1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 1403 OF 2010 (Jai Kumar Modi and others -: VERSUS :- State of Maharashtra and others) WITH WRIT PETITION NO. 1408 OF 2010 (Atikabai Taher Bhai Hussain and others -: VERSUS :- State of Maharashtra and others) WITH WRIT PETITION NO. 1415 OF 2010 (Atmaram Pinjomal Vizirani and others -: VERSUS :- State of Maharashtra and others) WITH WRIT PETITION NO. 1521 OF 2010 (Aainaz Diwan Khan and others -: VERSUS :- Nagpur Municipal Corpn. and another) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI ; and P. B. VARALE, JJ. DATED : 31 st MARCH, 2010. As the regular Bench could not take up these matters, the matters have come to Special Bench. Accordingly, we have heard Mr. A.S.Jaiswal, Mr. Anand Parchure, Mr. J.M.Gandhi and Mr. A.S.Kilor, the learned counsel for respective petitioners, Mr. C.S.Kaptan, the learned counsel for respondents no.3&4 and respective learned Asstt. Government Pleaders for respondents no.1&2. The petitioners contend that the shop premises belonging to them or in their occupation and being used as such for last several years are sought to be high handedly 2 demolished under the guise of road widening scheme under City Road Development Programme. In support of the contention, our attention has been invited to the notices issued to the petitioners in the month of January, 2010. In Writ Petition No. 1408/2010, one such notice addressed to M/s Saify Shop (petitioner in that petition) is dated 29/1/2010. Along with that notice, our attention is also invited to the news item, which has appeared in the newspaper ‘Times of India’ on 7/3/2010 to contend that respondent nos.3&4 have prepared themselves for removal of said shop blocks for road widening. Today, during the hearing, a communication dated 22/3/2010, allegedly sent by respondent no.4 Executive Engineer (Projects) to the Deputy Engineer of Maharashtra State Electricity Distribution Company Ltd. (M.S.E.D.C.L.), Gandhibagh Sub-Station, Nagpur is produced for substantiating that contention. An effort is to point out that as per that communication, respondent no.4 had sought disconnection of electric supply to all the structures/constructions, then proposed to be removed, on 26/3/2010 for the purposes of road widening. The petitioners contend that unless and until the premises belonging to the petitioners are legally acquired in accordance with the provisions of law, they cannot be forcibly dispossessed and their shop blocks cannot be demolished arbitrarily. Mr. Kaptan, the learned counsel appearing for respondent nos.3&4 has stated that notice dated 3 29/1/2010 or several other similar notices, issued to various petitioners are all identical and strictly in accordance with the law. He has stated that after service of those notices, some of the petitioners have raised objections. Those objections overlooked the scope of jurisdiction available to those respondents, to whom those objections are addressed. The learned counsel has pointed out that the notices issued are under Section 56 of the Maharashtra Regional and Town Planning Act, 1956 and under Section 56, Sub-section(2), a remedy of filing an appeal to the State Government was available to the petitioners. That remedy has not been availed of. It is further stated that a person, who sustains loss of property or any other loss in the matter can also claim compensation under Section 56 of the said Act. According to the learned counsel no other provision needs to be resorted to for seeking removal of the affected portion of shops/structures belonging to the petitioners in view of user finalized in Development Plan and as an action in accordance with law has already been taken, this court should not interfere in the matter. Reliance is also placed on the judgment of learned Single Judge of this Court in the case of Kishor N. Lulla ..versus.. State of Maharashtra and others, reported in 2008(4) Bom.C.R. 478 to urge that there, in identical circumstances, this Court has refused to interfere and permitted the owner of affected structure to move for compensation under Section 56(5) of the said Act. In relation to the communication dated 22/3/2010, the 4 learned counsel states that as the document has been produced for the first time during hearing, he has no factual instructions about any such communication. However, he has tried to state that the same may be for the purposes of removal of the constructions of those persons, who have accepted voluntarily the offer made in the notices issued to them earlier. The learned counsel for the respondents no.3 & 4 has relied upon the provisions of Section 56 of the said Act and hence, the respective learned counsel for the petitioners have urged that there is no reference to that provision anywhere in any of the notices issued to any petitioner. They have also demonstrated that in the submissions filed by the respondents no.3&4, the provision under which the notice has been issued, is not disclosed. According to them, if the property of an individual in his occupation for earning his livelihood is to be prejudicely affected, the provisions of law under which the action was sought to be taken ought to have been disclosed and if the statute permitted him a remedy of appeal, that appellate forum also should have been mentioned. They, therefore, seek to contend that present notices impugned before this Court fail to fulfill the requirements of Section 56. In the alternate and without prejudice to this contention, the petitioners also state that as today for the first time before this Court the petitioners have learnt that notices issued are under Section 56, time to comply with those notices should 5 commence now and hence, the period during which the appeal can be filed to respondent no.1 State Government, should also be computed from today. Perusal of notice dated 29/1/2010, addressed to M/s Saify Shop, in W.P. No. 1408/2010 shows that it is in six parts. By first part, the portion of his shop affected by Development Plan is pointed out and he has been called upon to discontinue the user thereof. The second part calls upon him to remove the affected portion within 30 days to make that space vacant and to hand it over for road widening to the Nagpur Municipal Corporation. The third part states that in default, the action for removal of that portion will be taken by the Corporation at the risk of the petitioner. By fourth part, he has been called upon to produce his title documents and sanctioned construction/building plan, within a period of 15 days. By 5th part, an offer of compensating him by giving him 100% TDR, if he voluntarily gives the possession of affected portion to the Corporation, is also given. By the sixth and last part, it is pointed out that if notice is not complied with within the stipulated time, further action as per the provisions of the M.R.T.P. Act will be taken. The notice, therefore, nowhere shows that it is issued under Section 56 of the said Act. The petitioners have contended that as the lands vest in them, unless and until the shops/plots are acquired, the steps to demolish the affected portion cannot be undertaken and for that they 6 have pointed out procedure prescribed under Section 126 of the M.R.T.P. Act. As respondents no.3 & 4 are not relying upon Section 126 at all and they are specifying provisions of Section 56 as a source of power, it is not necessary for this Court to look into the provisions of Section 126 of the said Act, at all. Section 56 is the power to require removal of unauthorized development or use. The Planning authority is entitled to serve a notice upon owner, if it is satisfied that in the interest of proper planning of its areas, having regard to the Development Plan prepared, any use of land should be discontinued or any building or works should be altered or removed. It also enables the Planning authority to require discontinuance of such unwanted or unwarranted user and require such steps as may be specified in the notice to be taken by the owner of such structure for alteration or removal of any building or works. The Planning authority can also prescribe the period therefor and that period cannot be less than one month. When only notice dated 29/1/2010 is viewed in the background of these provisions, it is apparent that Section 56 can be said to form its source. However, said issue does not arise for determination at least for now before us. Section 56(2) of the Act permits to a person aggrieved by such notice a remedy of appeal before the State Government. The appeal is to be preferred “within 7 said period” and the reference obviously is to the period specified by the Planning authority in the notice issued under section 56(1). The scheme of Section 56 has been gone into by the learned Single Judge of this Court in the judgment in Kishor Lulla's case (supra) and in the present facts it is not now necessary for this Court to again discuss the same. The facts, however, show that even before this Court the Planning Authority has nowhere disclosed in writing that the action taken by it is under Section 56(1). If the petitioners were informed that action proposed in the impugned notices was under Section 56(1), they could have definitely become aware of their legal rights or obligations and could have filed necessary appeal under Section 56(2) or could have taken other appropriate steps according to legal advise. In the present matter, it is apparent that as no legal provision has been indicated as a source of power, the notice has been treated only as an intimation and accordingly most of the petitioners have made representation to the notice issuing authority itself. The sum and substance of those representations is to show how the exercise of road widening is not at all warranted. It is, therefore, obvious that the objections raised by them are also not in consonance with the provisions of Section 56(2). But, they have opposed the proposed action. However, it is not necessary for this Court to conclude even this issue in the present matter. We find that as the petitioners are admittedly 8 using the disputed structures since last several years, a proper opportunity to them was essential. Mr. Kaptan, the earned counsel for respondent nos.3&4 has tried to urge that road widening is the scheme undertaken in the public interest and it is backed by sanctioned development plan, which has attained finality about 10 years back. It is apparent that the steps have been taken now and whatever steps the Planning authority initiates have to be taken in accordance with law and after giving a citizen full notice of the steps being taken, consequence thereof and the rights or remedies available to him in the matter. The rights of an individual need to be balanced with public purpose and interest. In this case, we do not imply that the petitioners have been intentionally denied such an opportunity, but then it is apparent that most of them have not accepted the notices and have made grievance before the same authority. Ultimately, they have also approached this Court. Had there been a proper notice indicating the source thereof, they could have approached the competent authority with specific case and grievance. In this situation, as the respondents no.3&4 have today, for the first time, disclosed that notice dated 29/1/2010 and similar notices issued to other petitioners, are infact notice issued by them under Section 56 of the M.R.T.P. Act, the time given to the petitioners thereunder to comply, shall start running from today and if the petitioners are so advised, they can file appropriate appeal 9 under Section 56(2) of the said Act before the competent forum in accordance with law within that time. In view of these observations, it is apparent that nothing more can be done in all these petitions and hence, all these writ petitions are disposed of. No order as to costs Certified copy is expedited. JUDGE JUDGE Diwale