Bombay High Court
Shri. Monish Chintaman Patil vs State Of Maharashtra Thru Prin. ... on 28 August, 2023
Author: G.S. Patel
Bench: G.S. Patel
911-ASWP-11564-22.DOC
Sumedh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 11564 OF 2022
Monish Chintaman Patil ...Petitioner
Versus
State of Maharashtra & Ors ...Respondents
Mr Kishor Patil, with Sameer Mhatre, for the Petitioner.
Mrs Molina Thakur, AGP, for the Respondent No.1-State.
Mr Tejesh Dande, for Respondent No.2-NMCC.
Mr Rohit Sakhdeo, for Respondent No.3-CIDCO.
CORAM G.S. Patel &
Kamal Khata, JJ.
DATED: 28th August 2023 PC:-
1. This Petition discloses what appears to us to be a problem endemic to development in virtually all Municipal Corporation areas. The construction in question is, even according to the planning authority, the Navi Mumbai Municipal Corporation ("NMMC"), Respondent No. 2 represented by Mr Dande, entirely unauthorised and illegal. The plot itself on which the construction stands has been acquired for the City and Industrial Development Corporation of Maharashtra ("CIDCO") from the Petitioner's ancestors. That land was acquired by the State of Maharashtra and given to and vested in CIDCO.
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2. The Petitioner has been complaining about the illegal construction for many years now but we do not see how in this Writ Petition the Petitioner has locus. The land, Survey No. 316 at Village Ghansoli, near Ganesh Apartments, Navi Mumbai is no longer the property of the Petitioner. There is some suggestion to the contrary in the Petition but we will let that pass. The Petitioner cannot demand, as an enforceable, legal or constitutional right in a private Writ Petition (not a PIL), the demolition of a structure on someone else's land.
3. The Petition itself discloses a long history of litigation. We will highlight only a few facets in today's order in view of the directions we propose to pass. The construction is of a ground and four floor structure by Respondents Nos. 4 to 7. The NMMC has demolished this construction in its early iterations at least four times. Respondents Nos. 4 to 7 then filed a Civil Suit in the Court of the Civil Judge ( Junior Division) at Vashi and obtained an ad- interim stay. The NMMC filed an appeal and that stay was vacated by the District Court. A Writ Petition filed by Respondents Nos. 4 to 7 before this Court then failed with the observation that there are no permissions whatsoever.
4. This tells us of the very peculiar situation with which we are confronted. On the one hand, it is clear to us that the Petitioner has no locus. But to dismiss that Writ Petition on that ground alone would effectively mean that this Division Bench ignores the illegality and the unauthorised construction although both public authorities say that it is entirely unauthorised and the NMMC Page 2 of 6 28th August 2023 911-ASWP-11564-22.DOC through Mr Dande adds that no permission whatsoever has ever been given for this construction. Another victim, so to speak, of this is CIDCO itself. Although the land has been acquired by the State and given to CIDCO, by virtue of this illegal construction, almost all of CIDCO's rights over this land are compromised. It cannot demand, for example, a development premium, a lease premium or any other kind of levy on this land because to do so would be to legitimise that which is fundamentally illegal. We are not prepared to countenance an argument that all this can be regularised. That law has been firmly settled a long time ago in 1974 by the Supreme Court in its celebrated decision in K Ramdas Shenoy v The Chief Officers, Town Municipal Council Udipi & Ors:1 illegality is incurable. This proposition has been reaffirmed by the Supreme Court countless times.
5. We believe it is necessary for this Court to step in now and take urgent steps. We note that there is an Affidavit filed by the NMMC from Page No. 119 onwards. It is a short affidavit. On its own this demonstrates the illegality. We request Mr Dande to file a compilation separately of all notices issued and correspondence in this regard. He submits also that if granted sufficient police protection the NMMC will take necessary action. But that is also an area of concern because we have every reason to believe that the moment the NMMC moves against this property without there being a pending Petition in this Court, either the Developer or individual apartment owners will rush to the nearest Civil Court and seek stay orders. This will serve no purpose.
1 (1976) 1 SCC 24.
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6. Our concern is that in Municipal Corporation areas this kind of rampant illegality and unauthorised construction cannot be permitted to continue. No court of equity can turn a blind eye or a deaf ear to what is presented in such a situation.
7. We find also that although no permissions were obtained to construct the building, the building is constructed and there are 29 occupants. We presently are not aware how they have been allowed to take possession of illegally constructed flats. They will undoubtedly be affected but that law is also well settled that none can benefit from an illegality.
8. We propose, therefore, to order the deletion of the Petitioner from this Writ Petition but to continue this as a Suo Motu Writ Petition and have it registered as such. We request the Registrar Judicial - I to take the necessary steps and request that the registry make the necessary amendments and the registration of this Petition as a Suo Motu Writ Petition.
9. At this very stage, we appoint the Court Receiver for the limited purposes of a survey and an inspection to visit the site, i.e, the building called Om Sai Apartments, to visit every one of the flats in the building, to get the names of those in occupation and to obtain copies of the documents by which they claim to have acquired rights in those residential tenements, parking spaces, garages, etc. All in occupation are required by this order to cooperate with the Court Receiver and any obstruction to the Court Receiver will be dealt with as an act of contempt and wilful disobedience of this Court.
Page 4 of 628th August 2023 911-ASWP-11564-22.DOC The Court Receiver is also at liberty to take photographs and do videography while carrying out the inspection and demarcation of the property.
10. Until further orders, no civil court will entertain or proceed with any civil suit in respect of the structure in question or any apartments therein. Anyone concerned must make an Interim Application in this Court in this suo motu Writ Petition.
11. We propose to join further as Respondents to the Petition the names of the individuals found by the Court Receiver and to give each of them notice so that they are fully heard by this Court.
12. We make it clear that the issue that this Court will be considering is whether the construction, admittedly without any permission or authorisation from the planning authority can be allowed to be tolerated or whether the law, including the law as declared in various judgments of the Supreme Court, is that the building must be torn down or demolished leaving individual persons to their remedies against Respondents Nos. 4 to 7.
13. There will be some discussion necessary on balancing equities and an assessment of the relevant law including action under Municipal Corporation law against illegal structures and decisions of the Supreme Court. We request the assistance of Mr Sharan Jagtiani, learned Senior Counsel of this Court, in that regard. A copy of the papers and this order are to be sent to Mr. Jagtiani.
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14. Lastly, the police authorities at the Ghansoli Police Station will render all possible and necessary assistance to the Court Receiver in executing this commission. They will act on production of an authenticated copy of this order.
15. We also direct the joinder of Maharashtra State Electricity Distribution Company Limited ("MSEDCL") because we are unable to understand how an electricity connection was obtained to thoroughly unauthorised structures.
16. Another question that Mr Dande will have to answer is how on the one hand the NMMC says the structures are unauthorised but simultaneously says that it is providing Municipal water supply to that very structure. The two positions cannot be reconciled at this stage.
17. List the matter on 11th September 2023 at 2.30 pm. (Kamal Khata, J) (G. S. Patel, J) Signed by: SUMEDH N. SONAWANE Page 6 of 6 Designation: PA To Honourable Judge 28th August 2023 Date: 29/08/2023 14:44:25