GHANSHYAM CHANDUMAL HARWANI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) By this writ petition under Article 226 of the Constitution of India, petitioners are challenging communication dated 19-11-2003 issued by respondent No. 2 Amravati Municipal Corporation rejecting their application for grant of sanction to building plan. Respondent No. 2 is a body corporate constituted under the provisions of Bombay Provincial municipal Corporation Act, 1949, and is local authority as also planning authority for development of Amravati town. State of Maharashtra is arrayed as respondent No. 1 while Collector, Amravati is respondent No. 3. Executive engineer, Electrical Division, Public Works Department, Amravati has been joined as respondent No. 4. Other prayers in writ petition are to restrain respondents from disturbing possession of petitioners on/over Plot No. 11, Nazul sheet No. 56-B Amravati, except in accordance with law, to declare that demolition of shops standing on said plot on 21-4-2002 is contrary to law and to direct respondent No. 2 to pay compensation of Rs. 5 lakhs each to petitioners. Declaration is also sought that petitioners are entitled to construct their shop premises as per building map/plan submitted by them on 29-9-2003 as the same is deemed to have been sanctioned. The petitioners have added prayer and facts in relation to communication dated 19-11-2003 on 11-8-2004 after amendment. This Court issued Rule in the matter on 13-4-2004 and on that day also directed municipal Corporation to file affidavit of City Engineer and to place on record relevant facts to support its stand that plan submitted by petitioners was not legal. In view of defence that portion of said plot is reserved for public Road and for beautification, it was also directed to produce extract of Development Plan.

(2.) We have heard Shri G. R. Agrawal, Advocate for the petitioners, Shri m. K. Pathan, Advocate for respondent No. 2, and Mrs. Wandile, AGP for respondents No. 1, 3 and 4. The fact that petitioners are legal allottees and are in possession of plot No. 11 is not in dispute. It is admitted that permanent lease of said plot is granted to petitioners by respondent No. 3 on 16-4-1998 and respondent No. 2 - Municipal Corporation also gave no objection for such grant. Shops of petitioners existed on said plot since 1951-52. However, respondent no. 2 has demolished those shops on 21-4-2002.

(3.) It is in this background that the petitioners state that issue of demolition of unauthorised constructions was discussed in general body meeting of respondent No. 2 on 16-11-1996 and vide Resolution No. 138 it was unanimously decided that constructions prior to 30-9-1996 would not be demolished by treating them as unauthorised. On 4-10-1999, petitioners applied to respondent No. 2 for sanctioning their proposed construction in place of their existing structures. After two months i. e. on 10-12-1999 Assistant Director of town Planning working under respondent No. 2 communicated rejection on the ground that construction obstructed beautification work of square. They submitted revised plan on 28-8-2000 which came to be rejected on 13-10-2000 mechanically without assigning any reasons. A joint drive was then undertaken by respondent Nos. 2, 3 and Superintending Engineer, B. and C. Department for removal of encroachments and as petitioners received threats of demolition, they filed Writ Petition No. 1910/2000. Respondent No. 2 Corporation filed submissions therein assuring that no action will be taken against petitioners without following the procedure prescribed under Bombay Provincial Municipal corporation Act, 1949. After recording said undertaking, that writ petition was dismissed on 14-6-2000. Thereafter petitioners submitted representation to assistant Director that they would bear necessary expenditure for beautification of square. On 20-1-2001 respondent No. 1 wrote to respondent No. 3 Collector that permanent lease given to petitioners could not be cancelled without providing alternate accommodation and their construction was not encroachment. In spite of all this, on Sunday - 21-4-2002, respondent No. 2 demolished the shops and structures of petitioners at 6 A. M. The petitioners suffered loss of Rs. 3 lakhs each as entire material in their shops was bulldozed. In order to protect their possession, they erected barbed wire fencing but on 27-4-2002 respondent no. 2 issued communications to remove it. Petitioners state that same has been wrongly treated and termed as public place. By amendment effected on 16-1-2004, petitioners have pointed out that their shops are not situated at Jaistambha square and their shops are not included in any development or beautification plan. They also produced site plan and photographs to show how their shops and plot is situated away from Jaistambha square. They also pointed out that there are several shops in vicinity and petitioners have been singled out and there is no question of any traffic hazard. They have further pointed out how rejection of their two applications for sanctioning building plan is contrary to law. They state that on 29-9-2003, they filed another application for sanction, strictly in accordance with law and the same was not rejected within statutory period of 60 days and there was no response from respondent No. 2. They contend that therefore their building plan is deemed to have been sanctioned on 28-11-2003 by virtue of bye-law No. 6. 7. 2 of the Building Bye-laws i. e. Development control Rules. They further stated that on or about 13-11-2003 officers and staff of respondent No. 4 carried out digging work for laying pipeline and construction of chamber on the plot of petitioners and hence they submitted representation to him on 14-11-2003. The work was discontinued by respondent No. 4 because of representation. They also mention that they have also filed Regular Civil Suit No. 468/1994 along with 20 shop owners for grant of declaration and injunction. After receipt of reply of Municipal Corporation, petitioners have further amended their petition on 16-8-2004 to contend that alleged communication of rejection of building plan dated 19-11-2003 was never served upon them. They also pointed out how reasons assigned for its rejection in alleged communication dated 19-11-2003 are incorrect. By counter affidavit, they have also denied service of rejection notice and contend that documents showing service of said order on their architect are fabricated. In their second counter filed on 24-4-2007, petitioners have pointed how with slight modifications problem about area of shop raised by Corporation can be solved.