KBP 1 WPL293-11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.293 OF 2011 Khimji Virji Karia and ors. ....Petitioners Vs Municipal Corporation of Greater Bombay and ors. ....Respondents -- Mr.D.D.Madon, Senior Counsel with Ms.Vaishali Bhilare, for petitioners. Ms.K.R.Punjabi, for respondent nos.1 and 2 – MMC. Mr.D.H.Mehta i/b.M/s.D.M.Legal Associates, for respondent no.3. -- CORAM : SMT.RANJANA DESAI & R.G.KETKAR, JJ. RESERVED ON : 5 th April, 2011. PRONOUNCED ON: 2 nd MAY, 2011 JUDGMENT (per R.G.KETKAR, J.) : Rule. Learned counsel for the respective respondents waive service. By consent of the parties, Rule is made returnable forthwith and is heard finally. KBP 2 WPL293-11.sxw 2] The petitioners have challenged the order dated 14 th January, 2011 passed by the Assistant Municipal Commissioner, R/S Ward of Municipal Corporation of Greater Mumbai (for short “MMC”). By that order, the Assistant Municipal Commissioner has directed the petitioners to remove the notice structures i.e.all unauthorised extensions and covering of open spaces/structures carried on front compulsory open space of building, within three days from receipt of the order, failing which, the same will be removed/demolished by his office entirely at the risk and costs of the petitioners herein without giving any further intimation. 3] The petitioners are the occupants and owners of the respective shops as mentioned in the cause title, situate at Dattani Shopping Centre, plot Nos.29, 30, CTS No.329, Vasanji Lalji Road, Mumbai (for short “the suit premises”). The petitioners acquired the suit premises pursuant to the agreement executed by the third respondent with the petitioners under the provisions of the Maharashtra Ownership of Flats Act, 1963. The petitioners are carrying on business from their respective shops since 1979-80. It is the case of petitioners that the third respondent was interested in redeveloping the property and the dispute and differences arose between the petitioners on one hand and the third respondent on the other. The third respondent also KBP 3 WPL293-11.sxw approached the MMC for issuing notices against the petitioners under the provisions of the Mumbai Municipal Corporation Act, 1888 as also the Maharashtra Regional and Town Planning Act, 1966 (for short “the Act”). The third respondent also instituted Writ Petition No.937 of 2010 against the MMC in this Court. 4] The second respondent issued notice dated 13 th August, 2010 under Section 55 of the Act. This was replied by the petitioners on 16 th August, 2010. The petitioners also instituted Writ Petition No.1960 of 2010 on 26 th August, 2010 challenging the said notice. Writ Petition No.937 of 2010 instituted by the third respondent and Writ Petition No. 1906 of 2010 instituted by the petitioners were disposed of on 21 st December, 2010 with direction to the petitioners to make a representation to the MMC. Respondent nos.1 and 2 therein were directed to dispose of the said representation within four weeks. 5] Pursuant to the order passed in those petitions, the petitioners made representations on 22 nd December, 2010 and 27 th December, 2010. The second respondent passed the impugned order on 14 th November, 2011 directing the petitioners to demolish the notice structure within three days. The petitioners have challenged that order by instituting present petition. KBP 4 WPL293-11.sxw 6] Mr.Madon, learned Senior Counsel submitted that basically Section 55 of the Act itself is not applicable as the alleged offending structure is not of a temporary nature. He further submitted that the first respondent MMC has regularised unauthorised construction carried out by the owners of shop Nos.4 and 5. Though the petitioners have requested to supply the information regarding regularisation of shop nos.4 and 5, the MMC has not provided the requisite information. He submitted that the action of MMC in issuing notice under Section 55 of the Act as also passing the impugned order is mala fide. At any rate, the alleged offending structures are in existence prior to 1962 and consequently, cannot be termed as unauthorised construction. 7] On the other hand, Ms.Komal Panjabi, learned counsel for respondent nos.1 and 2 supported the notice issued under Section 55 of the Act as also the impugned order. She invited our attention to the affidavit of Mr.Ravindra Sonawane, Assistant Engineer, Building and Factory, R/S Ward of MMC and, in particular, she has invited our attention to paragraph 4(b) of the said affidavit wherein, the unauthorised construction carried out by the shop keepers has been described in detail. She submitted that the petitioners have carried out unauthorised extension covering the front compulsory open space of building in front of respective shops. She further submitted that the petitioners instituted Writ Petition No.1906 of 2010 challenging the KBP 5 WPL293-11.sxw notice issued under Section 55 of the Act. The said petition was disposed of on 21 st December, 2010 as withdrawn. In that petition, the order dated 27 th September, 2010 passed by the respondent nos.1 and 2 was not challenged and the petition was withdrawn with liberty to make appropriate representation. 8] In so far as the regularisation of unauthorised extension is concerned, in paragraph 10 of the affidavit, it is positively asserted that the MMC has not regularised any unauthorised extension as mentioned in the notice issued under Section 55 of the Act. In so far as the shop No.5 of Dattani Shopping Centre is concerned, it is further averred in the affidavit that respondent nos.1 and 2 had issued permission for construction of wooden loft only inside the said shop as per the approved plan. In so far as shop Nos.4 and 5 which are occupied by M/s.Virsons & M/s.Culcutta Tea Centre are concerned, the said shops are upto boundary line of the building and as per the approved plan of the building, there is no compulsory open space in front of shop nos.4 and 5. Since no extensions were found in front of shop nos.4 and 4, no notices were issued in respect of shop nos.4 and 5. She, therefore, submitted that the petition deserves to be dismissed. 9] Mr.Mehta, learned counsel for respondent no.3 invited our KBP 6 WPL293-11.sxw attention to the affidavit made by Mr.Satish J. Dattani, partner of respondent no.3 and, in particular, the agreement of sale executed between the third respondent and buyers. He invited our attention to the map forming part of the said agreement and submitted that in respect of shop nos.6 to 8 and 9 and 11, open space is shown as `green’ in the said map. In so far as shop nos.4 and 5 are concerned, there is no open space on the side of Vasanji Lalji road. The petitioners have carried out unauthorised extension in the compulsory open space and consequently, the Authorities were justified in issuing notice and passing impugned order. 10] We have considered the rival submissions made by learned counsel appearing for the parties. We have also gone through the material placed on record by the parties. It is evident that the petitioners have carried out extensions covering of front compulsory open space of the building, as set out in the affidavit made by Mr.Ravindra Sonawane, Assistant Engineer, Building and Factory. The question is whether these are unauthorised constructions. Mr.Madon submitted that Section 55 of the Act is not attracted as these constructions are not of a temporary nature. Section 55 of the Act reads as under :- KBP 7 WPL293-11.sxw “55. (1) Notwithstanding anything hereinbefore contained in this Chapter, where any person has carried out any development of a temporary nature unauthorisedly as indicated in sub-section (1) of section 52, the Planning Authority may by an order in writing direct that person to remove any structure or work erected, or discontinue the use of land made, unauthorisedly as aforesaid, within fifteen days of the receipt of the order; and if thereafter, the the person does not comply with the order within the said period, the Planning Authority may request the District Magistrate or the Commissioner of Police, as the case may be, [or authorise any of its officers or servants,] to have such work summarily removed or such use summarily discontinued without any notice as directed in the order, and any development unauthorisedly made again, shall be similarly removed or discontinued summarily without making any order as aforesaid (2) The decision of the Planning Authority on the question of what is development of a temporary nature shall be final. Perusal of Section 55 of the Act would indicate that where any person has carried out any development of a temporary nature unauthorisedly as indicated in sub-section (1) of section 52, the Planning Authority may by order in writing direct that person to remove KBP 8 WPL293-11.sxw any construction or work erected......... 11] Section 52(1) of the Act provides that any person who, whether at his own instance or at the instance of any other person commences, undertakes or carries out development, or institutes or changes the use of any land (a) without permission required under the Act; or (b) which is not in accordance with any permission granted or in contravention of any condition subject to which such permission has been granted; (c) after the permission for development has been duly revoked; or (d) in contravention of any permission which has been duly modified........... Section 2(7) of the Act defines the expression “development” as under :- “ In this Act, unless the context otherwise requires,- (7) “development” with its grammatical variations means the carrying out of building, engineering, mining or other operations in or over or under, land or the making of any material change, in any building or land or in the use of any building or land [or any material or structural change in any heritage; building or its precinct and includes demolition of any existing building, structure or erection or part of such building, structure of erection ; and KBP 9 WPL293-11.sxw reclamation, redevelopment and lay-out and subdivision of any land; and “to develop” shall be construed accordingly]; Thus, the expression “development” among others will also include carrying out of buildings or other operations in or over or under the land. Section 2(5) of the Act defines “building operations” to include erection or re-erection of building or any part thereof. 12] Sections 3(s) and Section 3(sb) of the Mumbai Municipal Corporation Act, 1888 (for short “MMC Act”) define expressions “building” and “temporary building”, respectively. They read as under :- S.3. “In this Act, unless there be something repugnant in the subject or context- (s) “building” includes a house, out-house, stable, shed, hut [tank (except tank for storage of drinking water in a building or part of a building)] and every other such structure, whether of masonry, bricks, wood, mud, metal or any other material whatever. (sb) “temporary building” means any building which is constructed principally of mud, leaves, grass cloth, thatch, wood, corrugated iron or asbestos cement sheets or such other material and includes a building of KBP 10 WPL293-11.sxw whatever size constructed of whatever material which the Commissioner has allowed to be built as a temporary measure.” 13] The Government of Maharashtra, in exercise of powers conferred by sub-section (1) of Section 31 of the Act and all other powers enabling in that behalf, sanctioned the Development Control Regulations for Greater Mumbai, 1991 (for short “D.C.R.”). The D.C.R. 2 (11) defines “building” to mean a structure, constructed with any materials whatsoever for any purpose, whether used for human habitation or not, and includes............ D.C.R. 65 provides for grant of permission for temporary construction by the Commissioner and it reads as under :- 65.Temporary Constructions.- The Commissioner may grant permission for temporary construction for a period not exceeding six months at a time in the aggregate not exceeding for a period of three years. Such a permission may be given by him for the construction of the following namely:- (i) Structures for protection from the rain or covering KBP 11 WPL293-11.sxw of the terraces during the monsoon only; (ii) Pandals for fairs, ceremonies, religious function, etc.; (iii) Structures for godowns/storage of construction materials within the site; (iv)Temporary site offices and watchmen chowkies within the site only during the place of construction of the main building; (v) Structure for exhibitions/circuses etc; (vi)Structures for storage of machinery, before installation, for factories in industrial lands within the site; (vii)Structures for ancillary works for quarrying operations in conforming zones; (viii)MAFCO stalls, milk booths and telephone booths; (ix)Transit accommodation for persons to be rehabilitated in a new construction; (x) Structures for educational and medical facilities within the site of the proposed building during the phase of planning and constructing the said permanent buildings; Provided that temporary constructions for structures, etc. mentioned at (iii), (iv), (vi), (ix) and (x) may be permitted KBP 12 WPL293-11.sxw to be continued temporarily by the Commissioner but in any case not beyond completion of construction of the main structure or building, and that structure in (viii) may be continued on annual renewable basis by the Commissioner beyond a period of three years. 14] The structures covered by clauses (iii), (iv), (vi), (ix) & (x) above could be made in bricks and cement and still they would be temporary structures. In some cases, the construction may be made in bricks and cement and still it would be development of a temporary nature having regard to its short duration. While in other cases, the construction may be made by using wood or tin sheets or tarpaulin and the structure may be standing for a substantially long period, still it would be development of a temporary nature. Thus, the material used for carrying out the construction is not a decisive factor while considering the expression “development of a temporary nature”. This conclusion is irresistible having regard to the provisions of Sections 3(s) and 3(sb) of the MMC Act, D.C.R. 2(11) and D.C.R. 65. Whether development is of a temporary nature or not would depend upon the facts and circumstances of each case. 15] In the light of this position, let us consider facts of the KBP 13 WPL293-11.sxw present case. On 26 th June, 2009, the third respondent gave reply to letter dated 15 th June, 2009 addressed by the shop owners. In that, it has been specifically set out as under :- “Even the open spaces in front of the shops have been unauthorised(ly) encroached upon for commercial purposes by putting otlas outside the respective premises.” Thus, when the third respondent gave reply on 26 th June, 2009, the shop owners allegedly encroached upon the open spaces in front of the shops by putting otlas outside the respective premises. In other words, the petitioners at that time did not cover the front open spaces with M.S.Grills, ply wood on sides and M.S.Gates etc. The petitioners issued statutory notice under the provisions of the Maharashtra Ownership of Flats Act, 1963 on 18 th July, 2009 to the third respondent. In paragraph 11 thereof, it was asserted that “the allegations with regard to the unauthorised construction work, additions and alterations/encroachment which are leveled by you in your various correspondence are vexatious, far from the truth and the same is nothing but a desperate attempt made by you in order to succumb to your evil design by forcibly vacating my clients from their said respective premises. My clients state that the building of the respectively shop premises is in the same (condition) in which KBP 14 WPL293-11.sxw my clients have respectively purchased the said premises since inception and they have not carried out any additions and alterations for the unauthorised work as alleged. 16] The MMC issued notice under Section 55 of the Act on 13 th August, 2010. This notice was replied by the petitioners on 16 th August, 2010. In that reply, they reiterated each and every statements, averments and submissions made in their earlier notices dated 18 th July, 2009 and 14 th August, 2009. We have already noted the assertions made in paragraph 11 of the notice dated 18 th July, 2009 issued on behalf of the petitioners. In paragraph 5 of reply dated 16 th August, 2010, the petitioners alleged that the shop premises are being used since so many years and suddenly after lapse of almost 30 years, provisions of Section 55 of the Act are sought to be invoked. Thus, from the material on record, it is evident that in the first place, the third respondent in their reply dated 26 th June, 2009 positively asserted that the open spaces in front of the shops have been unauthorisedly encroached upon for commercial purpose by putting otlas outside the respective premises. Secondly, in the notice dated 18 th July, 2009 and, in particular in paragraph 11 thereof, the petitioners denied the allegations of unauthorised construction work/alterations/encroachments and positively asserted that in the building in which the petitioners have purchased the said shops, since KBP 15 WPL293-11.sxw inception they have not carried out the additions and alterations as alleged. From the perusal of photographs produced on record, it appears that the petitioners have carried out unauthorised extensions and covered the front compulsory open space with M.S.Grills, Plywood on sides and M.S.Gates etc. From the material on record, we are satisfied that the same is carried out after year 2009 and will squarely fall under the expression “development of a temporary nature” as employed in Section 55 of the Act. Even assuming that the alleged unauthorised construction is in existence since inception, nonetheless having regard to the material used for carrying out the same, it will fall in the expression “development of a temporary nature”. The petitioners have not led reliable and cogent evidence to substantiate their contention that Section 55 of the Act is not applicable. At any rate, Section 55(2) of the Act declares that the decision of the Planning Authority on the question of what is development of a temporary nature is final. In view thereof, we do not find any substance in this contention. 17] It was further submitted by the petitioners that the first respondent – MMC has regularised the unauthorised constructions carried out by the owners of shop nos.4 and 5. Though the petitioners repeatedly called upon respondent no.1 as also respondent no.3 to supply information regarding regularisation of these shops, the said KBP 16 WPL293-11.sxw information was not supplied deliberately. We are unable to accept this submission. In the impugned order passed by the Assistant Municipal Commissioner, there is a finding recorded that the MMC has not regularised any unauthorised extensions as mentioned in the representation made on behalf of the petitioners. In so far as shop no.5 is concerned, permission was granted for construction of wooden loft, that also, inside the shop. It has been further found that as per the approved plans, shop nos.4 and 5 are reflected up to boundary line of Dattani Shopping Centre building. Moreover, no extensions are found carried out in front of shop nos.4 and 5 and, consequently, no notices were issued to these shops. Even in the affidavit made on behalf of the third respondent, there is positive assertion that at no point of time, the third respondent either consented or submitted any application for regularisation of any shop or premises as contended by the petitioners. Apart from that, from the perusal of photographs produced on record, it is evident that the extensions carried out by the petitioners are beyond the building line and, that too, in front compulsory open space of the building. In view of this, we do not find any merit in this submission. 18] Lastly, it was submitted that the action of the first respondent MMC in issuing notice under Section 55 of the Act as also passing of the impugned order is malafide, as the offending structures are in KBP 17 WPL293-11.sxw existence prior to 1962 and, consequently, cannot be termed as unauthorised development. We do not find any merit in this submission. 19] In the impugned order, the Assistant Municipal Commissioner has clearly recorded a finding of fact that the petitioners have not submitted any conclusive proof or authentic documentary evidence to establish existence of the offending structures prior to datum line for tolerating commercial structures i.e.prior to 01.04.1962 or to prove that the notice structures i.e. extensions carried out on compulsory open space of building in front of shop nos.1 to 3 and 6 to 11 are authorised and constructed as per plans approved by MMC. 20] In view of this, we do not find that the impugned order suffers from any error of law apparent on the face of record. It also cannot be said that the impugned order is perverse. In our opinion, this is not a fit case for invocation of extraordinary powers of this Court under Article 226 of the Constitution of India. Writ Petition, therefore, fails and the same is dismissed. Rule is discharged with no order as to costs. 21] At this stage, counsel for the petitioners prays that the present order be stayed as the petitioners are desirous of approaching the KBP 18 WPL293-11.sxw Supreme Court. Counsel for the Respondents strongly oppose this prayer. 22] In the circumstances of the case, the statement made on behalf of the Corporation that the offending structure would not be demolished during the pendency of the writ petition, shall continue to be in force for a period of four weeks from today, subject to the undertaking to be filed by the petitioners within two weeks from today that in case their S.L.P. is dismissed, they will demolish the offending structure at their own costs. 23] We must note and we take strong exception to the conduct of petitioners’ counsel of filing the Chamber Summons in the proceedings when this Court refuses to take it on file after the matter was reserved for judgment. We have returned back the Chamber Summons to the petitioners’ counsel. [R.G.KETKAR, J.] [SMT.RANJANA DESAI, J.]