V.C. Daga, J.@mdashThis writ petition under Article 226 of the Constitution of India is to seek a Writ of Mandamus to compel respondent No. 1 - Municipal Corporation of City of Ulhasnagar ("Corporation", for short) to discharge its duty and obligation under statute to see that the residential or commercial area of the town is not spoilt by unauthorised construction.
FACTS IN BRIEF
In order to appreciate the grievance or the petitioner against the Corporation, few relevant facts need to be noticed at the outset :-
2. The petitioner is an Educational Public Trust, duly registered under Bombay Public Trusts Act, 1950. Respondent No. 1 is a Corporation duly constituted under Bombay Provincial Municipal Corporations Act, 1949 ("said Act of 1.949", for short). Respondent No. 1 is also a Planning Authority within the meaning of Maharashtra Regional and Town Planning Act, 1966. Respondent No. 2 is the Commissioner of respondent No. 1 - Corporation. Respondent Nos. 3 and 4 are the persons who have indulged in illegal construction, which is a subject-matter of this writ petition. Respondent No. 5 is the State of Maharashtra.
3. The petitioner-Society is running a Girls High School and a Junior College. The said school is conducted in an old building situated at Ulhasnagar. The property, on which the said building Is situated, has been acquired by the petitioner-Trust under a Deed of Conveyance, dated 8th February, 1980 executed by the Managing Officer and Assistant Administrative Officer of Ulhasnagar Township.
4. The petitioner-Trust stated that recently some portion of the property has been acquired by respondent No. 1 - Corporation for road widening, as a result thereof, the area of the playground of the petitioner-Trust has been reduced. The petitioner-Trust brought it on record that there was a small single-storeyed structure in possession of respondent No. 3 in a public passage abutting the property of the petitioner-Trust. Front portion of the said structure was demolished by respondent No. 1-Corporation while Implementing Road Widening Scheme framed by the Corporation. Immediately after demolition of front portion of the said structure, respondent Nos. 3 and 4 demolished and removed the remaining part of the old structure and constructed an altogether new R.C.C. building consisting of ground two floors without obtaining any permission from the respondent No. 1-Corporation.
5. The aforesaid Illegal construction has totally blocked more than half portion of the entry to the public passage leading to one of the entrance gates of the school run by the petitioner-Trust. Moreover, respondent Nos. 3 and 4 have constructed balconies In such a manner that the same are protruding on the property of the petitioner-Trust.
6. The petitioner-Trust having left with no other alternative, by their letter, dated 3.5.2000, brought to the notice of the respondent No. 2 the aforesaid illegal construction, and requested for urgent removal thereof. As no action was taken by respondent Nos. 1 and 2, a detailed representation, dated 15th May, 2000, was addressed to the respondent No. 2, pointing out the illegal construction and prejudice caused to the petitioner-Trust. However, respondent Nos. 1 and 2 have not taken any action, whatsoever, against the illegal construction. The said respondents have not even bothered to give reply to the letter/notice sent by the petitioner-Trust.
7. In the aforesaid backdrop, the petitioner-Trust invoked the writ jurisdiction of this Court, finding that respondent No. 2 failed to discharge its statutory duty and obligations to ensure that no illegal constructions are made and that the illegal constructions, if any, are demolished or removed. The failure on the part of the respondent Nos. 1 and 2 to perform their duty has resulted in substantial prejudice and inconvenience to hundreds of students taking education in the school run by the petitioner-Trust. The petitioner-Trust also brought it on record that respondent Nos. 3 and 4 have started running a shop on the ground floor of the unauthorizedly constructed building, and are running business of selling furniture in the said shop, with the result, passage for approaching one of the gates to the school building has been substantially obstructed due to lot of congestion resulting from autorickshaws and other vehicular traffic. In the aforesaid backdrop, the petitioner-Trust has prayed for a Writ of Mandamus under Article 226 of the Constitution of India.
EVENTS DURING PENDENCY OF PETITION
8. When this petition appeared on Board on 10th July, 2000, respondent No. 3 appeared in person and sought time to engage a lawyer. At that time, the learned counsel for the Municipal Corporation made a statement that he would also take necessary instructions as to whether construction by respondent Nos. 3 and 4 is authorized or not. On 25th July, 2000, when the petition was placed before this Bench. Mr. Gorwadkar, the learned counsel appearing for respondent Nos. 3 and 4. stated that respondent Nos. 3 and 4 are willing to demolish unauthorized structure which was erected without permission of the Municipal Corporation. This Court, relying upon the representation made by Shri Gorwadkar, the learned counsel appearing for respondent Nos. 3 and 4, adjourned the hearing to enable the said respondents to file their written undertaking to that effect before this Court. The learned counsel appearing for the Corporation, at that time, assured this Court that necessary action would be taken for demolition of structure. Indeed, on the next day. i.e., 26th July, 2000, the Corporation issued demolition notices to respondent Nos. 3 and 4. All this sequence of events would unequivocally go to snow that the construction, in question, was admittedly unauthorized and there was no justification with respondent Nos. 3 and 4 for erecting illegal and unauthorized construction without prior permission of the Corporation and/or Planning Authority.
9. The above petition came up for further hearing on 7th August, 2000. The learned Counsel for the petitioner pointed out that after the petition was adjourned by this Court, respondent Nos. 3 and 4 had applied for regularization of the structure and the Corporation has regularized a substantial part of unauthorized structure without reference to this Court. No notice was given to the petitioner and the order for regularization was passed with electric speed within three days from filing of the application for regularization. Respondent No. 3. vide her Affidavit, dated 1.8.2000,placed on record copies of Permission and Sanctioned Map annexed thereto as Annexures-A and B respectively. It is surprising that within three days thereafter. i.e. on 29th July, 2000, the respondent No. 1 has purported to grant Building Repair Permission for "building improvement". It is pertinent to note that in the said permission, the column of date of application made to the respondent No. 1-Corporation is kept blank. No notice of the fact that the building has been constructed by respondent No. 3 on a road is noticed or taken into account. The plot below the unauthorised construction sought to be regularized is shown in the Permission as bearing "U" number. The Building Permission could not have been granted 10 a person in possession of a plot bearing "U" number unless the possession thereof is regularized in accordance with law. The original unauthorised structure of the respondent No. 3 was only a single-storeyed structure, whereas respondent No. 1-Corporation has permitted construction of a loft having height of three metres above the ground floor. Thus, under any circumstance, the unauthorised structure could not have been regularized, that too within a period of seventy-two hours. This Court failed to understand as to how the Corporation could deal with regularization application when this Court was seized of the matter. Indecent haste with which regularization was granted is an indication of complete lack of bona fides on the part of the Municipal Authorities. The fact that structure was regularized was suppressed from this Court by the Corporation as well as respondent Nos. 3 and 4. We would rather say that their conduct was not only atrocious, but totally uncalled for and unprecedented. The part played by the Municipal Authorities was equally unwarranted and we should not hesitate to use the term ''condemnable''.
10. We were prima facie convinced of the fact that the conduct of the Corporation as well as respondent Nos. 3 and 4 constituted an act to interfere with the administration of Justice. Consequently, we, by an Order, dated 7th August, 2000, had directed issuance of Show-cause-Notices to the Corporation as well as to the respondent Nos. 3 and 4 to show cause why action should not be taken against them under the provisions of Contempt of Courts Act. The notices were made returnable on 22nd August, 2000. The Commissioner of Municipal Corporation of Ulhasnagar as well as the concerned officer, who granted application for regularization, were directed to remain present before this Court on the adjourned date, i.e., 22.8.2000. At the cost of repetition we may mention that there was no reason for the Municipal Authorities to exercise this power to regularise illegal construction which was not permissible in law. Hardly one can justify such regularization within a period of seventy-two hours.
CONSIDERATION
11. The Municipal Corporation, of course, as the custodian of the rights of the people, has been given by law the right to enforce its bye-laws by refusing sanction, preventing constructions and by demolishing buildings that may violate any law and/or bye-law. But if the Municipal Corporation fails to perform its duty. It will not mean that the right of the citizen is lost to get the law enforced through Court. It is the duty of Courts in India to see that the law is obeyed and not violated.
12. Urbanization is, no doubt, a global phenomenon. Growth of major cities, however, is now a distinct reality In India. Other advanced and developed countries witnessed that phenomenon earlier. They too had their problems. In these countries, local authorities were held rigorously to the performance of their statutory obligations in the matter of supply of potable water, garbage collection, drains, conservancy and maintenance of streets, lighting, and even in providing parks and other amenities. The fiduciary duty which local authorities owe to rate payers had been acknowledged.
13. The Kerala High Court has. in P. Saina v. Konderi, rightly observed that over the years, the cities have grown many times in size and population. The roads with gutter everywhere are not crowded with vehicles racing against each other and the pavements with pits and holes in the ground and advertisement boards hung dangerously low from the branches of trees, have become far too dangerous for the weary pedestrians to walk upon. Many of the roads are poorly lit. if lit at all. and it is a common sight to see rubble, sand, bricks, drainage pipes, and the like left for months together on the sides of the roads all over the city. With buses, lorries and cars driven recklessly at maddening speed, unmindful of the pedestrians, the public streets have become further narrow to control the traffic, and the police in these circumstances look on helplessly. To make matters worse banks of all kinds, some on wheels and some without wheels, some movables and others fixed, some licensed by the Corporation and many not so licensed have sprang up all over the cities.
14. The aforesaid consideration compelled the Apex Court to recognize as citizen''s right in the matter of K. Ramdas Shenoy v- Chief Officer, Town Municipal Council. Udipi. The Apex Court held as follows :
"An illegal construction of a cinema building materially affects the right to or enjoyment of the property by the persons residing in the residential area. The Municipal Authorities owe a duty and obligation under the statute to see that the residential area is not spoilt by unauthorised construction. The scheme is for the benefit of the residents of the locality. The Municipality acts in aid of the scheme. The rights of the residents in the area are invaded by an illegal construction of a cinema building. It has to be remembered that a scheme in residential area means planned orderliness in accordance with the requirements of the residents. If the scheme is nullified by arbitrary acts in excess and derogation of the powers of the Municipality the Courts will quash orders passed by Municipalities in such cases."
15. In that case, the appellant''s contention was that the Udipi Municipality had illegally sanctioned the plan for conversion of Kalyan Mandap-cum-Lecture Hall into cinema theatre and the Apex Court held that the appellant as the resident in the area has the right to compel the Municipality to perform duty imposed by the statute where the plan for conversion had been granted. The Apex Court further held that an illegal construction materially affects the right to or enjoyment of the property by persons residing in the residential area is not spoilt by unauthorised construction.
16. It appears from the reported judgment in the matter of Sarada Bai v. Shakuntala Bai, that another Division Bench of Andhra Pradesh High Court in the unreported judgment in the case of Bhagwan Das v. Harish Chetwal, relying on K. R. Shenoy v. Udipi Municipality (supra), held as follows: -
"The pronouncement of the Supreme Court in K. R. Shenoy v. Udipi Municipality emboldens us to take as view at variance with the one expressed by a Division Bench of this Court In Kamalamma v- Subba Rao and so hold that an individual, be he a neighbour or one of a class of persons where the infraction of a right is involved and complained of, is certainly clothed with a right to invoke the Jurisdiction of a Civil Court not only to enforce the obligations and duties was on the concerned authorities, but also subject the individual or class of individuals to conform to the obligations of the statute."
17. If that be so, it presents no difficulty in the way of this Court in issuing a Writ of Mandamus to enforce the obligation cast on the Municipal Corporation to remove the structure constructed in contravention of the statutory provisions.
18. In Pratibha Co-operative Housing Society v. State of Maharashtra, the Supreme Court observed as follows :
"We are also of the view that the tendency of raising unlawful constructions and unauthorised encroachments is increasing in the entire country and such activities are required to be dealt with by firm hands. Such unlawful constructions are against public interest and hazardous to the society of occupiers and residents of multistoreyed buildings."
19. At this juncture, it will not be out of place to mention that as can be seen from the reported Judgment of the Calcutta High Court
"Bye-laws have, we might say, gone with the wind which the Corporation is supposed to allow us to enjoy. They have gone down the drain that the Corporation is supposed to clean. With poetical finality they have drowned their book : with divine omnipotence they have disregarded time and space, especially the latter. Rules are made for slaves, and with royal prerogative they have determined to disregard them."
RELIEF
20. In the aforesaid backdrop there are no two opinions that an illegal construction resorted to by the respondent Nos. 3 and 4 has materially affected the right to or enjoyment of the property by the petitioner-Trust. The Municipal Authorities owe a duty and obligation under the statute to see that the residential or commercial area is not spoilt by unauthorised construction. The right of the petitioner has been invaded by an illegal construction. Thus, in exercise of our writ Jurisdiction, we direct removal of illegal construction in its entirety within a period of three months from the date or receipt of the writ by the Corporation from this Court.
DIRECTION TO THE STATE GOVERNMENT
21. Having said so, the unpardonable and unprecedented haste shown by the Municipal Authorities, including the respondent No. 2-Commissioner cannot be overlooked. In the circumstances, we direct the Office of this Court to forward the copy of this Judgment to the State Government and we further direct the State Government to look into the matter, and request the State Government to take note of the action of the Officers heading Statutory Bodies, like Corporation, and in helping out the citizens who are indulging in a rampant illegal construction, if need be, and if State Government is satisfied that the Municipal Officers have acted beyond their authority, by passing the public interest, we expect the State Government to take appropriate disciplinary action against the responsible Officers after affording them full opportunity of hearing.
22. In the circumstances, Rule is made absolute in terms of the above order, and we allow this petition with costs quantified in the sum of Rs. 25,000/- (Rupees twenty-five thousand only) to be paid by respondent Nos. 3 and 4 to the petitioner-Trust. However, we discharge the notice of contempt.
