Bombay High Court
Sanjay Devidasrao Koban And Anr vs The State Of Maharashtra Thru. ... on 21 August, 2025
Author: G. S. Kulkarni
Bench: G. S. Kulkarni
907.WP10863_2025.DOC
Vidya Amin
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 10863 OF 2025
Sanjay Devidasrao Koban ... Petitioner
Vs.
The State of Maharashtra, through Principal Secretary & Ors. ... Respondents
_______ Mr. Sanjay Devidasrao Koban, petitioner appears in person. Ms. P.J. Gavhane, AGP for the State/respondent nos.1 and 2. Mr. Amit Gharte i/b. Mr. Swarup Patil for respondent no. 5.
_______
CORAM: G. S. KULKARNI &
MANJUSHA DESHPANDE JJ.
DATED: 21 AUGUST, 2025
P.C.
1. The grievance of the petitioner is in regard to the structure being constructed by respondent no. 5-Cooperative Society, which is stated to be a temple being constructed without obtaining any permission whatsoever from the Municipal Corporation. According to the petitioner, it is a rank illegal construction, which is now proposed to be used for the purpose of temple. The photographs in that regard are annexed to the petition as also the recent photographs are placed on record.
2. On a query made to the learned advocate appearing for respondent no.5 as to whether any permission was obtained from the Municipal Corporation, he has fairly stated that no permission whatsoever was obtained. Thus, this structure is an unauthorized and illegal structure. Considering the settled principles of law, the structure accordingly would be required to be removed (see : M. I. Builders Pvt. Ltd. Vs. Radhey Shyam1, Friends Colony Development Committee Vs. State of Orissa & 1 (1999) 6 SCC 464 Page 1 of 7 21 August 2025
907.WP10863_2025.DOC Ors.2, Dipak Kumar Mukherjee Vs. Kolkata Municipal Corporation & Ors. 3, Supertech Ltd. Vs. Emerald Court Owner Resident Welfare Association & Ors. 4, and Kerala State Coastal Zone Management Authority Vs. Maradu Muncipality & Ors.5 and the decision of this Court in High Court on its own motion (In the matter of Jilani Building at Bhiwandi) Vs. Bhiwandi Nizampur Municipal Corporation & Ors.6).
3. Learned counsel for the Society also contends that respondent no. 5 is inclined to make an application to the Municipal Corporation to regularize such unauthorized construction. In our opinion, this may not be a correct proposition to be accepted considering the settled principles of law as laid down by the Supreme Court in Kaniz Ahmed v. Sabuddin. All such decisions are recently referred by a Division Bench of this Court, of which one of us (G.S.Kulkarni, J.) is a member, in Feroz Talukdar Khan vs. The Municipal Commissioner, Thane Municipal Corporation & Anr.7, wherein following observations were made considering such settled position in law:
16. It is no rule of law that a person with impunity would breach law by undertaking such defiant illegal construction and thereafter take recourse to regularization. Regularization can never be of an illegal and/or of rank unauthorized construction. It can be considered by the planning authority of some minor deviation in the construction which would not disturb the sanctity of the permitted legal construction made as per the sanctioned plans and can be effected only on genuine and bonafide reasons. If we accept a proposition that a planning authority having not taken an action and/or 2 (2004) 8 SCC 733 3 (2013) 5 SCC 336 4 (2021) 10 SCC 1 5 Civil Appeal Nos. 4784-4785 of 2019, decided on 8 May, 2019 6 2022 SCC OnLine Bom 386 7 2025 SCC OnLine Bom 2473 Page 2 of 7 21 August 2025
907.WP10863_2025.DOC permitted such unauthorized construction to take place, and thereafter it considers an application to regularize the same, this would amount to recognizing a regime unknown to the provisions of law opposed to the settled constitutional principles, as also to the settled principles and norms on municipal planning. According any legitimacy to such actions would create a situation of absolute lawlessness of unauthorized and illegal constructions, being permitted to come up, with the municipal/planning authorities doing nothing to arrest unauthorized construction and subsequently considering regularizing such constructions. This would also evolve a regime of total lawlessness and recognize illegality of the persons who have resources to undertake such construction without obtaining any permission from the planning authorities, as per the requirements of law. This is a case where no construction permission was applied for.
17. We may refer to the decision of the Supreme Court in Mahendra Baburao Mahadik v. Subhash Krishna Kanitkar rendered on the context of the powers of regularization as conferred under the Maharashtra Regional Town Planning Act, 1966 (for short "MRTP Act"). The Supreme Court has held that the municipal authority did not have any jurisdiction to direct regularization of unauthorized constructions and that such power was confined to the provisions of the Act and no action could be taken for regularization of unauthorized constructions.
"37. The Municipal Council is a 'local authority' as well as Planning Authority within the meaning of the provisions of Sections 2(15) and 2(19) of the MRTP Act.
38. The Municipal Council being a creature of statute was bound to carry out its functions within the four-corners thereof. Being a statutory authority, it was required to follow the rules scrupulously. Concededly, the Municipal Council is not possessed of any statutory power to regularize unauthorized constructions. Its power is confined to compounding the offences in certain cases. Moreover, even development charges could not be recovered from the appellant in respect of unauthorized constructions in terms of Section 124E(2) of the MRTP Act." (emphasis supplied)
18. In Kaalkaa Real Estates Pvt. Ltd. v. Municipal Corporation of Greater Mumbai, in the context of regularization of unauthorized constructions, this Court reiterated the principles that it cannot be said as a matter of general rule an unauthorized construction could be regularized. It was also observed that the legislature has not intended that the provisions in the planning laws including building by-laws and regulations relating to health, safety, fire safety, safety of the inhabitants of the buildings and the neighborhood have to be ignored or brushed aside in undertaking legitimate constructions. It was observed that the Supreme Court has cautioned against liberal use of the power of regularization and retention of unauthorized works and buildings and that the Supreme Court has warned that the authorities must take into consideration public safety, health, protection of environment and ill effects of unregulated and uncontrolled construction in cities and towns. It was also Page 3 of 7 21 August 2025
907.WP10863_2025.DOC held that retention of unauthorized works and constructions cannot result in wholesale condonation and relaxation or exemption from the building regulations and by-laws or else there will be a chaos and break down of the rule of law. It was further held that by imposition of fine and charging compounding fees, large scale unauthorized constructions if are regularized, would encourage builders and developers, as also others having interest in the development activities, to openly violate laws, as such persons would always proceed on the basis that the building regulations can be breached with impunity, and all that they would be visited with, is high compounding fees. It was observed that this is not the intention of the legislature that in making the regularization provisions under the MRTP Act, including the penal provisions (referring to Sections 52 and 53 thereof) which were enacted with a defined object and purpose to discourage unauthorized and illegal development and also punish the wrong doers. The Court further observed that the exercise of the discretionary powers of regularization must not result in a licence to break the planning laws. It was held that an individual's interest in a property and his right to enjoy the same, is subject to larger public good and purpose and that such rights are required to be balanced with the requirements of the society and such rights can never be absolute. For such reasons, the Planning Authority cannot, as a matter of rule, regularize unauthorized constructions by allowing the wrong doer to achieve condonation of the illegality.
19. In a recent decision of the Supreme Court in Rajendra Kumar Barjatya v. U.P. Avas Evam Vikas Parishad, the Supreme Court has reiterated the following principles in the context of illegal and unauthorized constructions. "
"20. In the ultimate analysis, we are of the opinion that construction(s) put up in violation of or deviation from the 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 Page 4 of 7 21 August 2025
907.WP10863_2025.DOC 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. Master plan or the zonal development cannot be just individual centric but 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."
20. In a recent decision of the Supreme Court in Kaniz Ahmed v. Sabuddin deprecating regularization of illegal construction, the Supreme Court made the following observations:
"6. The learned counsel appearing for the petitioner would submit that her client be given one chance to pray for regularisation of the unauthorised construction. We do not find any merit in such submission. A person who has no regards for the law cannot be permitted to pray for regularisation after putting up unauthorised construction of two floors. This has something to do with the rule of law. Unauthorised construction has to be demolished. There is no way out. Judicial discretion would be guided by expediency. Courts are not free from statutory fetters. Justice is to be rendered in accordance with law. We are at pains to observe that the aforesaid aspect has not been kept in mind by many State Governments while enacting Regularisation of Unauthorized Development Act based on payment of impact fees.
7. Thus, the Courts must adopt a strict approach while dealing with cases of illegal construction and should not readily engage themselves in judicial regularisation of buildings erected without requisite permissions of the competent authority. The need for maintaining such a firm stance emanates not only from inviolable duty cast upon the Courts to uphold the rule of law, rather such judicial restraint gains more force in order to facilitate the well-being of all concerned. The law ought not to come to rescue of those who flout its rigours as allowing the same might result in flourishing the culture of impunity. Put otherwise, if the law were to protect the ones who endeavour to disregard it, the same would lead to undermine the deterrent effect of laws, which is the cornerstone of a just and orderly society. [See : Ashok Malhotra v. Municipal Corporation of Delhi, W.P. (c) No. 10233 of 2024 (Delhi High Court)] "Page 5 of 7
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907.WP10863_2025.DOC
21. Adverting to the aforesaid settled principles of law, the proposition on regularization as urged on behalf of Respondent No. 3, if accepted, would also bring about the situation of creating two categories of citizens as observed by the Division Bench of this Court in the proceedings of High Court on its own motion (In the matter of Jilani Building at Bhiwandi) (Supra) i.e. firstly, a category of citizens who would intend to adhere to the rule of law; who would approach the planning authority by applying for a planning/development permission by putting up plans through their architects and to undertake legal and authorized constructions; and on the other hand a category of citizens who have no regard for law and merely because they have large resources (possibly not legitimate) at their disposal to undertake unauthorized construction. What would be these resources is only to be imagined, being utilized in connivance with the official machinery in putting up illegal constructions."
4. In this view of the matter, it appears to be clear that the unauthorized construction would be required to be removed. Learned counsel for the Municipal Corporation has also stated that the complaint to that effect was received from the petitioner on 14 July 2025 (Exhibit 'D' page 28) and immediately on 15 July 2025, an inspection was undertaken and in pursuance thereto, a notice under Section 53 was issued calling upon respondent no. 5 to remove the unauthorized construction as also to stop the construction. Thus, there is no dispute whatsoever that the construction is rank unauthorized.
5. However, at this stage, learned counsel for the Society states that despite such clear position, he may be permitted to file reply affidavit to the petition. We don't know what contention can be urged in this circumstances in the reply affidavit. However, only as a matter of indulgence, we permit respondent no. 5 to place on record the reply affidavit, which be filed on or before 26 August 2025. A copy of the same be furnished to the advocate for the petitioner, who appears in person.
6. Let the proceedings be listed on 3 September 2025 (H.O.B.). Page 6 of 7
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907.WP10863_2025.DOC
7. In the meantime, respondent no. 5-Society is directed to maintain status quo as on date and not to undertake any activity in relation to the construction or on the said structure.
8. We also make it clear that considering the settled position in law, it is also open to respondent no. 5-Society to take corrective measures by removing the construction by itself and without the Court being required to pass further order or the Municipal Corporation requiring to take further action as the law would certainly mandate.
9. We may also observe that in regard to any internal disputes which the petitioner may have, we do not intend to delve on the same. It is for the parties to take appropriate position in that regard.
10. Till the adjourned date of hearing, the Municipal Corporation shall not take any coercive steps of demolition and the course of action now to be followed by the Municipal Corporation be adopted after we pass further appropriate orders on the present proceedings.
(MANJUSHA DESHPANDE , J.) (G. S. KULKARNI , J.)
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Signed by: Vidya S. Amin 21 August 2025
Designation: PS To Honourable Judge
Date: 02/09/2025 16:51:12