Kunal Ramesh Jadhav And ORS v. Thane Municipal Corporation An Dors
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 752 OF 2025 Kunal Ramesh Jadhav & Ors.
... Petitioners.
V/s.
Thane Municipal Corporation & Anr.
... Respondents.
Mr. Sandeep R. Mishra for the Petitioners.
Mr. Ajit Pitale a/w Pooja Malik & Sidharth Pitale for the Respondent Nos.1 and 2.
CORAM : A. S. GADKARI AND KAMAL KHATA, JJ.
DATE : 17th January, 2025.
P.C.:- 1) Admittedly, the suit structure is constructed without obtaining prior approval or sanction from the Competent Authority of Respondent No.1. The demolition of the suit structure is being undertaken by the Respondent No.1 in furtherance of the statements made by the Corporation and the directions issued by this Court vide Order dated 18th June, 2024 in Writ Petition No. 76 of 2024.
2) It is the contention of the Petitioners that they are bonafide purchasers of the suit property and occupying the flats in the suit building. That an opportunity of being heard may be given to them and therefore the by SANDHYA BHAGU WADHWA Date:
2025.01.22 17:39:25 +0530 1/6 SANDHYA BHAGU WADHWA
Corporation may be directed to issue notice, for affording them a hearing. As noted earlier, the Petitioners have failed to submit any documents to prove legality of the suit structure constructed by Mr. Rahul Jadhav, the developer.
3) In this case, notices dated 4th October, 2022 under Section 260 (1)(2) and 267(1)(2)(3) as well as notice under Section 268 dated 28th May, 2024 have been issued in the name of the developer Mr. Rahul Jahdav. The Petitioners have sought to distance themselves from the developer Mr. Rahul Jadhav by asserting that they did not appoint him as their developer. The Petitioners also attempted to undermine the notices by arguing that the description of the suit premises cited in the notices issued in the name of Mr. Jadhav does not match the present condition/description. They further highlight that the premises are assessed in the name of one Vijaynarayan Sarjuram Tiwari and others.
4) On the one hand, the Petitioners argued that principles of natural justice be followed with due service of notice, on the other hand, they have filed Suit bearing R.C.S. No. 24 of 2025 for a declaration and injunction under Section 34 and 37 of the Specific Relief Act to hold the Orders dated 3rd November, 2023 and 19th July, 2024 passed in pursuance to the notice dated 4th October, 2022 and 28th May, 2024 void and unexecutable. Pertinently their application was unsuccessful, and was rejected by our Order dated 15th January, 2025. 2/6
4.1) In these aforesaid circumstances, the judgments of the Hon'ble Supreme Court in the case of In Re: Directions in the matter of demolition of structures in Writ Petition Civil No. 295 of 2022 and the decision of this Court in the case of Sopan Maruti Thopte and another v/s. Pune Municipal Corporation and another reported in 1996 (1) Mh.L.J. 963 will not assist the Petitioners.
5) Our Court in the case of Pune Municipal Corporation by its Commissioner v/s. Nanasaheb Nagoji Bhosale reported in 1995 (2) Bom.C.R. 162 held as under:- "If the cancerous growth of such structures is to be curtailed, this power is not only necessary but will have to be effectively used to frustrate that activity. Section 478 of the M.M.C. Act does not contemplate the procedure of serving any show cause notice by that has been done away with for good reasons. The section provides for an order to be passed straight away in those of the cases where no permission whatsoever has been obtained. Undoubtedly, it is true that on the passing of such an order, it is open to the party to point out such permission has, in fact, been obtained, like for instance the situation whereby permission has been deemed to have been granted or a situation whereby the Municipal Authorities are in error. Barring these two situations, it is open to the Commissioner to pass an order for the demolition.
Held, there is no conflict. Section 260 covers the cases where permission is granted or is deemed to be granted. Section 478 covers the cases where no permission whatsoever in asked for."
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5.1) Furthermore, the Hon'ble Supreme Court in the case of Municipal Corporation of the City of Ahmedabad v/s. Ben Hiraben Manilal reported in (1983) 2 SCC 422 held that, where action is required to be taken against an unauthorised construction or construction carried out without prior permission as required under the law, once notice is given stating the grounds for arriving at a conclusion that the construction was unauthorised and asking the concerned person to show cause why the construction should not be demolished and in case where no sufficient cause is shown, it is not necessary for the Commissioner to give personal hearing. The Municipal Commissioner may either call for statement in writing showing cause or give personal hearing why the unauthorised construction should not be demolished.
This would be sufficient compliance with the principles of natural justice and also provisions of section 260 of the Maharashtra Municipal Corporations Act. Use of the word "or" after clause (a) in section 260(1) gives a discretion to the Commissioner either to call for the written cause or to give personal hearing. 6) Recently, the Hon'ble Supreme Court in the case of Rajendra Kumar Barjatya and Another v/s. U.P. Avas Evam Vikas Parishad and Others reported in 2024 SCC OnLine SC 3767, in paragraph No.
"20. In the ultimate analysis, we are of the opinion that construction(s) put up in violation of or deviation from the 4/6
building plan approved by the local authority and the constructions which are audaciously put up without any building planning approval, cannot be encouraged. Each and every construction must be made scrupulously following and strictly adhering to the Rules. In the event of any violation being brought to the notice of the Courts, it has to be curtailed with iron hands and any lenience afforded to them would amount to showing misplaced sympathy. Delay in directing rectification of illegalities, administrative failure, regulatory inefficiency, cost of construction and investment, negligence and laxity on the part of the authorities concerned in performing their obligation(s) under the Act, cannot be used as a shield to defend action taken against the illegal/unauthorized constructions.
That apart, the State Governments often seek to enrich themselves through the process of regularisation by condoning/ratifying the violations and illegalities. The State is unmindful that this gain is insignificant compared to the long-term damage it causes to the orderly urban development and irreversible adverse impact on the environment. Hence, regularization schemes must be brought out only in exceptional circumstances and as a onetime measure for residential houses after a detailed survey and considering the nature of land, fertility, usage, impact on the environment, availability and distribution of resources, proximity to water bodies/rivers and larger public interest.
Unauthorised constructions, apart from posing a threat to the life of the occupants and the citizens living nearby, also have an effect on resources like electricity, ground water and access to roads, which are primarily designed to be made available in orderly development and authorized activities.
also must be devised keeping in mind the larger interest of the public and the environment. Unless the administration is streamlined and the persons entrusted with the implementation of the act are held accountable for their failure in performing statutory obligations, violations of this nature would go unchecked and become more rampant. If the officials are let scot-free, they will be emboldened and would continue to turn a nelson's eye to all the illegalities resulting in derailment of all planned projects and pollution, disorderly traffic, security risks, etc."
[emphasis supplied] 7) In view of the aforestated law and the fact that, the offending structure is wholly unauthorised and illegal, we are not inclined to grant any relief to the Petitioner. Petition is accordingly dismissed. (KAMAL KHATA, J.) (A.S. GADKARI, J.) 6/6