JUDGMENT B.P. Dharmadhikari, J.
1. Heard Shri Thakur, learned Counsel for the Petitioners, Shri De, learned Counsel for Respondents No. 3 and Shri Mirza, learned APP for Respondents No. 1, 2 and 4.
2. By this writ petition under Article 226 of Constitution of India, the petitioners who are citizens of India and permanent residents of Chandrapur are seeking a writ of mandamus directing Respondents No. 1 to 4 or their agents, servants, representatives etc. to forthwith implement the order dated 17.1.2002 passed by the Sub-Divisional Magistrate, Chandrapur, in Misc. Criminal Case No. 2/133/2001 and to remove all unauthorised parking as well as all the illegal obstructions such as approach ways, sign boards/ hoardings and other construction and maintain order on the approach road bearing No. 1932 situated in Sarai Ward, Civil Lines, Chandrapur. The Second prayer is to adequately monitor and ensure free movement of traffic on said approach road and to depute police personnel for that purposes. It is also prayed that Respondents should be directed to allocate separate and earmarked area at a convenient place for the parking of private buses. The prayers have been amended on the last date and direction has also been sought for taking all effective steps in removing unauthorised parkings as well as illegal constructions like sign boards, hoardings, encroachments, illegal constructions on public premises, public roads, public lanes causing obstructions in the free movement of traffic in Chandrapur and to consider framing of general guidelines in public interest to be strictly followed by Government, Municipalities, Police and other Civil authorities in this respect.
3. The petitioner No. 1 is an advocate and petitioner No. 2 is a senior citizen, who happens to be his father. Both are residing at Plot No. 1923 at Sarai Ward, Civil Lines, Chandrapur. Part of the premises is leased out by them to Bharat Sanchar Nigam Limited (BSNL) where BSNL is having its office establishment. Another part of first petitioner's premises is let out to one Dr. Dhanshree Shende, who is running her clinic. The third petitioner is also a Doctor and a Cardiologist by profession. He is owner of Plot No. 1931 formerly bearing No. 29/1 and 29/2 in the same area and he is running his clinic there. The Municipal Council, Chandrapur, i.e. Respondent No. 3 is local authority constituted under the provisions of Maharashtra Municipal Council's, Nagar Panchayats and Industrial Townships Act, 1965 (hereinafter referred to as Municipal Act). It is also a planning authority functioning under Maharashtra Regional and Town Planning Act, 1966 (hereinafter referred to as Town Planning Act). It has constructed a permanent tar road admeasuring 12 ft. and it bears No. 1932. This road is commonly called as "Bapat Galli"or lane. On the southern side of this Bapat Galli is situated a commercial complex by name "Haweli Complex" while on the northern side is situated a commercial complex named as "Thakur Complex". This approach road passes between two complexes and connects the main road of PWD. The grievance of the petitioners is that since approach road is surrounded by commercial complexes on both the sides and because of large-scale commercial activity in the area, there is considerable vehicular traffic and flow of people and the approach road is always crowded during all times of the day. The ambulances attached to the nearby hospitals/ clinics as well as the trucks and jeeps owned by BSNL ply regularly on this approach road. Similarly, two wheelers, scooters, motor bikes, auto-rickshaws and bicycles are haphazardly parked on the main road making it impossible to drive through the road without damaging the vehicle. There is unauthorised parking on both sides of this approach road. Even the shopkeepers of the adjoining commercial complexes have constructed unauthorised approach ways and have erected sign boards and hoardings on the approach road. At the junction, where this approach road/ Bapat Galli merges with the main PWD road which proceeds from Jatpura Gate to Priyadarshni Chowk, several private buses are unauthorisedly parked most of the time of the day, causing hindrance and obstacles to free flow of the traffic. This spot or junction is being used as their operating hub and starting point for plying their buses to various destinations by private bus operators. The first and second petitioners are required to use this approach road for reaching their place of residence while the third petitioner has to use this approach road for reaching his clinic. Due to the congestion and obstruction on this road, all of them face hardship and it is their say that they have invited attention of their local i.e.Ramnagar Police Station, Chandrapur, to this problem. They further state that representation given to Ramnagar Police Station has also been signed by Sub-Divisional Officer of Telegraphs, Chandrapur, which supports their case. They have also pointed out further representations made by them in this respect between May 1999 to 26th February 2001.
4. As no corrective measures were taken, the petitioners were constrained to initiate proceedings before the Court of Sub-Divisional Magistrate, Chandrapur, under Section 133 of the Code of Criminal Procedure for passing prohibitory orders under Section 143 of Code of Criminal Procedure. On 15.10.2001, the Sub-Divisional Magistrate, Chandrapur, passed an interim order against the District Road Transport Officer, Traffic Police, Traffic Department, The Chief Officer of Municipal Council, Chandrapur, Executive Engineer PWD-1 and PWD No. 2, directing them to prevent unauthorised parking and obstruction on the public road. They also invited attention to the reply dated 17.5.2001 filed by the Police Inspector, Traffic Control Branch, Chandrapur before the Sub-Divisional Magistrate, in these proceedings in which Police Inspector categorically mentioned that parking of large vehicles has been prohibited on the main PWD road between Sahkar Sanstha Petrol Pump to Priyadarshni Indira Chowk. It is also mentioned that parking of private buses on this road has been permanently prohibited. The Municipal Council, Chandrapur, anticipating the traffic congestion, imposed adequate conditions on the builders building commercial complexes in the area. Subsequently by order dated 17.1.2002, the Sub-Divisional Magistrate, Chandrapur, granted petitioners prayer and declared approach road bearing No. 1932 as public road and prohibited parking of any other vehicle in Bapat Galli except the vehicles of residents residing in Bapat Galli. A direction was also given to seize the vehicles parked unauthorisedly on said road. The respondents though duty bound to take adequate steps to implement said order, no effective steps as such were taken. It is stated that the Chief Officer of Municipal Council, Chandrapur, wrote a letter to the Police Inspector i.e. second respondent, pointing out that there should not be any unauthorised parking on approach road bearing No. 1932 but there is no improvement and several representations made by the petitioners as also their personal visits to respondents have gone in vain. It is stated that the situation remains same even today and the illegal approach ways, sign boards/ hoardings erected by the shopkeepers are still not removed and "No Parking" sign has not been installed on approach road. It is stated that the petitioners have to wait for long time in order to reach their residences or vice versa. Their vehicles have also been damaged and critical patients face problem because their ambulance is not in a position to reach hospitals/ clinics immediately. It is the contention of the petitioners that the commercial complexes adjoining the approach road are supposed to provide their own parking area for the benefit of the people visiting their establishments but that has not been done. The third respondent had initiated demolition proceedings against the builder of Haweli Complex in the year 1997 for not creating adequate parking facility in the complex. Against the said notices, a Regular Civil Suit No. 4 of 1998 filed by the Builder is pending. The trial Court by order dated 26.2.1998 rejected temporary injunction upholding the demolition notices issued by the Municipal Council. The appeal preferred before the District Court under Order 43, Rule 1 of Civil Procedure Code by the said builder is pending and orders of status quo are operating in it. It is their further stand that Section 122 of the Motor Vehicles Act, 1988, requires that owner of motor vehicle should not allow the vehicle to be abandoned or to remain at rest on any public place in such a position or in such a condition or in such circumstances as to cause or likely to cause danger, obstruction or undue inconvenience to other users of the public place or to the passengers. Attention is also invited by them to Section 127 of the Motor Vehicles Act, 1988, which authorises a police officer to remove a motor vehicle which is parked in a place where parking is legally prohibited. They also relied upon Rule 222 of the Maharashtra Motor Vehicles Rules, 1989, which authorises police officer to remove a vehicle, if it is standing in any place other than a duly appointed parking place. Attention is also invited to Section 67 of the Bombay Police Act, 1951, which casts a duty upon a police officer to regulate and control the traffic in the streets and to prevent obstructions therein or to prevent the infraction of any rule or order made thereunder. It is also stated that it is the duty of the police to keep and maintain the order on the public road and public street. Section 179 of Maharashtra Municipal Councils, Nagar Panchayat and Industrial Township Act, 1965, has been pointed out to show that Chief Officer has power to remove without notice any projection, obstruction or encroachment on any public street, if the same has been made without permission as per the procedure prescribed. They contend that though several representations have been made, the authorities are not discharging their obligation and the petitioners are being discriminated in the matter of regulation of traffic in Bapat Galli. They contend that it is violation of Article 14 of Constitution of India. It is further stated that their fundamental right under Article 19(1)(d) as well as under Article 21 of the Constitution of India is also violated.
5. When this writ petition came up before this Court, this Court on 1.7.2004 directed the Sub-Divisional Magistrate, Chandrapur, to file his affidavit pointing out steps taken by him to implement the orders passed by him. On 15.7.2004, again time was granted for said purpose. On 2.8.2004, the affidavit filed by the Sub-Divisional Magistrate was considered. This Court has noted that on 8.7.2004, there was a meeting of concerned officers from Municipal Council, Chandrapur and Traffic Controller and it was decided that two acres plot near Fly over which belongs to Municipal Council, Chandrapur, would be earmarked as a parking place for private buses. On 16.8.2004, this Court has recorded that Municipal Council was initiating action and giving notices to persons who had converted portion earmarked in their building for commercial use. Reference is also made to Misc. Civil Appeal No. 19 of 1998 filed by one Harjeet Saloja and to the fact that the appellate Court has granted stay to the notice of Municipal Council. This Court found that prima facie, such persons who unauthorisedly converted the space meant for parking purpose to commercial use, cannot be given such interim orders and courts below should not be liberal in granting injunction, stay in such matters. This Court also expressed that action should be initiated against the Ward Officers in whose wards the unauthorised construction has come up. The perusal of order dated 6.9.2004 shows that this Court has clarified that its earlier order does not mean that due process of law or rules of natural justice are to be given a go bye. This Court has thereafter recorded that there is a mushroom growth of illegal encroachment and unauthorised construction in the city of Chandrapur and the authorities must see that no such illegal encroachment and unauthorised construction is permitted and there should be constant monitoring of the same. This Court found that all this causes hazard for smooth movement of traffic, congestion of traffic and problems related to parking. It was hoped that the Collector/ R.D.M.A. would conduct discreet enquiry into the whole affair and identify officers who are guilty of promoting such illegal encroachment and unauthorised construction and initiate appropriate departmental enquiry against them for punishing them. It is also observed that at times, the competent authorities granting sanction does not adhere to building bye laws or to requirement of development plan. It was also found that persons are successful in obtaining & taking plea of "deemed sanction" by dubious means which is one of the ways for raising illegal constructions. The need for coordination between revenue authorities and local bodies like Municipal Council while allotting "Patta" of public land to needy persons is also stressed. It is further observed that the revenue authorities and officials of local bodies and its officers should not bow down to political pressures of any person and endeavor to protect their properties. The role to be played by the Court of law in such matters while granting interlocutory/ permanent injunction has also been pointed out. The regulation of traffic and role of Municipal Council in that respect to provide adequate infrastructure i.e. proper roads, footpaths, parking sites and of police to regulate the traffic in scientific manner is also specified. The petition was then kept pending for a period of eight weeks so that the respondents/ authorities can submit their reports/ affidavit of having completed the work of removal of illegal encroachment and unauthorised construction and of having restored smooth flow of traffic by removing congestion of traffic, regulate hawking and making provision for parking places at strategic points, keeping in mind the development of Chandrapur town.
6. On 1.11.2004, the progress report submitted by Municipal Council, Chandrapur, was taken on record and while recording satisfaction about steps taken, this Court also cautioned that respondent -authority should not discriminate between rich and poor people and directed listing of matter on 20.12.2004.
7. On 20.12.2004, this Court, after hearing all concerned, recorded its satisfaction for work done till then and expected the authorities to continue to remove unauthorised construction, encroachment and to regulate parking of vehicles. The photographs placed on record have also been commented upon and it has been recorded that one private bus was occupying almost 3/4th of width of road. The hawkers. problem that was cropping up was also noticed. The objectionable location of electric poles has also been commented upon. The Municipal Council, it appears, then stated that it had sent proposal to Government for re-location of electric poles but the State Government had not taken any decision till then. This Court hoped that appropriate decision in this respect would be taken by the State Government within four weeks. This Court also suggested that there should be a regular monitoring committee consisting of senior officer from the Revenue Department, the Chief Officer of Municipal Council and the Head of Traffic Department of Chandrapur Police to act as a self-regulatory authority to monitor the smooth and regular flow of traffic and to see that no encroachment is made on public road. The learned Counsel appearing for the Municipal Council then stated that Municipal Council was taking steps to chalk out a scheme for providing free parking space or on pay and park basis, particularly in congested area. The Superintendent of Police, Chandrapur, was directed to take cognizance of the fact that private bus operators are parking their buses in busy market area causing obstruction to free flow of traffic thereby jeopardizing the safety of people. The issue of proposal sent by Municipal Council to State Government for making land available for parking of private buses is also considered and it was observed that the Collector, Chandrapur, can also call for meeting of all private bus operators and if they possess valid permits from Regional Transport Office (R.T.O.) they should park their vehicles in their private garages or otherwise the Collector should direct the RTO to cancel their license. The Municipal Council was expected to file its report quarterly to this Court. The matter was directed to be listed after three months.
8. On 21.3.2005, this Court has considered the order dated 17.1.2002 passed by the Sub-Divisional Magistrate and also the contention of Municipal Council that encroachment on Bapat Galli was committed by the residents of the area. After interim orders and directions of this Court, the authorities have taken steps and have removed the encroachment on said road/galli/lane and road has been completely freed from encroachment. The learned APP stated that the orders will be implemented strictly by taking action against the persons for wrong parking or for parking in "No Parking Zone". The problem of parking of vehicles was also considered and time of three weeks was given to learned APP to obtain instructions from the State Government to find out the status of proposal submitted by Municipal Council about grant of land to private bus operators for parking. On 20.4.2005, this Court granted outer limit of six weeks for said purpose. On 27.6.2005, three weeks time more was given.
9. On 17.8.2005, this Court admitted the petition for final hearing and observed that the it proposed to dispose of the same by a comprehensive judgment and order covering various aspects relating to town planning, traffic regulation, hawkers problems etc. The matter then came up on 20.3.2006 and it was adjourned for four weeks. On 17.4.2006, the learned Counsel for respondent No. 3 -Municipal Council filed comprehensive reply and this Court insisted upon response on the part of the State particularly from the Departments of Urban Development, Revenue and Forest, which are ultimately responsible for the affairs of the Municipal Councils and Collector because of powers under Section 308 of Maharashtra Municipalities Act with him. The reference has been made to the earlier orders mentioned above and need of joint committee of responsible officers from all these departments to monitor problems pointed out in the petition. The problems like illegal construction, dumping of garbage and wastes, prevention of air and water pollution, traffic management and regulation have been summarized in the said order . It has been observed that the Collector did not file any return touching any of these points. The learned Counsel for the petitioners undertook to prepare a compilation of authorities in this respect. The matter was then adjourned to 27.4.2006. However, it could be taken up on 5.5.2006. On the said date, the learned Counsel for the petitioners submitted his compilation of case laws with brief points for arguments and matter came to be closed for judgment.
10. As already mentioned above, Respondent No. 4 -State of Maharashtra has not filed any reply or return in the matter. On 30.6.2004, Respondent No. 4 -Police Inspector has filed his reply affidavit and in it, it has been mentioned that the residents and owners of property situated in Bapat Galli are permitted to park their vehicles in the said lane and the persons other than residents of lane are prohibited from parking in the said lane. It is stated that action has been taken against 179 vehicles and its list is stated to be annexed as Annexure R-I with that affidavit. However, no such annexure appears to have been filed along with said affidavit. Even in their rejoinder in this respect filed before this Court by petitioners on 1.7.2004, the grievance about absence of this annexure is made by these petitioners. In para 6 of reply affidavit, Respondent No. 2 has stated that until and unless facility for parking vehicles of the residents, shop keepers and office owners is made available by the Nagar Parishad, Chandrapur and the entire lane known as Bapat Galli is declared completely as .No Parking Zone., the problem would remain as it is. It is further mentioned that if parking facility had been insisted upon at the time of construction itself, such problem would not have arisen. Letters written by said officer to Municipal Council in this respect & for making available the facility of parking are also pointed out in reply. Insofar as parking of private buses is concerned, it is stated that private buses stand only for few minutes to the East of Haweli complex on Jatpura Gate to Priyadarshni Chowk road and if such buses stand there, office of respondent No. 2 is taking action against them. The details of action taken is again stated to be specified in very same annexure R-I but said annexure is not filed on record. The need of alternate arrangement for parking of these buses is pointed out to be the only solution. It is stated that Respondent No. 2 is trying its best to regulate traffic and stopping the parking of the vehicles.
11. The Sub-Divisional Officer has filed affidavit on 31.7.2004 mentioning the action taken for removal of encroachment and also notices issued by the Municipal Council to get the places of parking cleared. The same officer has filed further affidavit on 2.9.2004 pointing out the demolition of construction inconsistent with sanctioned plan and opening or clearing of parking space. The detailed reference to these replies is not necessary because the last report filed by the Municipal Council in pursuance of order dated 17.8.2005 again covers all these aspects. In the said report filed along with affidavit dated 15.4.2006, the Municipal Council has given the details of action taken till date regarding removal of encroachment, solving of parking problems, trafficregulation , hawkers problems etc. The action which was then incomplete & was being continued has also been pointed out and future course of action is also indicated. It is stated that the report also consists of suggestions in this respect by the authorities supervising action to be taken against erring subordinate officers and also about constitution of authorities to take up and follow up measures in this respect i.e. traffic problems etc. The requirement of machinery for encroachment removal has been highlighted and need of coordination in procedure of conversion of agricultural land for nonagricultural purposes and the procedure for sanctioning of lay out, need of IRDP(integrated road development project) has also been commented upon. There are various other factors also to which said report makes reference. Detailed reference to all these factors at this stage is not necessary. The cognizance of suggestions made by the Municipal Council in this respect will be taken while considering that particular issue little later in this judgment.
12. Shri Thakur, learned Counsel on behalf of the petitioners has contended that the problem has cropped up only on account of failure of Municipal authorities and other respondents to see that the road leading to the residence of petitioners is not encroached upon by the unauthorised parking. He contends that order of Sub-Divisional Magistrate in this respect is very clear and authorities have not put forth any justifiable reason for not implementing said order. He contends that the commercial complexes which have come up, have to provide adequate space for their own visitors and customers. The visitors and customers of these commercial complexes are not permitted by law and cannot be permitted to use Bapat Galli for parking. He contends that negligence of Respondent No. 3 -Municipal Council in discharge of its duties has resulted in this situation. He contends that if construction raised is unauthorised or if parking space has been utilised for commercial use or commercial purpose, the authorities ought to have taken necessary action. It is his argument that taking action after construction is complete, cannot be a solution in such circumstances. He argues that the construction ought not to have been allowed to be occupied or put to use if it was not in accordance with building bye laws or its sanctioned plan. It is his argument that municipal authorities deliberately permit such user and even tolerate such user all over Chandrapur town and thereby give wrong signals to the builders or persons who raise such unauthorised structures. He contends that therefore appropriate authority/ committee needs to be constituted for supervising this work of Municipal Council. He further argues that the persons raise illegal structures and construction in the hope of getting it regularised or compounded later on because of their influence. He contends that such persons also need to be punished and officers who are responsible for sending such signals also need to be punished.
13. He argues that the problem worsens because of encroachments which come up on footpaths or on public roads thereby creating a bottleneck. According to him, therefore, immediate action needs to be taken to stall the construction and to remove the encroachment. He contends that such action for removal of encroachment needs to be taken at regular intervals and frequently so as to discourage the encroachers. He further argues that the Motor Transport permit cannot be given to private bus operators until and unless bus owner points out private place of his own for parking his vehicle. He states that it is also one of the condition of permit and hence such buses cannot be permitted to be parked even for a minute on busy public road. He states that private bus operators cannot be permitted to use government land or public roads as their bus stations which cause prejudice to the petitioners or other commuters at large. He points out the attitude exhibited by Respondents No. 2 & 3 in this respect. He argues that Respondents No. 2 and 3 are indirectly assisting private bus operators by pointing out that it is only a provision of alternate site that would help in resolving the problem. He contends that Respondents No. 2 & 3 are not concerned with business of such private bus operators and they have to strictly take action against private bus operators to see that their buses do not stand for a minute on government road and they do not use government road as their parking spot or a stop for embarking and disembarking of passengers from their buses. He states that Respondents No. 2 & 3 are indirectly assisting private bus operators in their business.
14. In order to point out how such problems are to be approached by Court of law, he invites attention to various cases dealing with unauthorised construction and object and importance of Town Planning and Development Plan in the process. He contends that the Developmental plan cannot be breached and it is always to be respected for protection of environment and ecology. He states that Municipal Council cannot be permitted to compound any construction or structure which is contrary to the requirement of developmental plan and building bye laws. He also points out how the Hon'ble Apex Court has felt need of having High Power Committee to regulate this aspect. He states that mere punishing persons who raise such unauthorised or illegal structure is not sufficient and disciplinary action needs to be taken against officers who deliberately permit such violations. He argues that all these observations of the Hon'ble Apex Court are being violated by the respondents in the present case. About the hawkers right to carry out their trades on public roads, he has invited attention to submissions to contend that it is settled position that the hawkers do not enjoy any such right or privilege. Even in the matter of regulation of traffic and parking, he has invited attention to various judgments of the Hon'ble Apex Court. He argues that interpretation of Town Planning Statute is an environmental aspect and ecological factors are relevant consideration in constituting any Town Planning Statute. He states that adherence to such scheme is essential for protection of environment and sustainable development. He has relied upon certain case-law even for that purpose. The cases also deal with setting up of a monitoring committee in this respect. He has also relied upon the judgment of the Hon'ble Apex Court in the case of Almitra Patel v. Union of India reported at , in which the Hon'ble Apex Court has issued certain directions for solid waste disposal and keeping the surroundings of New Delhi hygienic. Reference to these cases will be made as and when occasion arises in the course of this judgment.
15. In reply, Shri De, learned Counsel appearing on behalf of the Municipal Council, Chandrapur, has contended that the Municipal Council, Chandrapur, has submitted report and progress from time to time to this Court and this Court has already recorded its satisfaction. He contends that the structures where parking space was not provided or was illegally put to some other use have been noticed and appropriate corrections in this respect have been carried out. In certain cases where court cases are pending, action will be taken immediately after restraining orders are vacated. He also invites attention to affidavit of respondent No. 2 & contends that the grievance in present petition has come to an end. However, he adds that the Municipal Council, Chandrapur, has no objection if this Court is inclined to issue any directions in public interest as such, directions are already issued by the Hon'ble Apex Court from time to time. He also has no objection if appropriate committee is constituted to oversee the working of Ward Officers of Municipal Council in this respect.
16. Shri Mirza, learned Additional Public Prosecutor appearing for other respondents No. 1, 2 & 4 states that grant of alternate site for parking of private buses is a policy decision which would take sometime. However, he contends that the provisions of law are being implemented by the respondents to the best of their ability and grievance of the petitioners is already ventilated. It is contended that hence, this Court should not take cognizance of the matter and the petition as filed should be dismissed. He states that constitution of any Committee or Authority to coordinate the functioning of various public bodies or governments is also not required because of extensive legal provisions in the field.
17. Chandrapur is a fast growing town in this part of Maharashtra. It has got industrial potential and also large coal belt which has resulted in various industrial units establishing themselves in the area. Because of this, the town is facing various problems.
A. In Intellectual Forum, Tirupathi v. State of Andhra Pradesh reported at 2006 (2) Scale 494, the Hon'ble Apex Court has considered this aspect in paragraph 73 as under :
On the other hand, we cannot also shut our eyes that shelter is one of the basic human needs just next to food and clothing. Need for a National Housing and Habitat Policy emerges from the growing requirements of shelter and related infrastructure. These requirements are growing in the context of rapid pace of urbanization, increasing migration from rural to urban centres in search of livelihood, mis-match between demand and supply of sites and services at affordable cost and inability of most new and poorer urban settlers to access formal land markets in urban areas due to high costs and their own lower incomes, leading to a non-sustainable situation. This policy intends to promote sustainable development of habitat in the country, with a view to ensure equitable supply of land, shelter and services at affordable prices.
B. The Hon'ble Apex Court has also in its recent judgment on provisions of Maharashtra Regional Town Planning Act in the case of Bombay Dyeing and Manufacturing v. Bombay Environmental Action Group reported at 2006 (3) Scale 1, in para 113 observed that interpretation of town planning statute which has an environmental aspect leading to application of Articles 14 and 21 of the Constitution of India cannot be held to be within the exclusive domain of the executive. In paragraph 208, it is observed that Ecological factors indisputably are very relevant considerations in construing such a statute and Court normally would lean in favour of environmental protection in view of the creating interpretation.
C. In another judgment in Padma v. Hiralal Motilal Desarda reported at , the Hon'ble Apex Court has observed as under in paragraphs 31 and 32 ( of reported judgment in SCC):--
31. Laws dealing with development planning are indispensable to sanitation and healthy urbanization, Development planning comprehensively takes care of statutory, manual, administrative and land-use laws hand in hand with architectural creativity. In the words of a well-known architect, development planning is the DNA of urbanization -the genetic code that determines what will get built. A development plan is essential to the aesthetics of urban society. American Jurisprudence, 2D (Vol. 82, at p. 388) states :
'Planning', as that term is used in connection with community development, is a generic term, rather than a word of art, and has no fixed meaning. Broadly speaking, however, the term connotes the systematic development of a community or an area with particular reference to the location, character, and extent of streets, squares, and parks, and to kindred mapping and charting. Planning has in view the physical development of the community and its environs in relation to its social and economic well-being for the fulfillment of the rightful common destiny, according to a `master plan' based on careful and comprehensive surveys and studies of present conditions and the prospects of future growth of the municipality, and embodying scientific teachings and creating experience.
32. The significance of a development planning cannot therefore be denied. Planned development is the crucial zone that strikes a balance between the needs of large-scale urbanization and individual building. It is the science and aesthetics of urbanization as it saves the development from chaos and uglification. A departure from planning may result in disfiguration of the beauty of an upcoming city and may pose a threat for the ecological balance and environmental safeguards.
18. It is, therefore, clear that the provisions of Regional Town Planning Map and also Development Plan are important while considering the issues and problems which arise in area of Respondent No. 3 -Municipal Council. The various problems faced by Municipal Council are narrated by it in its report which is filed by Municipal Council before this Court. In this respect, the Hon'ble Apex Court has in ruling between Padma v. Hiralal (supra) held that a Court while hearing Public Interest Litigation acts as sentinel on the qui vive discharging its obligations as custodian of constitutional morals, ethics and rules of conduct. It can, after giving notice to parties, enter into issues wider than those raised in the PIL. The orders of this Court mentioned above passed from time to time definitely widened the scope of present Criminal Writ Petition and parties already had adequate notice thereof. In this background, it will now be appropriate to refer to report filed before this Court by the Municipal Council. In the said report, at Annexure A, the details of roads which are widened after the High Court directions are given. Those roads are (1) Gillan Chowk to Dastgir Dargah; (2) Gandhi Chowk to Girnar Chowk via Sarafa line; (3) Jatpura Gate to Ramala Water Tank; (4) Jatpura Gate to Sant Kanwarram Square and thereafter Hanuman Mandir to Old Warora Octroi Post; (5) Jatpura Gate to Bank of India via Panchsheel Chowk; (6) Shri Krishna Talkies to Laxminarayan Temple; (7) Kasturba road; (8) Natraj Talkies to Ayyappa Temple; (9) Anchaleshwar Gate to Bagla Square; and (10) Bus Stand to W.C.L. Rayatwari. The Municipal Council has also given details of works under progress and those works include verification of unauthorised construction and issuing notices to them as per law, to decide on report of Committee about parking stations, to find out ways and means for regulation of traffic by identifying roads with heavy traffic load, identifying parking lots and developing of parking there, development of roads which are widened, removal of electric and telephone poles which have come in middle of road because of road widening. The Municipal Council has also given details about removal of encroachment. It has been stated that about 50-55% of the land in Chandrapur town is of Government and steps to remove encroachment on Government land are to be taken by the Collector as per Government Circular dated 17.2.1982. The Municipal Council has been providing machinery and labour for removal of such encroachments and is also pointing out such encroachments from time to time to the revenue department. The Municipal Council has its own encroachment removal squad for removing encroachments on public road and from footpaths. The Municipal Council has also pointed out how it is helping State Government in the matter of removal of encroachments. It has also placed on record the details of encroachments removed by it in the year 200506. It has pointed out that after encroachment takes place, its removal is opposed by interested citizens and politicians interested in them. Hence, precaution is being taken to see that the encroachment is removed immediately or at least on next day. It is further stated that because of heavy workload with Junior Engineer on several occasions, such instant removal does not become possible. It is stated that after the encroachment is removed, the material is seized and after receiving nominal fine and administrative charges, the material is returned back. The Municipal Council has suggested that if the amount of fine is substantial, encroachment can be controlled. It is further stated that while granting sanction for construction, initially structure only upto plinth level is sanctioned and after receipt of application for permission to construct further, the competent officer inspects the plinth and thereafter only question of grant of further permission is considered. About illegal sanction to construct, it has been stated that every year office of Joint Director, Town Planning, Nagpur Region, Nagpur, looks into the cases of sanction and the Town Planning Department has also made available technical staff for scrutiny of such cases. It is further mentioned that from April 2006, the scrutiny has been started in new manner using a new proforma so as to make it more effective. Steps being taken for breach of Town Planning Act provisions and provisions of Maharashtra Municipalities Act are also pointed out. However, it is stated that no steps are taken for recovery of expenditure incurred in the process and it is necessary to give special powers to Municipal Council to recover such expenditure from wrong doers. A Committee with Administrative Officer as its Head and Town Planner, City Engineer, Health Inspector as Member has been suggested because Chief Officer has got heavy work load and has to supervise working of entire Municipal Council. It is suggested that such Committee has to hold meeting at least once in every month and take review of illegal unauthorised construction, encroachment and also prescribe course of action in the matter. It is also stated that such Committee should also in next meeting take review of steps accordingly taken by Municipal office and to find out persons who have avoided their responsibility in the matter. About Supervision and Controlling of parking problem in Chandrapur, Municipal Council has stated that under the Chairmanship of Sub-Divisional Officer, Chandrapur with Traffic Inspector, Chief Officer as members, a committee has been constituted and such Committee is looking into the issue. The Collector is also stated to be holding meeting with Police Superintendent, Transport Officers to find out solution to parking problem. It is stated that to stop entry of private buses into town, Municipal Council, District Administration and Police Administration had suggested allotment of Government land on Mul road for private bus stand and it was also developed to certain extent but later on, District Court has given interim orders in the matter and hence further development could not take place. About the traffic problems, it is stated that roads are developed/ constructed under Integrated Road Development Project and Municipal Council has submitted a Scheme worth Rs. 73.69 to State Government for that purpose. The State Government has not yet sanctioned that scheme. It is further stated that if Maharashtra State Road Development Corporation constructs fly over in Babupeth area at Bagla Square on Railway Crossing Gate No. 43-A, the traffic congestion would be substantially reduced. About the problem of hawkers, it is stated that the Municipal Council is making available small blocks for such hawkers and construction of 24 such blocks near Super Market is going on. It is further stated that construction of 12 such blocks near Jatpura Kanji and 30 such blocks at Ramnagar Patesar shall be commenced because work orders therefor are already issued. It is further stated that land is being made available for creating hawkers' zone by the Municipal Council. In relation to sanitation and associated problems, the Municipal Council has stated that the town does not have facility of underground drainage. The Scheme has been proposed and its budgeted value is Rs. 24 crores. If the funds are made available, the work can be undertaken. In relation to disposal of solid waste, it is stated that the present arrangement & establishment is insufficient because of increase in population and hence Municipal Council has demanded Government land of about 8 Hectares in 2002 from the Revenue Department. The said land has been handed over to Municipal Council but it has got encroachment of brick kilns. The revenue department has been informed to remove that encroachment. The Municipal Council has also stated that the funds are required for undertaking the work of development of new establishment for disposal of solid waste. The Municipal Council has also stated that it requires machinery for removal of encroachment. The Municipal Council does not possess any machinery of its own and it is required to be taken on hire. The Municipal Council has stated that if a machinery for this purpose is provided with the authority constituted at District level for all Municipal Councils, Gram Panchayats and other Government lands which consist of employees/ representatives of all these bodies, the political pressure can be avoided and the action can be taken more effectively. About the role of Municipal Council in the matter of sanction of lay outs, the Municipal Council has stated that the permission for conversion of agricultural land to non-agricultural purposes is to be moved by the owner to the Planning authority i.e. Municipal Council and he has to obtain provisional permission first. Thereafter, he has to apply to revenue department for non-agricultural permission and after getting that permission, he has to prepare the lay out by making provision for roads and open to sky lands for public utility etc. There has to be a final inspection and measurement and thereafter roads, canals and open land are to be handed over to local body/ planning authority for its maintenance. The Municipal Council states that owners straightway approach the Revenue Department along with their lay out and seek non-agriculture permission. The Revenue authorities call for "No Objection" from Town Planning, Municipal Council and other allied officers and in many cases without waiting for No Objection Certificate from Municipal Council, non-agriculture permission along with permission to proposed lay out is granted. It is stated that because of this, the roads developed or proposed by Planning authority and open land therein do not coincide / match with roads and open lands in proposed lay outs or adjacent lay outs. It is further stated that inspite of this, the Municipal Council is required to provide basic amenities to the persons purchasing plots in such lay outs. The Municipal Council, therefore, has suggested that if provisional permission is granted by the Municipal Council, then such order must be annexed by owner while applying to revenue authorities. It is further stated that because of absence of co-ordination between various authorities in this respect, builders/ developers get benefit and extent of common area required to be left open or roads is reduced. The Municipal Council has also suggested that Chief Officer and Municipal Council should be given power to compound in certain circumstances and these powers should not be with Regional Director of Municipal Administration. It is stated that if these powers are given to Chief Officer, several people will come forward to take occupancy certificate and Municipal Councils will also get funds in the process. Same power is also claimed in relation to construction in excess of FSI or FAR where construction has been done without obtaining previous sanction. The Municipal Council has also narrated an instance in which old government building which was obstructing the work of road widening near District Sports complex was not demolished by PWD and was ultimately demolished by the Municipal Council and a Legislative Assembly question was then raised in the matter. In short, the Municipal Council has pointed out absence of coordination even in this respect. The Municipal Council has also suggested that the arrangement of Satellite Survey at least once in a year should be made to find out the extent of construction which have come up and also the extent of encroachment and necessary funds for that purpose should be made available.
19. From the above, it is apparent that the Municipal Council is facing problems arising out of or about preparation of lay outs in non-agriculture lands, removal of unauthorised structures, encroachment on public lands and nuisance of hawkers , Regulation of traffic and obstruction to such traffic because of encroachments and hawkers, problem of parking and absence of separate alternate site for private buses parking , need of underground drainage/ sewage & disposal of solid waste. The Municipal Council has also pointed out that electric poles and telephone poles which have come in the middle of road and causing obstruction to traffic also need to be removed. In the facts of present case, the order of Sub-Divisional Magistrate in favour of present petitioners under Section 133 and 143 of Code of Criminal Procedure has attained finality and it is not in dispute. However, that alone is not the subject matter and we are required to point out that there are various provisions like Section 167 of Bombay Police Act which require police authorities to regulate and control traffic and to maintain order in traffic on public roads. Similarly, the provisions of Motor Vehicles Act, particularly Sections 122, 127 and Rule 222 of Maharashtra Motor Vehicle Rules also prohibit parking of private buses on public roads. Section 179 of Maharashtra Municipal Nagar Panchayats and Industrial Townships Act, also empower the Municipal Council to remove obstructions. The provisions of Section 51 of Maharashtra Regional and Town Planning Act, 1966, read with Section 44 thereof are also important. Similarly, Section 187 of Maharashtra Municipalities Act also confer certain powers to Municipal Council in relation to public streets and hawking upon public streets. Chapter XII of Maharashtra Municipal Councils Nagar Panchayats and Industrial Townships Act, 1965, deals with control over buildings and power of Chief Officer to grant permission for construction of building in certain circumstances. Chapter XIII deals with drainage and control of Municipal Council over such drainage. Section 202 requires Municipal Council to have sufficient drainage for houses and Section 203 states that new buildings are not to be erected without drainage. Section 204 permits owners of private buildings and occupiers of lands to drain into municipal drains and Section 205 permits carrying of drain through land or into the drain belonging to other persons. Section 53 of Maharashtra Regional and Town Planning Act, 1966, permits the Planning authority to require removal of unauthorised development. Section 52 prescribes penalty for unauthorised development or for use otherwise than in conformity with development plan. Similarly Section 56 confers power upon it to require removal of unauthorised development or use. Thus, the provisions of law confer ample powers upon the Planning Authority in this respect. Provisions of Standardised Building Byelaws framed under this Act also show the extent and control which Planning authority like respondent number 3 possesses over the erection of buildings and development. However, in the facts of present case, the problem seems to spring on account of non coordination between various authorities in this respect and also failure of Municipal/Government Officers to perform their duty.
20. Here it will be appropriate to briefly refer to some of judgments pointed out by Petitioners to substantiate their stand about unauthorised development.
A--The importance of town Planning in the process of urbanisation and development can be conveniently gathered from following observations of Hon'ble Apex Court in case of Friends Colony Development Committee v. State of Orissa reported at :--
20. The pleadings, documents and other material brought on record disclose a very sorry and sordid state of affairs prevailing in the matter of illegal and unauthorized constructions in the city of Cuttack. Builders violate with impunity the sanctioned building plans and indulge in deviations much to the prejudice of the planned development of the city and at the peril of the occupants of the premises constructed or of the inhabitants of the city at large. Serious threat is posed to ecology and environment and, at the same time, the infrastructure consisting of water supply, sewerage and traffic movement facilities suffer unbearable burden and are often thrown out of gear. Unwary purchasers in search of roof over their heads and purchasing flats/ apartments from builders, find themselves having fallen prey and become victims to the design of unscrupulous builders. The builder conveniently walks away having pocketed the money leaving behind the unfortunate occupants to face the music in the event of unauthorized constructions being detected or exposed and threatened with demolition. Though the local authorities have the staff consisting of engineers and inspectors whose duty is to keep a watch on building activities and to promptly stop the illegal constructions or deviations coming up, they often fail in discharging their duty. Either they don't act or do not act promptly or do connive at such activities apparently for illegitimate considerations. If such activities are to stop, some stringent actions are required to be taken by ruthlessly demolishing the illegal constructions and noncompoundable deviations. The unwary purchasers who shall be the sufferers must be adequately compensated by the builder. The arms of the law must stretch to catch hold of such unscrupulous builders. At the same time, in order to secure vigilant performance of duties, responsibility should be fixed on the officials whose duty it was to prevent unauthorized constructions, but who failed in doing so either by negligence or by connivance.
21. The conduct of the builder in the present case deserves to be noticed. He knew it fully well what was the permissible construction as per the sanctioned building plans and yet he not only constructed additional built up area on each floor but also added an additional fifth floor on the building, and such a floor was totally unauthorized. In spite of the disputes and litigation pending he parted with his interest in the property and inducted occupants on all the floors, including the additional one. Probably he was under the impression that he would be able to either escape the clutches of the law or twist the arm of the law by some manipulation. This impression must prove to be wrong.
22. In all developed and developing countries there is emphasis on planned development of cities which is sought to be achieved by zoning, planning and regulating building construction activity. Such planning, though highly complex, is a matter based on scientific research, study and experience leading to rationalization of laws by way of legislative enactments and rules and regulations framed thereunder. Zoning and planning do result in hardship to individual property owners as their freedom to use their property in the way they like, is subjected to regulation and control. The private owners are to some extent prevented from making the most profitable use of their property. But for this reason alone the controlling regulations cannot be termed as arbitrary or unreasonable. The private interest stands subordinated to the public good. It can be stated in a way that power to plan development of city and to regulate the building activity therein flows from the police power of the State. The exercise of such governmental power is justified on account of its being reasonably necessary for the public health, safety, morals or general welfare and ecological considerations; though an unnecessary or unreasonable inter-meddling with the private ownership of the property may not be justified.
23. The municipal laws regulating the building construction activity may provide for regulations as to floor area, the number of floors, the extent of height rise and the nature of use to which a built-up property may be subjected in any particular area. The individuals as property owners have to pay some price for securing peace, good order, dignity, protection and comfort and safety of the community. Not only filth, stench and unhealthy places have to be eliminated, but the layout helps in achieving family values, youth values, seclusion and clean air to make the locality a better place to live. Building regulations also help in reduction or elimination of fire hazards, the avoidance of traffic dangers and the lessening of prevention of traffic congestion in the streets and roads. Zoning and building regulations are also legitimized from the point of view of the control of community development, the prevention of over crowding of land, the furnishing of recreational facilities like parks and playgrounds and the availability of adequate water, sewerage and other governmental or utility services.
24. Structural and lot-area regulations authorize the municipal authorities to regulate and restrict the height, number of stories and other structures; the percentage of a plot that may be occupied; the size of yards, courts, and open spaces; the density of population; and the location and use of buildings and structures. All these have in view and do achieve the larger purpose of the public health, safety or general welfare. So are front setback provisions, average alignments and structural alterations. Any violation of zoning and regulation laws takes the toll in terms of public welfare and convenience being sacrificed apart from the risk, inconvenience and hardship which is posed to the occupants of the building. (For a detailed discussion reference may be had to the chapter on Zoning and Planning in American Jurisprudence, 2d, Vol. 82).
25. Though the municipal laws permit deviations from sanctioned constructions being regularized by compounding but that is by way of exception. Unfortunately, the exception, with the lapse of time and frequent exercise of the discretionary power conferred by such exception, has become the rule. Only such deviations deserve to be condoned as are bona fide or are attributable to some mis-understanding or are such deviations as where the benefit gained by demolition would be far less than the disadvantage suffered. Other than these, deliberate deviations do not deserve to be condoned and compounded. Compounding of deviations ought to be kept at a bare minimum. The cases of professional builders stand on a different footing from an individual constructing his own building. A professional builder is supposed to understand the laws better and deviations by such builders can safely be assumed to be deliberate and done with the intention of earning profits and hence deserve to be dealt with sternly so as to act as a deterrent for future. It is common knowledge that the builders enter into under hand dealings. Be that as it may, the State Governments should think of levying heavy penalties on such builders and therefrom develop a welfare fund which can be utilized for compensating and rehabilitating such innocent or unwary buyers who are displaced on account of demolition of illegal constructions.
26. The application for compounding the deviations made by the builders should always be dealt with at a higher level by multi-membered High Powered Committee so that the builders cannot manipulate. The officials who have connived at unauthorized or illegal constructions should not be spared. In developing cities the strength of staff which is supposed to keep a watch on building activities should be suitably increased in the interest of constant and vigilant watch on illegal or unauthorized constructions.
27. In the facts and circumstances of the present case, we are of the opinion that the controversy should not have been brought to an end by the High Court merely by directing reconsideration of the application of revised building plans submitted by the respondent builder. The matter needs a further probe and hearing in public interest." In M.I. Builders v. Radhey Shyam Sahu i.e. , Hon'bleApex Court reiterates same view. Case of Dr. G.N. Khajuria and Ors. Appellants v. Delhi Development Authority and Ors. Respondents reported at can also be conveniently mentioned here. In paragraph 10, Hon'ble Apex Court observes: --
10. Before parting, we have an observation to make. The same is that a feeling is gathering ground that where unauthorised constructions are demolished on the force of the order of Courts, the illegality is not taken care of fully inasmuch as the Officers of the statutory body who had allowed the unauthorised construction to be made or make illegal allotments go scot free. This should not, however, have happened for two reasons. First, it is the illegal action/order of the Officer which lies at the root of the unlawful act of the concerned citizen, because of which the Officer is more to be blamed than the recipient of the illegal benefit. It is thus imperative, according to us, that while undoing the mischief which would require the demolition of the unauthorised construction, the delinquent Officer has also to be punished in accordance with law. This, however, seldom happens. Secondly, to take care of the injustice completely, the Officer who had misused his power has also to be properly punished. Otherwise, what happens is that the officer, who made the hay when the sun shined, retains the hay, which tempts other to do the same. This really gives fillip to the commission of tainted acts, whereas the aim should be opposite.
B--In Municipal Committee, Karnal, Appellant v. Nirmala Devi , Hon'ble Apex Court has considered encroachment on public street and has held that Municipal Committee had power to have said unauthorised encroachment and construction removed and to recover the costs thereof from such encroacher. In case of Cantorment Board, Jabalpur v. S.N. Awasthi reported at 1995 Supp (4) SCC 595, Hon'ble Apex Court has in paragraph 5 held that construction made in contravention of law cannot be a premium to extend equity so as to facilitate violation of mandatory requirements of law and High Court was not justified in extending equity on this ground.
C--In Mahendra Baburao Mahadik v. Subhash Krishna Kanitkar (From : AIR 2000 Bom 453) arising under Maharashtra Regional and Town Planning Act (37 of 1966) only, scope of power available to municipal council while considering application for grant of permission for construction at initial stage or after service of notice under Section 53 (2) of Town Planning Act is explained by Hon'ble Apex Court as under: --
45. The jurisdiction of a local authority is confined only to deal with application for grant of permission for construction as contained in Section 44 of the MRTP Act whether at the initial stage or when a notice is served under Sub-section (2) of Section 53 of the MRTP Act. The power to grant such permission could be exercised only within the purview of the Building Bye-laws. Therefore, being beyond the scope of Section 44 of the MRTP Act, the Municipal Council did not have any jurisdiction to direct regularization of such unauthorized constructions by reason of the said resolution or otherwise. The power of the Municipal Council, it is trite, being confined to the provisions of the said Acts, no action could be taken by them contrary thereto or inconsistent therewith.
Thereafter, observations in paragraph 25 in case of Friends Colony Development Committee v. State of Orissa and Ors. (supra) are reproduced and then its observations in M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu and Ors. , are relied upon and it is concluded that a discretionary power must be exercised having regard to the larger public interest. Following observations in paragraph 49 of report (A.I.R.) need to be reproduced: --
49.In Consumer Action Group and Anr. v. State of T.N. and Ors. this Court held: --
While exercising such a power the authority has to keep in mind the purpose and the policy of the Act and while granting relief has to equate the resultant effect of such a grant on both, viz. the public and the individual. So long as it does not materially affect the public cause, the grant would be to eliminate individual hardship which would be within the permissible limit of the exercise of power. But where it erodes the public safety, public convenience, public health etc. the exercise of power could not be for the furtherance of the purpose of the Act. Minor abrasion here and there to eliminate greater hardship, may in a given case, be justified but in no case affecting the public at large. So every time the Government exercises its power it has to examine and balance this before exercising such a power. Even otherwise, every individual right including fundamental right is within reasonable limit but if it makes inroads into public rights leading to public inconveniences it has to be curtailed to that extent. So no exemption should be granted affecting the public at large. Various development rules and restrictions under it are made to ward off possible public inconvenience and safety. Thus, whenever any power is to be exercised, the Government must keep in mind, whether such a grant would recoil on the public or not and to what extent. If it does then exemption is to be refused. If the effect is marginal compared to the hardship of an individual that may be considered for granting.
These observations clearly show the great importance attached to building regulations or town planning regulations and show that the same are to be scrupulously implemented. In Debashis Roy v. Calcutta Municipal Corporation reported at 2005 (12) SCC 317, Hon'ble Apex Court has held that the issue about legality or otherwise of conversion of user of parking space in residential area for commercial purposes permitted by Municipal Corporation was not a dispute between private parties and essentially involved an element of public interest.
21. As per the provisions of Standardised Building Byelaws framed under provisions of Maharashtra Regional and Town Planning Act, 1966 elaborate schemes are made to monitor the development and construction. Section 3 of Maharashtra Regional and Town Planning Act, 1966 permits state government to establish "Region" for purposes of said Act and also to constitute Regional Planning Board by virtue of Section 4 thereof. Section 8 permits said board to prepare a Regional Plan & the procedure therefor is prescribed under Section 13. Section 14 prescribes what are to be the contents of Regional Plan. Hence if such Regional Planning Board is constituted and is functioning, the apprehensions expressed and problems faced by respondent No 3 Municipal Council may not have arisen. However, where there is no such Regional Board or even in cases, where a Regional Development Plan specifying land user is finalised, its effective implementation is essential and for that purpose proper coordination between different authorities is required to be established. The reply of Municipal Council above reveals that there have been breeches and violations of sanctions and town Planning. Thus the effect of influence of wrongdoers in the process is more than apparent. The circumstances justify creation of an independent Authority of responsible and impartial officers who can keep watch and vigil on the process. Section 21 of Act prescribes for Development Plan which is to be prepared by planning authority i.e. respondent No 3. Section 43 imposes certain restrictions on development of land. Section 44 requires a person intending to carry out any development on any land to make application to planning authority for permission therefor. We are not required to consider all these provisions in detail. Section 49 casts obligation on planning authority to acquire land in certain contingencies. Section 51 or 56 enables Planning Authority to revoke or modify any permission for development granted by it subject to the conditions mentioned in it. Separate Building Byelaws are prescribed for "A" class Municipal Councils and for "B and C" class Municipal Councils. For "A" class Municipal Council, there are specific requirement of size of plot for construction, rules for land subdivision and layout, separate floor area ratio for residential buildings and other buildings, parking spaces, requirement of leaving open spaces etc. All these provisions are different for educational buildings, institutional buildings, cinema theaters, Mangal Karyalaya (Marriage Halls), Petrol Filling Stations etc. There are specific provisions about size of habitable rooms, kitchen, bathrooms, roof, basement for above buildings. The Byelaws meant for "B and C" class municipalities are also in detail but does not make distinction in types of buildings as mentioned above. It is not necessary to refer to these provisions in detail here. However in either case,the site / plot is required to be approved and the building plan is also to be approved by Planning Authority with details like private water supply, sewage etc. The licensed Architect or engineer has to give supervision certificate. The Planning Authority has power to inspect the construction work from time to time but such inspection does not relieve owner of his responsibility to carry out work in accordance with Byelaws. The owner has to give notice after completion of plinth so as to enable Planning Authority to find out whether work is carried in accordance with sanctioned plan or not. After completion of structure, the owner through licensed architect has to give completion certificate and then the Planning Authority has to issue occupancy certificate. Residential, non-residential, commercial and institutional buildings have been treated separately taking into account the purpose to which it will be put. Elaborate provisions are made which show that building basically constructed for residential purpose cannot be used for any non- residential/commercial/other activity. Putting structure constructed for one purpose for use for some other purpose is not legal. The Act itself provides for prosecution and punishment in case of violation of any of its provisions in this respect. Perusal of Section 52, 53 and 56 of Maharashtra Regional and Town Planning Act, 1966 show that Planning Authority can take steps to discontinue such user. Prosecution and ultimate punishment after a long drawn legal battle cannot be a solution where immediate action to stop mischief is must. Circumstances may warrant taking of immediate steps looking to larger public interest. The interim power to seal such premises/structure is incidental and ancillary to this power to remove unauthorised or wrongful user or structure and will have to be read accordingly. Its timely exercise is essential to prevent recurring mischief and prejudice to public. The wrongdoer cannot be permitted to take advantage of his own wrong and to continue to act to the prejudice of public at large. The Maharashtra Felling of Trees (Regulation) Act, 1964 and 1967 Rules framed there under prohibit felling of specified trees without proper prior permission and also make defaulter liable for penalty up to Rs 1000/-only.
22. Latest Judgment of Hon'ble Apex Court in case of Bombay Dyeing and Manufacturing Company v. Bombay Environmental Action Group reported at 2006 (3) SCALE 1(supra) show the importance of environmental aspect and impact of ecological factors in construing town Planning statutes and in achieving sustainable development in environmental protection. Intellectuals Forum v. State of Andhra Pradesh 2006 (2) SCALE 494(supra) is the other leading judgment of Hon'ble Apex Court taking similar view which emphasises the concept of sustainable development and doctrine of public trust. Hon'ble Apex Court has in M.C. Mehata v. Union of India reported at explained the obligations of State authorities in the matter of prevention of environmental pollution. In this judgment of the Hon'ble Apex Court has expressed need of observing "Keep the city/ town/village clean" week and participation of all including members of executive, members of Parliament and State Legislatures, members of judiciary in such process in order to create awareness amongst all and to point of gravity of the problem. In fact Hon'ble Apex Court has requested Ministry of Environment of Government of India to give serious consideration to its suggestion. In Maharashtra, decision to stop use of plastic bags has already been taken. Even if such week is celebrated and in it effort is made to collect all such polythene bags and plastic material like water bottles etc. lying at various public places/roads and to hand it over to Gram Panchayat, Zilla Parishad, Municipal Council, Municipal Corporation etc. for its further disposal it will help the environment to great extent.
23. We deem it more proper to point out observations of Hon'ble Apex Court in case of Virendra Gaur and Ors. v. State of Haryana and Ors. where in paragraph 7 after pointing out Article 48-A of the Constitution about the Directive Principle which requires state to endeavor to protect and improve environment and to safeguard the forest and wildlife of the country, Article 47 which requires state to improve public health as its primary duty and Article 51-A(g) which imposes fundamental duty on every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures, Hon'ble Apex Court relies upon Article 21 to point out that enjoyment of life and its attainment including their right to life with human dignity encompasses within its ambit, the protection and preservation of environment, ecological balance free from pollution of air and water, sanitation without which life cannot be enjoyed. It has been observed that it is imperative duty of state and also Municipal Council to take adequate measures to promote, protect and improve both the man-made and the natural environment.
24. In case of D.K. Joshi v. State of U.P. reported at , Hon'ble Apex Court has directed formation of a Monitoring Committee for curbing water pollution in Agra town and for getting the solid waste disposed of scientifically and for having good sewerage system to see that open drains do not stink. Similar directions have been issued in relation to city of Delhi in Almitra H. Patel and Anr. v. Union of India and Ors. reported at and in this judgment Hon'ble Apex Court has expressed its anguish over the fact that instead of slum clearance there is slum creation in Delhi. From arguments advanced before us, we gather that situation at Chandrapur is not much different. In M.I. Builders v. Radhey Shyam Sahu i.e. (supra), Hon'ble Apex Court has observed that any commercial activity in unauthorised constructions puts additional burden on locality and it is the primary concern of Court to eliminate the negative impact which it will have on environmental conditions in the area and the congestion that will aggravate on account of increased traffic and people visiting such complex. It is also observed that while directing demolition of unauthorised construction, the Court should also direct an inquiry as to how the unauthorised construction came about and to bring the offenders to book and it is not enough to order demolition only. Observations of Hon'ble Apex Court in M.C. Mehta v. U.O.I. 2006(2) SCALE 364( supra), reveal that user, commercial residential is very relevant and occupation load has large impact on various facilities including water, sanitation and drainage. Master plans are prepared to take care of future needs by experts after looking into various aspects like healthy living, environment, Lung space need, land use intensity, areas where residential houses are to be built and were commercial buildings are to be located, need of household industries etc.. Hon'ble Apex Court has also observed that though task of implementation may be difficult, the Court cannot remain the mute spectator when the violations also affect the environment and healthy living of law abiders. The enormity of the problem cannot be a deterrent factor in this respect. It is observed that various laws are enacted, master plans are prepare by expert planners, provision is made in the plans also to tackle the problem of existing unauthorised constructions and misusers and, still such illegal activities go on unabated openly under the gaze of everyone without having any respect and regard for law and other citizens. Hon'ble Court has also observed that laws are not enforced and the orders of the Court are not properly implemented resulting into total lawlessness. It has observed that therefore it is necessary to identify and take appropriate action against officers responsible for this state of affairs because such blatant misuse of properties at large-scale do not take place without connivance of concerned officers. Hon'ble Court therefore found it proper to constitute a Monitoring Committee and the issue of accountability of officers and also the exact manner of applicability of "Polluters Pay Principle" to owners and officers could be taken up after misuser is stopped at least on main roads in New Delhi. The Hon'ble Apex Court has thereafter in last paragraph issue directions about giving of individual notices for stopping of misuser, filing of affidavit to that effect by owners and sealing of premises in default.
25. The remedies available to respondent No.3 to deal with hawkers have been pointed out with reference to leading judgments of Hon'ble Apex Court Bombay Hawkers Union v. Bombay Municipal Corporation AIR 1985 S.C. 1205, Sodan Singh v. New Delhi Municipal Committee , Saudan Singh v. New Delhi Municipal Committee , N.Jagdishan v. District Collector, North Arcot Ahmedabad Municipal Corporation v. Nawab Khan , Sodan Singh v. New Delhi Municipal Committee 1998(2) SCC 727, Sodan Singh v. New Delhi Municipal Committee , Navi Mumbai Municipal Corporation v. Navi Mumbai Hawkers & Workers Union , Sodan Singh v. New Delhi Municipal Committee , Maharashtra Ekta Hawkers Union v. Municipal Corporation Greater Bombay & Sudhir Madan v. M.C.D. 2005(9) SCC 419.
A-The last ruling i.e. Sudhir Madan v. M.C.D.(supra) are directions issued by Hon'ble Apex Court to Municipal Corporation of Delhi in view of National Policy on Hawkers formulated in the year 2004 & its implementation. Here it is not pointed out to us that any such scheme is either adopted or being implemented by respondent No.3. From the various judgments mentioned above, it is apparent that hawkers do not have any fundamental right under Article 21 and no such absolute right exists in their favour even under Article 19(1)(g) to continue to hawk to the prejudice of common citizen. Please see constitutional Bench judgment Sodan Singh v. New Delhi Municipal Committee (supra) in this respect. Recently Hon'ble Apex Court has also laid down that poverty cannot be the reason to permit encroachments on public lands/roads. In view of this we find it unnecessary to make reference in detail to above cases. In Maharashtra Ekta Hawkers Union v. Municipal Corporation Greater Bombay (supra), in paragraph 5 of judgment, Hon'ble Apex Court has given the basic features of scheme as framed by High Court. In paragraph 7, it has considered its earlier judgment in case of Bombay Hawkers Union v. Bombay Municipal Corporation (supra) and also the restrictions imposed by Hon'ble Bench on hawkers in the matter. It has also considered its constitutional Bench judgment Sodan Singh v. New Delhi Municipal Committee (supra) . In paragraph 14 of Maharashtra Ekta Hawkers Union v. Municipal Corporation Greater Bombay (supra) restrictions and conditions on which hawkers would be permitted to do business are mentioned. In paragraph 16, a Committee consisting of a retired Judge of Bombay City Civil Court at Bombay and the senior police officer from Traffic Department came to be constituted to consider the issue of hawking/non-hawking zone, procedure as to how application is to be made to Committee in this respect and payment to be made to Committee for that purpose. We find that the terms and conditions formulated in paragraph 14 by Hon'ble Apex Court can also be used as basic guidelines by Committee/ Authority which we propose to constitute for taking care of problem of hawkers in area of respondent No 3 Municipal Council with suitable modifications as said Committee may find necessary after hearing all concerned. Those observations of Hon'ble Apex Court in paragraph 14 in Maharashtra Ekta Hawkers Union v. Municipal Corporation Greater Bombay (supra) read: --
Para 14 of SCC & 13 of AIR:--" The restrictions/conditions on which the hawkers shall do the business are :
(1) an area of 1 mtr x 1 mtr on one side of the footpath wherever they exist or on an extreme side of the carriage way, in such a manner that the vehicular and pedestrian traffic is not obstructed and access to shops and residences is not blocked. We further clarify that even where hawking is permitted, it can only be on one side of the footpath or road and under no circumstances on both sides of the footpaths or roads. We however clarify that Aarey/Sarita stalls and sugar cane vendors would require and may be permitted an area of more than 1 Mt. by 1 Mt. but not more than 2 Mt. by 1 Mt;
(2) Hawkers must not put up stalls or place any tables, stand or such other thing or erect any type of structure. They should also not use handcarts. However they may protect their goods from the sun, rain or wind. Obviously this condition would not apply to Aarey/sarita stalls;
(3) There should be no hawking within 100 meters from any place of worship, holy shrine, educational institutions and hospitals or within 150 meters from any municipal or other markets or from any railway station. There should be no hawking on foot-bridges and over-bridges. Further certain areas may be required to be kept free of hawkers for security reasons. However outside places of worship hawkers can be permitted to sell items required by the devotees for offering to the deity or for placing in the place of worship e.g. flowers, sandalwood, candles, agarbattis, coconuts etc.;
(4) The hawkers must not create any noise or play any instrument or music for attracting the public or the customers;
(5) They can only sell cooked foods, cut fruits juices and the like. We are unable to accept submission that cooking should be permitted. We direct that no cooking of any nature whatsoever shall be permitted. Even where cooked food or cut fruits or the like are sold, the food must not be adulterated or unhygienic. All municipal licensing regulations and the provisions of the Prevention of Food Adulteration Act must be complied with;
(6) Hawking must be only between 7.00 am and 10.00 pm;
(7) Hawking will be on the basis of payment of a prescribed fee to be fixed by BMC. However the payment of prescribed fee shall not be deemed to authorize the hawker to do his business beyond prescribed hours and would not confer on the hawker the right to do business at any particular place;
(8) The hawkers must extend full co-operation to the municipal conservancy staff for cleaning the streets and footpaths and also to the other municipal staff for carrying on any municipal work. They must also co-operate with the other Government and public agencies such as Best undertaking, Bombay Telephones, BSES Ltd. etc. if they require to lay any cable or any development work;
(9) No hawking would be permitted on any street which is less than 8 meters in width. Further the hawkers also have to comply with Development Control Rules thus there can be no hawking in a areas which are exclusively residential and where trading and commercial activity is prohibited. Thus hawking cannot be permitted on roads and pavements which do not have a shopping line;
(10) BMC shall grant licences which will have photos of the hawkers on them. The licence must be displayed, at all times, by the hawkers on their person by clipping it on to their shirt or coat;
(11) Not more than one member of a family must be given a licence to hawk. For this purpose BMC will have to computerize its records;
(12) Vending of costly items e.g. electrical appliances, video and audio tapes and cassettes, cameras, phones etc. are to be prohibited. In the event of any hawker found to be selling such items his licence must be cancelled forthwith.
(13) In areas other than the Non-Hawking Zones, licences must be granted to the hawkers to do their business on payment of the prescribed fee. The licences must be for a period of 1 year. That will be without prejudice to the right of the Committee to extend the limits of the Non-Hawking Zones in the interests of public health, sanitation, safety, public convenience and the like. Hawking licences should not be refused in the Hawking Zones except for good reasons. The discretion not to grant a hawking licence in the Hawking Zone should be exercised reasonably and in public interest.
(14) In future, before making any alteration in the scheme, the Commissioner should place the matter before the Committee who shall take a decision after considering views of all concerned including the hawkers, the Commissioner of Police and members of the public or an association representing the public.
(15) It is expected that citizens and shopkeepers shall participate in keeping non-hawking zones/areas free from hawkers. They shall do so by bringing to the notice of the concerned ward officer the presence of a hawker in a non hawking zone/area. The concerned ward officer shall take immediate steps to remove such a hawker. In case the ward officer takes no action a written complaint may be filed by the citizen/shopkeeper to the Committee. The Committee shall look into the complaint and if found correct the Committee will with the help of police remove the hawker. The officer in charge of the concerned police station is directed to give prompt and immediate assistance to the Committee. In the event of the Committee finding the complaint to be correct it shall so record. On the Committee so recording an adverse remark re failure to perform his duty will be entered in the confidential record of the concerned ward officer. If more than three such entries are found in the record of an officer it would be a ground for withholding promotion. If more than 6 such entries are found in the records of an officer it shall be a ground for termination of service. For the work of attending to such complaints BMC shall pay to the Chairman a fixed honorarium of Rupees 10,000/- p.m. (16) The scheme framed by us will have a binding effect on all concerned. Thus apart from those to whom licenses will now be issued, no other person/body will have any right to squat or carry on any hawking or other business on the roads/streets. We direct the BMC shall bring this judgment to the notice of all Courts in which matters are now pending. We are quite sure that the concerned Court/s shall then suitably vacate/modify its injunction/stay order."
26. One of the excuses pleaded by respondent No 3 Municipal Council is pendency of issue in subordinate Courts. The parties to these court proceedings are not before us. Hence it is not possible for us to make any effective or binding comment on any of these proceedings. But we feel that the Courts have to be more cautious in such matters & care should be taken to see that executive can not take shelter of such subjudice cases. Moreover the law on the point in relation to encroachments or hawkers is considered above and were also made reference to judgment of Hon'ble Apex Court in case of Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan reported at (supra). In paragraph 27 below we have also extracted the important observations in this respect. It is apparent that plaintiff or applicant who wants his encroachments on Public Road to be protected by any interim order has to satisfy the court about existence of any legal right in his favour to maintain such encroachment during pendency of suit and for that purpose, he has to point out some title in him authorising him to occupy the portion of public Road or footpath etc.. In the absence of any such legal right, the encroacher cannot be permitted to obstruct the free flow of traffic or cause inconvenience to public at large. Mere long possession or user cannot be an answer to tilt the balance in his favour when in other pan of balance, the Court has to weigh interest of public at large. Even the threat of loosing source of livelihood cannot be, by itself a circumstance in favour of such applicant. He encroached upon public road or footpath knowing fully well that nobody can clothe him with authority to occupy and use it for his private gain. He cannot feign ignorance of provisions of Law and try to raise equity in his favour. Court of Law cannot permit such wrongdoer to continue to injure public at large during pendency of suit. Hence, his plaint itself must contain sufficient material and facts to satisfy the court that the convenience & interest of public at large must suffer because of legal right in his favour, which will be a very rare case. Similar grievance has been made by respondent No. 3 about the interim orders operating and protecting alleged unauthorised structures in Chandrapur town. Again, the plaintiff in such case has to make out a strong prima facie case. He has to point out the area and dimensions of his plot and also the exact dimensions of the structure raised by him. He has to point out whether he has left any side margins, front margin or rear margin on his plot and its extent. He must file the correct map of structure constructed as standing with plot map and point out why he could not obtain sanction from Municipal council or other similar authority to it. He has to file affidavit of architect or engineer who supervised said construction mentioning that the structure is within four corners of Building Bylaws and can be compounded as per its provisions. Such affidavit must also disclose that user of said structure is also as per zoning regulations and not contrary to the sanction given or sought. Same requirements must be complied with when structure raised is different than the structure sanctioned by sanctioning authority. Perusal of case law quoted, more particularly Syed Muzaffar Ali v. Municipal Corporation of Delhi reported at 1995 Supp (4) SCC 426 shows that Hon Apex Court has observed that mere departure from the authorised plan or putting up the construction without sanction does not ipso facto and without more necessarily and inevitably justify demolition of structure. Some cases may be amenable to compounding while the other cases of grave & serious breaches of licensing provisions or building regulations may warrant demolition. Therefore the burden is entirely upon plaintiff or applicant to satisfy the court with material as mentioned above or other relevant material to show that his structure does not violate zoning regulations or development control rules or building bylaws. If after considering such material and after considering the provisions of relevant Law, the Court is satisfied that the unauthorised structure forming subject matter of suit before it can be compounded legally, it can proceed to grant temporary injunction. However in that event, it must simultaneously ask the plaintiff or applicant to move sanctioning authority for getting his structure or deviations/modifications regularised during pendency of proceedings before it. Even sanctioning authority can during pendency of such proceedings itself prepare map and satisfy the court about the correctness of its action and substantiate its decision that demolition is the only solution. This can be done without prejudice to rival contentions subjudice before the court. The restrictions on the powers of Municipal council in the matter of compounding/regularisation are already pointed out in in paragraph 20 above while considering the judgment of Hon'ble Apex Court in case of Mahendra Baburao Mahadik v. Subhash Krishna Kanitkar (supra). The sole fact that structure is complete cannot be a ground to justify grant of temporary intention. In Shiv Kumar Chadha v. Municipal Corporation of Delhi reported at the Hon'ble Apex Court has considered the issue of grant of temporary injunction in detail from paragraph 30 onwards. The observations made also show that such plaintiff is interested only in getting an order of interim injunction and Hon'ble Apex Court has pointed out that normally such relief is not to be granted without issuing notice to the other side. Hon'ble Apex Court has observed that on many occasions even public interest suffers because of such interim orders. In view of these detail observations of Hon'ble Apex Court, it is not necessary for us to repeat the same again here. However, we have pointed out some of the circumstances which may be relevant for trial court to find out whether applicant has approached it with clean hands and whether there exists any prima facie case in his favour.
The encroacher or person who has raised unauthorised structure wants to perpetuate his illegality or irregularity as long as possible and for that purpose wants to engage himself in long drawn legal battle. If in such situation any officer of sanctioning authority who has to defend the action of local body before Court is acting in collusion with such applicant, the local body may avoid to file reply or avoid to defend itself effectively and take adjournments. In that event, the proceedings in court can easily be delayed by applicant and he can continue to enjoy the shelter of interim order. The local body or executive can thereafter defend its inaction by pointing out such pendency in Court as is being done before us. The Court granting such temporary injunction therefore cannot forget its role as custodian and guardian of public interest and it has to safeguard such larger interest independently. Hence, if such temporary injunctions are granted, Court granting it must fix an outer limit beyond which it will not operate. Not only this, if it finds that local body/authority is not co-operating in the matter, it can record an order to that effect and impose heavy costs upon such local authority or officer prima facie found guilty in the matter. In appropriate cases, it can also direct that such costs should be recovered from the officer concerned personally and it can also proceed in contempt against such body or officer. Simultaneously it can also forward copy of its order to concerned Collector or R.D.M.A.for initiation of disciplinary proceedings against such person. If such order is received by Collector or R.D.M.A., the latter shall be under obligation to immediately proceed departmentally against the officer named in the order. The steps about asking the applicant/plaintiff to submit his actual plan for consideration of sanctioning authority as suggested above, in the meanwhile, will also subserve the ends of justice. The advocates appearing for contesting parties before such Court must also ensure that no blame for long pendency can be put upon Court and no adjournment should be asked on the ground of nonavailability of advocate by party in whose favour interim order is operating. No doubt, the subordinate Court has got discretion in the matter of grant of adjournment, however, it has to be conscious of abuse of its process by colluding parties or by influential party and take all precautions to curb or avoid it. The guiding factors mentioned above, if followed, will definitely help the subordinate Court in achieving this goal.
27. As stated above, Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan reported at (supra) is the judgment which lays down law on the point of removal of encroacher from public lands/road. Following observations therein are important:
9. The Constitution does not put an absolute embargo on the deprivation of life or personal liberty but such a deprivation must be according to the procedure, in the given circumstances, fair and reasonable. To become fair, just and reasonable, it would not be enough that the procedure prescribed in law is a formality. It must be pragmatic and realistic one to meet the given fact-situation. No inflexible rule of hearing and due application of mind can be insisted upon in every or all cases. Each case depends upon its own backdrop. The removal of encroachment needs urgent action. But in this behalf what requires to be done by the competent authority is to ensure constant vigil on encroachment of the public places. Sooner the encroachment is removed when sighted, better would be the facilities or convenience for passing or re-passing of the pedestrians on the pavements or footpaths facilitating free flow of regulated traffic on the road or use of public places. On the contrary, the longer the delay, the greater will be the danger of permitting the encroachers claiming semblance of right to obstruct removal of the encroachment. If the encroachment is of a recent origin the need to follow the procedure of principle of natural justice could be obviated in that no one has a right to encroach upon the public property and claim the procedure of opportunity of hearing which would be a tardious and time-consuming process leading to putting a premium for high-handed and unauthorised acts of encroachment and unlawful squatting. On the other hand, if the Corporation allows settlement of encroachers for a long time for reasons best known to them, and reasons are not far to seek, then necessarily a modicum of reasonable notice for removal, say two weeks or 10 days, and personal service on the encroachers or substituted service by fixing notice on the property is necessary. If the encroachment is not removed within the specified time, the competent authority would be at liberty to have it removed. That would meet the fairness of procedure and principle of giving opportunity to remove the encroachment voluntarily by the encroachers. On their resistance, necessarily appropriate and reasonable force can be used to have the encroachment removed. Thus considered, we hold that the action taken by the appellant-Corporation is not violative of the principle of natural justice.
It was stated in the affidavit before Hon'ble Apex Court by Municipal Corporation that they are giving 21 days notice before taking action for ejectment of the encroachers. That procedure, was held to be fair procedure and, therefore, the right to hearing before taking action for ejectment was found to be not necessary in the said facts & situation. Requirement of following the procedure for eviction of encroacher was held to be necessary only when the Municipal Council did not act immediately and allowed such encroacher to continue in wrongful occupation for quite some time. In the facts of present case respondent No 3 Municipal Council has stated that it is acting immediately and action for removal of encroachment is being taken within a day or two. If any person has got any grievance against any such encroachment on public land or road, the Authority proposed by us below can examine the said issue in the light of guidelines laid down by Hon'ble Apex Court above.
28. M.C. Mehata v. Union Of India is the judgment in which Hon'ble Apex Court observed that provisions of Motor Vehicles Act, 1988, Code of Criminal Procedure confer ample power on authorities to take necessary steps to control and regulate road traffic and to suspend/cancel the registration or permit of motor vehicle if it poses a threat or hazard to public safety. It is also observed that claim of any right by an individual or even by a few persons cannot override and must be subordinated to larger public interest Certain directions have also been issued to regulate traffic on roads of NCR and NCT, Delhi. In the absence of adequate material before us in this respect, it will not be possible for us to issue any guidelines in this respect. However, the Authority suggested by us below can look into even this aspect qua the state of affairs prevailing in area of Municipal Council, Chandrapur. In case of M.C.Mehata v. Union Of India 2005 SCALE (10) 181, Hon'ble Apex Court directed all appropriate authorities to finalised the policy about parking. In Chandigarh Administration v. Namit Kumar , in public interest litigations certain directions were given by High Court and Hon'ble Apex Court has modified it to certain extent. Grievance of petitioner was about immense air and noise pollution, traffic congestion and unsystematic functioning of various authorities and absence of proper traffic control which resulted in increase in number of vehicular accidents. Various directions were given to State Administration by High Court relating to providing parking space, levy of parking charges, introduction of one way traffic, use of helmets and black films on glasses, demolition of booths, removal of advertisements facing roads, providing sign boards, etc. Some of directions were modified taking into account all relevant factors and keeping in view provisions of law. Hon'ble Apex Court after hearing Chandigarh administration found that there was no difficulty in introducing the system in institutional and commercial sectors but liberty should be given to the Administration to make relaxation taking into account the relevant factors. It modified the direction to the extent that proper traffic arrangements should be made. If the Administration wanted to relax the one way traffic system in any sector, the same was permitted to be done by indicating the special features which warrant such a departure. Apex Court found that direction was given to remove all advertisements facing the highway, main roads and the side roads. The stand of the Government was that the same would result in huge loss of revenue by way of license fees for the licenses which have been granted for the purpose. It was pointed out that persons who would be affected were not heard. Hon'ble Apex Court observed that though while dealing with issues like environmental pollution and road hazards there is no need for giving notice to all the persons affected, it would be open to the State Government or licensee to bring to the notice of the High Court that there was no safety hazard involved. Apex Court also observed that High Court shall consider them, if raised, in the proper perspective. As Rules were not brought to the notice of the High Court , Hon'ble Apex Court directed that if any exemption is granted to any person including Sikh women from any of the Motor Vehicles Rules relating to different States or areas or under any Statutory Rule the same shall operate notwithstanding the directions of the High Court that all persons including women shall wear helmets. One other direction assailed related to the use of black films on the glasses. It was submitted that Central Motor Vehicles Rules, 1989 (in short 'Central Rules') provide for the measure to be taken in such cases. It was noticed that Sub-rule (2) of Rule 100 of the said Rules deals with the issue. Apex Court, therefore, modified the direction of the High Court to the extent that while carrying out the directions, the mandate of Sub-rule (2) of Rule 100 shall be kept in view. It was made clear that this was in addition to any security requirement as may be laid down by the law and order enforcing agencies. We find that this law and the situation prevailing in respondent No 3 Municipal Council can be considered by authority while deciding whether to permit parking or not to permit parking or in what way and manner parking is to be regulated or traffic is to be diverted or regulated. The suggestions made by interested persons while arriving at any solution or arrangement in this respect can also be considered by Authority.
29. The stand and reply of respondent No 3 Municipal Council itself demonstrates the interference of rich and influential persons in the matter of unauthorised and illegal development in the town. After considering the facts presented before us and after giving our anxious consideration to the law emerging on various issues, as expressed above we find it better to take timely steps to prevent the situation from deteriorating further. A stitch in time saves nine. When the issue affects environmental and ecological factors, the above saying assumes more significance. We therefore think it proper to have a proper and responsible monitoring committee to be called "Authority" to keep vigil in the matter of development within and in vicinity of area of respondent No 3 Municipal Council and entire area in the region in more scientific, better, consolidated and integrated manner and not to give opportunity to any authority/body like Gram Panchayat, Village Panchayat, Zilla Parishad, Municipal Council or Regional Planning Board or Town Planning Authority etc to shirk its responsibility by taking any technical defence. As stated above, Chandrapur and its vicinity has got large Coal belts, Forests, Rivers and Electricity Generating Plants. It has huge industrial potential and therefore indiscriminate use of power and arbitrary exploitation of natural wealth also occurs. The Authority constituted by us will be responsible for monitoring and supervising the development of entire area as mentioned above. The work of Authority will be supplementary and complementary to the work of other authorities. Hence we proceed to pass following order & issue following directions in the matter:
A--We hereby direct the State Government to constitute a Joint Committee/ Authority consisting of representative each of respondent No 3 Municipal Council, respondent No 2 Police, respondent No 4 State through its Revenue Department for areas within Municipal Limits or Urban agglomeration; and also representative of Zilla Parishad, Chandrapur for area outside the limits of respondent No 3 Municipal Council. These representatives must be public servants in employment of these bodies/departments and not elected representatives as employees/servants are responsible for their decisions and guidance to their employers and can be punished easily for any misconduct. The Planning Authority or Regional Planning Board functioning under Maharashtra Regional and Town Planning Act, 1966 & Local bodies have got enough elective element and representation and its repetition in Authority proposed by us will only result in unnecessary duplication and may also be counter-productive. When lands outside limits of respondent No 3 Municipal Council are earmarked for any nonagricultural purpose, several owners thereof may not at a time simultaneously move for permission to put/convert their agricultural fields into nonagricultural use. In such circumstances, a piece of land belonging to a person who moves such conversion application under Section 44 of Maharashtra Land Revenue Code is required to be considered independently without in any way affecting the other adjacent agricultural land. The adjacent owner may seek similar permission after five years and, in that contingency, his application will again be required to be looked into separately. Thus while considering such individual cases, respective authorities functioning under different laws, cannot predetermine when land from adjacent area will become available for development and as such adjacent owner is not present before it, it cannot encumber his land by prescribing that it will have roads orienting in particular direction or of particular width or public utility land of particular size so as to cater to the needs of other adjacent layouts under development or to be developed. Thus, Revenue authority granting permission for such conversion will not be in position to monitor or supervise the development of individual layouts into a consolidated small township or area. If the layouts are allowed to be developed independently, their internal roads may not connect with each other and each layouts will therefore become a separate and independent unit. The inclusion of representative of Zilla Parishad is therefore essential to take care of such situations. Indeed consolidated and overall guided development of such area is essential in the interest of environment, ecology and other factors necessitating planned development discussed above. Constitution of such Authority will be helpful in regulating the development of area peripheral to any Municipal Council. Such Authority can be guided by Regional Plan, if in existence. Normally, the regional plan will consider position of forests, lakes, water-bodies, topography & requirements Regional Town Planning Act about various reservations & identify a particular area or portion for complete development. Such area or portion may be spread over in jurisdiction of more than one planning authority. Though development plan prepared by individual planning authority may be as per these requirements, still confusion may arise or created because of various factors. The Authority proposed by us will co-ordinate all these aspects leaving no scope for any confusion.
B--Such Authority can meet and find out the prospects of development in any particular area qua the area whether within limits of Municipal Council or not and adhere to Regional Plan for such area instead of allowing developments of layout on ad hoc basis or in small pieces. The development of any area outside municipal limits may also have some bearing on reservations or developments within it. This will enable continuity of roads and other public amenities even in adjacent layouts and bigger pieces of land can be developed in consolidated manner in more comprehensive fashion. The individual application for conversion of user can be considered only accordingly. The Authority can also from time to time consider the building permissions/sanctions granted by Municipal Council or by Panchayats and monitor the same after finding out the effect of such development on any particular area. This will enable the Authority to find out whether particular area/road is in position to support the additional burden of traffic or parking or of conservancy/sanitation. The grant of permission can thereafter be regulated accordingly. The Authority can consider all the provisions and if it finds that development which has already taken place in any particular area or on any particular road does not leave scope for further burdening the infrastructure available there and there is no scope for its additional provision or for regulation, it can advise Planning authority accordingly in the matter. The planning authority can thereafter invoke its statutory powers & deal with the situation. This will take care of problems of parking, sanitation, Conservancy etc. C--The Authority can also entertain complaints or scrutinize complaints received by any competent authority from aggrieved persons about encroachments on public lands/roads or about unauthorised development/constructions or about illegal/unauthorised user of residential buildings for commercial purposes putting unnecessary burden on infrastructure. All such complaints must be placed before such Authority in its meeting to be held regularly and the Authority should also monitor further action for ventilation of grievance in such complaints from time to time by concerned local authority like Municipal Council, Zilla Parishad or Panchayat etc. As all statutory bodies having powers in this respect will be represented in such Committee or Authority, it will not be possible for any body or statutory authority to avoid its responsibility or roll in the matter. The Authority or respective planning authority can give notice to owners of such encroachments or unauthorised structures put to misuse to discontinue user of such construction/structure within reasonable time if that user is putting extra and unwarranted burden upon infrastructure facilities like road, conservancy, sanitation etc. If the user is not discontinued, the planning authority can, pending further action, take steps to seal such structures or constructions. If the Authority finds that there is any delay or negligence or avoidance on part of local body or statutory authority or officer in the matter of discharge of its/his obligation, the Authority can complain about it to the Chief/Head of such body or statutory authority for initiation of appropriate disciplinary or other action against such delinquent. The Authority can also name the officer found responsible by it for inaction or negligence.
D--The Committee or Authority suggested above can also examine the position of traffic on any particular road or at any particular point of time at any place or area, and make appropriate suggestions for removing such traffic congestion by advising various measures like creation of no parking area or one-way or parking on either side on alternate days etc. It can also find out the reason giving birth to such problem, particularly whether structures coming up have provided adequate parking as contemplated by Standardise Building Byelaws under the Maharashtra Regional and Town Planning Act, 1966. While addressing itself to any particular road or localities, the Authority may call for written suggestions from interested persons before tendering its advise to competent authorities for taking final decision. It is the duty of Municipal Council to place appropriate sign boards warning public at large about the traffic regulations, parking etc.. If there are any private sign boards /advertisements or hoardings placed unauthorisedly on public place or street or any such board or hoarding obstructs the commuters on road, Authority can also suggest Municipal Council or other competent authority to remove the same. Even problem of parking of private buses can be looked into by said Authority in the light of permit issued to such private bus owner by R.T.O. and convenience of general public. In the facts of present case we find that respondent No 2 has not even applied mind to find out whether parking undertaken at busy intersections by private bus operators is legal or not and, & it appears that office of respondent No 2 is impliedly party to such private use of public place. The respondents cannot avoid their responsibility to implement provisions of law by stating that parking is only for a few minutes. Every infraction of law which operates to the prejudice of general public needs to be dealt with stern hands and pendency of proposal with State Government to allot site to such private bus owners cannot be a factor relevant to shield themselves by the respondents. If such private bus owners have obtained permits by pointing out some private land to park their vehicles, respondent No 2 cannot now proceed to protect them by pointing out that government is considering grant of independent/alternate site for parking to these private bus owners. An illegality cannot be used as lever by such private bus owners or by respondent No 2. The Committee or Authority pointed out by us will definitely help to curb such practices and concessions.
E--Implementation of integrated road development project can be of great assistance in such situation. The proposal in this respect is again stated to be pending with State Government. The Authority recommended by us can examine the proposed roads/modifications and also the need of flyover in Babupeth area mentioned above & elsewhere in the light of requirement of people residing in Chandrapur and in the vicinity or the periphery of Municipal Council. The fresh proposal if any can be resubmitted to State Government in view of changed circumstances and Authority can continue to monitor the progress and implementation of such road construction.
F--If hawkers in any area are causing nuisance to traffic or residents, the Authority can very well look into the matter. Section 187 of Maharashtra Municipalities Act prescribe powers of Municipal Council in this respect. Again we are not concerned with those powers but with situation in which action to curb the menace of hawkers is required to be taken in the interest of general public. The Authority can survey such busy roads and advice creation of hawking or no hawking zones. The residents as also the hawkers can move appropriate applications in this respect before the Authority with such fee in such manner as the Authority may deem fit and proper with every such application and Authority shall consider such applications/grievances therein as early as possible and in any case within period of three months of its receipt. The restrictions and conditions imposed by Hon'ble Apex Court in case of Maharashtra Ekta Hawkers Union v. Municipal Corporation Greater Bombay (supra) shall be followed by such Authority as model for its own guidance.
G--Chandrapur is old town and drainage system is not intended to take burden of the recent spurt in development. Domestic garbage and sewage itself constitutes largely to solid waste. The commercial development adds to this problem. Requirement of underground and effective drainage system for sanitation and Conservancy is must. The respondent No 3 Municipal Council is already reported to have submitted a proposal in this respect to State Government. Need of additional land for locating solid waste disposal plant is also submitted to State. The Authority can monitor the further progress in the matter by entering into appropriate correspondence with the sanctioning authority of state government. The problem of machinery for disposal of solid waste can also be looked into by this Authority. The Authority can consider ecological and environmental factors for said purpose. It can also ask planning authority to provide suitable dustbins/trash boxes for use of citizens in each locality and daily cleaning thereof by Municipal servants or contractor. Municipal Council can also provide for inflicting fine upon persons who throw such garbage or waste at any public place. The Authority can also seek assistance of State Government or any other instrumentality like Pollution Control Board or NEERI for scientific disposal of garbage and waste generated by people.
H--It is to be noted that the Authority so created will only facilitate coordination between various departments and agencies and will not be substitute for statutory obligations casts under various laws upon such other departments or agencies or bodies. The recommendations of such Authority shall not supersede any statutory obligation or provision but, subject to such provisions, shall be an important direction for all local bodies and planning authorities. Such Authority and its function will definitely defeat the tendency of those rich and influential who first make thing fate accompli and then succeed in getting it regularised. It can also conveniently consider environmental aspect and ecology of the area under consideration and advice planting of particular number of trees or making provision for water bodies, use of solar energy and other non-conventional sources of energy as also rooftop rain water harvesting. As Authority is consisting of representatives of all statutory/local bodies responsible for monitoring and regulating the development, compliance with Regional Plan, if any, will be possible more effectively and, if there is no such Regional Plan, still the representatives can very well achieve integrated and consolidated development of entire area falling under jurisdiction of several bodies. If this Authority requires any assistance from any other government or semi government agency or public authority or instrumentality for purposes of smooth completion of its work, such other agencies or authorities or instrumentalities must give their cooperation as per their own procedure & rules. The issues like removal of electric poles or telephone/telegraph poles standing in the middle of road and obstructing traffic can thus be sorted out by Authority by seeking cooperation from M.S.E.D.C.LTD. or B.S.N.L. as the case may be.
I--The environmental aspect of the matter, particularly increasing number of trees in city limits, avoiding any disturbance to ecological balance or positive steps for its improvement can also be suggested and monitored by the Authority. The Authority can direct developers, owners, builders & occupants of proposed or new and also existing schemes/ structures residential or otherwise to plant certain number of trees immediately & to fasten responsibility for its maintenance or preservation on all such occupants. Authority has also to find out steps taken by Local Bodies including respondent No. 3 in the past in this respect & if it finds that there has been any negligence or latches in the matter, it has to direct action against employees of such Local Bodies.
J-- Lastly, we find that respondent No 3 Municipal Council has pointed out its inability to undertake any work for want of revenue and is depending upon financial assistance from State Government. It has not pointed out how much amount it has to recover from residents of Chandrapur town on account of property tax or other taxes/charges etc. Respondent No 3 can raise some amount by recovering the arrears of property tax and other taxes/charges and for that purpose can take assistance of elected representatives/ ward members to coerce residents of their respective wards to pay revenue/their outstanding to Municipal Council. Heavy penalties and fines can be recovered from encroachers or private bus operators who have used public street or places for their private gains. However, this will not legalize or regularise the illegal nature of their use & will not create any equity in their favour.
K--State Government to consider celebrating "keep your surroundings/village/town/city clean" week at least quarterly in the year and to encourage citizens, students, social organizations, leaders and representative of Judiciary, Bar and Bench [Legal Aid and Awareness] to participate in it so that at least polythene bags and plastic bottles or other similar material which is not bio-degradable can be collected and handed over to appropriate local body/authority for its further disposal/destruction.
L--While parting with the matter we can not help observing that the builders, developers, owners & architects/engineers for reasons obvious do not want trees to obstruct the beautiful elevations or frontages of their buildings. The trees on plots seen healthy & stout at the commencement of building activity slowly grow weak & die. This is achieved by various dubious means & State Government has no effective machinery to prevent this. Provisions of existing laws are too inadequate to meet the situation. Number of trees in any city has gone down drastically. The farmers also cut down the trees for various reasons. Illegal cutting of trees in forest is also rampant. All this has far reaching effect on environment & ecology. Hence, State Government must consider enacting more severe & stringent laws making person undertaking or supervising such development or all occupants of such structure accountable & responsible for preservation of trees. Such law must also make provision for inflicting deterrent punishments & such offences should be allowed to be tried summarily in fast track Courts. We feel that if the State Government does not choose to act now, the situation will soon become irreversible.
M-All interim orders made in this petition from time to time and mentioned above are hereby made absolute.
N-The Authority constituted in terms of this order shall be responsible to see that these directions are complied with and this Court may hold all the members of Authority accountable for any lapse or default in the matter. This will not absolve such members or officers/employees of concerned local body or department from action for Contempt of Court.
O. The Authority can devise its own procedure and working pattern for holding of meetings. State Government shall make provision through funds of Municipal Council, Zilla Parishad and itself for expenses of the Authority. The situation prevailing in areas of other Municipal Councils or in their vicinity will not be much different. And in any case prevention is always better than cure. Hence, State Government may also constitute similar Authorities elsewhere for achieving more effectively the consolidated development of the respective areas or regions.
Hence we allow the writ petition and direct respondents to see that the orders dated 17/1/2002 passed by Sub Divisional Magistrate are obeyed and maintained without any violation. We also direct respondent No 4 State Government to constitute the Joint Committee or Authority as mentioned above for overseeing and monitoring the work of development, construction, regulation of road traffic, disposal of garbage etc. in area of respondent No 3 Municipal Council as also in surrounding areas. State shall give due publicity to it through all types of media so that all concern and particularly citizens are made aware of existence of such Authority/committee and the object and purpose of constituting it, so that they can agitate their grievance before the said Authority/committee and if the same is not resolved move this Court for appropriate action in the matter. The State Government shall also consider all proposals moved by respondent No 3 Municipal Council and pending with it as pointed out above, as early as possible and in any case within a period of four months from the date of communication of this order to it. Learned APP as also learned Counsel appearing for respondent No 3 to communicate this order to their respective clients and also to respective/concerned Principal Secretaries and to the Chief Secretary of State of Maharashtra at Mumbai. Rule is accordingly made absolute in above terms. However, in the circumstances, we are not inclined to award any costs to the Petitioners.