bombay high court

Bombay High Court: In a batch of petitions under Article 226 and 227 of the Constitution of India pertaining to construction raised in the premises of Agricultural Produce Market Committee (‘APMC’) and orders of demolition/removal passed by the Municipal Corporation, Nitin W. Sambre and S.G. Chapalgaonkar*, JJ. refused to interfere with the said order and directed the authorities to take necessary steps for removal of illegal, unauthorized construction/encroachments raised in area of open spaces earmarked in sanctioned lay out plan.

The instant batch of petitions were filed by APMC as well as individual lease holders. A proposal made by APMC for regularization of unauthorized construction was refused by the Deputy Commissioner, Municipal Corporation through order dated 12-07-2018. The same was assailed by the Minister, Urban Development Department, Maharashtra State and impugned by APMC in the instant petition.

APMC contended to have been established under Maharashtra Agricultural Produce Marketing (Development and Regulation) Act, 1963, owns and possesses some of the plots and constructed a principal market yard on the same. The licensed traders of the market committee were carrying out trading activities on the said premises. A resolution was passed for construction of shops and the District Deputy Registrar granted permission to the market committee to lease out said plots to traders and allotment letters were issued accordingly for a period of 21 years.

The said construction was raised without permission of planning authority in the area specifically earmarked as open space in Sanctioned layout plan for APMC and town planning scheme. A complaint was made to Municipal Corporation on 26-09-2017 alleging illegal construction raised by APMC. On 30-06-2018, the market committee submitted a proposal to Municipal Corporation seeking regularization of construction. The same was rejected on 21-07-2018 by the Deputy Commissioner of Municipal Corporation while issuing further directions to remove the said illegal construction.

When the market committee approached the Minister for Urban Development against the said order invoking provisions of Section 56(2) of the Maharashtra Regional and Town Planning Act, 1966 (‘MRTP Act’) and the appeal was rejected with the observation that the said construction was raised on open space earmarked in the layout plan.

Regarding rejection of appeal before the Minister for Urban Development Department on the ground that provision of Section 56(2) has no application on instant case, the Court agreed that such construction could only be dealt with in terms of Section 52, 53 and 54 of the MRTP Act read with Section 260(1)(2) and 478 of the Maharashtra Municipal Corporations Act. It further explained that “Section 56 comes into play when planning Authority intends to discontinue authorized use of land or building in interest of proper planning and issues such direction. Aggrieved authorized user can invoke appellate remedy in terms of Section 56(2) of MRTP Act.” The Court held that the regularization of unauthorized construction raised on open space was beyond the purview of Section 56 of MRTP Act and the notice issued by Municipal Corporation on 21-07-2018 was in tune with the provisions of MRTP Act and Maharashtra Municipal Corporations Act.

The Court observed that no provision enables regularization of construction raised on open spaces earmarked in development plan or Town Planning Scheme. The Court also pointed at the APMC’s attempt to move another proposal on 16-07-2018 before Municipal Corporation for for shifting of open spaces earmarked in sanctioned layout plan. The Court also found the notice issued by Municipal Corporation on 21-07-2018 was in tune with the provisions of MRTP Act read with Maharashtra Municipal Corporations Act.

The Court refused to accept APMC’s contention that the market committee is deemed to be local authority and not susceptible to the rigors of the MRTP Act; or the Municipal Corporation/Planning Authority has no jurisdiction to monitor the construction within its area as per Section 12(2) of APMC Act. It further relied on Goroba v. State of Maharashtra, 2017 SCC OnLine Bom 7264 and concluded that no construction could have been raised by APMC on the plot earmarked as open space as per sanctioned layout plan, and that APMC could not plead immunity from obtaining necessary construction permission under Planning Law.

The Court found the Municipal Corporation justified in directing removal of unauthorized construction and pointed out the APMC’s failure to justify their case for Court’s interference under Article 226 and 227 of the Constitution.

The traders/lease holders running their business in the said premises complained of not being heard by the Municipal Corporation and notices only being served to APMC, the Court clarified that they could not have independent right to be heard while they were claiming through APMC and occupying illegal and unauthorized construction. In addition, lease holders of the APMC would not have independent right to continue their possession and occupation of illegal/unauthorized construction.

In the petition filed by Ahmednagar Vegetables and fruit Commission Agents Association seeking writ of mandamus against the authorities to remove encroachments and illegal constructions and restore the open space, parking space, public utilities and service road space in the said premises, the Court directed Municipal Corporation to take necessary steps for removal of illegal, unauthorized construction/encroachments raised in area of open spaces earmarked in sanctioned lay out plan for APMC in pursuance of notices already served u/s 52, 53, 54 of MRTP Act read with section 260(1)(2) and 478 of the Maharashtra Municipal Corporation Act and submit a compliance report within 3 months.

The Court dismissed the petitions by APMC and traders/lease holders for regularization of unauthorized construction. The Court extended the interim protection already granted to the lease holders for a period of 8 weeks enabling them to avail appropriate remedies.

[Agricultural Produce Market Committee v. Urban Development Department of Maharashtra, 2023 SCC OnLine Bom 1325, decided on 30-06-2023]

Judgment by: Justice S.G. Chapalgaonkar

Advocates who appeared in this case :

For Petitioners: Senior Counsel Sanjeev Deshpande, Advocate V.H. Dighe, Advocate Sanjay N. Gaikwad, Advocate Z.H. Farooqui, Advocate N.V. Gaware, Advocate G.K. Naik Thigle;

For Respondents: Assistant Government Pleader P.K. Lakhotiya, Advocate K.N. Lokhande, Additional Government Pleaders K.N. Lokhande, Senior Counsel Sanjeev Deshpande, Advocate Pramod S. Gaikwad, Advocate R.B. Narvade Patil.

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  • A Bombay High Court’s recent decision to regularize illegal constructions outside the scope of Section 56 of the MRTP (Maharashtra Regional and Town Planning Act) is the subject of this blog article. patio builders king george va For those who are interested in the legal implications of urban growth and planning, this blog article is a useful resource.

  • MRTP act, here means Maharashtra Regional Town Planning act and not Monopolistic and Restrictive Trade Practices as wrongly mentioned in the article.

    • We have corrected the error. Thank you for bringing to our notice.

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