Holding

The Municipal Council lacks statutory power to regularise unauthorised constructions; only compounding of offences is permissible, and demolition must be effected.

Summary

The Bhiwandi Municipal Council took over a strip of land for road widening and granted the appellants only repair permission for the remaining land (ground + two storeys). The appellants nevertheless erected a six‑storey building. The Council served a notice under Sections 52 and 53 of the Maharashtra Regional and Town Planning Act, 1966, requiring the appellants to apply for permission under Section 44 or face demolition, but no application was filed. The Council later passed a resolution to regularise all unauthorised constructions on payment of penalty and compounding of offences, yet the appellants made no application for regularisation. The High Court ordered demolition, holding the resolution illegal. On appeal, the Supreme Court affirmed that a municipal council, as a local planning authority, has no statutory power to regularise unauthorised constructions or to recover development charges as a right; its power is limited to compounding offences. Consequently, the demolition order must be carried out.

Issues considered

Whether the Municipal Council has statutory authority to regularise unauthorised constructions and recover development charges under the MRTP Act.
Whether failure to file an application for permission under Section 44 after a notice under Section 53 mandates demolition.
Whether offences under the MRTP Act can be compounded by the Municipal Council.
Whether the High Court's exercise of discretionary power to order demolition was proper.

Legislation cited

Indian Penal Code, 1860s. 119, s. 217, s. 34
Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965s. 189
Maharashtra Regional and Town Planning Act, 1966s. 124E(2), s. 143, s. 44, s. 52, s. 53

Subjects

Town planningUnauthorised constructionRegularisationDemolitionMunicipal council jurisdictionMRTP ActCompounding of offencesDevelopment chargesPublic interestDiscretionary power

Judgment

MAHENDRA BABURAO MAHADIK AND ORS. A
v.
SUBHASH KRISHNA KANITKAR AND ORS.

MARCH 16, 2005

[B.P. SINGH AND S.B. SINHA, JJ.] B

Town Planning:

Maharashtra Regional and Town Planning Act, 1966-Sections 44, 52,
53, 123E and 144-Unauthorised constructions within Municipal Area - C
Regularisation of-Portion of land in front of single storeyed building of a
person taken by Municipal Council for widening road-Grant of repair
permission of the existing building and not for new construction, however new
construction carried out-Issuance of notice directing compliance with the
directions-Non compliance ofand also non-filing ofapplication under section D
53(3)-Municipal Council passing Resolution to regularise unauthorised
constructions on payment ofpenalty charges and compounding of offences but
concerned person not filing any application for seeking regularization-High
Court directing demolition of unauthorized structures in writ petition-On
appeal, held : Municipal Council does not possess the statutory power to
regularize unauthorized construction and recover development charges, but is E
confined to compounding ofoffentes-Demand ofdevelopment charges without
prejudice to their rights does not create any legal right-Also since no
application filed for permission for retention ofland, Council obliged not only
to prosecute owner but also to carry demolition-Hence, High Court rightly
exercised discretionary power directing demolition ofstructure-Maharashtra
Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965- F
Section I 89.

The Municipal Council took over portion of land in front of the single
storeyed structure standing on the site of the appellant for the purpose of
road widening. Appellants in lieu of lost land obtained repair/construction G
permission from the Municipal Council in respect of remaining land for
ground as well as two upper floors though no upper floor were in existence.
Appellants then started the construction of ground floor plus six floors.
Thereafter, the Municipal Council issued notice to the appellants directing

903 H
904 SUPREME COURT REPORTS [2005] 2 S.C.R.

A them to comply with the directions contained therein or file an application
in terms of section 53(3) of the Maharashtra Regional and Town Planning
Act, 1966 but they took resort to neither. Meanwhile, the appellants sought
permission for construction of new houses for ground plus four more floors
against the lost land. Thereafter, the appellants adopted a resolution that
the unauthorized construction without permission could be regularised on
B payment of certain penalty charges and compounding of offences in terms
of Section 43 of the MRTP Act. However, the appellants did not file any
such application for regularization of the unauthorized constructions.

First Respondent then filed a writ petition seeking issuance of l
C direction to the Municipal Council to demolish the building consisting of
ground and six upper floors constructed by the appellants. High Court
held that the Resolution was wholly unsustainable in law and the structures
be demolished. Hence the present appeals.

Appellants and the respondent nos. 2 and 3 in Civil Appeal No. 2733
D of 2001 inter a/ia contended that the Municipal Council had the requisite
jurisdiction to pass the resolution whereby unathorised construction could
be regularized and as such the direction of High Court exercising its
discretionary power to demolish the structure was not just; and that the
Municipal Council had the requisite jurisdiction to regularize such
unauthorized constructions by compounding offences upon accepting
E compounding fees.

First Respondent contended that the appellants filed wrong
documents and statements before .this Court to bolster their cases; and

F
that no general order of regularization could be issued in terms of the
purported resolution. - I

Dismissing the appeal, the Court

HELD : 1. A discretionary power must be exercised having regard
to the larger public interest. It cannot be said that the High Court should
have taken a lenient view with regard to the demolition of unauthorised
G constructions. Therefore, the Municipal Council is directed to carry out
the demolition order passed by the High Court, as expeditiously as possible.
(924-B, G; 925-H) L

Corporation of Calcutta v. Mu/chand Agarwal/a,· (1955) 2 SCR 995,
H distinguished.

',
t 905
M.B. MAHADIK v. S.K. KANITKAR
.L Friends Colony Development Committee v. State of Orissa and Ors., A
120041 8 SCC 733; MI. Builders Pvt. Ltd. v. Radhey Shyam Sahu and Ors.,
(199916 SCC 464 and Consumer Action Group and Anr. v. State of TN. and
Ors., (20001 7 SCC 425, referred to.

2.1. The Municipal Council did not make any promise to give full.
cooperation and concession in lieu of compensation for taking the road B
for widening purposes. It promised that cooperation will be given in the
matter of payment of compensation for affected land. Therefore, the
appellants made incorrect statements and annexed a wrong document
before this Court. Furthermore, the Municipal Council granted only repair·
permission to the appellants. If permission had been granted only for C
carrying out repairs of an existing building and if, in fact, there existed
only ground floor, question of grant of any permission for new
construction or for that matter permission for carrying out repairs in
ground plus two storey could not have been issued. Furthermore, there is
nothing on record to show that any application seeking permission was
filed for construction of new houses for ground plus four more floors for D
carrying out the repairs and also that they had any F.S.I. If the Council
in fact had granted any permission to make new constructions of ground
and two storeyed building, there was no reason for not producing before
the High Court or before this Court. Thus, there is no option but to hold
that only repair permission had been granted to the appellants. E
(917-D-E; 918-C, G-H; 919-A)

2.2. Once a notice under section 52 of the Maharashtra Regional and
Town Planning Act, 1966 is served, the persons aggrieved must apply for
permission for retention on the land of the building or works under section
44 of the Act within one month. Only when a permission is granted, the F
notice would stand withdrawn. The question of grant of any permission
would arise only if an application is made therefor. As the appellants had
not filed such application, the Municipal Council was under statutory
obligation not only to prosecute the owner but also to carry out the
demolition in terms of the notice. But the Council did not discharge its
statutory obligation and on the other hand, adopted the resolution whereby G
the unauthorized construction could be regularised on payment of certain
charges. Appellants did not file any application for regularization of the
unauthorized constructions within a reasonable time. Thus, they were not
entitled to obtain any order of regularization from the Municipal Council,
pursuant to the resolution. In any view, as the State did not approve the H
906 SUPREME COURT REPORTS [2005) 2 S.C.R.

A Resolution, there is no question of giving effect thereto by the Municipal·
Council in favour of the appellants. Furthermore, even during pendency
-
of the writ petition, appellants did not file any such application nor
contended that they were entitled to take recourse to the benefits contained
in the resolution. 1919-C; 920-A-C, D-E)

B 2.3. The Municipal Council is a 'local authority' as well as planning
authority within the meaning of the provisions of sections 2(15) and 2(19)
of the MRTP Act. The Municipal Council being a creature of statute was
bound to carry out its functions within the four-corners thereof. Being a
statutory authority, it was required to follow the Rules scrupulously. The
C jurisdiction of a local authority is confined only to deal with application
for grant of permission for construction as contained in section 44 of the
Act whether at the initial stage or when a notice is served under section
53(2). The power to grant such permission could be exercised only within
the purview of the Building Bye-laws. Tllerefore, being beyond the scope
of section 44 of the Act, the Municipal Col!ncil did not have any
D jurisdiction to direct regularisation of such unauthorized constructions by
reason of the said resolution or otherwise. Its power is confined to
compounding the offences in certain cases. (920-F-G; 922-F-GJ

2.4. Even the development charges could not be recovered from the
person in respect of unauthorized constructions in terms of section 124E(2)
E of the MRTP Act. Certain demands were made upon the appellants to
deposit the development charges by the Municipal Council but the same
were made without prejudice to their rights and as such did not create
any legal right in favour of the appellants. Therefore, payment of
development charges by itself did not lead to exoneration from the
F consequence of commission of an offence or regularization of unauthorized
constructions. (920-H; 922-D-E)

Chairman and MD, NTPC Ltd. v. Reshmi Constructions, Builders and
Contractors, 120041 2 SCC 663, relied on.

G CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2733 of
2001.

From the Judgment and Order dated 31.7.2000 of the Bombay High
Court in W.P. No. 4675 of I 999.

H Shekhar Naghde, Dr. N.M. Ghatate, V.A. Mohta, Himanshu Gupta, T.
-- M.B. MAHADIK v. S.K. KANITKAR [SINHA, J.]

Raja, Shivaji M. Jadhav, M.D. Adkar, Nilananta Nayar, Vijay Kumar,
Vishwajit Singh and Mukesh K. Giri for the appearing parties.
907
A

The Judgment of the Court was delivered by

S.B. SINHA, J. These two appeals arising from a common judgment
and order dated 31st July, 2000 passed by a Division Bench of the High B
Court of Judicature at Bombay in writ petition No. 4675 of 1999 were taken
up for hearing together and are being disposed of by this common judgment.

FACTS:

The factual matrix is being noticed from Civil Appeal No. 2733 of C
2001.

The First Respondent herein, an advocate, is said to be associated with
various social activities and had been acting as Chief Trustee of Ganpati
Devasthan, Bhiwandi. He filed a writ petition in the nature of a Public Interest
Litigation inter alia for issuance of an appropriate direction upon The Bhiwandi D
Nizampura Municipal Council (hereinafter referred to 'Municipal Council')
to demolish a building consisting of ground and six upper floors constructed
by the Appellants herein on the land bearing City Survey No. 3331 and
House Property No. 358 and 358/1 ofKaskar Alley, Bhiwandi, District Thane:
A further prayer was made that the Municipal Council be directed to furnis~
certified copies of extracts of assessment register/book and permission dated E
5th May, 1995 granted to the Appellants herein in relation to the
aforementioned property.

WRIT PROCEEDINGS :

In his writ petition, the first Respondent complained of illegal F
constructions made in the town of Bhiwandi on private as well as Government
lands but despite the same neither any action was taken thereupon nor any
certified copy of the assessment register/ book was supplied.

In the writ petition, it was contended that on the aforementioned plot G
there existed a single storied structure but the Appellants managed to obtain
a repair permission dated 5th May, 1995' for carrying out repairs on the
ground floor and two upper floors, but construction of ground plus six floors
was started on the basis thereof.

The First Respondent herein sought for copies of extracts of the H
908 SUPREME COURT REPORTS [2005] 2 S.C.R.

A assessment register for the purpose of establishing the nature of the original
structure standing on the said property but the same was denied to him on the
premise that the property in question did not stand in his name. It was
'furthermore contended that the officials of the Municipal Council colluded
with the Appellants herein. It was urged that such constructions had come up
solely owing to negligence and default on their part. It was further contended
B that no F.S.l. was available on the plot for constructing such a huge building
and, thus, the same being unauthorized was liable to be demolished.

Before the High Court the Appellants did not file any return. The
Municipal Council, however, contended that in relation to the said property
a civil suit had been pending in the Court of Civil Judge, Junior Division,
C Bhiwandi wherein the Appellants had obtained an order of status quo. It was
further disclosed that a First Information Report in relation to the
aforementioned unauthorized construction was lodged on 4th June, 1999 under
Section 43 read with Section 52 of the Maharashtra Regional and Town
Planning Act, 1966 (MRTP Act) and Sections 119 and 217 read with Section
D 34 of the Indian Penal Code wherein the Appellants as also the officers of
the Municipal Council including the then Chief Surveyor and Chief Engineer
were named as accused therein.

Before the High Court, reliance was also placed upon a purported
resolution of the Municipal Council dated 12th October, 1998 in terms whereof .....
E all unauthorized constructions within the municipal area were sought to be
regularized upon imposition of penalty and compounding of offences in terms
of Section 43 of the MR TP Act.

The State of Maharashtra in its affidavit contended that it was not
inclined to approve the aforementioned resoluti~n passed by the Municipal
F Council.

JUDGMENT OF THE HIGH COURT:

In the impugned judgment, the High Court held :

G (i) The First Respondent was entitled. to inspection of documents as
also grant of certified copies on payment of requisite charges;

(ii) Recovery of taxes in respect of unauthorized construction does
not amount to regularisation thereof;

H (iii) The Resolution dated 12th October, 1998 passed by the Municipal
M.B. MAHADIK v. S.K. KANITKAR [SINHA, J.] 909

Council on a wholesale basis is wholly unsustainable in law. A
(iv) Offences relating to unauthorized or illegal constructions cannot
be compounded and, thus, structures have to be demolished.

(v) Regularization of such unauthorized structures would defeat the
very purpose of introducing the rules of planned development of the B
city and, thus, cases of such unauthorized constructions must be dealt
with sternly.

It was directed :

"(i) The Respondent nos. l and 2 are directed to issue
certified copies of the documents within four weeks as per C
the applications filed by the Petitioners subject to payment
of charges.

(ii) Civil Judge (J.D.) Bhiwandi is directed to decide the
application for interim relief by Respondent nos. 4 to 6 in
Reg. Civil Suit No. 321 of 1999 within a period of eight D
weeks. The parties shall appear before the Civil Court on
4th September, 2000 and thereafter the Civil Court shall
hear the matter on day to day basis without granting any
adjournments to either side.

(iii) Appeal filed against the order of the Trial Court, if E
admitted and ad-interim or interim relief is granted, shall be
disposed of within a period of six weeks without insisting
for formal paper book.

(iv) In case the Civil Court vacates the interim order the
Municipal Council shall demolish the building constructed F
by Respondent nos. 4 to 6 within a period of four weeks
from the date of vacation of interim relief.

(v) The Commissioner of Police, Thane is directed to provide
adequate police protection to the municipal staff in carrying G
out demolition of the building.

(vi) The resolution dated 12th October, 1998 is quashed and
set aside. Respondent nos. I and 2 are directed to take
immediate steps to demolish the unauthorized structures in
Bhivandi in accordance with law."
H
910 SUPREME COURT REPORTS [2005] 2 S.C.R.

A SUBMISSIONS :
Mr. Shekhar Naphde, learned senior counsel appearing on behalf of the
Appellants principally raised the following two contentions in support of
these appeals :

B (l) Having regard to the statutory scheme contained in Sections 52 and
53 of the MRTP Act read with Section 189 of the Maharashtra Municipal
Councils, Nagar Panchayats and Industrial Townships Act, 1965 (the Municipal
Act), the Municipal Council had the requisite jurisdiction to pass the resolution
dated 12th October, 1998 and in that view of the matter the direction of the
High Court to demolish the structure is manifestly unjust, as pursuant to or
C in furtherance of such scheme of regularization, the Appellant could have
filed an application praying for regularization of the constructions raised by
them.

(2) In any event, the High Court should not have exercised its
D discretionary power in directing demolition of the structure. Strong reliance,
in this behalf, has been placed on Corporation of Calcutta v. Mulchand
Agarwalla, [1955] 2 SCR 995.

Dr. N.M. Ghatate, learned senior counsel appearing on behalf of the
Appellants in Civil Appeal No. 2734 of2001 and Respondent Nos. 2 & 3 in
E Civil Appeal No. 2733 of2001 supported the contention of Mr. Naphde and
furthermore urged that although a notice had been served upon the Appellants, .
no demolition could be carried out in view of the order of status quo passed
by the Civil Court.

According to Dr. Ghatate, the Municipal Council has the requisite
F jurisdiction to regularize sue~ unauthorized constructions by compounding
offences upon accepting compounding fees prescribed therefor.

Mr. V.A. Mohta, learned senior counsel appearing on behalf of the
First Respondent, on the other hand, would submit that the Appellants are
guilty of commission of fraud and even in this Court got up documents have
G been filed and wrong statements have been made to bolster their cases.
According to learned counsel, Section 143 of the MRTP Act refers only to
offences and in that view of the matter, by reason thereof, except as expressly
provided for in the MRTP Act or the Municipal Act, no general order of
regularization could be issued in terms of the purported resolution dated 12th
H October, 1998 or otherwise. Provisions of Sections 52 and 53 of the MRTP
M.B. MAHADIK v. S.K. KANITKAR [SINHA, J.] 911
Act, Mr. Mohta would contend, would apply only during development and A
not thereafter.

STATUTORY PROVISIONS:

The relevant provisions of the MRTP Act are as under :

"2(15) "local authority" means - B
(a) the Bombay Municipal Corporation constituted under the Bombay
Municipal Corporation Act or the Nagpur Municipal Corporation
constituted under the City of Nagpur Municpal Corporation Act, 1948,
or any Municipal Corporation constituted under the Bombay Provincial
·Municipal Corporation Act, 1949. C.

(b) a Council and a Nagar Panchayat constituted under the Maharashtra
Municipal Councils, Nagar Panchayats and Industrial Townships Act,
1965

2(19) "Planning Authority" means a local authority; and includes - D
(a) a Special Planning Authority constituted or appointed or deemed
to have been appointed under section 40;

(b) in respect of the slum rehabilitation area declared under section
3C of the Maharashtra Slum Areas (Improvement, Clearance and E
Redevelopment) Act, 1971, the Sluin Rehabilitation Authority
appointed under section 3A of the said Act;

44. Except as otherwise provided by rules made in this behalf, any
person not being Central or State Government or local authority
intending to carry out any development on any land shall make an F
application in writing to the Planning Authority for pennission in
such fonn and containing such particulars and accompanied by such
documents, as may be prescribed :

Provided that, save as otherwise provided in any law, or any rules,
regulations or by-laws made under any law for the time being in G
force, no such permission shall be necessary for demolition of an
existing structure, erection or building or part thereof, in compliance
of a statutory notice from a Planning Authority or a Housing and
Area Development Board, the Bombay Repairs and Reconstruction
Board or the Bombay Slum Improvement Board established under
H
912 SUPREME COURT REPORTS [2005] 2 S.C.R.

A the Maharashtra Housing and Area Development Act, l 976.

52. ( 1) Any perspn who, whether at his own instance or at the instance
of any other person commences, undertakes or carries out
development, or institutes, or changes ihe use of any land -

(a) without permission required under this Act; or
B
(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
c (d) in contravention of any permission' which has beeri duly modified.

shall, on conviction, be punished with imprisonment for a .term which
shall not be less than one month but which may extend to three years
and with fine which shall not be less than two thousand rupees but
. which may extend to five thousand rupees, and in the case of a
D
continuing offence with a further daily fine which may extend to two
hundred rupees for every day during which the offence continues
after conviction for the first commission of the offence.

· (2) Any person who continues to use or allows the use of any land
E or building frl contravention of the provisions of a Development plan
without being allowed to do so under section 45 or 4 7, or where the
continuance of such use has been allowed under that section continues
such use after the period for which the use has been allowed or
without complying with the terms and conditions u11;der which the
continuance of such use is allowed, shall, on conviction be punished
F with fine which may extend to five thousand rupees; and in the case
of a continuing offence, with a further fine which may extend to one
hundred rupees for every day during which such offence continues
after conviction for the first commission of the offence.

53( 1) Where any development of land has been carried out as indicated
G in sub-section (I) of section 52, the Plann.ing Authority may, subject
to the provisions of this section, serve on.the owner a notice requiring
him, within such period being not less than one month, as may be
specified t~erein after the service of the notice, to take such steps as
may be specified in th.e notice.
H
M.B. MAHADIK v. S.K. KANITKAR [SINHA, J.] 913

(a) in cases specified in clause (I) or (c) of sub-section (I) of section A
52, to restore the land to its condition existing before the said
development took place,

(b) in cases specified in clause (b) or (d) of sub-section (I) of section
52, to secure compliance with the conditions or with the permission
as modified : B
Provided that, where the notice requires the discontinuance of any
use of land, the Planning Authority shall serve a notice on the occupier
also.

(2) In particular, such notice may, for purposes of sub-section (1), C
require -

(a) the demolition or alteration of any building or works;

(b) the carrying out on land of any building or other operations; or

(c) the discontinuance of any use of land. D
(3) Any person aggrieved by such notice may, within the period
specified in the notice and in the manner prescribed, apply for
permission under section 44 for retention on the land of any building
or works or for the continuance of any use of the land, to which the
notice relates, and pending the final determination of withdrawal of E
the application the mere notice itself shall not affect the retention of
buildings or works or the continuance of such use.

(5) If the permission applied for is granted, the notice shall stand
withdrawn; but if the permission applied for is not granted, the notice
shall stand; or if such permission is granted for the retention only, of F
some buildings, or works, or for the continuance of use of only a part
of the land, the notice shall stand withdrawn as respects such buildings
or works or such part of the land, as the case may be, and thereupon,
the owner shall be required to take steps specified in the notice under
sub-section (I) as respects such other buildings, works or part of the G
land.

124E (2) The Authority shall, on such application being made or if
no such application is made, by a person instituting or changing any
use of any land or building, then after serving a notice in writing on
the person liable to such payment and after calling for a report in this H
914 'SUPREME COURT REPORTS [2005] 2 S.C.R.

A behalf from the concerned officer of the Authority, after taking into
consideration the report aforesaid, determining whether or not and if
so, what development charge is leviable in respect of that development
or, institution of use or change of use and after giving the person
concerned an opportunity to be heard, shall then assess the amount of
development charge payable by such person and give to such person
B a notice in writing of such assessment.

143. (I) The Regional Board or Planning Authority or Development
Authority concerned or any person authorized in this behalf by general
or special order may either before or after the situation of the
proceedings compound any offence made punishable by or under this
c Act or rules made thereunder.

(2) When an offence has been compounded, the offender, if in custody,
shall be discharged : and no further proceedings shall be taken against
him in respect of the offence compounded."

D Sub-sections (2), (8) and (9) of Section 189 of the Municipal Act are
as under :

"(2) Before beginning to construct any building, the person intending
·so to construct shall give to 'the Chief Officer notice thereof iµ writing
and shall furnish to him at the same time, if required by a bye-law
E or by aspecial order to do so, a plan showing the levels, at which the
foundation and lowest floor of such building are proposed to be laid,
by reference to some level known to the Chief Officer, and all
information required by the bye-laws, or demanded by the Chief
Officer regarding the limits, design, ventilation and materials of the
F proposed building and the intended situation and construction of the
drains, privies water-closets, house-gullies and cess pools, if any, to
be used in connection therewith, and the location of the building with
reference to any existing or projected streets, the means of access to
such building and the purpose for which the building will be used :

G Provided that, if the bye-laws of the Council so require, such notice
shall be in such form as the Council may from time to time prescribe
and such plans shall be signed by a person possessing the qualifications
laid down in the bye-laws or licensed under the bye-laws so to sign
such plans.

H (8) If any person begins any construction of a building of which
M.B. MAHADIK v. S.K. KANITKAR [SINHA, J.] 915
notice is required to be given under sub-section (2) -
A
(i) without the permission of the Chief Officer under sub-section (4)
or of the Council under sub-section (5), save as otherwise provided
under sub-section (6); or

(ii) having received permission under clause (a) of sub-section (4), B
contrary to the plans and information furnished under sub-sections
(2) and (3); or

(iii) having received permission under clause (b) of sub-section (4)
contrary to the conditions imposed under that clause or contrary to
the plans and information submitted under sub-sections (2) and (3) in C
so far as such plans and information are not modified by such
conditions; or

(iv) contrary to the provisions of sub-section (6), when construction
is begun under that sub-section, the Chief Officer may, by a written
notice, require such person to stop such construction and to alter or D
demolish any construction already made as specified in the notice. If,
within fifteen days, from the service of such notice for demolishing
any such construction, the work of demolishing is not commenced,
the Chief Officer may cause such work to be done and the expenses
incurred therefor shall be recoverable from the person concerned in
the same manner as an amount due on account of a property tax. E
(9). Any person who fails to comply with the notice issued by the
Chief Officer under sub-section (8), shall, on conviction, be punished
with fine which may extend to five thousand rupees."

ANALYSIS OF THE STATUTORY PROVISIONS:
F
In terms of Section 44 of the MRTP Act, a person intending to raise
any construction is required to make an application in respect thereof to the
Planning Authority for permission in such form and containing such particulars
and accompanied by such documents, as may be prescribed. Filing of such
application and obtaining such permission concededly are imperative in G
character. Such permission, if granted, remains in force for a period of one
year unless extended by the Planning Authority.

Section 52 contains penal provisions. Section 53 authorizes the local
authority to direct removal of unauthorized development. Sub-section (1) of
H
916 SUPREME COURT REPORTS [2005] 2 S.C.R.

A Section 53 authorizes the local authority to issue a notice where a development
of land has taken place in violation of the condit_ions indicated in Sub-section
'
(I) of Section 52.

In terms of Sub-sec;tion (7) of Section 53, a person prosecuted under
Cl~use (!) of Sub-Section (6) of Section 53. wil.1 be inflicted with the
B punishment specified therein.

DETERMlNA TION :

The First Respondent herein in the writ petition categorically stated that
the original structure standiqg on the site in question was not of permanent
C nature and was a single storeyed one. Only the open land in front of the said
structure on its southern side had been taken over by the Municipal Council
for the purpose of road widening, whereafter the Appellants made an
application to the Municipal Council for grant of repair permission which
was granted for carrying out the repairs of ground as also two. upper floors,
despite the fact that no upper floor was .ever in existence. Although in terms
D of such permission, only repairs .of the existing structure could have been
carried out and that too within a period of one year from 5th May, 1995, the
Appellants herein started altogether new construction in the year 1998. They
had erected R.C.C. framework of a building consisting of ground plus six
upper floors but have not yet finished the work. The said averments of the
E Respondents in the Writ Petition were not denied or disputed. In fact, as
noticed hereinbefore, the Appellants herein did not file any return before the
High Court.

Before this Court the Appellants have produced a letter of the Municipal
Council dated 4th December, 1986 addressed to the Appellant herein wherein
F it is contended :

"Sub : Road Widening.

Sir,

This is to inform you that your land on the southern side from
G C.T.S. 3331 is given to the Municipal Council after demolishing the
compound wall for Road widening and the work of drainage is in
progress.

In lieu of compensation for the said land the Municipal Council
shall give full cooperation and concessions."
H
M.B. MAHADIK v. S.K. KANITKAR [SINHA, J.] 917

Sl!ch a statement has also been made in the synopsis. and list of dates A
at page B of Civil Appeal No. 2733 of 2001.

However, while filing the additional documents, a copy of the s~id
letter dated 4th December, 1986 had been annexed which reads as under :

''By this letter it is to inform you that on the part of your land B
bearing City Survey No. 3331 towards South a portion of land is
taken for road widening purpose. In the said land surrendered by you
the Municipal Council has broken the compound and undertaken the
work of laying drainage, and developed a road.

Kindly note that necessary cooperation will be given in the matter C
of compensation (price) for affected land from Municipal Council.''

The Municipal Council, therefore, in terms of its aforementioned letter
dated 4th December, 1986 did not make any promise to give full cooperation
and concession in lieu of compensation. What was promised was that
cooperation will be given in the matter of payment of compensation for D
affected land.

It is, therefore, apparent that the Appellants have made incorrect
statements and annexed a wrong document before this Court.

The Municipal Council, moreover, granted only repair permission to E
the Appellants, as would appear from its letter dated 5th May, 1995 wherein
it is stated :

''Sub: Repairs/Constructions permission in respect of remaining land
upon demolition carried out for road widening.
F
Ref: Reply letter No. TP/2021 dt. 4.12.86.

Sir,

For the purpose of road widening you out of your own initiative
demolished your premises and handed over the land affected thereby G
to the Municipal Council. Repair permission for the old house, leaving
the portion of land falling under road widening, is hereby granted as
under: -

Location : Mauje Bhiwandi, City Survey No. 3331

Scope of Construction : In lieu of the land lost in road widening, on H
918 SUPREME COURT REPORTS [2005] 2 S.C.R.

A remaining land the construction of ground + 2 story could be made,
leaving the distance of 5 feet from Municipal drainage.

Measurement : East 68', West 38', North 71 '.

For constructions made over and above the aforesaid measurement,
appropriate legal action will be taken against you entirely at )'Our
B
risks as to costs a.nd consequences thereof. Similarly in the event of
any objections on ownership, possession, easement etc. being taken,
resulting in civil as well as criminal proceedings; the Municipal Council
shall not be responsible for the same."

C Thus, if permission had been granted only for carrying out repairs of
an existing building and if, in fact, there existed only ground floor, question
of grant of any permission for new construction or for that matter permission
for carrying out repairs in ground plus two storey could not have been issued,.
It, furthermore, appears that the Municipal Council on or about 6.6.1998
issued a notice asking the Appellants herein to comply with the directions
D contained therein failing which it was threatened that necessary action would
be taken in terms of the provisions of the MRTP Act and the Municipal Act
and the unauthorized construction/ development would be. demolished.

· In the Schedule appended to the said notice, the structure in question
E was described as :
"Under repair permission No. TP/87 dated 5.5.95, unauthorized
construction is in progress at land bearing City Survey No. 3331 at
Bhiwandi Mauje - Ground + six floors.

Measurement : East 68 ft. West 38 ft. North 71 ft."
F
It appears that the Appellants had prayed for assessment of house tax
by a letter dated 25.06.1998. In the said letter, permission was sought for
construction of new houses. for ground plus four more floors purported to be
by way of compensation for the land lost by them by way of equalization
thereof for road widening. There is nothing on record to show that Mr. R.R.
G Patil had made any such application for carrying out the repairs. There is also
nothing on record to show that the said Shri R.R. Patil had any F.S.I..

If the Municipal Council in fact had granted any permission to make
new constructions of ground and two storeyed building, there was no reason
H as to why the same had not been produced befor~ the High Court or before
M.B. MAHADIK v. S.K. KANITKAR [SINHA, J.) 919

us. A
We have, therefore, no option but to hold that only repair permission
had been granted to the Appellants.

The Appellants herein in terms of the said notice dated 6.6.1998 had
the option of complying with the directions contained therein or file an 'B
appropriate application in terms of Sub-section (3) of Section 53 of the MRTP
Act but they took recourse to neither.

If within a period of one month from 6.6.1998 no such application was
filed, the Municipal Council was under a statutory obligation to carry out
demolition of the structure in question. It did not discharge its statutory C
obligation. On the other hand, it adopted the following resolution on
22.10.1998 :

''Sub : Common disposal of cases of unauthorized/ without permission
constructions by imposing penalty under the provisions of Municipal
Council Rules. D
RESOLUTION

In Bhiwandi city, it is observed that there are unauthorized/ without
permission constructions made in large scale. Proceedings against the E
unauthorized constructions are already afoot. However, inspite of the
actions pursuant to the decisions of the courts of law and due to
inadequate strength of municipal staff, there is no reduction noticed
in unauthorized constructions. Similarly, it is observed that the people
are residing in/ using the unauthorized construction. Hence, only
because the constructions are unauthorized, from the point of view of F
humanity it is deemed impracticable I improper to demolish the said
constructions. Hence, the unauthorized constructions which are not
opposed to the Development Planning Scheme and are within the
FSI, the cases of such constructions can be commonly disposed off
by imposing. penalty under the provisions of section 143 of G
Maharashtra Regional and Town Planning Act, 1966. For dealing of
such cases the powers of Planning Authority are given to the Chief
Officer, Bhiwandi Nizampur Municipal Council, who may take further
appropriate action in that regard under the guidance of respected Dy.
Director, Town Planning, Kokan Division, Kokan Bhawan.
H
920 SUPREME COURT REPORTS [2005] 2 S.C.R.

A Resolution approved unanimously.''

The Appellants did not file any application for regularization of the
unauthorized constructions raised by them in terms of the aforementioned
resolution dated 22.10.1998 within a reasonable time. They, thus, were not
entitled to obtain any order of regularization from the Municipal Council,
B pursuant to the said purported resolution.

In any view of the matter, the State of Maharashtra having not approved
the said Resolution, the question of giving effect thereto by the Municipal
Council in favour of the Appellants, as was submitted by Mr. Naphde does
not arise.
c
The writ petition was filed by the First Respondent herein on 29.6.1999
and even during pendency thereof, no such application was filed by the
Appellants nor any contention was raised to the effect that they were entitled
to take recourse to the benefits contained in the said resolution.

D Once such a notice under Section 52 is served, the persons aggrieved
within the period specified therein, which in the instant case is one month,
must apply for permission for retention on the land of the building or works
under Section 44 of the MRTP Act. Only when a permission is granted, the
notice would stand withdrawn. The question of grant of any permission would
E arise only if an application is made therefor. As the Appellants herein had not
filed such application, the Municipal Council was obliged not only to prosecute
the owner but also to carry out the demolition in terms of the aforementioned
notice dated 6.6.1998.

The Municipal Council is a 'local authority' as well as planning authority
F within the meaning of the provisions of Sections 2(15) and 2(19) of the
MRTP Act.

The Municipal Council being a creature of statute was bound to carry
out its functions within the four-comers thereof. Being a statutory authority;
it was required to follow the rules scrupulously. Concededly, the Municipal
G Council is not possessed of any statutory power to regularize unauthorized
constructions. Its power is confined to compounding the offences in certain
cases. Moreover, even development charges could not be recovered from the
Appellant in respect of unauthorized constructions in terms ofSectiori 124E(2)
of the MRTP Act.
H
M.B. MAHAOIK v. S.K. KANITKAR [SINHA, J.) 921
It appears that the Municipal Council itself in tenns of a letter dated A
20.11.1998 sought for guidance of the Dy. Director Town Planning stating:

"Sub: Common disposal of cases of unauthorized/ without permission
constructions made within Municipal Council limits by imposing
penalty under the provisions of Section 143 of Maharashtra Regional
and Town Planning Act, 1966. B
Ref: Council's Resolution No. 134 dt. 12.10.98.

Sir,

With reference to above, it is seen that in Bhiwandi city there are
large number of unauthorized/ without permission constructions made. C
Proceedings against the said unauthorized constructions are a foot
already. However, inspite of the action taken pursuant to the decisions
of the courts of law and due to inadequate strength of Municipal
staff, there is no reduction noticed in the unauthorized constructions.
Similarly, it is observed that the people are residing in/ using the D
unauthorized constructions. Hence, only because the constructions
are unauthorized, the demolition of the same is not deemed proper/
possible. Hence, in this regard the Municipal Council has passed a.
unanimous Resolution dated 12.10.90 in General meeting, being
Resolution No. 134. Such cases can be disposed off commonly under
the provisions of section 143 of Maharashtra Regional and Town E
Planning Act, 1966, considering Development Planning Proposal, FSI
etc. Powers for dealing such cases on behalf of the Planning Authority
is delegated to the Chief Officer. Copy of the Resolution is annexed
hereto for perusal. Hence, it is requested that necessary legal and
technical guidance in that regard be kindly given." F
A reference to the Government also appears to have been made by the
Director, Town Planning by a letter dated 29th July, 2000 addressed to the
Head Secretary of the Government of Maharashtra in the following terms :

"Sub : Recovery of development fees on unauthorized constructions. G
Ref : (I) Letter dt. 27.7.99 of Chief Officer, Bhiwandi Nizampur
Municipal Council

(2) Letter No. TPS-1299-1105/CD-12, dt. 29-3-2000 of City/
Development Department, Govt. of Maharashtra.
H
922 SUPREME COURT REPORTS [2005] 2 S.C.R.

A Sir,

With reference to above referred letter of Bhiwandi Nizampur
Municipal Council, guidance is sought for recovery of development
fees on unauthorized construction. Considering the provisions of
Section 124-E(2) of Maharashtra Regional and Town Planning Act,
B 1966, proceedings of recovery of development fees on unauthorized
constructions by Municipal Councils is not proper. Instead of that, the
Municipal Councils should take actions under the provisions of
Sections 52,53 and 54 of the aforesaid Act with respect to unauthorized
constructions. And only the constructions which can be regularized in
accordance with rules, actions for such constructions should only be
c taken to regularize and recovery of development fees. in such cases
would be proper. Accordingly, the Municipal Councils may be
advised.''

It may be true that certain demands were made upon the Appellants
herein to deposit the development charges by the Municipal Council but the
D same were made without prejudice to their rights, as would appear from t!'ie
notice dated 3. l I. l 998. Demand of the development charges without prejudice
to the rights of the Municipal Council did not, thus, create any legal right in
favour of the Appellants. [See Chairman and MD, NTPC Ltd. v. Reshmi
Constructions, Builders and Contractors, [2004] 2 SCC 663].
E Payment of development charges by itself, therefore, did not lead to
exoneration from the consequence of commission of an offence or
regularization of unauthorized constructions.

The jurisdiction of a local authority is confined only to deal with
F application for grant of permission for construction as contained in Section
44 of the MRTP Act whether at the initial stage or when a notice is served
under Sub-section (2) of Section 53 of the MRTP Act. The power to grant
such pennission could be exercised only within the purview of the Building
Bye-laws. Therefore, being beyond the scope of Section 44 of the MRTP Act,
the Municipal Council did not have any jurisdiction to direct regularization
G of such unauthorized constructions by reason of the said resolution or
otherwise. The power of the Municipal Council, it is trite, being confined to
the provisions of the said Acts, no action could be taken by them contrary
thereto or inconsistent therewith.

In Friends Colony Development Committee v. State ofOrissa and Ors.,
H [2004] 8 sec 733, this Court opined :
M.B. MAHADIK v. S.K. KANITKAR [SINHA, J.] 923
"25. Though the municipal laws permit deviations from sanctioned A
constructions being regularized by compounding but that is by way
of exception. Unfortunately, the exception, with the lapse of time and
frequent exercise of the discretionary power conferred by sue!,
exception, has become the rule. Only such deviations deserve .to be
condoned as are bona fide or are attrib11table to some misunderstanding
or are such deviations as where the benefit gained by demolition B
would be far less than the disadvantage suffered. Other than these,
deliberate deviations do not deserve to be condoned and compounded.
Compounding of deviations ought to be kept at a bare minimum. The
cases of professional builders stand on a different footing from an
individual constructing his own building. A professional builder is C
supposed to understand the laws better and deviations by such builders
can safely be assumed to be deliberate and done with the intention of
earning profits and hence deserve to be dealt with sternly so as to act
as a deterrent for future. It is common knowledge that the builders
enter into underhand dealings. Be that as it may, the State Governments
should think of levying heavy penalties on such builders and therefrom D
develop a welfare fund which can be utilized for compensating and
rehabilitating such innocent or unwary buyers who are displaced on
account of demolition of illegal constructions."

In Ml. Builders Pvt. Ltd. v. Radhey Shyam Sahu and Ors., [1999] 6 E
SCC 464, this Court observed :

"73. The High Court has directed dismantling of the whole object
and for restoration of the park to its original condition. This Court in
numerous decisions has held that no consideration should b~- shown
to the builder or any other person where construction is unauthorised. F
This dicta is now almost bordering the rule offaw. Stress was laid by
the appellant and the prospective allottees of the shops to exercise
judicial discretion in moulding the relief. Such ·a discretion cannot be
exercised which encourages illegality or perpetuates an illegality.
Unauthorised construction, if it is illegal and cannot be compounded,
has to be demolished. There is no way out. Judicial discretion cannot G
be guided by expediency. Courts are not free from statutory fetters.
Justice is to be rendered in accordance with law. Judges are not
entitled to exercise discretion wearing the robes of judicial discretion
and pass orders based solely on their personal predilections and
peculiar dispositions. Judicial discretion wherever it is required to be H
924 SUPREME COURT REPORTS (2005] 2 S.C.R.

A exercised has to be in accordance with law and set legal principles.
As will be seen in moulding the relief in the present case and allowing
one of the blocks meant for parking to stand we have been guided by
the obligatory duties of the Mahalaplika to construct and maintain
parking lots."

B .A discretionary power must be exercised having regard to the larger
public interest.

In Consumer Action Group and Anr. v. State of T.N. and Ors., [2000]
7 SCC 425, this Court held :

·C "While exercising such a power the authority has to keep in mind the
purpose and the policy. of the Act and while granting relief has to
equate the resultant effect of such a grant on both, viz. the public and
the individual. So long as it does not materially affect the public
cause, the grant would be to eliminate individual hardship which
would be within the permissible limit of the exercise of power. But
D where it erodes the public safety, public convenience, public health
etc. the exercise of power could not be for the furtherance of the
purpose of the Act. Minor abrasion here and there to eliminate greater
hardship, may in a given case, be justified but in no case affecting the
public at large. So every time the Government exercises its power it
E has to examine and balance this before exercising such a power.
Even otherwise, every individual right including fundamental right is
within, reasonable limit but if it makes inroads into public rights
leading to public inconveniences it has to be curtailed to that extent.
So no exemption should be granted affecting the public at large.
Various development rules and restrictions unde.r it are made to ward
F off possible public inconvenience and s~fety. Thus, whenever any
power is to be exercised, the Government must keep in mind, whether.
such a grant would recoil on the public or not and fo what extent. If
it does then exemption is to be· refused. If the effect ·is marginal
compared to the hardship of an individual that may be considered for ·
G granting ... "

Mr. Naphde, therefore, is not correct in contending that the High Court
should have taken a lenient view.

In Mulchand Agarwal/a (supra), whereupon strong reliance has been
H placed by Mr. Naphde, this Court upon taking into consideration the provisions·
M.B. MAHADIK v. S.K. KANJTKAR [SINHA, J.] 925

of the Calcutta Municipal Act and in view of the terminologies contained in A
Section 449 thereof noticed that that the Magistrate had a discretionary
· jurisdiction to pass an order of demolition and held :

" ... The conduct of the respondent in adopting a hide-and-seek attitude
in completing the constructions in deliberate defiance of the law calls
for severe action. It would be most unfortunate, and the interests of B
the public will greatly suffer, ifthe notion were to be encouraged that
a person might with impunity break the building rules and put up a
construction and get away with it on payment of fine. All this would
be good justification for making an order for demolition ......... "

However, keeping in view the provisions of Sub-section (2) of Section C
363 of the Act which directs that no application for demolition shall be
instituted after a lapse of five years from the date of the work, although were
found to be inapplicable, but in the fact situation obtaining therein, it was
opined:

"But then, it is now nearly five years since the building was completed,
D
and though section 363(2) which directs that no application for
demolition shall be instituted after a lapse of five years from the date
of the work does not, in terms, apply as the proceedings have been
started in time, we do not feel that after the lapse of all this time, an
order for demolition is called for in the interests of the public. We E
also take into account the fact that the orders in question would not
have come before us in the normal course by way of appeal, were it
not that the appellant desired that the decision of this Court should be
obtained on certain questions of importance, and that purpo:.e has
been achieved. On a consideration of all the circumstances we do not
think that this is a fit case in which we should pass an order for F
demolition.''

The said decision,. therefore, does not support the contention of the
Appellants.

CONCLUSION : G

For the reasons aforementioned, these appeals, being devoid of any
merit, are dismissed. The Municipal Council is hereby directed to carry out
the order of the High Court, as expeditiously as possible and not later than
four weeks from date. Having regard to the fact that the Appellants have H
926 SUPREME COURT REPORTS [2005] 2 S.C.R.

A sought to mislead this Court, we think it appropriate to impose costs upon
them. The Appellants are hereby directed to deposit a sum of Rs. 50,000
(Rupees Fifty Thousand) with National Legal Services Authority within four
weeks from date and deposit the receipt thereof in the Registry of this Court.

NJ. Appeal dismissed.
B
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