Case BriefsSupreme Court

Supreme Court: Holding that Geopmapping is the answer to issue of the illegal constructions, the bench of Deepak Gupta and Aniruddha Bose, JJ has made it obligatory for all Municipal Corporations in the State of Maharashtra where the population is 50 lakhs or more to get geomapping and geo­photography of the areas under their jurisdiction done within a period of one year. Geomapping will also be done of an area of 10 Kms. from the boundary of such areas.

Noticing the fact that when people raise illegal constructions it is claimed that the said construction has been existing for long, the Court said,

“If on Google Maps one can get a road view, we see no reason as to why this technology cannot be used by the municipal corporations.”

The Court said that geomapping can be done by satellite, drones or vehicles. Once one has the whole city geomapped it would be easy to control illegal constructions. It, hence, directed the State of Maharashtra to ensure that sufficient funds are made available to the municipal corporations concerned and this exercise should be completed within a period of one year from the date of this order.

Here are some of the other important directions issued by the Court in case of any illegal construction,

  • The Commissioner/Competent Authority shall issue a show cause notice giving 7 days in terms of   Section 351 of Mumbai Municipal Corporation Act to the owner/occupier/builder/contractor etc. In case the notice is not replied to within the time prescribed, i.e., 7 days, then the building shall be immediately demolished by the Municipal Corporation.
  • The Commissioner/Competent Authority on coming to know that there is ongoing construction in violation of the applicable laws shall issue a show cause notice giving 24 hours in terms of Section 351 to the owner/occupier/builder/contractor/architect etc. An interim ‘stop­construction’ order can also be issued along with the notice or any time after issuing the notice. In case the notice is not replied to within the time prescribed, i.e., 24 hours, then the building shall be immediately demolished by the Municipal Corporation.
  • before any construction/reconstruction, or repair not being a tenantable repair is carried out, the owner/occupier/builder/contractor/architect, in fact all of them should be required to furnish a plan of the structure as it exists. They will also provide an e­mail ID and mobile phone number on which notice(s), if any, can be sent.

[Municipal Corporation of Greater Mumbai v. Sunbeam High Tech Developers Pvt. Ltd., 2019 SCC OnLine SC 1389, decided on 24.10.2019]

Case BriefsSupreme Court

Supreme Court: In a case where a Municipal Councillor was disqualified under Section 44(1)(e) of the Maharashtra Municipal Council Nagar Panchayat and Industrial Township Act, 1965 after his wife carried out unauthorized constructions, the bench of Ashok Bhushan and KM Joseph, JJ held,

“Section 44(1)(e) creates an independent liability or rather creates disqualification as provided thereunder. This is de hors the criminal action. There is nothing brought to our notice to conclude that action under Section 44(1)(e) must be preceded by a criminal action and conviction thereunder.”

It was argued before the Court that as unauthorized construction also brings in its wake criminal action, action 14 under Section 44(1)(e) will not lie.

On the argument that if disqualification is incurred under Section 44(1)(e) since unauthorized construction can be visited under law creating criminal liability, action under Section 44(1)(e) will not lie, the Court said,

“Section 44(1)(e), as it stands, is neither dependent on a criminal action preceding it nor is the court to be influenced by the fact that making an unauthorized construction will have penal consequences.”

Stating that if temporary construction or structure have been illegally made by the Councillor, spouse or dependent, disqualification follows, the bench said that it is true that disqualifying the Councillor, is a serious matter. Councillors of local bodies, after the 73rd amendment to the Constitution, are democratically elected representatives of the people at the grass root level. It is undoubtedly also true that in the case of an Election Petition, the case against the respondent must be strictly proved. However,

“Section 44(1)(e), which is ordained by 12 the Legislature, requires reasonable interpretation, and if the ingredients are established, it must be given full play.”

The Court noticed that though the requirement of the Councillor being directly or indirectly being responsible for or helping in carrying out of such construction in the capacity of Councillor in the case of the spouse or dependent is not the statutory requirement,

“Having regard to the close relationship between the spouse and the Councillor on the one hand and the dependent and the Councillor on the other hand, the words “carrying out such illegal or unauthorized  construction” has reference to construction which violates the provisions of the Town Planning Act, the MRTP Act or the Rules and the Bye-laws framed under those provisions.”

[Sampada Yogesh Waghdhare v. State of Maharashtra, 2019 SCC OnLine SC 567, decided on 22.04.2019]

Case BriefsHigh Courts

Madras High Court: A Bench of S.M. Subramaniam, J. while addressing a writ petition stated that “If a deity in a temple commits an act of encroachment, that is also to be dealt with, in accordance with law and because it is a deity, the Rule of Law cannot be diluted.”

The present writ petition was filed in regard to the removal of the unauthorised construction in the name of Vinayagar Temple in Revenue Divisional Office, Coimbatore.

For the above-stated concern, the High Court was of the opinion that various temples on public roads, Government Poramboke areas, Water bodies and Water resources are being constructed by few land mafias and greedy men for personal gains and for unlawful enrichments. The reason behind the construction of these temples at such places is either to grab land or personal unlawful enrichment. It has also been stated by the Court that these temples are constructed without obtaining the required permissions from the authorities concerned.

“Even Deity as a legal person, cannot commit an act of encroachment.”

Therefore, taking into consideration the issues as stated above, the High Court stated that, Temples, Churches, Mosques or any other religious institutions, if constructed by encroaching public roads causing inconvenience to vehicular traffic or if any constructed in water resources and water bodies, depriving the citizen to get water resources, then all to be dealt in accordance with law as stated earlier.

Thus the bench concluded the order by stating the need to implead the “State” as the party for consideration of issues appropriately. Learned counsels were requested to file counter affidavit and statistics regarding the existence of all such Temples, Churches, and Mosques in an encroached public land, Poramboke lands, water bodies, and water resources. Further, the matter was posted for 21-01-2019. [K. Ramakrishnan v. District Collector, 2019 SCC OnLine Mad 36, Order dated 04-01-2019]