viii) In the event of a building collapse resulting in loss of lives, the
Principal Secretary (UDD) and/or the Municipal Commissioner, as
the case may be, shall immediately conduct an enquiry to be
completed within a period of fifteen days from such collapse, so to
determine the responsibility of the concerned Municipal and
Government Officials failing to discharge their duties, and after so
ascertaining, institute criminal proceedings against the concerned
officers and employees in-charge of the Ward and those who were
responsible to take action on the dilapidated buildings, as also
against the higher officials under whom such ward
officer/designated officer would immediately work. Such criminal
prosecution not only shall be under the provisions of the municipal
laws but also under the relevant provisions of the Indian Penal Code.
ix) The persons who put up illegal or unauthorized constructions
cannot claim any immunity by undertaking such illegal acts. The
Municipal Commissioner apart from taking action for demolition of
such illegal structures, shall also institute criminal proceedings
against such persons, who are found to have violated municipal laws
and constructed unauthorized or illegal structures apart from taking
action for demolition of such structures in a manner known to law.
This apart those who are victims of a building collapse, in the
absence of any fault on their part, would also be entitled to seek
reliefs in appropriate civil and criminal proceedings against the
owners of the building and the municipal officers, notwithstanding
their right in law to claim compensation from such parties.
x) The concerned Municipal Commissioners are directed to give
effect to the provisions of Section 152A of the MMC Act and Section
267A of the Maharashtra Municipal Corporations Act to levy penalty
which shall be equal to twice the property taxes leviable on such
building, so long as it remains unlawful and recover such amounts as
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arrears of property taxes.
xi) The Permanent Standing Committee (Encroachment Prevention
Committee) as constituted under the Government Resolution dated
15th December 2004, shall forthwith be made functional by the State
Government so as to commence its functioning with effect 15 th March
2022. Such committee shall hold periodical sittings twice every
month so as to take account of the actions on illegal structures in
Mumbai. Such Committee shall also be constituted in respect of other
cities in Maharashtra and it shall hold sittings accordingly.
xii) In so far as the State Government's land and/or other public
lands in respect of which, till date no slums schemes are approved by
the Slum Rehabilitation Authority, such lands shall not be
redeveloped under slum redevelopment schemes, unless the State
Government or the concerned public authority gives a 'no objection',
to be published, in at least two local newspapers, that in future it
does not require such public lands for any of its purposes, or for the
public purposes of any other public bodies under the State or the
Central Government. Unless, such no objection is received from the
State Government or the Central Government or any other public
body, the development of any slum scheme or private utilization of
such land shall stand freezed.
xiii) The State Government and the public bodies shall take
appropriate steps as permissible in law, to remove the encroachments
of the public lands as described in (xii) above, so that land is made
encroachment free, to be utilized for public purpose.
xiv) In the event the encroached lands are required by the State
Government or by any public body, steps be taken to remove the
encroachment and make the land encroachment-free within one year,
by rehabilitating the slum dwellers of such lands, if they are
protected occupiers. Such eligible slum dwellers be rehabilitated in
any other part of the city or in the municipal jurisdiction of the
adjoining municipal corporation as the State Government may
decide."
5. Thus, in the larger public interest, the Municipal authorities are
accountable in discharge of their duties, more particularly, when
abundant powers for removal of unauthorized construction,
encroachments are vested under several legislations with the
Municipal authorities, as observed by the Division Bench in the said
decision.
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6. We, accordingly, propose to pass appropriate orders on all such
issues including the inaction in regard to the grievance as made by the
petitioner in the present proceedings.
7. This order would not prevent the Municipal Corporation from
taking appropriate steps in regard to the unauthorized and illegal
constructions as complained in the present petition.
8. We also require the Municipal Commissioner of the Bhiwandi
Nizampur Municipal Corporation to place on record an affidavit
stating as what action has been taken in respect of illegal and
unauthorized constructions, within the jurisdiction of the Municipal
Corporation the details of which were already set out in the affidavit
filed by the Municipal Corporation in the said suo moto Writ Petition,
with the remarks of the current status.
9. Stand over to 23 March 2023, to be placed High on Board,
along with Writ Petition No. 8744 of 2017.
[R. N. LADDHA, J.] [G. S. KULKARNI, J.]
Digitally signed by BIPIN
BIPIN DHARMENDER
DHARMENDER PRITHIANI
Date: 2023.03.18
PRITHIANI 17:45:44 +0530
