WP 3732/04 & 4712/04 - 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.3732/2004 1] Sanjay Bhila Patil, age 40 yrs., occu.business, r/o Akash Vihar Diversion Road, Dondaicha Tq.Sindkheda Dist.Dhule. 2] Sahebrao Ramchandra Shelke, age 54 yrs., occu.service, r/o Mahadeopura, Dondaicha Tq.Sindkheda Dist.Dhule. 3] Shakil Ramzan Khatik, age 38 yrs., occu.social work, r/o Govind Nagar, Dondaicha. Tq.Sindkheda Dist.Dhule. ...Petitioners.. Versus 1] The State of Maharashtra, through Urban Development Department, Mantralaya, Mumbai. 2] Shri Sunil Tatkare, age major, occu.Minister, The Hon’ble Minister for Urban Development, Mantralaya, Mumbai. 3] Dondaicha Warwade Municipal Council, Dondaicha Tq.Sindkheda Dist.Dhule. 4] The Collector, Dhule. Dist.Dhule. WP 3732/04 & 4712/04 - 2 - 5] The Town Planner, Dhule Town Planning Office, Dhule. Tq. & Dist.Dhule. 6] President, Ganesh Market, Nandurbar Road, Dondaicha Dist.Dhule. 7] Secretary, Ganesh Market, Nandurbar Road, Dondaicha Dist.Dhule. 8] President, Govindbhau Shopping Market, Nandurbar Road, Dondaicha Dist.Dhule. 9] Secretary, Govindbhau Shopping Market, Nandurbar Road, Dondaicha Dist.Dhule. 10] President, Vyankatesh Market, Nandurbar Road, Dondaicha Dist.Dhule. 11] Secretary, Vyankatesh Market, Nandurbar Road, Dondaicha Dist.Dhule. 12] President, Jawahar Market Shopkeepers Association, Nandurbar Road, Dondaicha Shindkheda Dist.Dhule. Viz. Shri Yusuf s/o Hatimbhai Khudijani. ...Respondents... ..... Petition is dismissed as against petitioner no.1 for want of prosecution. Petition is abated as against petitioner no.2 as he has expired. Shri D.P. Palodkar, Advocate for petitioner no.3. Smt.A.V. Gondhalekar, AGP for respondent nos.1,4 & 5. Respondent no.2 served. Shri Milind Patil, Advocate for respondent no.3. Shri H.F. Pawar, Advocate for respondent nos.6 & 7. Shri N.D. Sonawane, Advocate h/f Shri V.D. Hon, Advocate for respondent no.8. Respondent no.9 served. Shri S.B. Talekar, Advocate for respondent nos.10 & 11. Shri Rahul S. Pawar, Advocate for respondent no.12. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= WP 3732/04 & 4712/04 - 3 - WRIT PETITION NO.4712/2004 The Dondaicha Agricultural Produce Market Committee, Dondaicha, through its Secretary, Shantaram s/o Pandurang Naik, age 58 yrs., occu.service, r/o Dondaicha Tq.Shindkheda Dist.Dhule. ...Petitioner.. Versus 1] The State of Maharashtra through its Secretary, Urban Development Department, Maharashtra State, Mantralaya, Mumbai-32 2] The Minister, Urban Development, Maharashtra State, Mantralaya, Mumbai-32. 3] The Director, Municipal Administration, Municipal Administration Directorate, Worli, Mumbai. 4] The Divisional Commissioner and Regional Director, Municipal Administration, Nasik Division, Nasik. 5] Dy. Director, Town Planning Department, Nasik Division, Nasik. 6] Asstt. Director, Town Planning Department, Dhule, Dist. Dhule. 7] The Collector, Dhule, Dist. Dhule. WP 3732/04 & 4712/04 - 4 - 8] Sub-Divisional Officer, Shirpur, Sub-Division, Shirpur, Dist. Dhule. 9] Dondaicha Varvade Municipal Council, Dondaicha, Dist. Dhule Through its Chief Officer. 10] The Chief Engineer, Dondaicha Varvade Municipal Council, Dondaicha, Dist Dhule. 11] The President, Govindbhau Shopping Centre, Commercial Organization, Nandurbar Road, Dondaicha through its President, Shri. Gopaldas Khanumal Kukreja Age : 63 years, Occ : Trader, R/o Dondicha, Dist. Dhule. ...Respondents.. ..... Shri P.P. Chavan, Advocate for petitioner. Smt.A.V. Gondhalekar, AGP for respondent nos.1 to 8. Shri Milind Patil, Advocate for respondent no.9. Respondent no.10 served. Shri N.D. Sonawane, Advocate h/f Shri V.D. Hon, Advocate for respondent no.11. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= CORAM: B.R. GAVAI & M.T. JOSHI, JJ. JUDGMENT RESERVED ON 13.10.2011 JUDGMENT PRONOUNCED ON 21.10.2011 WP 3732/04 & 4712/04 - 5 - JUDGMENT (Per Gavai, J.) : 1] The petitioners in Writ Petition No.3732/2004 have approached this Court challenging the order passed by the Hon’ble Minister of State, Urban Development, dated 19.9.2003 vide which the Hon’ble Minister has directed first to make minor modification in the town planning scheme of the respondent – Municipal Council and regularize the shops in the markets named as Ganesh Market, Govindbhau Shopping Market, Vyankatesh Market etc. situated on Nandurbar-Dhule road within the jurisdiction of Dondaicha-Warwade Municipal Council and not to evict the said shops till then. The petitioners have also sought a direction to the respondents to remove the encroachment on the public road i.e. Nandurbar-Dhule road. The petition was allowed vide order dated 27.1.2009 by this Court. However, review applications were filed on behalf of some of the respondents, being Review Applications Nos.28/2009, 29/2009 and 30/2009 contending that they did not remain present in the Court, when the matter was decided on 27.1.2009, as it was agreed between the counsel for the parties that an adjournment will be sought. This Court had, therefore, allowed the review applications and recalled the order dated 27.1.2009. As such the petition was restored to file. 2] Writ Petition No.4712/2004 is filed by Dondaicha Agricultural Produce Market Committee, for the very same relief claimed in Writ Petition No.3732/2004. WP 3732/04 & 4712/04 - 6 - 3] On the last occasion i.e. on 13.10.2011, we have extensively heard the learned counsel for the parties. 4] Shri D.P. Palodkar, learned counsel on behalf of the petitioners contended that Nandurbar-Dhule road, which passes through the Municipal limits of Dondaicha, is the main road in Dondaicha town. It is their contention that the railway station, bus stand, APMC etc. are all situated on this road. It is submitted that in the town planning scheme, the width of the road is shown as 110 ft. However, on account of encroachment on both sides of the road, the road has been narrowed down to 35 to 40 ft. It is submitted that Dondaicha is a commercial town and frequency of traffic on this road is very high. It is submitted that hundreds of vehicles pass daily through this road. It is submitted that since all the major institutions like Bus Stand, Railway Station, Agricultural Produce Market Committee etc. are situated on this road, there is heavy traffic of trucks, tempos, bullock-carts, tractors, rickshaws, cars etc. It is, therefore, submitted that due to narrowing down of the road on account of encroachments, there is lot of congestion on the road leading to frequent traffic jams causing inconvenience to the residents and the citizens. It is submitted that the Municipal Council had, therefore, rightly resolved to remove the encroachments on this road. It is submitted that the Hon’ble Minister in an illegal and improper manner has passed the order impugned, which restrains the Municipal Council from removing the encroachments on the public road. WP 3732/04 & 4712/04 - 7 - 5] Shri Milind Patil, learned counsel appearing on behalf of the respondent – Municipal Council, submits that the Municipal Council also wants to remove the encroachments and widen the public road. He submits that as a matter of fact, a resolution has been passed by the Municipal Council to remove these encroachments on 17.10.2008, however, the same could not be removed in view of the order impugned in the present petition. He further submits that the Municipal Council has also filed a separate petition being Writ Petition No. 7610/2010 challenging the order passed by the Hon’ble Minister and seeking the same relief as made in the above two writ petitions. Shri S.B. Talekar, the learned counsel on behalf of the respondent nos.10 & 11 and the other learned counsel appearing on behalf of the respondent – shop keepers association, on the contrary submit that now there is alternative diversion available due to which it is not necessary that the width of the road should be 110 ft. They submit that the said shop keepers are carrying on their business for decades together. It is submitted that the Hon’ble Minister has rightly passed an order, which protects the livelihood of the shop keepers. 6] The perusal of the impugned order would reveal that prior to passing the impugned order, there was an earlier order dated 17.5.2003 vide which the Hon’ble Minister had granted stay to removal of encroachment. It further appears from perusal of paragraph no.3 thereof, that the concerned Department had put WP 3732/04 & 4712/04 - 8 - up a noting dated 23.7.2003 bringing to the notice various judgments and orders of the High Court as well as the Apex Court in respect of the encroachments on public road and removal thereof. It appears that as such the Hon’ble Minister had vacated the order dated 17.5.2003 and kept the matter for hearing on 10.9.2003. In spite of this, the Hon’ble Minister has passed the order impugned herein. 7] The Division Bench of this Court in the case of Govind Nagar Shop Keepers Association and another V/s State of Maharashtra & others 1998 (2) Mh.L.J., 45 has observed thus: “11. There can be no dispute that these petitioners do not have even a semblance of right. True it is that practically most of them were the refugees from Pakistan and were given the plots to construct the houses with the sole idea of rehabilitating them. The Corporation does not want to even touch the houses. However, if the persons like the petitioners become avaricious and start encroaching the road side for their personal goal, there would be hardly any justification in reading any right in them. The road side on which the encroachments are made is a road shown in the development plan to be of 60 feet width. With the encroachments the width of the road has been so much affected that not even the half of the road at some places has remained. Under such circumstances, it cannot be said that there was any justification on the part of the petitioners to encroach. Once this position is obtained, there would hardly be any right in the petitioners to demand an alternative site. The petitioner did not oblige anybody in encroaching upon the road-side. True it is that they have a right to exist and carry on their trade but not at the cost of public properties and public enjoyment of those properties like the public road. The WP 3732/04 & 4712/04 - 9 - assertion of the learned Counsel that unless an alternative arrangement was made, the demolitions would not be affected has, therefore, to be rejected forthwith.” Another Division Bench of this Court in the case of Gangadhar Narayan Wat V/s State of Maharashtra ( 2006 (1) ALL M.R. 241 ) has observed thus: “Having said so, we now come to the facts of the present case. It must be made clear that any encroachments on public roads and foot paths cannot be legalized even if there be a policy of State Government. That policy cannot prevail over the provisions of the relevant Act and Rules, unless there be an Act which overrules the provisions of the Act governing the Nagpur Municipal Corporation. Public roads and foot paths must be kept free from all encroachments.” The same view has been taken by Division Bench of this Court in the case of Mohansing V/s State of Maharashtra reported in 2010 (6) Mh.L.J., 869, to which one of us (B.R. Gavai, J.) was a party. In the said case, on the basis of interpretation of definition of sub-section (48) of Section 2 and Section 88 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, which undisputedly governs the present Municipal Council also, has held that all the streets vest in the Municipal Council and even the Council does not have power to permit any construction on the street. 8] It can clearly be seen that in the present case, the Hon’ble Minister has passed an order, without taking into consideration the larger public interest and WP 3732/04 & 4712/04 - 10 - has only taken into consideration the interest of few shop keepers, who have encroached on public road. The perusal of the impugned order itself would reveal that the Department concerned itself had specifically pointed out to the Hon’ble Minister that the order staying the encroachment would amount to violation of various orders passed by the Supreme Court as well as the High Court regarding encroachments on the public roads and removal thereof. Not only this, but in view of the said noting by the Department on 23.7.2003, the earlier orders passed by the Hon’ble Minister on 17.5.2003 granting stay to removal of stay were vacated. However, in spite of that and without even caring to discuss the objection of the Department regarding violation of the orders of the High Court and the Supreme Court, the Hon’ble Minister has passed the impugned order. It can clearly be seen from the impugned order that the Hon’ble Minister though states that he has considered all the aspects of the matter, he has not even cared to give any reasons as to why the impugned order has been passed. The order states that after considering the rival submissions, the impugned order has been passed. Though the order states so, we are unable to find any considerations in the order passed by the Hon’ble Minister. The order is as cryptic as it could be, without disclosing any reasons as to why the order is being passed. We find that the order passed by the Hon’ble Minister is totally against the public interest. We find that the Hon’ble Minister has unjustifiedly directed the Municipal Council to start the proceedings for minor modification of the town planning scheme u/s 37 and thereafter regularize the encroachments made by the shop keepers on the public WP 3732/04 & 4712/04 - 11 - road and till then has directed the said encroachments not to be removed. At the cost of repetition, we are constrained to state that while passing the said order, the Hon’ble Minister has not at all taken into consideration the public interest. It is further to be noted that the Hon’ble Minister has not even cared to take into consideration the directives issued by the Director of Town Planning, Maharashtra State, Pune, as way back as on 18.9.1978 vide which the said authority has directed the respondent – Municipal Council to take immediate steps against the encroachers for removal of the encroachments. He has stated that the Municipal Council, in exercise of the powers vested in it by virtue of Section 55 of the Maharashtra Regional Town Planning Act, 1956, is entitled to summarily remove the unauthorized structures with the help of the District Magistrate. It can further be seen that the Hon’ble Minister has not even cared to discuss the inconvenience that is caused to the citizens due to congestion of the road on account of unauthorized encroachments. As already stated hereinabove, the road in question is the one having heavy traffic and due to narrowing down of the road, there is heavy congestion leading to traffic jams and inconvenience to the public at large. The Hon’ble Minister has even not cared to observe as to how the personal interest of few shop owners outweighs the larger interest of the citizens using the said road. 9] Apart from that, we also find that the shop keepers on this public road would not be deprived of their livelihood. The respondent – Municipal Council in its WP 3732/04 & 4712/04 - 12 - affidavit dated 15.1.2009 has stated thus: “16] I say that, the Municipal Council has constructed a double storied shopping complex, namely Ahilyadevi shopping complex, in the gat no.123, wherein 67 shops are available on each of the floor. Out of total 134 shops about 87 shops are vacant and available for accommodating the encroachers. The APMC Dondaicha has constructed a big shopping complex and about 225 shops are vacant and available to accommodate the encroachers. The available shops are more than sufficient to accommodate all of the encroachers. 17] I say that the encroachers did not respond to the efforts of Dondaicha – Varwade Nagar Parishad to ensure rehabilitation. In the month of April / May 2003, the Municipal Council initiated a move to remove encroachments. However, there was some political interference and under such political influence the learned Deputy Secretary of the Urban Development Department of the State of Maharashtra by his order 9th May 2003 stayed move of removal of encroachments as initiated by Varwade-Dondaicha Nagar Parishad, Dhule.” In order to ensure that the shop keepers do not come on road, we had directed the learned counsel for the Municipal Council to file an additional affidavit. Accordingly, an additional affidavit has been filed by the Chief Officer of the WP 3732/04 & 4712/04 - 13 - Municipal Council on 13.10.2011 wherein it is stated thus: “2] I say that, as stated in the earlier affidavit in reply, the municipal council has constructed a double storied shopping complex, namely Ahilyadevi shopping complex, in the gat no.123, wherein 67 shops are constructed on each of the floor and out of total 134 shops about 87 shops were vacant and available for accommodating the encroachers on the date of the said affidavit. Since the encroachers had not responded to the requests of the Municipal Council, and considering the aspects of maintenance and income from the said shops, the Municipal Council had allotted those shops to the other willing persons. 3] I say that, as on the date, the Municipal Council is about to initiate construction of three more shopping complexes out of which two complexes to be constructed in Sy.No.123, of which the first floor is constructed and already occupied and second floor to be constructed will accommodate 56 shops, and Sy.No.331 would accommodate 62 shops, are adjacent to the Nandurbar – Dhule road. Proposed shopping complex in City Sy.No.545 will accommodate about 28 shops. The City Sy.No.545 is located in the commercial area called as Shivaji Chowk and commercially is having more potential than the Nandurbar Dhule road. Copies of maps of the proposed shopping complexes, which are awaiting technical sanction, to be constructed in CTS No.545 and Sy.No.331 are annexed hereto at Exhibits – I and II, respectively. 4] I say that, the Municipal Council is in a position to complete the construction of proposed shopping complexes within nine months from the date of technical sanction. The municipal council will ensure construction of the shopping complex within nine months from the date of technical sanction. WP 3732/04 & 4712/04 - 14 - 5] I say that, some of the encroachers to be removed have already arranged for alternate shops. Details of the same are not readily available, however, for the purposes of demonstration, I hereby place on record permission granted to twenty people to construct a shopping complex with forty shops. The said permission is annexed hereto at Exhibit III. 6] I say that, the shops which would be available on construction of shopping complexes by the Municipal Council, by the pleadings in W.P.No.4712 of 2004, more particularly the pleading in para 15 and 17 of the said petition had informed this honourable court that, in the shopping complex constructed by the APMC, shops are available to accommodate the encroachers, rather, those shops are constructed by the APMC to accommodate those encroachers. These shops are just behind the present locations of the encroachers. For the sake of convenience, I hereby annex relevant extracts of the petition memo of the W.P.No.4712 of 2004 at Exhibit IV.” 10] It can thus clearly be seen from the said averments that more than sufficient number of shops would be available with the Municipal Council for accommodating the shop keepers. It is also to be noted that the said shops are also situated in commercial area known as Shivaji Chowk. It is also pertinent to note that the respondent – APMC has also filed the petition for the same relief as claimed in the Writ Petition No.3732/2004 contending that it has also constructed commercial complex for housing the encroachers. In that view of the matter, we find that the shop keepers on the public road would not be deprived of their livelihood inasmuch as they can be accommodated in the shopping complex WP 3732/04 & 4712/04 - 15 - already constructed by the Municipal Council or the APMC and in the shopping complex, which the respondent – Municipal Council has proposed to construct. An apprehension was raised on behalf of some of the respondent - shop keepers that the Municipal Council would pick and choose certain areas for removal of encroachments. However, in the aforesaid affidavit filed on behalf of the Municipal Council, it is categorically stated thus: “ Subject matter of the present petition is encroachments over Nandurbar – Dhule road passing through the limits of the Municipal Council Varwade – Dondaicha. I hereby undertake that, the Municipal Council will remove all the encroachments on the Nandurbar – Dhule Road within the limits of the Municipal Council and will not make any exception while removing the encroachments on the said road. I say that, initially, on 11th April, 1986, the length o the road, when it was transferred to the Municipal Council, Dondaicha was 1100 meters and the width was 30.48 meters. Now, in view of extension of municipal limits, the length of the said road included in the Municipal limits is approximately about three kilometers. The Municipal Council proposes and is willing to remove encroachments over the entire length of the road within the limits of the Municipal Council.” It can thus clearly be seen that the Municipal Council has expressed its willingness to remove the encroachments over the entire length of the road within the limits of the Municipal Council. As such the apprehension on behalf of some of the shop keepers is totally unwarranted. In that view of the matter, we find that the impugned order passed by the Hon’ble Minister, which has acted as an WP 3732/04 & 4712/04 - 16 - impediment for almost eight years in removal of the encroachments by the Municipal Council in widening the road, is not sustainable in law. We have, therefore, no hesitation to hold that the order passed by the Hon’ble Minister is totally against the public interest of citizens at large of Dondaicha town. 11] The impugned order dated 19.9.2003 passed by the Hon’ble Minister is, therefore, quashed and set aside. The respondent – Municipal Council is directed to remove the encroachments on the entire Nandurbaqr-Dhule road passing through the Municipal limits of Dondaicha – Warwade Municipal Council, Dondaicha. The District Collector, Dhule and the Superintendent of Police, Dhule, are directed to render necessary assistance to the Municipal Council, Dondaicha – Warwade for doing so. The respondent – Municipal Council and the APMC, Dondaicha, are directed to give preference to the allotment of shops in the shopping complexes constructed by them or proposed to be constructed by them to the shop keepers situated on the road, on the terms and conditions to be decided by the Municipal Council and /or the APMC, as the case may be. The shop keepers desirous of availing the preference would make the application to the Municipal Council within a period of 15 days from today. On such application being made, the respondent – Municipal Council and /or the APMC would take decision thereon within a period of one month therefrom. The alternative accommodation shall be provided to such shop keepers, who have applied and who are found to be eligible by the Municipal WP 3732/04 & 4712/04 - 17 - Council, within a period of one year from today. Rule is accordingly made absolute in both the petitions. (M.T. JOSHI, J.) (B.R. GAVAI, J.) After the above judgment is pronounced by us today, Shri S.B. Talekar, the learned counsel appearing on behalf of the shop keepers, requests for stay of our order for a period of eight weeks from today. Shri H.F. Pawar, learned counsel for the respondent nos.6 & 7, also submits that on account of Diwali season, it will be difficult for the shop keepers to shift the shops immediately and, therefore, requests for stay of the order at least till 31.10.2011. In the order passed by us, we have clearly observed that the order passed by the Hon’ble Minister is totally against the public interest. On account of an illegal order passed by the Hon’ble Minister, the steps, which the Municipal Council was intending to take for removal of unauthorized encroachments, have been stalled from 2003 to 2011. We find that as against personal interest of few shop keepers, the larger public interest of citizens at large should prevail. In that view of the matter, we are not inclined to grant the prayer as