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Thursday, May 9, 2013

UNAUTHORISED CONSTRUCTION OF APARTMENTS WITH OUT PERMISSION UNDER Maharashtra Regional and Town Planning Act, 1966 (for short, 'the 1966 Act') = fresh writ petition on third round litigation = the action taken by the Corporation is ultra vires the provision contained in Section 53(3) of the Maharashtra Regional and Town Planning Act, 1966 (for short, 'the 1966 Act') and held that in view of the observations made by this Court, the High Court cannot interfere with the notices issued under Section 488 of the 1888 Act. We have also gone through Section 53 of the 1966 Act relied upon by Shri Nariman in support of his argument that the Corporation is not entitled to carry out the demolition without giving notice to the occupiers under proviso to Section 53(3). In our opinion, the petitioners are not entitled to invoke Section 53(3) of the 1966 Act in this round of litigation and seek protection of the construction which has been found to be illegal. While deciding Civil Appeal No.7934/2012 and connected matters this Court considered all the contentions urged on behalf of the housing societies and their members and rejected the same by assigning detailed reasons. Therefore, the petitioners cannot be allowed to raise a new plea and frustrate the action being taken by the Corporation in furtherance of the notices issued earlier and the observations made by this Court.= giving only 48 hours= keeping in view the fact that the occupants of the illegally constructed flats may not have got sufficient time to vacate the same, we allow five months time to the petitioners and other occupiers of illegal portions of the buildings to vacate the same. This would be subject to the following conditions: i) Within four weeks from today they shall file affidavits in this Court and give unequivocal undertaking that at the end of five months period all of them will voluntarily vacate the disputed portions of the buildings and will not cause any hindrance in the action which may be taken by the Corporation in the light of the observations made by this Court in judgment dated 27.2.2013 in Civil Appeal No.7934/2012 and connected matters. ii) During the period of five months, the petitioners and other occupiers shall not induct any other person in the disputed premises. They shall also not file litigation of any kind in the Bombay High Court or the Courts subordinate to the High Court for frustrating the action already taken by the Corporation or which may be taken hereinafter. Shri Nariman says that the Corporation has disconnected the amenities including the lift service to the buildings in question. Shri Vahanvati, learned Attorney General says that all the amenities which were available to the buildings till last week of April shall be continued for a further period of five months and if any service has been discontinued in the meantime, the same shall be restored immediately. It is made clear that at the end of five months period the Corporation shall have to take action in the light of the observations made in judgment dated 27.2.2013.


ITEM NO.301 COURT NO.3 SECTION IX


S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (Civil) No(s).17002/2013

(From the judgement and order dated 29/04/2013 in WP No.1076/2013 of The
HIGH COURT OF BOMBAY)

RAJESH S. PAREKH & ORS. Petitioner(s)

VERSUS

STATE OF MAHARASHTRA & ORS. Respondent(s)

(With appln(s) for exemption from filing c/c of the impugned Judgment and
with prayer for interim relief and office report)

Date: 02/05/2013 This Petition was called on for hearing today.

CORAM :
HON'BLE MR. JUSTICE G.S. SINGHVI
HON'BLE MR. JUSTICE SUDHANSU JYOTI MUKHOPADHAYA

For Petitioner(s) Mr.F.S.Nariman, Sr.Adv.
Mr.Jaideep Gupta, Sr.Adv.
Mr.Rajendra Pai, Adv.
Mr.Shivaji M.Jadhav, Adv.
Mr.Aloukik Pai, Adv.
Mr.Kamlesh Kharade, Adv.
Mr. Venkita Subramoniam T.R.,Adv.
Mr.Anish Shah, Adv.

For Respondent(s) Mr.Goolam E.Vahanvati, AG
Mr.Pallav Shishodia, Sr.Adv.
Mr.S.Sukumaran, Adv.
Mr.J.J.Xavier, Adv.
Mr.Anand Sukumar, Adv.
Mr.Bhupesh Kumar Pathak, Adv.
Ms.Meera Mathur, Adv.

UPON hearing counsel the Court made the following

O R D E R

This petition filed by Rajesh S.Parekh and three others against
order dated 29.04.2013 of the Division Bench of the Bombay High Court in
Writ Petition No.1076/2013 is another attempt by the owners/occupiers of
flats in the buildings constructed in Campa Cola Compound, Wroli to stall
the action initiated by the officers and employees of the Municipal
Corporation of Mumbai (for short, 'the Corporation') for demolition of the
illegally constructed portions of the buildings.


Two of the petitioners are members of B.Y.Apartments Cooperative
Housing Society Ltd. and the other two are members of Esha Ekta Cooperative
Housing Society Ltd. 
These two societies and Patel Apartments Cooperative
Housing Society Limited, Orchid Cooperative Housing Society Limited,
Midtown Apartments Cooperative Housing Society Limited and Shubh Apartment
Cooperative Housing Society Limited and some of their members filed long
cause suits for quashing notices dated 11.11.2005, 19.11.2005 and 5.12.2005
issued by the Corporation under Section 351 of the Mumbai Municipal
Corporation Act, 1888 (for short, 'the 1888 Act') and order dated
3/8.12.2005 passed by the Competent Authority. 
They also filed applications
for restraining the Corporation from demolishing the illegal portions of the building. 

The applications were dismissed by the trial Court on the
ground that the developers/builders had constructed many floors without obtaining permission from the Planning Authority. 

The trial Court also
observed that the members of the housing societies were very much aware of
the illegal nature of the construction and they were not entitled to
injunction. 

The appeals filed by the housing societies and their members
were dismissed by the learned Single Judge of the Bombay High Court. 
The
special leave petitions filed by them, which were converted into Civil
Appeal Nos. 7934-7938/2012 were dismissed by this Court vide judgment dated
27.2.2013.
 Writ Petition No.6550/2010 filed by Campa Cola Residents'
Association, of which residents of the six housing societies are members,
for regularization of the illegal construction was transferred to this
Court vide order dated 29.2.2012 and was registered as Transferred Case
(Civil) No.55/2012. 

The same was also dismissed along with the civil
appeals and it was declared that there is no impediment in the
implementation of notices issued by the Corporation.

 Paragraphs 45 to 47 of
judgment dated 27.2.2013 are reproduced below:

"45. In view of the above discussion, 
we hold that the
petitioners in the transferred case have failed to make out a
case for directing the respondents to regularize the
construction made in violation of the sanctioned plan. 

Rather,
the ratio of the above-noted judgments and, in particular, Royal
Paradise Hotel (P) Ltd. v. State of Haryana and Ors. (supra) is
clearly attracted in the present case. 

We would like to
reiterate that no authority administering municipal laws and
other similar laws can encourage violation of the sanctioned
plan. 

The Courts are also expected to refrain from exercising
equitable jurisdiction for regularization of illegal and
unauthorized constructions else it would encourage violators of
the planning laws and destroy the very idea and concept of
planned development of urban as well as rural areas.

46. In the result, the appeals and the transferred case are
dismissed and it is declared that there is no impediment in the
implementation of notices issued by the Corporation under
Section 351 of the 1888 Act and order dated 3/8.12.2005 passed
by the competent authority and the Corporation shall take
necessary action in the matter at the earliest.


47. We also direct that the State Government and its
functionaries/officers as also the officers/employees of the
Corporation shall not put any hurdle or obstacle in the
implementation of notices issued under Section 351 of the 1888
Act."




When the Corporation initiated action to demolish the illegal
portions of the buildings, the petitioners herein filed Writ Petition
No.1076/2013. Some other members of the cooperative housing societies filed
Writ Petition No. 1077/2013 with similar prayer. 
The Division Bench of the
High Court referred to the judgment of this Court in Civil Appeal
No.7934/2012
 - Esha Ekta Apartments Co-operative Housing Society Limited
and others v. Municipal Corporation of Mumbai and others and connected
matters,

 noticed the argument of the petitioners that 
the action taken by
the Corporation is ultra vires the provision contained in Section 53(3) of
the Maharashtra Regional and Town Planning Act, 1966 (for short, 'the 1966
Act') and held that in view of the observations made by this Court, the
High Court cannot interfere with the notices issued under Section 488 of
the 1888 Act.


We have heard Shri F.S.Nariman, learned senior counsel for the
petitioners and Shri Goolam E.Vahanvati, learned Attorney General appearing
for the Corporation and carefully perused the record. 
We have also gone
through Section 53 of the 1966 Act relied upon by Shri Nariman in support of his argument that the Corporation is not entitled to carry out the demolition without giving notice to the occupiers under proviso to Section 53(3).


In our opinion, the petitioners are not entitled to invoke
Section 53(3) of the 1966 Act in this round of litigation and seek
protection of the construction which has been found to be illegal. 
While
deciding Civil Appeal No.7934/2012 and connected matters this Court
considered all the contentions urged on behalf of the housing societies and
their members and rejected the same by assigning detailed reasons.


Therefore, the petitioners cannot be allowed to raise a new plea and
frustrate the action being taken by the Corporation in furtherance of the
notices issued earlier and the observations made by this Court.

Shri Nariman criticised the Corporation for giving only 48 hours
notice to the occupiers of the illegal portions of the building, but we do
not thing that the officers and employees of the Corporation can be blamed
for having taken action in the light of the notices issued in 2005 and the
judgment of this Court.


The special leave petition is accordingly dismissed.
 However,
keeping in view the fact that the occupants of the illegally constructed
flats may not have got sufficient time to vacate the same, we allow five
months time to the petitioners and other occupiers of illegal portions of
the buildings to vacate the same. This would be subject to the following
conditions:

i) Within four weeks from today they shall file affidavits in
this Court and give unequivocal undertaking that at the end of
five months period all of them will voluntarily vacate the
disputed portions of the buildings and will not cause any
hindrance in the action which may be taken by the Corporation in
the light of the observations made by this Court in judgment
dated 27.2.2013 in Civil Appeal No.7934/2012 and connected
matters.


ii) During the period of five months, the petitioners and
other occupiers shall not induct any other person in the disputed
premises. They shall also not file litigation of any kind in the
Bombay High Court or the Courts subordinate to the High Court for
frustrating the action already taken by the Corporation or which
may be taken hereinafter.


Shri Nariman says that the Corporation has disconnected the
amenities including the lift service to the buildings in question. Shri
Vahanvati, learned Attorney General says that all the amenities which were
available to the buildings till last week of April shall be continued for a
further period of five months and if any service has been discontinued in
the meantime, the same shall be restored immediately.

It is made clear that at the end of five months period the
Corporation shall have to take action in the light of the observations made
in judgment dated 27.2.2013.

(Satish K.Yadav) (Phoolan Wati Arora)
Court Master Court Master





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