Smt. Jyotsna Navneet Dhadade & Anr. vs The Nagpur Improvement Trust & Ors.

Heard learned respective counsel for the parties.

The challenge in this petition is to order dated 10.01.2013, passed by respondent no. 2, by which directions were given that houses of the petitioners situated at House No. 2336/8/2 and House No. 2336/b-1, be demolished. A prayer is also made to set aside the proceeding initiated by the respondents in pursuance to the order dated 10.1.2013. Quashing of order dated 14.2.2018, passed by the respondent no.2, acting as appellate authority under the Right to Information Act was also prayed for.

This Court vide its order dated 27.2.2023, had issued the notice and directed respondents not to undertake demolition process. In pursuance of the notices, respondents have filed their respective replies to the petition.

According to the petitioners, on 24.11.2009, the petitioner no.1 purchased the house i.e. House No. 2336/8/2 from one Bhagirathi Suryavanshi vide sale deed dated 24.11.2009 (in fact, unregistered document) and are in possession of the same since 20 years prior to execution of the sale deed. On 2.4.2018, notice was issued by Divisional Officer, Nagpur Improvement Trust to petitioner no. 2 and husband of petitioner no.1 which was under Section 53 of the Maharashtra Regional and Town Planning Act, 1966 (for short, “the Act of 1966”) on the ground that the construction made was without permission which is required to be obtained under the Act of 1966. The details of said construction was also given. The petitioners then filed their reply dated 20.4.2018 to the notice and produced the documents on which they placed reliance in the petition. It was alleged that though, the notice mentions that constructions were situated in Khasara No. 120, in fact, the same was not so and it was in Khasara No. 121. On 16.9.2020, the husband of petitioner no.1 was again, called upon by way of notice to produce property card, sanctioned map, Sanad, tax receipts etc within three days.

The learned counsel for petitioners submitted that relevant documents were produced on 17.12.2020. According to petitioners, after 17.12.2020, no action was taken by respondents but on 16.2.2023, demolition squad of respondent no.1, headed by respondent no. 2, reached the spot and sought to forcibly demolish of the houses. When the petitioners intervened, they were forced to write and sign letter to the effect that action of demolition be stayed for a period of eight days. The petitioners were further asked to pay demolition charges of Rs. 25,000/- each which they deposited on that day itself. The petitioners contended that on 20.2.2023, petitioner no. 1 had filed application before City Survey Officer stating that the house of petitioner no.1 is situated in Khasara No. 121/1, 121/2,121/3 and 121/4 whereas house of respondent no. 3 was in Khasara no. 120. The Sanad of the property of respondent no. 3 shows that there exists a road to west of his house but city survey sanctioned map fails to show the same. Therefore, request was made to City Survey Officer to clarify the same. The petitioners then filed an application under Right to Information Act, 2005, requesting to provide information regarding the procedure carried out by respondent nos. 1 and 2, in response to which, the information was supplied from which it was gathered that respondent no. 3 had filed several complaints contending that the land to west of the house of respondent no. 3 i.e. premises of the petitioners, was shown as a road in the Sanad attached to his property and therefore, demolition of the houses of the petitioners was sought. The petitioners also sought the note sheet from respondent no.1 and 2 which shows that those were incomplete. The petitioners then contended that perusal of note sheet reveals that there is noting that it is the Nagpur Municipal Corporation which is a planning authority in respect of the land in question and not the Nagpur Improvement Trust. Several other notings were relied upon, in order to contend that action of the respondents was illegal and malafide.

It was argued by the learned counsel for the petitioners that earlier notice dated 2.4.2018 was issued to the petitioners on the basis of complaint submitted by the respondent no. 3 and respondent no. 3 filed an appeal under Right to Information Act in which the respondent no. 2 had directed issuance of notice to the petitioners regarding unauthorized construction, and to further demolish the same. The petitioners then questioned the authority of respondent no. 2 to pass such direction.

It is in this background, the learned counsel for the petitioners has argued that respondent nos. 1 and 2 have no jurisdiction over the land in question and none of the complaints submitted against them, at the instance of respondent no. 3 were supplied, which amounts to violation of principles of natural justice. According to the learned counsel for petitioners, prior to passing of order dated 10.1.2023, no notices were issued nor was any opportunity of being heard was afforded. He argued that under the Act of 1966, notices were required to be issued under Section 53 by the planning authority and thereafter, a person to whom such notice is served, is entitled to file an application for regularization of structure. The decision on the application can assailed in an appeal but according to the learned counsel for the petitioners, the said procedure was not followed. The order dated 14.2.2018, passed by the appellate authority, under Right to Information Act, was also challenged on the ground that the petitioners were never party to the said proceeding.

Per contra, respondent nos. 1 and 2 have appeared and filed their reply and have admitted that the notices were issued to the petitioners but denied that the construction was situated in Khasara no.121. The respondent nos. 1 and 2 have categorically stated that the construction is situated on Khasara no. 120 and as per regularization letter of respondent no. 3, the land is situated in Khasara nos. 120/2,3,4,8,7,121/10,11,12,16, 8,7 of Mouza Parsodi. It was further argued by the learned counsel for the respondent nos. 1 and 2 that vide G.R. dated 27.8.2019, the planning authority for the said area was Nagpur Municipal Corporation and thereafter, vide G.R. dated 9.4.2021, the Nagpur Improvement Trust again become the planning authority for the said area. The notification to that effect was filed. The respondent nos. 1 and 2 have contended that as the petitioners had failed to remove the unauthorized construction as per notice dated 2.4.2018, on their own. A letter to the concerned Police Station seeking police protection for maintaining law and order during demolition action was issued. It was stated that after receiving the notice in the year 2018, the petitioners failed to submit an application for regularization. They thus, prayed for dismissal of the petition.

The respondent no. 3 had also filed reply dated 9.9.2025 and has contended that petitioners had approached this Court with unclean hands by contending that a false statement was made that the petitioner no. 1 who was the owner of the house, at the time of petition, despite it being class-2 occupancy. Respondent no. 3 further contended that before transferring the land in favour of petitioner no.1, permission of Collector was not obtained. He further argued that the petitioners are not legal owners of the land and therefore, have absolutely no right to prefer the present petition.

The learned respective counsels have relied upon several judgments. Mr. A.S. Manohar, learned counsel for petitioners has relied upon the judgment in case of Arjun Raghunath Wankhede Vs. Nagpur Improvement Trust, reported in AIR OnLine 2024 BOM 166 (Arjun Wankhede), decided by the Co-ordinate Bench of this Court and has contended that as the notice was issued on 2.4.2018 and till 16.2.2023, no action was taken, in light of the judgment in case of Arjun Wankhede, the notice impugned can be withdrawn and fresh notice can be issued. He submitted that, in that case, the Court had observed that reasonable time was required to be given to the concerned person/noticee to remove unauthorized construction. Since, the notice impugned was not taken to logical end, the respondents can withdraw the same and issue fresh notice. He has also relied upon the judgment in case of DIRECTIONS IN THE MATTER OF DEMOLITION OF STRUCTURES, IN RE, reported in (2025)5 SCC 1, and contended that right to shelter is a right under Article 21 of the Constitution and in case, a person is to be dishoused, the authorities are required to form an opinion that extreme step of demolition is only available option. According to him, the authorities are required to grant hearing to the parties concerned and pass a reasoned order. The learned counsel for petitioners as well as learned counsel for respondent no. 3 have filed written notes of argument also.

Mr. A.S. Kinkhede, learned counsel for respondent no. 3 has filed the compilation of case laws and contended that as there is no disclosure of material facts, discretion cannot be exercised in favour of person who attempts to pollute the stream of justice. As regards violation of principles of natural justice, he submitted that actual prejudice is required to be shown. According to him, demolition cannot be stopped merely because of any action of the authorities in carrying out prompt and deliberate illegal construction cannot be regularized.

At this juncture, since, Mr. Manohar has put heavy reliance on judgment in case of Arjun Wankhede (supra), it is necessary to deal with said judgment. The Division Bench of this Court was dealing with a notice issued under Section 286(2) of City of Nagpur Corporation Act, 1948 read with Section 52 of the Nagpur Improvement Trust Act, 1936, which was issued to the owner of the premises as well as the occupier stating that tin shed structure on the site was without obtaining permission of Nagpur Improvement Trust. The notice then call upon the petitioners to remove the said construction within a period of 28 days from receipt of the notice. The notice was issued on 15.10.2010, which was sought to be executed after a period of almost 13 years of its issuance. The Co-ordinate Bench then took into consideration Section 286 of the City of Nagpur Corporation Act, 1948 and has observed that “notice dated 15.10.2010 was sought to be implemented after a period of almost 13 years, it cannot be called that the notice was implemented within a reasonable time”.

In the present case, what is invoked in the notice impugned is Section 53 of the Act of 1966, which reads thus:

In order to understand the controversy in its proper perspective, relevant part of Section 286(2) of the City of Nagpur Corporation Act is reproduced hereinbelow, as the judgment of Arjun Wankhede is heavily relied upon, in which the notice was under the following section:

If these two provisions are perused then it will be crystal clear that there is material difference between the same. Under Section 286 of the City of Nagpur Corporation Act, 1948, more particularly, Sub-section 2 clause (d), the Commissioner may by notice require the owner or the owners to alter or demolish the building within “such reasonable time” as the Commissioner may think fit. So discretion has been given to Commissioner to give reasonable time to alter or demolish the building. The provision of law thus itself confers a power to demolish but at the same time Commissioner is given a power to provide ‘reasonable time’ for demolition of the same. It is this “reasonable time” which is interpreted by the Co-ordinate Bench of this Court in case of Arjun Wankhede (supra), and thereafter, the impugned notice i.e. dated 15.10.2010 in the said proceedings was quashed.

On the contrary, if Section 53 of the Act of 1966 if perused, it would be crystal clear that there is no such provision of giving “reasonable time” to the aggrieved party for demolition. Section 53 of the Act of 1966 then will have to be read as it is. Applying the judgment in case of Arjun Wankhede (supra), to the notice under Section 53 of the Act of 1966 would be adding something in the provisions by way of judicial intervention which the interpretation does not demand. The language of Section 53 needs no interpretation as it is plain and simple. The said section though provide a time limit, but in a different framework.

As regard applicability of the judgment of Hon’ble Apex Court in DIRECTIONS IN THE MATTER OF DEMOLITION OF STRUCTURES, IN RE, the Hon’ble Apex Court, in paragraph 94 has clarified that directions issued therein will not be applicable if there is unauthorized structure in a public place such as road, street, footpath, abutting railway line, in river bodies or water bodies and also where there is an order for demolition made by court of law. The construction is on the road is clear from the record itself. It is further necessary to mention here that respondent nos. 1 and 2 have taken a specific stand that in Sanad, there is a road shown on the west side of CTS No. 696 and in regularization letter, in that places houses of Shri Meshram and Shri Suryavanshi is mentioned.

It was further stated that in spite of notice, the petitioners had not removed the construction and the layout where the petitioners have their houses, are located in layout regularized by Nagpur Improvement Trust under the Maharashtra Gunthewari Development (Regularisation, Upgradation and Control) Act, 2001 (for short, Gunthewari Act”). The Nagpur Improvement Trust is the authority to carry out regularization of layouts under Gunthewari Act and not Nagpur Municipal corporation. It is further necessary to note that though, the petitioners have come with a case that the Nagpur Improvement Trust has no jurisdiction as it is not planning authority and therefore, the notices impugned loses merit in way of the submission made by respondents nos. 1 and 2 in the affidavit supported by the relevant documents that as per Government Notification dated 27.8.2019, the planning authority for the said area was Nagpur Municipal Corporation and afterwards vide Government Notification dated 9.4.2021, Nagpur Improvement Trust become the planning authority for the said area. Thus, even challenge to the jurisdiction of Nagpur Improvement Trust by the petitioners is without any merit.

As regard contention of the petitioners regarding quashment of order dated 14.2.2018, passed under Right to Information Act regarding direction to issue notice under the Act of 1966 is concerned, suffice it to say that though, the petitioners were not party to it, irrespective of such directions the validity of action under the Act of 1966 must stand or fall independently on the said ‘Act’. Even otherwise what is required to be seen is whether the notice impugned and action taken in pursuance with the same is in-consonance with the statutory provisions.

Contention of the petitioners that notice mentions different Khasara number is also required to be ignored considering the fact that had it been so, the petitioners would not have challenged the same. So far as notes made in official file are concerned, we cannot take the same into consideration as those are all internal issues of the department and have no binding force.

Mr. Kinkhede, learned counsel for respondent no. 3 has rightly relied upon the judgment in case of Rajendra Kumar Barjatya and anr Vs. U.P. Avas Evam Vikas Parishad & Ors, reported in 2024 INSC 990, more particularly, paragraph nos. 15 and 16.1 in order to contend that lapses on the part of the authorities will not vest any person with a right to put up construction without planning approval and in violation of conditions regarding usage. Just because the construction has been standing since several years, will not clothe the parties with any right. He was right in contending that delay in directing rectification of illegalities, administrative failure, regulatory inefficiency, cost of construction and investment, inclusion and laxity on the part of authorities concerned in performing obligations under the Act, cannot be used as a shield to defend action taken against the illegal/unauthorized construction.

Reliance placed by Mr. Kinkhede in case of Royal Paradise Hotel (P) Ltd Vs. State of Haryana and others, reported in (2006)7 SCC 597, more particularly, paragraph 8 is also relevant for deciding the controversy. Paragraph 8 of the aforesaid judgment is worth to produce:

Though, Mr. Kinkhede has relied upon other judgments which are part of the compilation, in order to contend that party who fails to disclose material facts, the petition is required to be rejected and on a similar judgments to contend that litigant who attempts to pollute the stream of justice, is not entitled to any relief, we are of the opinion that considering the controversy involved, dealing with the aforesaid aspects would not be necessary. Thus, petitioners have failed to make out any case which requires interference at the hands of this Court. Hence, the petition is dismissed.

Heard.

At this stage, learned counsel for petitioners submits that interim relief is operating in favour of the petitioners for more than last three years and in order to take an exception to the judgment passed today and to file appropriate proceedings before the Hon’ble Supreme Court of India, interim relief be continued for further four weeks. Continuation of interim relief granted vide order dated 27.2.2023, is objected by learned counsel for respondent no.3 on the ground that the Court has ruled in favour of the respondent and thus, it may not be extended.

Needless to mention that the continuation of interim relief for short period of four weeks, at this stage, when same was in operation for three years, would not cause any prejudice to the answering respondents.

Considering the fact that interim relief is operating in favour of the petitioners for more than three years, we extend the interim relief for further four weeks.