Bombay HC Directs Ahmednagar Municipal Corporation To Take Steps For Removal Of Illegal & Unauthorised Construction Raised In Open Spaces Area

The Bombay High Court, Aurangabad Bench has ordered the Ahmednagar Municipal Corporation to take necessary steps for the removal of illegal and unauthorised construction/encroachments raised in the area of open spaces.

A Division Bench comprising Justice Nitin W. Sambre and Justice S.G. Chapalgaonkar directed, “Respondent no.3 Municipal Corporation, Ahmednagar shall take necessary steps for removal of illegal, unauthorized construction/encroachments raised in area of open spaces earmarked in sanctioned lay out plan for APMC Ahmednagar, particularly part of final plot no.17 and 23 of town planning scheme of Ahmednagar Municipal Corporation in pursuance of notices already served to Respondent APMC u/s 52, 53, 54 of MRTP Act, 1966 read with section 260 (1)(2) and 478 of the Maharashtra Municipal Corporation Act and submit the report of compliance to this Court within three months from the date of this order.”

The Bench passed its judgment while dealing with a batch of writ petitions that arose out of a common subject matter pertaining to the construction.

Senior Advocate Sanjeev Deshpande and Advocate Pramod S. Gaikwad appeared on behalf of the petitioner while AGP P.K. Lakhotiya and Advocate K.N. Lokhande appeared on behalf of the respondents.

Facts of the Case -

A group of pleas were filed under Articles 226 and 227 of the Constitution of India which were related to the construction raised in the premises of the Agricultural Produce Market Committee (APMC), Ahmednagar, and orders of demolition or removal passed by the Commissioner of the Ahmednagar Municipal Corporation. The petitioner-APMC was challenging the order passed by the Minister, Urban Development Department, Maharashtra State in an appeal filed against the order of the Deputy Commissioner, Municipal Corporation refusing to entertain a proposal made by APMC for the regularization of unauthorised construction.

As per the petitioner, it owned and possessed final plots and had constructed a principal market yard on the said plots. One of the plots was lying vacant and hence, the market committee passed a resolution to construct a ‘Grading Shed’ on the said plot with the approval of the Deputy Engineer, The shed was constructed and was used till 2011 but due to construction of the sub-market yard, the same was abandoned. Thereafter, the Deputy Commissioner passed an order rejecting the proposal of APMC seeking regularization of construction.

The High Court, after hearing the arguments of parties observed, “It appears that the APMC has clearly admitted that construction has been raised without seeking due permission of competent authority. … Petitioners, who are lease holders of the APMC would not have independent right to continue their possession and occupation of illegal/ Unauthorised construction on the open space earmarked from final plot no.17 as per the sanctioned lay out plan. In that view of the matter and for the reasons stated above while dealing with writ petition no.7741 of 2020 filed by the APMC we are not inclined to show indulgence in favour of petitioners in exercise jurisdiction of this court under Article 226 and 227 of the Constitution of India.”

The Court noted that huge encroachment has been made by the traders who are not in agricultural activities and due to haphazard and uncontrolled encroachments, the safety of market yard dwellers has been jeopardized.

“The Municipal Corporation/respondent no.3 appears to have already taken steps after identifying the encroachment on the open spaces demarcated under the lay out plan from final plot no.17 possessed by APMC, Ahmednagar. Even, the orders are passed declaring the constructions of shop in final plot no.17 to be illegal after hearing the concerned parties. It appears that the APMC was served with the notice for removal of encroachments /unauthorized construction and after elaborate hearing the order dated 12.10.2012 has been passed by Municipal Corporation”, said the Court.

The Court refused to delve into the factual dispute as far as the issue with regard to the part of open spaces being earmarked in the layout plan was concerned.

“We are considering prayers in this petition only to the extent of issuing direction to remove illegal/ unauthorised construction raised in open spaces earmarked in final plot No. 17 and 23 as per sanctioned layout and town planning scheme. The respondent No. 6 to 19 are at liberty to approach corporation at earliest and demonstrate their case on the basis of documentary evidence possessed by them”, held the Court

The Court in the above context said that the corporation would be at liberty to consider the same and pass appropriate orders within time line prescribed in the operative part of its order and that no prayer for an extension of time would be entertained on such a ground.

“We do not see any impediment for respondent Municipal Corporation to proceed further to remove illegal / unauthorized construction except the interim orders those were operating in writ petition No. 7741/2020 filed by the APMC challenging decision of corporation thereby rejecting proposal for regularization /compounding of illegal construction”, observed the Court.

Accordingly, the Court disposed of the pleas and passed the necessary directions.

Cause Title- Agricultural Produce Market Committee v. The Hon’ble Minister, Urban Development Department & Anr.

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