‘Illegal Building Intolerable’

 

 

THROUGH the judgement delivered in the case –Mrs. Neetu Makhija v. Ulhasnagar Municipal Corporation (UMC) and two others, on April 3, 2025, Justice A.S. Gadkari and Justice Kamal Khata have, at the Bombay High Court in Mumbai, declared in no uncertain terms that there are binding decisions in support of the HC’s view that the citizens cannot be permitted to regularize a thoroughly illegal construction which is started without seeking necessary permission from the concerned Authority. It cannot be tolerated.

 

The HC has observed further, that “We cannot permit citizens who refrain from performing their duties as a citizen, to seek enforcement of rights under the Constitution .We are bound by the dictum that “illegality is incurable” as held by the Supreme Court in the case- K Ramdas Shenoy v. The Chief Officers, Town Municipal Council, Udipi and others-(1974) 2 SCC 506. The Supreme Court in the case of Rajendra Kumar Barjatya and another v. UP Avas evam Vilas Parishad –(2024) SCC OnLine SC 3767 has reiterated the view”. The HC is of the view that, the UMC as well as the Police Authorities are responsible for not taking timely action and thereby promoting and perpetuating the illegal constructions . It is observed that the concerned authorities have not even given instructions to Advocates representing them. Unfortunately, the Advocates representing the UMC are not well-versed with the relevant judgments.

 

This is the reason the Courts are not assisted with the correct legal position leading to passing of status quo orders and injunctions. Through this petition, a direction to the Ulhasnagar City Corporation was prayed for, to take action forthwith of demolition of the illegal and unauthorized construction carried out by respondent-2, Mahagauri Builders and Developers of Manoj Panjwani, on the subject property near the premises of the petitioner, Neetu Makhija. For lack of response from UMC coupled with the acknowledgement that the structure is being constructed illegally, the petition was filed on November 24, 2024. As submitted by the petitioner’s counsel m the respondent-2 developer is politically influential and therefore, the State Authorities –the UMC and the Police - are refusing to take action against the illegal construction. Therefore, the HC’s direction to the UMC was sought, for demolishing the said construction. Through a notice on September 27, 2024, the respondent-2, the developer, under sections 267 and 478 of the Maharashtra Municipal Corporation Act, 1949, was called upon to remove illegal construction within 7 days of the notice. He was also put to notice that failure on his part to do so, would constrain the UMC to demolish the said construction at their expense. As on January 7, 2025, the developer had applied to the UMC for regularizing the illegal construction, the UMC had refrained from the demolition.

 

The HC has noted in its judgement that this is yet another case where the owner is of a firm belief that, he has a right to demolish and reconstruct his structure without seeking requisite permissions from the concerned authorities. This contention has been emphatically rejected in a petition converted into a suo motu petition and referenced as “High Court on Its Own Motion v. The State of Maharashtra through Principal Secretary and Others, reported in (2024) SCC OnLine 918.This judgment was followed by the HC in a recent judgment, in the case of Hanuman Jayram Naik v. The State of Maharashtra (2025) BHC AS 8860-DB. Moreover, after perusing the papers and proceedings more particularly the Application of the Intervenor Applicants ,it is observed that the Applicants have with a deliberate intent to overreach the Orders of the Court, more particularly, the Order of January27, 2025, misinterpreted the Order and averred in the plaint which was filed in the Civil Court on January 29, 2025. A plain reading of the said Order would indicate that the petition is not disposed of and was kept pending to be taken up on February 10, 2025. However, the appellants have falsely averred that the petition was disposed off.

 

This clearly evinces that they have attempted to mislead the Court and misinterpret this Court’s Order .Upon being refused relief by the Civil Court, they filed a writ petition-1786/2025, suppressing the fact from Single Judge of this Court that the division bench of this Court has refused to grant any reliefs to the Applicants by its order of January 27, 2025. In this scenario, according to the Court, even the respondent- developer who has undertaken construction for the Applicant herein, is equally responsible for constructing without obtaining necessary permission in accordance with law. A contention that he was merely given contract to construct- cannot shield him from having committed an offence under the statute and is bound to follow the law.

 

The law is for the well-being of the citizens and all the citizens must voluntarily and necessarily follow or else there will be only anarchy. The HC has suggested to the State Government to consider to legislate on this aspect as well. All concerned in illegal constructions should be held responsible and severe deterrence must be imposed to maintain the law and order and lawful development in the country. The respondent-developer is equally responsible in abetting and carrying out illegal activities of construction without obtaining requisite permissions from the Authorities. The Court is afraid that if these steps are not immediately taken , the entire object of a planned development in a State would be only a distant dream. Besides, it would be a State of anarchy. Further, the Court’s finding is that there is serious lack of communication between the different departments of the Municipal Corporations in this digital era. This cannot be tolerated and permitted. No action was initiated by the UMC since September 24, 2024, when they themselves acknowledged that the subject structure was illegal. Further, The HC has found it quite astonishing that even the police authorities who are the eyes of the City Administration did not point out to the UMC about construction though a duty is cast upon them under the sections 260,261, 262, 64,266, 267, 267A and 268 of the MMC Act.

 

The inordinate delay in taking appropriate action led the Court to accept the common belief that the concerned authorities themselves are protecting these illegalities for the reasons best known to them only. In these circumstances, The Bombay High Court has held that the mischievous conduct of the Applicants cannot be permitted to be continued and illegalities to be perpetuated. The petition is allowed in terms of the prayer clauses- a, b, c, d, e and f.