Bombay High Court
Kishor Sundar Shetty vs Shri Abhijit Bangar Commissioner Of ... on 31 January, 2024
12-PIL.111.2022
Jvs.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
PUBLIC INTEREST LITIGATION NO.111 OF 2022
Kishor Sunder Shetty } Petitioner
Versus
Commissioner of Navi Mumbai }
Municipal Corporation & ORs. } Respondents
Kishor Sunder Shetty, petitioner in-person.
Mr. A. V. Anturkar, Senior Advocate a/w.
Mr.Sugandh Deshmukh for the respondent -
Corporation
Mr. P. P. Kakade, Government Pleader with
Mr.O. A. Chandurkar, Additional Government
Pleader and Mrs. R. A. Salunkhe, AGP for
Respondent No.3
CORAM: DEVENDRA KUMAR UPADHYAYA, CJ. &
ARIF S. DOCTOR, J.
DATE: 31st JANUARY 2024
P.C.:
1. This PIL Petition raises concern about the illegal
constructions already existing or being raised currently in Navi
Mumbai Municipal Corporation (NMMC) and accordingly, a prayer
has been made to take appropriate action against such illegal
constructions and also to fix the responsibility of the Ward
Officer concerned for permitting such illegal constructions.
2. Shri Anturkar, learned Senior Advocate representing the
respondent Corporation has broadly outlined in his submission
the problems surrounding the illegal constructions including the
difficulties faced by the Municipal Corporation as also by the
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poor occupants of the tenements which are constructed,
generally at the behest of the builders / contractors.
3. Our attention has been drawn to Section 52A of the
Maharashtra Regional and Town Planning Act 1966 (hereafter
referred to as "the MRTP Act") which vests an authority with the
State Government, upon the request of the Planning Authority,
to specify the terms and conditions, on compliance of which and
on payment of compounding fees irregular / illegal constructions
may be compounded and regularized. It is his submission that
once a statutory provision has been made for compounding such
structure, the occupier / owner of such constructions is vested
with statutory right to seek remedy of compounding such
structures in terms of the provisions contained in Section 52A of
the MRTP Act.
4. Mr. Anturkar, learned Senior Advocate has drawn our
attention to an order passed by the Hon'ble Supreme Court in a
matter filed against the judgment of a Division Bench of this
Court in the case of Rajiv Mohan Mishra Vs. City and
Industrial Development Corporation of Maharashtra Ltd.
& Ors. 2018 SCC OnLine Bom 4132 whereby the provision of
Section 52A was under challenge. By the said order, the Hon'ble
Supreme Court has provided to maintain status quo in respect
of illegal constructions / demolition.
5. It has also been stated by Mr. Anturkar, learned Senior
Advocate that though a prayer made in the PIL Petition is to the
effect that appropriate directions be issued for taking an action
against the illegal structures, however, none of the owners /
occupiers of such alleged illegal structures has been impleaded
as party respondent. His further submission is that at least in
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representative capacity some of the alleged owners / occupiers
of the illegal constructions ought to be impleaded as party
respondents.
6. Mr. Anturkar, learned Senior Advocate has acknowledged
the problem caused by the illegal constructions in the municipal
areas and joins the petitioner as also the Court in their concern
for checking illegal constructions at the very inception. The
petitioner, who appears in-person has submitted that even as on
date, many constructions have been raised within NMMC without
obtaining commencement certificate from the NMMC, but no
action to stop such constructions are being taken for which the
concerned Ward Officer and other superior officers are
responsible for not performing their statutory functions under
the Act. He has also brought to our notice the status report for
a period from 1st January 1975 to 30th November 2023 prepared
by the NMMC, which contains details of sector-wise structures
and the dates on which commencement certificate or occupation
certificate were issued. The submission of the petitioner is that
the said list shows that though occupation certificates to a large
number of buildings have not been issued, however, the same
are being occupied and such occupation could not be permitted.
7. In the aforesaid backdrop of the facts, the prayer made by
the petitioner is that effective directions may be issued to the
Corporation to cheque illegal constructions currently going on
and also to take appropriate action against the existing illegal
constructions / structures.
8. Section 52A of the MRTP Act empowers the State
Government to formulate a scheme by specifying terms and
conditions for compounding the irregular / illegal constructions,
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however the said provision is applicable only in respect of the
unauthorised constructions which were carried out on or before
31st December 2015. Thus, such remedy of
regularization/compounding irregular / illegal construction is not
available in respect of the constructions made after 31 st
December 2015. Further, it is also the duty of the Municipal
Corporation to identify the illegal / irregular constructions and to
put the owner / occupier of such constructions to notice and
thereafter ascertain as to whether the occupier / owner has
made any application seeking compounding of irregular / illegal
structure under section 52A of the MRTP Act and the action
against such illegal / illegal structure which may be permissible
in law can be taken.
9. Having regard to the facts and circumstances of the case,
we issue the following interim directions:
a) The NMMC shall undertake a thorough survey of the
entire area within its limits to ascertain as to how many
buildings / constructions have been raised illegally /
irregularly and in respect of how many such illegal /
irregular constructions the occupiers / owners have taken
recourse to the remedy under Section 52A of the MRTP
Act.
b) While conducting the survey, information shall also be
collected by the Municipal Corporation as to how many
such illegal / irregular constructions have been raised after
31st December 2015.
c) A detailed survey report shall be brought on record of
this case by the NMMC by way of an affidavit.
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d) Once the information of the illegal / irregular
buildings and other structures is gathered / collected, the
appropriate legal action which may be permissible under
law against such illegal / irregular constructions shall be
undertaken and while taking action against such illegal /
irregular constructions, the authorities of the NMMC shall
keep in mind that the benefit of Section 52A of the MRTP
Act is permissible to be availed only in respect of those
constructions which were raised upto 31st December 2015
and not thereafter. Even in respect of the constructions
which were raised upto 31st December 2015, except for
demolition, all other actions permissible under law shall be
taken by the Municipal Corporation [in terms of the interim
order dated 26th August 2019 passed by the Hon'ble
Supreme Court in Civil Appeal (S) No.5364-5369/2019].
e) The NMMC shall also take appropriate action which
may be permissible under law in respect of those
constructions / structures where commencement
certificate/s or occupation certificate/s have not been
issued.
10. We notice that the judgment and order passed by a
coordinate bench of this Court dated 2nd November 2018 in the
batch of writ petitions / leading petition being PIL No.80 of 2013
has been challenged by the State Government before the
Hon'ble Supreme Court by filing Civil Appeal (S) No.5364-
5369/2019. We may observe that it will be in the interest of all
concerned that the State of Maharashtra may take requisite
steps for getting the hearing of the said appeals expedited.
12-PIL.111.2022
11. So far as the submissions made by Mr. Anturkar, learned
Senior Advocate that in the representative capacity, the owners
/ occupants of the illegal constructions may be ordered to be
impleaded as party respondent, we may observe that the said
issue has already been taken care of by this Court in its order
dated 26th September 2022 whereby, the petitioner was granted
liberty to publish a notice in two daily newspapers having wide
circulation in Navi Mumbai area, one in English and another in
Marathi, mentioning therein the gist of concern expressed in the
PIL Petition and the exact relief that is being sought by him.
The Court further directed that notice to be published in the two
newspapers shall indicate that any party willing to oppose the
prayers may intervene in this PIL Petition and make his
submissions in the matter. In compliance of the said order, the
notices have been published by the petitioner on 9th November
2023 in daily "Vashi Times" and on 2nd October 2022 in "Dainik
Loksatta". Thus, the petitioner need not implead any such
occupier / owner as party respondent.
12. Stand over to 3rd April 2024.
13. We request the learned Advocate General to assist the
Court on the next date of listing having regard to the nature of
the issues raised in the PIL Petition.
JAYANT
VISHWANATH
SALUNKE
(ARIF S. DOCTOR, J.) (CHIEF JUSTICE)
