Bharati Dilip Waghchaure vs Shubham Prakash Dayma And Ors
2021 Latest Caselaw 3773 Bom

                Digitally signed
      Swaroop   by Swaroop S.
                Phadke
      S.        Date:
      Phadke    2021.03.09
                11:14:41 +0530



                                                                         24 - WP. 3482 - 2018

VPH
                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        CIVIL APPELLATE JURISDICTION


                                     WRIT PETITION No. 3482 OF 2018

       Bharti Dilip Waghchaure                                         ...     Petitioner
             Vs.
       Shubham Prakash Dayma & Ors.                                    ...     Respondents
                                                       ***
       Mr. Bhushan Deshmukh, for the Petitioner.
       Mr. K. R. Parekh, for the Respondent No. 1.
       Mr. Sachin Kadam, for the Respondent Nos. 2 and 3.
       Ms. Kavita Solunke, AGP for the Respondent Nos. 4 & 6.
       Mrs. Deepalee Patil, Town Planner, Nashik - present in the Court.
                                                       ***

                                                     CORAM : S. J. KATHAWALLA &
                                                            VINAY JOSHI, JJ.

DATE : MARCH 1, 2021

ORAL JUDGMENT [PER : VINAY JOSHI, J.]

1. Rule. Rule made returnable forthwith. Heard finally by

consent of the parties.

2. The Petitioner is seeking demolition of the unauthorised

structure raised by Respondent No. 1, adjacent to her premises.

Respondent No. 1 had purchased a piece of land bearing Survey No.

673, 674, 675 and 676 on 19 th November, 2014 from its erstwhile owner.

Thereafter Respondent No. 1 had raised a structure over the entire

1 / 4 24 - WP. 3482 - 2018

premises without obtaining the prior permission from Respondent No.

2 - Lasalgaon Gram Panchayat, which is a planning authority.

Resultantly, the unauthorised structure has blocked the Petitioner's

light, air, access and ventilation. Though the Petitioner made several

complaints to the local authority, no action has been taken. Since the

structure was unauthorised, Respondent No. 2 Gram Panchayat issued

a notice dated 5th December, 2016 to Respondent No. 1 in terms of

Section 52 and 53 of the Maharashtra Village Panchayats Act, 1959 (for

short the "Act") requiring him to remove the unauthorised structure.

As the notice remained uncomplied, it was followed by another notice

dated 6th January, 2017 seeking removal of the unauthorised structure.

3. Respondent No. 1 contested the petition vide reply

Affidavit dated 27th August, 2019. It is not denied that he has raised the

structure over the subject property. Respondent No. 1 has stated that

he has already challenged the action of Gram Panchayat issuing notice

under S. 52 and 53 of the Act, by filing a civil suit. Moreover, he

contends that his proposal for regularisation is under consideration.

4. Undisputedly, Respondent No. 1 had raised the structure

without obtaining prior permission of the local authority. There is no

2 / 4 24 - WP. 3482 - 2018

dispute that repeatedly, notices were issued by the local authority

under Sections 52 and 53 of the Act for removal of the unauthorised

structure. The only stand taken by Respondent No. 1 is that his

proposal for regularisation is pending. Though Respondent No. 1 has

filed a civil suit challenging the notices, interim protection was not

existing from June, 2019 onwards.

5. Though Respondent No. 1 insists that his proposal for

regularisation is pending, except for forwarding a copy of the plan,

there is nothing to show that any regularisation proposal is submitted.

6. We are therefore, satisfied that the Respondent No.1 has

since inception erected a structure without obtaining prior permission

from the concerned authorities. Moreover, there is no material to

indicate that proposal for regularisation was forwarded and is pending.

In other words, there is no justification for Respondent No. 1 to seek

protection in regard to his illegal structure. The local authority is

bound to remove illegal/unauthorized structures. Already two notices

were issued to him for removal of the unauthorised structures, but the

same have not been acted upon. In the circumstances, the construction

raised by Respondent No. 1 being totally unauthorised and illegal,

3 / 4 24 - WP. 3482 - 2018

requires immediate demolition. In view of the above, the Writ Petition

stands allowed. The Respondent No. 2 to 6 are directed to forthwith

demolish the illegal structure raised by Respondent No. 1 on the

subject premises. Rule is made absolute in the aforesaid terms.

[VINAY JOSHI, J.]                          [S. J. KATHAWALLA, J.]




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