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CASE NO.: Appeal (civil)  2733 of 2001

PETITIONER: Mahendra Baburao Mahadik & Ors.

RESPONDENT: Subhash Krishna Kanitkar & Ors.

DATE OF JUDGMENT: 16/03/2005

BENCH: B.P. Singh & S.B. Sinha

JUDGMENT: JUDGMENT

W I T H

CIVIL APPEAL NO. 2734 OF 2001

S.B. SINHA, J :

       These two appeals arising from a common judgment and order dated  31st July, 2000 passed by a Division Bench of the High Court of Judicature  at Bombay in writ petition No. 4675 of 1999 were taken up for hearing  together and are being disposed of by this common judgment.

FACTS :         The factual matrix is being noticed from Civil Appeal No. 2733 of  2001.         The First Respondent herein, an advocate, is said to be associated with  various social activities and had been acting as Chief Trustee of Ganpati  Devasthan, Bhiwandi.  He filed a writ petition in the nature of a Public  Interest Litigation inter alia for issuance of an appropriate direction upon  The Bhiwandi Nizampura Municipal Council (hereinafter referred to  ’Municipal Council’) to demolish a building consisting of ground and six  upper floors constructed by the Appellants herein on the land bearing City  Survey No. 3331 and House Property No. 358 and 358/1 of Kaskar Alley,  Bhiwandi, District Thane.  A further prayer was made  that the Municipal  Council be directed to furnish certified copies of extracts of assessment  register/book and permission dated 5th May, 1995 granted to the Appellants  herein in relation to the aforementioned property.  

WRIT PROCEEDINGS : In his writ petition, the first Respondent complained of illegal  constructions made in the town of Bhiwandi on private as well as  Government lands but despite the same neither any action was taken  thereupon nor any certified copy of the assessment register/ book was  supplied.   

       In the writ petition, it was contended that on the aforementioned plot  there existed a single storied structure  but the Appellants managed to obtain  a repair permission dated 5th May, 1995’ for carrying out repairs on the  ground floor and two upper floors, but construction of ground plus six floors  was started on the basis thereof.   

       The First Respondent herein sought for copies of extracts of the  assessment register for the purpose of establishing the nature of the original  structure standing on the said property but the same was denied to him on  the premise that the property in question did not stand in his name.  It was  furthermore contended that the officials of the Municipal Council colluded

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with the Appellants herein.  It was urged that such constructions had come  up solely owing to negligence and default on their part.  It was further  contended that no F.S.I. was available on the plot for  constructing  such a  huge building and, thus, the same being unauthorized was liable to be  demolished.   

       Before the High Court the Appellants did not file any return.  The  Municipal Council, however, contended that in relation to the said property a  civil suit had been pending in the Court of Civil Judge, Junior Division,  Bhiwandi wherein the Appellants  had obtained an order of status quo.  It  was further disclosed that a First Information Report in relation to the  aforementioned unauthorized construction was lodged on 4th June, 1999  under Section 43 read with Section 52 of the Maharashtra Regional and  Town Planning Act, 1966 (MRTP Act)  and Sections 119 and 217 read with  Section 34 of the Indian Penal Code wherein the Appellants as also the  officers of the Municipal Council including the then Chief Surveyor and  Chief Engineer were named as accused therein.

       Before the High Court, reliance was also placed upon a purported  resolution of the Municipal Council dated 12th October, 1998 in terms  whereof all unauthorized constructions within the municipal area were  sought to be regularized upon imposition of penalty and compounding of  offences in terms of Section 43 of the MRTP Act.  

The State of Maharashtra in its affidavit contended that it was not  inclined to approve the aforementioned resolution passed by the Municipal  Council.

JUDGMENT OF THE HIGH COURT:

       In the impugned judgment, the High Court held :

(i)     The First Respondent was entitled to inspection of documents as also  grant of  certified copies on payment of requisite charges; (ii)    Recovery of taxes in respect of unauthorized construction does not  amount to regularisation thereof; (iii)   The Resolution dated 12th October, 1998 passed by the Municipal  Council on a wholesale basis is wholly unsustainable in law. (iv)    Offences relating to unauthorized or illegal constructions cannot be  compounded and, thus, structures have to be demolished.   (v)     Regularization of such unauthorized structures  would defeat the very  purpose of introducing the rules of planned development of the city and,  thus, cases of such unauthorized constructions must be dealt with sternly.   

       It was directed: "(i) The Respondent nos. 1 and 2 are directed to issue  certified copies of the documents within four weeks as  per the applications filed by the Petitioners subject to  payment of charges.

(ii) Civil Judge (J.D.) Bhiwandi is directed to decide the  application for interim relief by Respondent nos. 4 to 6 in  Reg. Civil Suit No. 321 of 1999 within a period of eight  weeks.  The parties shall appear before the Civil Court on  4th September, 2000 and thereafter the Civil Court shall  hear the matter on day to day basis without granting any  adjournments to either side.

(iii)   Appeal filed against the order of the Trial Court, if  admitted and ad-interim or interim relief is granted, shall  be disposed of within a period of six weeks without  insisting for formal paper book.

(iv)    In case the Civil Court vacates the interim order  the Municipal Council shall demolish the building

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constructed by Respondent nos. 4 to 6 within a period of  four weeks from the date of vacation of interim relief.

(v)     The Commissioner of Police, Thane is directed to  provide adequate police protection to the municipal staff  in carrying out demolition of the building.

(vi)    The resolution dated 12th October, 1998 is quashed  and set aside.  Respondent nos. 1 and 2 are directed to  take immediate steps to demolish the unauthorized  structures in Bhivandi in accordance with law."

SUBMISSIONS:         Mr. Shekhar Naphde, learned senior counsel appearing on behalf of  the Appellants principally raised the following two contentions in support of  these appeals:   (1) Having regard to the statutory scheme contained in Sections 52 and 53 of  the MRTP Act read with Section 189 of the Maharashtra Municipal  Councils, Nagar Panchayats and Industrial Townships Act, 1965 (the  Municipal Act), the Municipal Council had the requisite jurisdiction to pass  the resolution dated 12th October, 1998 and in that view of the matter the  direction of the High Court to demolish the structure is manifestly unjust, as  pursuant to or in furtherance of such scheme of  regularization, the Appellant  could have filed an application  praying  for regularization of the  constructions raised by them.   (2) In any event, the High Court should not have exercised its discretionary  power in  directing demolition of the structure.  Strong  reliance, in this  behalf,  has been placed on Corporation of Calcutta Vs. Mulchand  Agarwalla [(1955) 2 SCR 995]

       Dr. N.M. Ghatate, learned senior counsel appearing on behalf of the  Appellants in Civil Appeal No. 2734 of 2001 and Respondent Nos. 2 & 3 in  Civil Appeal No. 2733 of 2001 supported the contention of Mr. Naphde and  furthermore urged that although a notice had been served upon the  Appellants, no demolition could be carried out in view of the order of status  quo passed by the Civil Court.  

       According to Dr. Ghatate, the Municipal Council has the requisite  jurisdiction to regularize such unauthorized constructions by compounding  offences upon accepting compounding fees prescribed therefor.

       Mr. V.A. Mohta, learned senior counsel appearing on behalf of the  First Respondent, on the other hand,  would submit that the Appellants are  guilty of commission of fraud and even in this Court got up documents have  been filed and wrong statements have been made  to bolster their cases.   According to learned counsel, Section 143 of the MRTP Act refers only to  offences and in that view of the matter, by reason thereof, except as  expressly provided for in the MRTP Act or the Municipal Act, no general  order of regularization could be issued in terms of the purported resolution  dated 12th October, 1998 or otherwise.  Provisions of Sections 52 and 53 of  the MRTP Act, Mr. Mohta would contend, would apply only during  development and not thereafter.

STATUTORY PROVISIONS:

       The relevant provisions of the MRTP Act are as under:

"2(15) "local authority" means \026  (a) the Bombay Municipal Corporation constituted under  the Bombay Municipal Corporation Act or the Nagpur  Municipal Corporation constituted under the City of  Nagpur Municpal Corporation Act, 1948, or any  Municipal Corporation constituted under the Bombay  Provincial Municipal Corporation Act, 1949.

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(b) a Council and a Nagar Panchayat constituted under  the Maharashtra Municipal Councils, Nagar Panchayats  and Industrial Townships Act, 1965

2(19) "Planning Authority" means a local authority; and  includes \026  (a) a Special Planning Authority constituted or appointed  or deemed to have been appointed under section 40; (b) in respect of the slum rehabilitation area declared  under section 3C of the Maharashtra Slum Areas  (Improvement, Clearance and Redevelopment) Act,  1971, the Slum Rehabilitation Authority appointed under  section 3A of the said Act;

44. Except as otherwise provided by rules made in this  behalf, any person not being Central or State Government  or local authority intending to carry out any development  on any land shall make an application in writing to the  Planning Authority for permission in such form and  containing such particulars and accompanied by such  documents, as may be prescribed:

Provided that, save as otherwise provided in any law, or  any rules, regulations or by-laws made under any law for  the time being in force, no such permission shall be  necessary for demolition of an existing structure, erection  or building or part thereof, in compliance of a statutory  notice from a Planning Authority or a Housing and Area  Development Board, the Bombay Repairs and  Reconstruction Board or the Bombay Slum Improvement  Board established under the Maharashtra Housing and  Area Development Act, 1976.

52. (1) Any person who, whether at his own instance or  at the instance of any other person commences,  undertakes or carries out development, or institutes, or  changes the use of any land \026  (a) without permission required under this Act; or (b) which is not in accordance with any permission  granted or in contravention of any condition subject to  which such permission has been granted; (c) after the permission for development has been duly  revoked; or (d) in contravention of any permission which has been  duly modified.

shall, on conviction, be punished with imprisonment for a  term 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 the offence  continues after conviction for the first commission of the  offence.

(2) Any person who continues to use or allows the use of  any land or building in contravention of the provisions of  a Development plan without being allowed to do so  under section 45 or 47, or where the continuance of such  use has been allowed under that section continues such  use after the period for which the use has been allowed or  without complying with the terms and conditions under  which the continuance of such use is allowed, shall, on

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conviction be punished with fine which may extend to  five thousand rupees; and in the case of a continuing  offence, with a further fine which may extend to one  hundred rupees for every day during which such offence  continues after conviction for the first commission of the  offence.

53(1) Where any development of land has been carried  out as indicated in sub-section (1) of section 52, the  Planning Authority may, subject to the provisions of this  section, serve on the owner a notice requiring him, within  such period being not less than one month, as may be  specified therein after the service of the notice, to take  such steps as may be specified in the notice.

(a) in cases specified in clause (1) or (c) of sub-section  (1) of section 52, to restore the land to its condition  existing before the said development took place,  (b) in cases specified in clause (b) or (d) of sub-section  (1) of section 52, to secure compliance with the  conditions or with the permission as modified:

Provided that, where the notice requires the  discontinuance of any use of land, the Planning Authority  shall serve a notice on the occupier also.

(2) In particular, such notice may, for purposes of sub- section (1), require \026  (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 of  withdrawal of the application the mere notice itself shall  not affect the retention of buildings or works or the  continuance of such use.

(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, 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.

124E (2) The Authority shall, on such application being  made or if no such application is made, by a person  instituting or changing any use of any land or building,  then after serving a notice in writing on the person liable  to such payment and after calling for a report in this  behalf from the concerned officer of the Authority, after  taking into consideration the report aforesaid,  determining whether or not and if so, what development  charge is leviable in respect of that development or,  institution of use or change of use and after giving the  person concerned an opportunity to be heard, shall then

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assess the amount of development charge payable by  such person and give to such person a notice in writing of  such assessment.

143. (1) The Regional Board or Planning Authority or  Development Authority concerned or any person  authorized in this behalf by general or special order may  either before or after the situation of the proceedings  compound any offence made punishable by or under this  Act or rules made thereunder.

(2) When an offence has been compounded, the offender,  if in custody, shall be discharged: and no further  proceedings shall be taken against him in respect of the  offence compounded."

       Sub-sections (2), (8) and (9) of Section 189 of the Municipal Act are  as under:

"(2) Before beginning to construct any building, the  person intending so to construct shall give to the Chief  Officer notice thereof in writing and shall furnish to him  at the same time, if required by a bye-law or by a special  order to do so, a plan showing the levels, at which the  foundation and lowest floor of such building are  proposed to be laid, by reference to some level known to  the Chief Officer, and all information required by the  bye-laws, or demanded by the Chief Officer regarding  the limits, design, ventilation and materials of the  proposed building and the intended situation and  construction of the drains, privies water-closets, house- gullies and cess pools, if any, to be used in connection  therewith, and the location of the building with reference  to any existing or projected streets, the means of access  to such building and the purpose for which the building  will be used:

Provided that, if the bye-laws of the Council so require,  such notice shall be in such form as the Council may  from time to time prescribe and such plans shall be  signed by a person possessing the qualifications laid  down in the bye-laws or licensed under the bye-laws so  to sign such plans.

(8) If any person begins any construction of a building of  which notice is required to be given under sub-section (2)  \026  (i) without the permission of the Chief Officer under sub- section (4) or of the Council under sub-section (5), save  as otherwise provided under sub-section (6); or (ii) having received permission under clause (a) of sub- section (4), contrary to the plans and information  furnished under sub-sections (2) and (3); or (iii) having received permission under clause (b) of sub- section (4) contrary to the conditions imposed under that  clause or contrary to the plans and information submitted  under sub-sections (2) and (3) in so far as such plans and  information are not modified by such conditions; or (iv) contrary to the provisions of sub-section (6), when  construction is begun under that sub-section, the Chief  Officer may, by a written notice, require such person to  stop such construction and to alter or demolish any  construction already made as specified in the notice.  If,  within fifteen days, from the service of such notice for  demolishing any such construction, the work of

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demolishing is not commenced, the Chief Officer may  cause such work to be done and the expenses incurred  therefor shall be recoverable from the person concerned  in the same manner as an amount due on account of a  property tax.

(9) Any person who fails to comply with the notice  issued by the Chief Officer under sub-section (8), shall,  on conviction, be punished with fine which may extend  to five thousand rupees."

ANALYSIS OF THE STATUTORY PROVISIONS : In terms of Section 44 of the MRTP Act, a person intending to raise  any construction is required to make an application in respect thereof to the  Planning Authority for permission in such form and containing such  particulars and accompanied by such documents, as may be prescribed.   Filing of such application and obtaining such permission concededly are  imperative in character.  Such permission, if granted, remains in force for a  period of one year unless extended by the Planning Authority.   

       Section 52 contains penal provisions.  Section 53 authorizes the local  authority to direct removal of unauthorized development.  Sub-section (1) of  Section 53 authorizes the local authority to issue a notice where a  development of land has taken place in violation of the conditions indicated  in Sub-section (1) of Section 52.   

       In terms of Sub-section (7) of Section 53, a person prosecuted under  Clause (1) of Sub-Section (6) of Section 53 will be inflicted with the  punishment specified therein.

DETERMINATION :

       The First Respondent herein in the writ petition categorically stated  that the original structure standing on the site in question was not of  permanent nature and was a single storeyed one.  Only the open land in front  of the said structure on its southern side had been taken over by the  Municipal Council for the purpose of road widening, whereafter the  Appellants made an application to the Municipal Council for grant of repair  permission which was granted for carrying out the repairs of ground as also  two upper floors, despite the fact that no upper floor was ever in existence.   Although in terms of such permission, only repairs of the existing structure  could have been carried out and that too within a period of one year from 5th  May, 1995, the Appellants herein started altogether new construction in the  year 1998.  They had erected R.C.C. framework of a building consisting of  ground plus six upper floors but have not yet finished the work.  The said  averments of the Respondents in the Writ Petition were not denied or  disputed.  In fact, as noticed hereinbefore, the Appellants herein did not file  any return before the High Court.

       Before this Court the Appellants have produced a letter of the  Municipal Council dated 4th December, 1986 addressed to the Appellant  herein wherein it is contended:

"Sub: Road Widening.

Sir,

       This is to inform you that your land on the  southern side from C.T.S. 3331 is given to the Municipal  Council after demolishing the compound wall for Road  widening and the work of drainage is in progress.

       In lieu of compensation for the said land the

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Municipal Council shall give full cooperation and  concessions."

       Such a statement has also been made in the synopsis and list of dates  at page B of Civil Appeal No. 2733 of 2001.

       However, while filing the additional documents, a copy of the said  letter dated 4th December, 1986 had been annexed which reads  as under:

"By this letter it is to inform you that on the part of your  land bearing City Survey No. 3331 towards South a  portion of land is taken for road widening purpose.  In  the said land surrendered by you the Municipal Council  has broken the compound and undertaken the work of  laying drainage, and developed a road.

       Kindly note that necessary cooperation will be  given in the matter of compensation (price) for affected  land from Municipal Council."

       The Municipal Council, therefore, in terms of its aforementioned  letter dated 4th December, 1986 did not make any promise to give full  cooperation and concession in lieu of compensation.  What was promised  was that cooperation will be given in the matter of payment of compensation  for affected land.

       It is, therefore, apparent that the Appellants have made incorrect  statements and annexed a wrong document before this Court.   

       The Municipal Council, moreover, granted only repair permission to  the Appellants, as would appear from its letter dated 5th May, 1995 wherein  it is stated:

"Sub: Repairs/ Constructions permission in respect of  remaining land upon demolition carried out for road  widening.

Ref: Reply letter No. TP/2021 dt. 4.12.86.

Sir,

       For the purpose of road widening you out of your  own initiative demolished your premises and handed over  the land affected thereby to the Municipal Council.   Repair permission for the old house, leaving the portion  of land falling under road widening, is hereby granted as  under:-

Location: Mauje Bhiwandi, City Survey No. 3331

Scope of Construction: In lieu of the land lost in road  widening, on remaining land the construction of ground +  2 story could be made, leaving the distance of 5 feet from  Municipal drainage.

Measurement: East 68’, West 38’, North 71’.

       For constructions made over and above the  aforesaid measurement, appropriate legal action will be  taken against you entirely at your risks as to costs and  consequences thereof.  Similarly in the event of any  objections on ownership, possession, easement etc. being  taken, resulting in civil as well as criminal proceedings,  the Municipal Council shall not be responsible for the  same."

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       Thus, if permission had been granted only for carrying out repairs of  an  existing building and if, in fact, there existed only ground floor, question  of grant of any permission for new construction or for that matter permission  for carrying out repairs in ground plus two storey could not have been  issued.  It, furthermore, appears that the Municipal Council on or about  6.6.1998 issued a notice asking the Appellants herein to comply with the  directions contained therein failing which it was threatened that necessary  action would be taken in terms of the provisions of the MRTP Act and the  Municipal Act and the unauthorized construction/ development would be  demolished.   

In the Schedule appended to the said notice, the structure in question  was  described as:

"Under repair permission No. TP/87 dated 5.5.95,  unauthorized construction is in progress at land bearing  City Survey No. 3331 at Bhiwandi Mauje \026 Ground + six  floors. Measurement: East 68 ft. West 38 ft. North 71 ft."        

       It appears that the Appellants had prayed for assessment of house tax  by a letter dated 25.06.1998.  In the said letter,  permission was sought for  construction of new houses for ground plus four more floors purported to be  by way of  compensation for the land lost by them by way of equalization  thereof for road widening.   There is nothing on record to show that Mr. R.R.  Patil had made any such application for carrying out the repairs.  There is  also nothing on record to show that the said Shri R.R. Patil had any F.S.I..   

       If the Municipal Council in fact had granted any permission to make  new constructions of ground and two storeyed building, there was no reason  as to why the same had not been produced before the High Court or before  us.

       We have, therefore, no option but to hold that only repair permission  had been granted to the Appellants.

       The Appellants herein in terms of the said notice dated 6.6.1998 had  the option of complying with the directions contained therein or file an  appropriate application in terms of Sub-section (3) of Section 53 of the  MRTP Act but they took recourse to neither.

       If within a period of one month from 6.6.1998 no such application  was filed, the Municipal Council was under a statutory obligation to carry  out demolition of the structure in question. It did not discharge its statutory  obligation. On the other hand, it adopted the following resolution on  22.10.1998 :

"Sub: Common disposal of cases of unauthorized/  without permission constructions by imposing penalty  under the provisions of Municipal Council Rules.

RESOLUTION

       In Bhiwandi city, it is observed that there are  unauthorized/ without permission constructions made in  large scale.  Proceedings against the unauthorized  constructions are already afoot.  However, inspite of the  actions pursuant to the decisions of the courts of law and  due to inadequate strength of municipal staff, there is no  reduction noticed in unauthorized constructions.   Similarly, it is observed that the people are residing in/  using the unauthorized construction.  Hence, only  because the constructions are unauthorized, from the

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point of view of humanity it is deemed impracticable /  improper to demolish the said constructions.  Hence, the  unauthorized constructions which are not opposed to the  Development Planning Scheme and are within the FSI,  the cases of such constructions can be commonly  disposed off by imposing penalty under the provisions of  section 143 of Maharashtra Regional and Town Planning  Act, 1966.  For dealing of such cases the powers of  Planning Authority are given to the Chief Officer,  Bhiwandi Nizampur Municipal Council, who may take  further appropriate action in that regard under the  guidance of respected Dy. Director, Town Planning,  Kokan Division, Kokan Bhawan.

       Resolution approved unanimously."

       The Appellants did not file any application for regularization of the  unauthorized constructions raised by them in terms of the aforementioned  resolution dated 22.10.1998 within a reasonable time.  They, thus, were not  entitled to obtain any order of regularization from the Municipal Council,  pursuant to the said purported resolution.

       In any view of the matter, the State of Maharashtra having not  approved the said Resolution, the question of giving effect thereto by the  Municipal Council in favour of the Appellants, as was submitted by Mr.  Naphde does not arise.

       The writ petition was filed by the First Respondent herein on  29.6.1999 and even during pendency thereof, no such application was filed  by the Appellants nor any contention was raised to the effect that they were  entitled to take recourse to the benefits contained in the said resolution.

       Once such a notice under Section 52 is served, the persons aggrieved  within the period specified therein, which in the instant case is one month,  must apply for permission for retention on the land of the building or works  under Section 44 of the MRTP Act.  Only when a permission is granted, the  notice would stand withdrawn.  The question of grant of any permission  would arise only if an application is made therefor.  As the Appellants herein  had not filed such application, the Municipal Council was obliged not only  to prosecute the owner but also to carry out the demolition in terms of the  aforementioned notice dated 6.6.1998.

       The Municipal Council is a ’local authority’ as well as planning  authority within the meaning of the provisions of Sections 2(15) and 2(19)  of the MRTP Act.

       The Municipal Council being a creature of statute was bound to carry  out its functions within the four-corners thereof.  Being a statutory authority,  it was required to follow the rules scrupulously.  Concededly, the Municipal  Council is not possessed of any statutory power to regularize unauthorized  constructions.  Its power is confined to compounding the offences in certain  cases.  Moreover, even development charges could not be  recovered from  the Appellant in respect of unauthorized constructions in terms of Section  124E(2) of the MRTP Act.

       It appears that the Municipal Council itself in terms of a letter dated  20.11.1998 sought for  guidance of the Dy. Director Town Planning stating:

"Sub: Common disposal of cases of unauthorized/  without permission constructions made within Municipal  Council limits by imposing penalty under the provisions  of Section 143 of Maharashtra Regional and Town  Planning Act, 1966.

Ref: Council’s Resolution No. 134 dt. 12.10.98.

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Sir,

       With reference to above, it is seen that in Bhiwandi  city there are large number of unauthorized/ without  permission constructions made.  Proceedings against the  said unauthorized constructions are a foot already.   However, inspite of the action taken pursuant to the  decisions of the courts of law and due to inadequate  strength of Municipal staff, there is no reduction noticed  in the unauthorized constructions.  Similarly, it is  observed that the people are residing in/ using the  unauthorized constructions.  Hence, only because the  constructions are unauthorized, the demolition of the  same is not deemed proper/ possible.  Hence, in this  regard the Municipal Council has passed a unanimous  Resolution dated 12.10.90 in General meeting, being  Resolution No. 134.  Such cases can be disposed off  commonly under the provisions of section 143 of  Maharashtra Regional and Town Planning Act, 1966,  considering Development Planning Proposal, FSI etc.   Powers for dealing such cases on behalf of the Planning  Authority is delegated to the Chief Officer.  Copy of the  Resolution is annexed hereto for perusal.  Hence, it is  requested that necessary legal and technical guidance in  that regard be kindly given."

       A reference to the Government also appears to have been made by the  Director, Town Planning by a letter dated 29th July, 2000 addressed to the  Head Secretary of the Government of Maharashtra in the following terms:

"Sub: Recovery of development fees on unauthorized  constructions.

Ref: 1) Letter dt. 27.7.99 of Chief Officer, Bhiwandi  Nizampur Municipal Council

2) Letter No. TPS \026 1299-1105/CD-12, dt. 29-3-2000 of  City/ Development Department, Govt. of Maharashtra.

Sir,  

       With reference to above referred letter of  Bhiwandi Nizampur Municipal Council, guidance is  sought for recovery of development fees on unauthorized  construction.  Considering the provisions of Section 124- E(2) of Maharashtra Regional and Town Planning Act,  1966, proceedings of recovery of development fees on  unauthorized constructions by Municipal Councils is not  proper.  Instead of that, the Municipal Councils should  take actions under the provisions of Sections 52,53 and  54 of the aforesaid Act with respect to unauthorized  constructions.  And only the constructions which can be  regularized in accordance with rules, actions for such  constructions should only be taken to regularize and  recovery of development fees in such cases would be  proper.  Accordingly, the Municipal Councils may be  advised."

       It may be true that certain demands were made upon the Appellants  herein to deposit the development charges by the Municipal Council but the  same were made without prejudice to their rights, as would appear from the  notice dated 3.11.1998.  Demand of the development charges without  prejudice to the rights of the Municipal Council did not, thus, create any  legal right in favour of the Appellants.  [See Chairman and MD, NTPC Ltd.

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Vs. Reshmi Constructions, Builders & Contractors, (2004) 2 SCC 663].

       Payment of development charges by itself, therefore, did not lead to  exoneration from the consequence of commission of an offence or  regularization of unauthorized constructions.

       The jurisdiction of a local authority is confined only to deal with  application for grant of permission for construction as contained in Section  44 of the MRTP Act whether at the initial stage or when a notice is served  under Sub-section (2) of Section 53 of the MRTP Act.  The power to grant  such permission could be exercised only within the purview of  the Building  Bye-laws.  Therefore, being beyond the scope of Section 44 of the MRTP  Act, the Municipal Council did not have any jurisdiction to direct  regularization of such unauthorized constructions by reason of the said  resolution or otherwise.  The power of the Municipal Council, it is trite,  being confined to the provisions of the said Acts, no action could be taken  by them contrary thereto or inconsistent therewith.

       In Friends Colony Development Committee Vs. State of Orissa and  Others [(2004) 8 SCC 733], this Court opined:

"25. Though the municipal laws permit deviations from  sanctioned constructions being regularized by  compounding but that is by way of exception.   Unfortunately, the exception, with the lapse of time and  frequent exercise of the discretionary power conferred by  such exception, has become the rule.  Only such  deviations deserve to be condoned as are bona fide or are  attributable to some misunderstanding or are such  deviations as where the benefit gained by demolition  would be far less than the disadvantage suffered.  Other  than these, deliberate deviations do not deserve to be  condoned and compounded.  Compounding of deviations  ought to be kept at a bare minimum.  The cases of  professional builders stand on a different footing from an  individual constructing his own building.  A professional  builder is supposed to understand the laws better and  deviations by such builders can safely be assumed to be  deliberate and done with the intention of earning profits  and hence deserve to be dealt with sternly so as to act as  a deterrent for future.  It is common knowledge that the  builders enter into underhand dealings.  Be that as it may,  the State Governments should think of levying heavy  penalties on such builders and therefrom develop a  welfare fund which can be utilized for compensating and  rehabilitating such innocent or unwary buyers who are  displaced on account of demolition of illegal  constructions."

       In M.I. Builders Pvt. Ltd. Vs. Radhey Shyam Sahu and Others [(1999)  6 SCC 464], this Court observed: "73. The High Court has directed dismantling of the  whole object and for restoration of the park to its original  condition. This Court in numerous decisions has held that  no consideration should be shown to the builder or any  other person where construction is unauthorised. This  dicta is now almost bordering the rule of law. Stress was  laid by the appellant and the prospective allottees of the  shops to exercise judicial discretion in moulding the  relief. Such a discretion cannot be exercised which  encourages illegality or perpetuates an illegality.  Unauthorised construction, if it is illegal and cannot be  compounded, has to be demolished. There is no way out.  Judicial discretion cannot be guided by expediency.  Courts are not free from statutory fetters. Justice is to be

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rendered in accordance with law. Judges are not entitled  to exercise discretion wearing the robes of judicial  discretion and pass orders based solely on their personal  predilections and peculiar dispositions. Judicial  discretion wherever it is required to be exercised has to  be in accordance with law and set legal principles. As  will be seen in moulding the relief in the present case and  allowing one of the blocks meant for parking to stand we  have been guided by the obligatory duties of the  Mahalaplika to construct and maintain parking lots."  

A discretionary power must be exercised having regard to the larger  public interest.   

In Consumer Action Group and Another  vs. State of T.N. and Others  [(2000) 7 SCC 425], this Court held :  

"While exercising such a power the authority has to keep  in mind the purpose and the policy of the Act and while  granting relief has to equate the resultant effect of such a  grant on both, viz. the public and the individual. So long  as it does not materially affect the public cause, the grant  would be to eliminate individual hardship which would  be within the permissible limit of the exercise of power.  But where it erodes the public safety, public  convenience, public health etc. the exercise of power  could not be for the furtherance of the purpose of the Act.  Minor abrasion here and there to eliminate greater  hardship, may in a given case, be justified but in no case  affecting the public at large. So every time the  Government exercises its power it has to examine and  balance this before exercising such a power. Even  otherwise, every individual right including fundamental  right is within, reasonable limit but if it makes inroads  into public rights leading to public inconveniences it has  to be curtailed to that extent. So no exemption should be  granted affecting the public at large. Various  development rules and restrictions under it are made to  ward off possible public inconvenience and safety. Thus,  whenever any power is to be exercised, the Government  must keep in mind, whether such a grant would recoil on  the public or not and to what extent. If it does then  exemption is to be refused. If the effect is marginal  compared to the hardship of an individual that may be  considered for granting\005"

       Mr. Naphde, therefore, is not correct in contending that the High  Court should have taken a lenient  view.

       In Mulchand Agarwalla (supra), whereupon  strong reliance has been  placed by Mr. Naphde, this Court upon taking into consideration the  provisions of the Calcutta Municipal Act and in view of the terminologies  contained in Section 449 thereof noticed that that the Magistrate had a  discretionary jurisdiction to pass an order of demolition and held:

"\005The conduct of the respondent in adopting a hide- and-seek attitude in completing the constructions in  deliberate defiance of the law calls for severe action. It  would be most unfortunate, and the interests of the public  will greatly suffer, if the notion were to be encouraged  that a person might with impunity break the building  rules and put up a construction and get away with it on  payment of fine. All this would be good justification for  making an order for demolition\005."

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       However, keeping in view the provisions of Sub-section (2) of Section  363 of the Act which directs that no application for demolition shall be  instituted after a lapse of five years from the date of the work, although were  found to be inapplicable, but in the fact situation obtaining therein, it was  opined:

"But then, it is now nearly five years since the building  was completed, and though section 363(2) which directs  that no application for demolition shall be instituted after  a lapse of five years from the date of the work does not,  in terms, apply as the proceedings have been started in  time, we do not feel that after the lapse of all this time, an  order for demolition is called for in the interests of the  public. We also take into account the fact that the orders  in question would not have come before us in the normal  course by way of appeal, were it not that the appellant  desired that the decision of this Court should be obtained  on certain questions of importance, and that purpose has  been achieved. On a consideration of all the  circumstances we do not think that this is a fit case in  which we should pass an order for demolition."

       The said decision, therefore, does not support the contention of the  Appellants.  

CONCLUSION :         For the reasons aforementioned, these appeals, being devoid of any  merit, are dismissed.  The Municipal Council is hereby directed to carry out  the order of the High Court, as expeditiously as possible and not later than  four weeks from date.  Having regard to the fact that the Appellants have  sought to mislead this Court, we think it appropriate to impose costs upon  them.  The Appellants are hereby directed to deposit a sum of Rs. 50,000/-  (Rupees Fifty Thousand) with National Legal Services Authority within four  weeks from date and deposit the receipt thereof in the Registry of this Court.