Case Note & Summary
The writ petition concerns a challenge to the construction of a shopping complex on land bearing survey no. 170/A2/1 abutting the Nagar-Manmad highway in Shirdi town. (1) Background: The petitioners, residents of Shirdi, including a councillor, filed the petition against the State of Maharashtra, municipal authorities, and the builder, seeking to quash the permission for the construction and to order demolition. The land belonged to the Nagar Panchayat, Shirdi, which had resolved to construct a shopping complex on Build, Operate and Transfer basis. (2) Facts: The Nagar Panchayat passed a resolution on 07-07-2001 to erect a shopping complex. A communication was sent to the Town Planning office on 16-07-2001, which responded on 01-08-2001, pointing out that the construction must be at a distance of 37 metres from the central line of the highway and that approval cannot be recommended without a no-objection certificate. On 21-06-2002, the general body resolved to construct the complex on certain conditions. Tenders were invited, and respondent no. 7 was selected; an agreement was executed in November 2002. Construction commenced in 2003. The petitioners submitted an application to the Collector on 21-10-2003 for inquiry. The Collector replied on 18-08-2004, enclosing an enquiry report noting deficiencies and instructing action. The petitioners also sought information from the Chief Officer on 05-06-2004 and were told on 28-06-2004 that the construction had been sanctioned by the Chief Officer, but plans were not approved by the Town Planning office, and the building was proposed at 25 metres from the central line instead of 37 metres. On 15-07-2005, the Director of Town Planning stated that relaxation under bye-law no. 28.02 cannot be allowed without highway authority permission. The petitioners issued a notice on 03-03-2005 demanding cancellation of permission and stoppage of work, and, upon inaction, filed the present writ petition. (3) Legal Issues: The core issue is whether the construction within the prohibited area of 37 metres from the highway centre, without necessary permissions and no-objection certificate, is illegal and void ab initio so as to warrant demolition. (4) Arguments: The petitioners argued that the construction violated building bye-laws and lacked required approvals, relying on the Supreme Court's observations in M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu regarding the public trust doctrine. The respondents' full arguments are not recorded in the provided excerpt. (5) Court's Analysis: The court narrated the factual background and noted the various communications and deficiencies in the approval process. However, the excerpt ends before the court's substantive legal analysis and final determination. (6) Decision: The provided text is incomplete; the final decision and operative directions are not mentioned.
Headnote
A) Municipal Law - Building Permissions - Prohibited Area along Highway - Building Bye-law No. 28.02 - The petition challenged the construction of a shopping complex on land survey no. 170/A2/1 belonging to Shirdi Municipal Council at a distance of 25 metres from the central line of the Nagar-Manmad highway, contrary to the prescribed 37-metre distance. The Director of Town Planning communicated that relaxation of the bye-law cannot be allowed without prior permission from highway authorities. The petitioners sought a declaration that the permission for construction is void ab initio and directions for demolition. (Paras 1-10). Held: Not mentioned in the provided excerpt.
Issue of Consideration
Whether the construction of a shopping complex on land survey no. 170/A2/1 within 37 metres of the centre of the Nagar-Manmad highway, without prior permission from highway authorities and relaxation of building bye-law no. 28.02, is illegal, void ab initio, and liable to be demolished
Law Points
- public trust doctrine
- natural resources must be protected for public enjoyment
- building bye-law no. 28.02
- relaxation of building bye-laws requires approval of highway authorities
- construction within prohibited area of 37 metres from centre of highway without no-objection certificate may be illegal
Case Details
2017 LawText (BOM) (12) 8
WRIT PETITION NO. 3174 OF 2005 (with CIVIL APPLICATION NO. 14883 OF 2015 and CONTMPT PETITION NO. 45 of 2010)
Sunil P. Deshmukh, Sangitrao S. Patil
Pradnya Talekar, Kiran M. Nagarkar, Shashibhushan P. Deshmukh, V. D. Hon, A.V. Hon, R. L. Kute, Vikram R. Dhorde, S. V. Adwant
Kamlakar Ganpat Kote, Prakash Jairam Shelke
State of Maharashtra, Divisional Commissioner Nasik, Collector Ahmednagar, Director of Town Planning Pune, Assistant Director of Town Planning Ahmednagar, Chief Officer Municipal Council Shirdi, Vasturachana Engineers and Contractors, National Highway Authority of India, Maharashtra State Road Development Corporation
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Nature of Litigation
Writ petition seeking declaration that construction of shopping complex on land survey no. 170/A2/1 within 37 metres of the centre of Nagar-Manmad highway is illegal and void ab initio, and directions to respondents to take action including demolition.
Remedy Sought
The petitioners asked the court to declare the permission for development/construction of the shopping complex over the said land as illegal and void ab initio, and to direct respondents no. 1 to 6 to produce records and take appropriate action including demolition.
Filing Reason
The construction was alleged to have been undertaken without prior permission from highway authorities and in violation of the mandatory 37-metre distance from the central line of the highway as required by building bye-law no. 28.02, and without a no-objection certificate.
Previous Decisions
The Collector, in response to an application by petitioners, communicated on 18-08-2004 that an enquiry had been conducted and deficiencies were noted; the Director of Town Planning, on 15-07-2005, stated that relaxation of the bye-law cannot be allowed without highway authority approval. No prior court orders are mentioned.
Issues
Whether the construction of a shopping complex on land survey no. 170/A2/1 within the prohibited area of 37 metres from the centre of the Nagar-Manmad highway, in defiance of building bye-law no. 28.02 and without no-objection certificate from highway authorities, is illegal and void ab initio.
Whether the permission granted by the Chief Officer of Nagar Panchayat for the construction, despite non-approval by the Town Planning authorities, is valid and sustainable.
Whether the court should direct the respondents to produce records and take action including demolition of the allegedly illegal construction.
Submissions/Arguments
The petitioners contended that the construction of the shopping complex was within the prohibited area of 37 metres from the centre of the Nagar-Manmad highway, in violation of building bye-law no. 28.02, and without obtaining the required no-objection certificate from the highway authorities or the Public Works Department. They relied on the Supreme Court's decision in M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu to argue that natural resources must be protected for public enjoyment and that the construction was illegal.
The petitioners issued a notice on 03-03-2005 demanding cancellation of the permission and stoppage of construction, but no action was taken, compelling them to file the writ petition.
Judgment Excerpts
the proposed construction is required to be at a distance of 37 metre from the central line of the highway and also that approval to plans cannot be recommended without obtaining no objection certificate
relaxation sought in obligation under bye-law no. 28.02 of building bye-laws for construction of shopping complex over land survey no.170/A2/1 at a distance of 25 metres cannot be allowed
section 308 is not applicable to their application
the petition has been moved based on observations in the decision of Supreme Court, in the case of M. I. Builders Pvt. Ltd. v. Radhey Shyam Sahu, reported in AIR 1999 SC 2468, on the premise that natural resource viz; air, water and the forests should be freely available to every one
Procedural History
Nagar Panchayat Shirdi passed resolution on 07-07-2001 to erect shopping complex on land survey no. 170/A2/1. Communication sent to Town Planning office on 16-07-2001; response on 01-08-2001 pointing out deficiencies. General body meeting on 21-06-2002 decided to construct on B.O.T. basis. Tender notice published 07-09-2002; bid of respondent no.7 accepted, agreement executed November 2002. Construction commenced in 2003. Petitioners filed application to Collector on 21-10-2003; reply received 18-08-2004. Application to Chief Officer on 05-06-2004; reply 28-06-2004. Director of Town Planning letter dated 15-07-2005. Advocate's notice sent 03-03-2005. Writ petition filed thereafter. Amendments adding respondents no.8 and 9 in 2016.
Acts & Sections
- Not mentioned (likely Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965): Section 308
- Not mentioned (Building Bye-laws): Bye-law No. 28.02
