Court’s Decision
The Bombay High Court allowed the petition filed by the aggrieved landowner seeking demolition of illegal construction carried out by neighboring private parties without requisite permissions. The Court held that the construction, despite being on purportedly owned land, was unauthorized and incurable under law. It ordered the demolition of the structure, prosecution of violators under Section 52 of the Maharashtra Regional and Town Planning Act, 1966, and action against the municipal officers who enabled the illegality. A three-week stay on implementation was granted to permit appeal to the Supreme Court.
“Retention cannot apply to a case where no permission was ever sought. This approach would completely negate the operation of Sections 43, 44, 45 and other provisions of the MRTP Act.”
Facts
The petitioner, a landowner, claimed ownership of a portion of land in Vasai by virtue of a registered sale deed. In February 2024, he discovered that adjacent residents had commenced construction without his consent or municipal approval. Despite several complaints to the Vasai Virar Municipal Corporation, no effective action was taken. Although the Corporation issued a show-cause notice, it failed to proceed to demolition or prosecution. The petitioner moved the civil court and obtained a temporary injunction, which was later vacated. The petitioner thereafter filed a writ petition under Article 226, alleging inaction by civic authorities and ongoing illegal construction despite legal barriers.
Issues
- Whether the construction undertaken by the private respondents was illegal and without statutory sanction.
- Whether the municipal corporation failed in its statutory obligations under the MRTP Act.
- Whether illegal construction on private land can be regularized after the fact through post facto applications.
Petitioner’s Arguments
The petitioner contended that the construction carried out by the private respondents was wholly illegal, unauthorized, and done without prior sanction from the competent planning authority. He emphasized that the municipal authority had itself admitted that no permissions had been granted but failed to take further statutory action, compelling the petitioner to seek judicial intervention for demolition and prosecution.
Respondent’s Arguments
The municipal corporation submitted that it had issued notices in response to the complaint and that a regularization application was under consideration. It stated that no further construction was currently ongoing and that action would be taken per legal procedure if so directed by the court.
The private respondents argued that they owned the land in question and were entitled to seek post facto regularization under Section 53(2) of the MRTP Act. They relied on the Supreme Court judgment in Mahendra Baburao Mahadik v. Subhash Krishna Kanitkar and subsequent Bombay High Court rulings, asserting that the law allows for post-construction permission, particularly when the structure was not grossly in excess of permissible limits.
Analysis of the Law
The Court categorically rejected the notion that a post-construction application under Section 53(2) could validate entirely unauthorized constructions. It clarified that the law distinguishes between illegalities (construction without any permission) and irregularities (construction with minor deviations from granted permissions). Only the latter can be considered for retention. The Court also emphasized that unpermitted construction cannot be allowed to continue merely because an application for regularization has been filed.
Precedent Analysis
- High Court on its Own Motion v. State of Maharashtra (2024 SCC OnLine Bom 918)
Held that unauthorized constructions without any permission are incurable and must be demolished. - K. Ramdas Shenoy v. Chief Officers, Town Municipal Council (1974) 2 SCC 506
Affirmed that any illegality in planning laws cannot be condoned by later permissions. - Rajendra Kumar Barjatia v. U.P. Avas Evam Vikas Parishad (2024 SCC OnLine SC 3767)
Stressed that unauthorized constructions must be curtailed with iron hands. - Kaniz Ahmed v. Sabuddin (2025 INSC 610)
Directed courts to adopt a strict approach and resist judicial regularization of illegal constructions.
The Court also disapproved of the respondents’ reliance on Mahendra Baburao Mahadik (2005) 4 SCC 99, clarifying that it applied only to regularizable irregularities—not outright illegal constructions done without any application or approval.
Court’s Reasoning
The Court noted that the respondents constructed without any development permission, thereby bypassing the entire statutory process. It condemned the civic body’s pattern of issuing notices without taking follow-up action. The Court held that the misuse of Section 53(2) as a post-construction shield was impermissible, and reiterated that retention cannot cure illegality.
It also criticized the municipal officers and legal representatives for misinterpreting settled law and disregarding binding precedent. Judicial notice was taken of widespread abuse of the MRTP Act and the failure of authorities to enforce the law.
Conclusion
The Court issued the following directions:
- Petition allowed; Rule made absolute.
- Demolition ordered: Respondent No.2 was directed to demolish the illegal structure and prosecute Respondents 3 to 5 under Section 52 of the MRTP Act within three weeks.
- Disciplinary Action: Municipal Commissioner to take action against negligent officers and file a compliance report within six months.
- Stay of implementation: A 3-week stay on demolition granted to allow appeal to the Supreme Court, with a clear bar on further construction in the interim.
Implications
- Reinforces the strict judicial stance against unauthorized development.
- Clarifies that retention cannot be used as a backdoor to legalize illegal construction.
- Sends a warning to municipal officers enabling or tolerating construction violations.
- Emphasizes accountability in urban planning enforcement.
Summary of Cited Cases
- High Court on its Own Motion (2024): Landmark Bombay HC ruling restricting judicial regularization.
- Rajendra Barjatia (2024): SC held unauthorized constructions must be curbed strictly.
- Kaniz Ahmed (2025): Reaffirmed zero tolerance toward constructions without approvals.
- K. Ramdas Shenoy (1974): No post facto permissions can cure fundamental illegality.
FAQs
1. Can post-construction applications be entertained under MRTP Act?
Only in cases of minor deviations (irregularities). Constructions made without any permissions are illegal and cannot be regularized under Section 53(2).
2. What is the responsibility of municipal authorities once a complaint is filed?
They must issue notices, carry out demolition if violations persist, and prosecute the offenders under Sections 52–57 of the MRTP Act.
3. What happens if civic officials fail to act on illegal constructions?
The High Court can direct disciplinary action against them and enforce compliance through supervisory jurisdiction.
