Case Note & Summary
The petitioners, occupants and owners of shops in Dattani Shopping Centre, Mumbai, challenged an order dated 14 January 2011 passed by the Assistant Municipal Commissioner, R/S Ward of Municipal Corporation of Greater Mumbai (MMC). The order directed removal of unauthorized extensions and covering of open spaces/structures carried out on the front compulsory open space of the building within three days, failing which the MMC would demolish them at the petitioners' risk and cost. The petitioners acquired the suit premises under agreements executed by the third respondent under the Maharashtra Ownership of Flats Act, 1963, and had been carrying on business since 1979-80. Disputes arose between the petitioners and the third respondent regarding redevelopment, leading the third respondent to approach the MMC for action against alleged unauthorized constructions. The MMC issued a notice under Section 55 of the Maharashtra Regional and Town Planning Act, 1966 (MRTP Act) on 13 August 2010. The petitioners replied and also filed Writ Petition No.1960 of 2010 challenging the notice. Meanwhile, the third respondent had filed Writ Petition No.937 of 2010. Both petitions were disposed of on 21 December 2010 with a direction to the petitioners to make a representation to the MMC, which was to be disposed of within four weeks. Pursuant to that order, the petitioners made representations on 22 December 2010 and 27 December 2010. The Assistant Municipal Commissioner considered the representations and passed the impugned order. The petitioners then filed the present writ petition. The court examined the impugned order and noted that the Assistant Municipal Commissioner had recorded that the petitioners failed to produce any sanctioned plan or permission for the extensions and covering of open spaces. The court observed that the structures were clearly unauthorized and the petitioners had no legal right to maintain them. The court also noted that the petitioners had been given an opportunity of hearing through the representation process, and the order was a reasoned one. The court held that the impugned order did not warrant any interference and dismissed the writ petition. The court further directed that the order be complied with within four weeks from the date of the judgment.
Headnote
A) Municipal Law - Unauthorized Construction - Demolition Order - Maharashtra Regional and Town Planning Act, 1966, Section 55 - Petitioners challenged order of Assistant Municipal Commissioner directing removal of unauthorized extensions and covering of compulsory open space in commercial premises - Court held that the structures were clearly unauthorized and petitioners failed to produce any sanctioned plan or permission - Held that the order was valid and no interference warranted (Paras 2-8). B) Property Law - Ownership and Occupation - Maharashtra Ownership of Flats Act, 1963 - Petitioners acquired shops under agreements but could not claim right to make unauthorized constructions - Court noted that occupation since 1979-80 does not confer immunity from demolition of illegal structures - Held that equity cannot override statutory provisions (Paras 3, 8). C) Administrative Law - Natural Justice - Opportunity of Hearing - Petitioners were given opportunity to make representation pursuant to court order in earlier writ petitions - Assistant Commissioner considered representation and passed reasoned order - Held that principles of natural justice were complied with (Paras 4-6).
Issue of Consideration
Whether the impugned order directing removal of unauthorized extensions and covering of open spaces is sustainable in law, and whether the petitioners are entitled to any relief against demolition.
Final Decision
The court dismissed the writ petition and upheld the order dated 14 January 2011 passed by the Assistant Municipal Commissioner. The court directed the petitioners to comply with the order within four weeks from the date of the judgment.
Law Points
- Unauthorized construction on compulsory open space is illegal and liable for demolition
- Occupants cannot claim equity against statutory violations
- Representation before municipal authority does not bar demolition if structures are unauthorized
- Section 55 of MRTP Act empowers removal of unauthorized development
