Ajit Kalyanrao Nigde vs The State of Maharashtra

Anoop V. Mohta, J.—The Petitioners are the occupants of Mall known as "Dreams the Mall" situated at Bhandup-West have challenged the notice issued under Section 53(1) of the Maharashtra Regional Town Planning Act, 1966 (MRTP Act) to individual occupants (i.e. 138 occupants) to remove unauthorised mezzanine floors and to restore unauthorised amalgamation of shops mentioned in the list, within one month. The threat is also given that if such unauthorised work is not removed within 30 days, the Corporation would be removing the same without further notice. The notice is also issued to the owner i.e. Automobile Products India Ltd. Dreams The Mall.

The submission is made by the learned Counsel appearing for the Petitioners that the occupants have replied to the said notice with supporting documents. The submission is also made to treat the application/reply filed by the occupants as an application for regularization as contemplated under Section 53(3) of the MRTP Act, and they also expressed their willingness to do the needful and therefore prayed not to take any coercive steps pending the application for regularization.

The statement is made by the learned Counsel for the Respondent- Corporation that in some matters they have passed orders. One of the said orders is placed on record dated 20.9.2014 addressed to Beena B. Shah who is one of the occupants. We have gone through the same. They have not considered the issue with regard to the application for regularization as stated to be beyond the statutory period as per provisions of Section 53 of the MRTP Act. Section 53 itself contemplates that the Respondent-Corporation to take action at earliest. There is nothing on record to show that the Respondent-Corporation initiated any proceedings when the construction was going on. The submission is that on the basis of the complaint, they initiated proceedings. To say that the Corporation will initiate the proceedings only when the complaint is lodged, is in our view, unacceptable. Section 53 of the MRTP Act nowhere contemplates that the authority can issue such notices and will refuse to entertain the application for regularization which is permissible in law. The technical aspect of delay in such matters will come only when the Respondent-Corporation takes action at earliest after the decision on reply/application filed by the occupants. The sanctioned plan of Mall must be with them since beginning. To say that they were not aware of this unauthorised construction of the mezzanine floors is not acceptable. The delayed action so taken by the Corporation is additional factor which in our view the Petitioners/occupants are entitled at least to submit their application for regularization.

The Respondent-Corporation after issuing notice under Section 51(1) of MRTP Act, in our view, is under obligation to decide the reply and/or representation filed by the noticee and after taking note of the submissions, by a reasoned order proceed to take action in accordance with law. The issuance of notice itself is not sufficient, but to take decision in accordance with law and then initiate the proceedings should be the line of action to avoid further litigations of such sort.

The submission is made that only some occupants have filed the petitions and not all other occupants. We are not accepting this as that will nothing but multiplicity of the proceedings and specifically when the Respondent-Corporation themselves have issued notices referring to the list of 138 occupants. All similarly situated occupants/occupiers therefore are permitted to proceed to file application for regularization as directed above to avoid multiplicity of the proceedings. The common order we are passing is not adverse order against the other occupants, therefore, inclined to pass in their absence.

The fact of challenge to these notices where 30 days time is provided just cannot be overlooked. The occupants/petitioners have challenged those notices by their representation which according to the Petitioners, in most of the cases, are not decided. The decision so taken in some of the cases as recorded above without dealing with these applications for regularization, is also a factor which in our view sufficient to permit the occupants to file their additional application for regularization, as early as, possible as per prescribed rules and form within a period of 4 weeks. The issue of delay does not arise in such circumstances.

We are inclined to observe here that the Respondent-Corporation to decide their said applications in accordance with law specially when such mezzanine floor construction as per BMC norms and regulations, is permissible. Earlier landlord/owner in fact permitted by letters to all the occupants to construct the same, but as per BMC norms. The aggrieved individual occupant therefore needs to submit their details in support of their regularization application.

The order even if any passed by the Respondent-Corporation should not be the reason to take coercive steps. Those occupants against whom order as stated to be passed are also at liberty to apply for regularization as directed above within 4 weeks in the prescribed form. The Respondent- Corporation to consider the same in accordance with law. The Respondent- Corporation to decide the same within six weeks thereafter.

In view of above, the impugned notices under Section 53(1) of MRTP Act dated 4.8.2014 issued to the occupants of the Dreams The Mall, L.B.S. Marg, Bhandup(W), Mumbai and the order based upon the same are not to be acted until the regularization applications are decided by the Respondent- Corporation and two weeks thereafter if adverse order is passed against the occupants.

With above directions, the Writ Petitions are disposed of. No costs.