Writ Petition No.7583 of 2006 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO.7583 OF 2006 1. Hussain Yusufmia Golandaz, Age 45 years, Occu.Business, R/o Momin Pura, Taluka Gevrai District Beed 2. Shaikh Akbar Shaikh Ibrahim, Age 45 years, Occu.Business, R/o Momin Pura, Taluka Gevrai, District Beed ..PETITIONERS VERSUS 1. The Municipal Council of Georai Through Chief Executive Officer, Municipal Council premises, Georai, Taluka Georai, District Beed 2. The Town Planner, Beed, Town Planning and Valuation Deptt., Hotel Kashmir, First Floor, Near Municipal Council, Beed Bashir Ganj, Beed 3. Deputy Director, Town Planning Town Planning and Valuation Deptt., Aurnagabad Division, Taluka and District Aurangabad 4. The State of Maharashtra (Ministry of Social Welfare & Justice) Mantralaya, Bombay Taluka and District Bombay 5. M/s Tapadia Constructions Company, Through Managing Director, Tapdia Shopping Centre, Athwale Bazaar Gevrai, Taluka Gevrai and District Beed ..RESPONDENTS Writ Petition No.7583 of 2006 2 Mr J.R.Shaikh, Advocate for petitioners Mr A.M.Gaikwad, Advocate for respondent No.1 Mr K.S.Patil, Assistant Govt.Pleader for respondent No.4 Mr Sachin S.Deshmukh, Advocate for respondent No.5 Respondents 2 and 3 served CORAM : P.V. HARDAS AND A.V. POTDAR, JJ DATE : 3rd December 2010 ORAL JUDGMENT (PER P.V.HARDAS, J.) 1. Rule. Rule returnable forthwith. With the consent of learned Counsel for the parties this petition is heard finally at the stage of admission. 2. This writ petition, which is filed in public interest by the petitioners centers around the construction which is carried out in respect of the weekly market at Gevrai, Taluka Gevrai, District Beed. The petitioners have prayed for issuance of a writ of mandamus directing respondents 1 to 5 to submit RCC and structural designs for approval and earthquake resistance and further to submit report on the alterations made by respondent Nos.1 and 5 in the sanctioned plan dated 16.10.2003. The petitioners have also prayed for issuance of a writ of mandamus or any other appropriate writ directing respondents 1 to 5 to submit all alterations made by them in original sanctioned plan dated 16.10.2003 and also pray that all construction made in Writ Petition No.7583 of 2006 3 violation of the original sanctioned plan be directed to be demolished. The other reliefs pertain to certain ad interim reliefs to which we need not advert to. According to us it is not necessary to dilate on the factual aspects of the matter. Suffice it to state that pursuant to the notice issued by this Court to the respondents, respondents 2 and 3 have filed their affidavit-in- reply on 16.6.2007. In the affidavit-in-reply at paragraph 7 it is stated before us that it was the responsibility of respondent No.1 i.e. the Municipal Council of Gevrai to supervise the construction and to see if the construction was carried out in accordance with the approved plan by respondents 2 and 3. At paragraph 7 it is further stated that it is also the duty of respondent No.5 to take corrective measures in case of any violation in the approved/sanctioned plan. It is also stated in the concluding paragraph that the work done plan was called from respondent No.1 and on perusal, it appeared that the construction shown in the work done plan was not in accordance with the approved plan as some part of the construction was not in accordance with the approved plan. 3. Pursuant to the affidavit filed on behalf of respondents 2 and 3, respondent No.1 has filed an additional affidavit and in the additional affidavit at paragraph 1 it is stated that the Officer of the Municipal Council had physically verified the construction and Writ Petition No.7583 of 2006 4 had also perused the earlier report submitted by respondent No.2 i.e. the Director of Town Planning and it was observed that respondent No.5 had carried out illegal and excess construction. The additional affidavit further states that considering the illegal construction carried out by respondent No.5, the present respondent no.1 had informed respondent No.5 that the completion/occupancy certificate would not be issued unless the excess/illegal construction was demolished. Similarly, a notice for removal of the encroachment as per the provisions of the Maharashtra Regional Town Planning Act was also served on respondent No.5. It is further stated in the affidavit that pursuant to the said notice respondent No.5 had submitted a representation on 30.4.2010 and had requested respondent No.1 to regularise the excess construction. The affidavit-in-reply discloses that respondent No.1 by its communication dated 15.5.2010 has informed respondent No.5 that the excess construction carried out by respondent No.5 could not be termed as minor modification in the plan and, therefore, excess construction could not be regularised. Mr A.M.Gaikwad, learned Counsel for respondent No.1 states that in the light of the facts that it was observed that respondent No.5 has carried out construction in excess and in violation of the approved/sanctioned plan, action would be taken by respondent No.1 in accordance with law for its removal etc. Mr Gaikwad further states that Writ Petition No.7583 of 2006 5 appropriate action in accordance with law would be taken by respondent No.1 within four months from today. We accept the aforesaid statement as an undertaking to the Court. 4. We accordingly allow this petition in terms of the statement which is made by the learned Counsel for respondent No.1 and which we have accepted as an undertaking to the Court. It is needless to state that since we have not decided any of the questions raised in this petition, all contentions raised on behalf of the parties are kept open. An amount of Rs.10,000/- (Rs.Ten thousand) deposited by the petitioners be refunded to the petitioners. 5. Rule is thus made absolute on the above terms with no orders as to costs. ( A.V. POTDAR ) ( P.V.HARDAS ) JUDGE JUDGE (vvr/7583.06wp)