159wp171.07.odt 1 . IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Writ Petition No. 171 of 2007 (Ramesh Arjundas Sachdev .vs. State and Ors.) Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's orders Coram: D.D.Sinha and P.B.Varale, JJ. Date : 15/09/2009. Heard Ms Trupti Udeshi, Adv. for petitioner, Mrs.B.H.Dangre, Additional Public Prosecutor for respondent nos. 1 to 7 and 10 and 11, Mr.Abhay Sambre, Adv. for respondent No.8 and Mr. Uday Dastane, Adv. for respondent no.9. Counsel for the petitioner states that the grievance of petitioner raised in the present petition is in respect of alleged illegal activities carried out by respondent no.9, who is owner of the premises in question. It is submitted that respondent no.9 has been carrying out following illegal activities for a long time and in respect of the same, complaints were made by the petitioner to the Commissioner, Nagpur Division, Nagpur; the Collector, Wardha; the Chief 159wp171.07.odt 2 . Officer, Nagar Parishad, Wardha and the Superintendent of Police, Wardha, these Authorities have failed to take any action against respondent no.9 for carrying out the illegal activities. It is submitted that the nature of illegal activities alleged to have been carried out by respondent no.9 are as follows : (a) The construction of the building in question is not as per the building permit/plan sanctioned by the competent Authority of the Town Planning Department of the Municipal Council. It is submitted that the portion of building in question is beyond the area which is mentioned in the building permit or a sanctioned plan of the said building and therefore, the said portion was/is liable to be demolished. It is contended that though the specific complaint in this regard was made to the Chief Officer, Nagar Parishad, Wardha who is the complainant Authority under the provisions of the Maharashtra Regional and Town Planning Act, 1966, till this date, the Planning Authority has not issued any order of demolition. It is further contended that the premises in question 159wp171.07.odt 3 . are being used by respondent no.9 as eating house illegally since the competent Authority for the last couple of years did not renew the license of eating house run by respondent no.9. It is contended that though the complaint in this regard was made to the Collector, Wardha, the said Authority did not take action against respondent no.9 nor respondent no.,9 was asked to stop this illegal activity of running the eating house in the premises in question. (b) The other grievance of the petitioner is in respect of illegal sale of liquor by respondent no.9 to the customers those who visit the eating house. It is contended that the State Government has imposed prohibition in the whole district of Wardha and therefore, the activity of sale of liquor by respondent no.9 obviously is in violation of this ban/prohibition imposed by the State Government in the whole district of Wardha. It is contended that a complaint in this regard was made to the Superintendent of Police, however, the said Authority also failed to take any action against respondent no9 and therefore, the activity of illegal sale of liquor continued 159wp171.07.odt 4 . unabated. Counsel for the petitioner, therefore, has submitted that, in spite of various complaints made by the petitioner in respect of the above illegal activity carried out by respondent no.9 to the competent Authorities time and again, the competent Authorities failed to take any action. Hence, the present petition has been filed for necessary direction to be given to the competent Authorities. Mr. Abhay Sambre, Adv. for respondent no.8 has submitted that the allegations made by the counsel for petitioner are not correct. It is contended that, so far as the illegal construction alleged to have been carried out by respondent no.9 in respect of the premises in question is concerned, the Planning Authority has issued notice dt. 4.11.2005 u/s. 53 of the Maharashtra Regional and Town Planning Act, 1966 to respondent no.9 for removal of alleged illegal construction carried out by respondent no.9. It is contended that the notices were issued to respondent no.9 as 159wp171.07.odt 5 . well as occupier of the premises in question Mr. Sachin Khodke. It is further submitted that Mr. Sachin Khodke challenged validity of notice issued by the Planning Authority u/s. 53 of the Act by filing Writ Petition No. 5800 of 2005 which was disposed of by this Court on 8.12.2005 with liberty to Mr. Khodke to approach the Regional Director, Municipal Administration against the said notice. Mr.Khodke filed a revision against the notice issued by the Planning Authority u/s. 53 of the Act before the Regional Director, Municipal Administration. Said Authority was pleased to stay the effect and operation of the notice during pendency of the said proceedings. Mr. Abhay Sambre, Adv. for respondent no.8 has submitted that, respondent no.9, owner of the building in question, also filed an appeal u/s. 318 of the Act before the State Government, against the notice dt. 4.11.2005 issued by the Planning Authority u/s. 53 of the Act. The State Government remanded the matter vide order dt. 14.10.2008 to the Chief Officer (Planning Authority), Wardha for re- consideration of the issue about the illegal construction with a 159wp171.07.odt 6 . direction to decide the same after taking into consideration the Development Plan, Development control rules and other provisions which are applicable to the construction activity in the City of Wardha, on its own merits and take a suitable action accordingly. Mr. Sambre, Adv. has further contended that the proceedings are pending before the Chief Officer (Planning Authority) for decision. Mrs. Dangre, Additional Public Prosecutor has submitted that respondent no.9 was initially granted license to run the eating house under the provisions of the Bombay Police Act; the duration of license is always one year at a time and on expiry of the license, the owner of the eating house is required to renew the same by making appropriate application to the Collector/competent Authority. The Additional Public Prosecutor has submitted that the license which was granted by the competent Authority in favour of respondent no.9 expired in the year 2002 and though the application/s was/were submitted by respondent no.9 for renewal to the Collector, same are pending for decision and same will be 159wp171.07.odt 7 . decided as per the order of this Court. The Additional Public Prosecutor has further contended that the allegations about illegal sale of liquor by respondent no.9 from the premises in question are not correct; since there is a complete prohibition for sale of liquor in the City of Wardha, neither respondent no.9 nor anybody else can be permitted to sell liquor in the district of Wardha. It is further contended that since there are allegations made by the petitioner in the petition and it is also alleged that complaints in this regard are also filed with the Superintendent of Police, the Superintendent of Police will again verify this aspect and shall take appropriate action in accordance with law, not only against respondent no.9 but also against all those who are indulged in illegal sale of liquor in the district of Wardha. The Additional Public Prosecutor has further submitted that the affidavit dt. 22.2.2008 was filed by the then Chief Officer of the Municipal Council, Wardha (Planning Authority) namely Shashimohan Gangadhar Nanda and in the 159wp171.07.odt 8 . said affidavit, it was mentioned that there are as many as 19 different Town Planners who were responsible for permitting respondent no.9 to construct illegal structure beyond the permissible limits prescribed under the building permit or sanctioned plan. It is contended that, so far as this aspect is concerned, even if it is presumed that there was some truth in the allegations made by the petitioner about illegal construction alleged to have been carried out by respondent no.9, even then the Officer who, at the relevant time, was in- charge of the post alone would be responsible for permitting respondent no.9 to carry out construction which is beyond the permissible limits prescribed under the building plan or sanction order issued by the Planning Authority and therefore, departmental action, if any, was required to be taken only against the persons responsible and not against those who had nothing to do with the issue in question and who were holding the post of Town Planners at different point of time. The Additional Public Prosecutor has further submitted that, the same Planning Authority, therefore, after verifying these aspects, filed another affidavit dt. 1.9.2009, in which it is 159wp171.07.odt 9 . specifically mentioned that, at the relevant time, Mr.S.J.Farsule was Junior Engineer from 1991 to 1995 and one Pravin Bokare was Divisional Officer from 1995 to 2005, appointed by the Municipal Council. It is submitted that these are the two Officers who were responsible for permitting respondent no.9 to carry out the construction activity alleged to have been beyond the permissible limits prescribed under the building permit as well as sanction plan. It is contended that, out of these two persons, Pravin has resigned from the job and left the service, whereas departmental proceedings were initiated against Farsule and penalty of withholding of two increments permanently was imposed on him by the Authorities of the Municipal Council. Mr. Uday Dastane, Adv. for respondent no.9 has submitted that, so far as the allegations about illegal sale of liquor and permitting people to gamble in the premises in question are concerned, they are incorrect and without any substance. It is contended that respondent no.9 had obtained eating house license from the competent Authority which 159wp171.07.odt 10 . expired in the year 2002; however, respondent no.9 kept on making applications for renewal of the license every year to the Collector; however, the Collector failed to take decision on his applications. It is contended that the inaction on the part of the Collector to decide the applications of renewal is not a fault of respondent no.9 and therefore, in view of decision of the Apex Court reported in (1982) 3 SCC 338, M/s Raj Restaurant and anr. vs. Municipal Corporation of Delhi, respondent no.9 continued to run the eating house with the hope that the Collector might take a decision on his applications sooner or later. Counsel for respondent no.9 has further submitted that, so far as the allegation of breach alleged to have been committed by respondent no.9 of the building bye-laws as well as other proceedings of the Act and Rules applicable to the construction activity is concerned, since the matter is pending with the Chief Officer (Planning Authority) for decision according to law, necessary documents in order to show that the construction is within the parameters prescribed, are 159wp171.07.odt 11 . already submitted before the Planning Authority. We have considered the rival contentions canvassed by the respective counsel. At the outset, we want to express that the Planning Authority is an important Authority so far as the construction activity is concerned. If we want to have planned development of a City or a town, the job of the Planning Authority assumes utmost importance. This Court has come across many instances wherein the inaction on the part of the Planning Authority has resulted in the unplanned development of the City and Town which has created a lot of other problems to the resident of the City. We want to express that the Planning Authority is expected to discharge its duty strictly according to the Development Plan of the City and building permits/sanction must be granted strictly according to the building bye-laws and as per the provisions of the Town Planning Act, which are for the time being in force. In the instant case, so far as the issue of illegal construction alleged to have been carried out by respondent no.9 is concerned, the matter is sub-judice before the Planning Authority after order 159wp171.07.odt 12 . of remand passed by the State Government, who is already directed to re-consider the issue in accordance with Development plan of the City, building bye-laws as well as other provisions of law holding the field. Therefore, we are not expressing anything on the merits of the matter at this stage. However, we want that the Chief Officer shall decide the issue strictly in accordance with the provisions of law applicable to the construction activity. So far as the issue of illegal sale of liquor is concerned, it is nodoubt true that there is prohibition imposed by the State Government in the district of Wardha. However, the instances of sale of liquor in the area are not unknown and therefore, we direct the Superintendent of Police, Wardha to conduct appropriate survey in this regard and take appropriate action in accordance with law against all those who are indulging in illegal sale of liquor. The Superintendent of Police must ensure that, in future, no such activity shall be permitted in the district of Wardha. Similarly, if respondent no. 9 is permitting people to use the premises in question for 159wp171.07.odt 13 . gambling purposes without license and the allegations are true and correct, appropriate action in accordance with law should be taken in this regard. Considering the overall view of the issues involved in the present petition as well as the observations made by us in the present order, we do not intend to keep the present petition pending. Hence, the present petition is disposed of in the above terms. However, the Chief Officer (Planning Authority) is directed to decide the proceedings so far as the illegal construction alleged to have been committed by respondent no.9 is concerned, within a period of four weeks from the date of communication of this order. Similarly, the Collector, Wardha is directed to decide the applications submitted by the respondent for renewal of eating house license, on its own merits, in accordance with law and procedure applicable in this regard within a period of four weeks from the date of communication of this order. 159wp171.07.odt 14 . It is brought to the notice of this Court that similar applications submitted by the owners of other eating houses for renewal of their licenses are also pending with the Collector and therefore, appropriate direction in this regard may also be given to the Collector. In absence of appropriate data in this regard, it will not be possible for us to issue such general direction. However, we expect the Collector to dispose of the applications submitted by the owners of eating houses for renewal on its own merits as well as in accordance with law so that the owners of the eating houses must know whether the their applications are allowed or rejected. If the application/s is/are rejected, in that event, we want the competent Authority to ensure that the owner/s of the eating house/s should not be permitted to carry out the business of eating house after rejection of his/their application/s by the Collector. It is made clear that this order supersedes all other interim orders passed by us in the present Writ Petition. We hope and trust that all the Authorities those who are connected with the administration of construction activity, Prohibition department as well as Revenue department shall 159wp171.07.odt 15 . ensure proper and effective implementation of the work related to their departments in a uniform manner in future. Copy of this order duly authenticated be supplied to the Additional Government Pleader. JUDGE JUDGE jais