HC pulls up BMC for inaction against unauthorised structure
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"We fail to understand as to what prevents the corporation to initiate action against the unauthorised structure without waiting for the approval from the police authority," Justices Mridula Bhatkar and A M Khanvilkar observed.
"In our order dated October 31, we have referred to the grievance of the petitioner that political pressure was being exerted on the officers of the corporation. Perhaps, that may be the reason for the officers of the corporation to await approval from the police authorities to initiate further action in respect of the un-authorised structure. This cannot be countenanced," the judges noted.
The corporation is obliged to take corrective measures and more so, take the show cause notice dated January 12 to its logical end by not only initiating prosecution against the persons responsible but also take measures for removal of the unauthorised structure and compel the occupant to restore the original position as per the approved plan, the judges said.
The corporation is not only obliged to ensure that structure is in consonance with the approved plan but also the user of the premises as per the norms prescribed for premises falling under the residential zone, the court noted.
"We hope and trust that the Deputy Commissioner-II, South Ward, shall personally look into the grievance of the petitioner and take all measures as may be necessary including to take show cause notice to its logical end in accordance with law and report compliance in that behalf on or before the next date of hearing of this petition," the bench said.
The court was hearing two cross petitions, one filed by Balu Shivgand and the other by Dr Buchirajam Katkam.
Balu relied upon a communication issued under the signature of Assistant Commissioner G/South Ward of BMC dated January 12. He prayed that inspite of unauthorised structure and illegality noticed by the corporation, no action had been taken in respect of structures occupied by Katkam.
In the backdrop of this grievance, the court had on October 31 asked the BMC to take corrective measures within a period of one week.
When the matter came up recently before the court, the corporation submitted that its officer had filed a complaint in respect of the unauthorised structure against Katkam and after recording of panchnama and consequent to registration of FIR, the officer would proceed in the matter.
The court called upon the counsel for the corporation to point out express provisions under the Act or in the Rules which require this procedure to be followed and more so refrain the officer of the corporation from taking action against unauthorised structure independently.
The counsel for the corporation was not been able to point out any such provision in law, except referring to Section 53(6) of the MRTP Act.
The court, however, noted that this was not the procedure envisaged under that provision. There are two independent remedies/actions provided and could be invoked by the corporation. One is under section 53(6) of the MRTP Act and other is under Section 351 of the Corporation Act.
"As this position is accepted by the counsel for the corporation, we fail to understand as to what prevented the corporation to initiate action against the unauthorised structure without waiting for the approval from the police authority," the judges asked.
The second petition was filed by Katkam, as a counter application to the first petition. His argument was that the petitioner in the first petition has already resorted to a civil suit against him. Inspite of it, remedy of writ petition has been invoked by the petitioner, he said.
The court noted that this argument clearly over-looks that the remedy resorted to by the petitioner in the first petition by way of civil suit is simpliciter against Katkam and for consequential orders against Mumbai Building and Reconstruction Board. Whereas, writ petition has been filed for direction to the statutory authority to discharge its official duty and more so to take the show cause notice dated January 12 to its logical end.
"In that sense, the fact that the petitioner in the first writ petition has invoked remedy of civil suit will not come in the way of the first petitioner in pursuing the remedy of petition which is pending in this court," the court noted.
However, Katkam alleged that even the first petitioner had committed illegality and carried out unauthorised construction in the premises occupied by him.
"Since we have directed the Deputy Commissioner to look into the matter and take corrective measures in respect of the premises referred to in the show cause notice January 12, we hope and trust that even grievance of the petitioner in the second petition in respect of unauthorised structure put up by the petitioner in the first petition is also examined and appropriate action taken in accordance with law in that respect," the judges noted.