LexMAHENDRA BABURAO MAHADIK AND ORS. versus SUBHASH KRISHNA KANITKAR AND ORS.
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MAHENDRA BABURAO MAHADIK AND ORS. A v. SUBHASH KRISHNA KANITKAR AND ORS. MARCH 16, 2005 [B.P. SINGH AND S.B. SINHA, JJ.] B Town Planning: Maharashtra Regional and Town Planning Act, 1966-Sections 44, 52, 53, 123E and 144-Unauthorised constructions within Municipal Area - C Regularisation of-Portion of land in front of single storeyed building of a person taken by Municipal Council for widening road-Grant of repair permission of the existing building and not for new construction, however new construction carried out-Issuance of notice directing compliance with the directions-Non compliance of and also non-filing of application under section D 53(3)-Municipal Council passing Resolution to regularise unauthorised constructions on payment of penalty charges and compounding of offences but concerned person not filing any application for seeking regularization-High Court directing demolition of unauthorized structures in writ petition-On appeal, held : Municipal Council does not possess the statutory power to regularize unauthorized construction and recover development charges, but is E confined to compounding of offentes-Demand of development charges without prejudice to their rights does not create any legal right-Also since no application filed for permission for retention of land, Council obliged not only to prosecute owner but also to carry demolition-Hence, High Court rightly exercised discretionary power directing demolition of structure-Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965- F Section I 89. The Municipal Council took over portion of land in front of the single storeyed structure standing on the site of the appellant for the purpose of road widening. Appellants in lieu of lost land obtained repair/construction G permission from the Municipal Council in respect of remaining land for ground as well as two upper floors though no upper floor were in existence. Appellants then started the construction of ground floor plus six floors. Thereafter, the Municipal Council issued notice to the appellants directing 903 H 904 SUPREME COURT REPORTS [2005] 2 S.C.R. A them to comply with the directions contained therein or file an application in terms of section 53(3) of the Maharashtra Regional and Town Planning Act, 1966 but they took resort to neither. Meanwhile, the appellants sought permission for construction of new houses for ground plus four more floors against the lost land. Thereafter, the appellants adopted a resolution that the unauthorized construction without permission could be regularised on B payment of certain penalty charges and compounding of offences in terms of Section 43 of the MRTP Act. However, the appellants did not file any such application for regularization of the unauthorized constructions. First Respondent then filed a writ petition seeking issuance of C direction to the Municipal Council to demolish the building consisting of ground and six upper floors constructed by the appellants. High Court held that the Resolution was wholly unsustainable in law and the structures be demolished. Hence the present appeals. Appellants and the respondent nos. 2 and 3 in Civil Appeal No. 2733 D of 2001 inter a/ia contended that the Municipal Council had the requisite jurisdiction to pass the resolution whereby unathorised construction could be regularized and as such the direction of High Court exercising its discretionary power to demolish the structure was not just; and that the Municipal Council had the requisite jurisdiction to regularize such unauthorized constructions by compounding offences upon accepting E compounding fees. First Respondent contended that the appellants filed wrong documents and statements before .this Court to bolster their cases; and that no general order of regularization could be issued in terms of the F purported resolution. Dismissing the appeal, the Court HELD : 1. A discretionary power must be exercised having regard to the larger public interest. It cannot be said that the High Court should have taken a lenient view with regard to the demolition of unauthorised G constructions. Therefore, the Municipal Council is directed to carry out the demolition order passed by the High Court, as expeditiously as possible. (924-B, G; 925-H) Corporation of Calcutta v. Mu/chand Agarwal/a,· (1955) 2 SCR 995, H distinguished. ', l I - L t .L M.B. MAHADIK v. S.K. KANITKAR 905
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