Mr. Somnath Yadav vs Santosh Sudam Bhoir And Ors
2022 Latest Caselaw 12552 Bom

                                                       16-PIL.111.2021


     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
            CIVIL APPELLATE JURISDICTION

       PUBLIC INTEREST LITIGATION NO.111 OF 2021

Santosh Sudam Bhoir & Ors.              ...Petitioners
        V/s.
The State of Maharashtra & Ors.         ...Respondents

                        WITH
      INTERIM APPLICATION (ST) NO. 18462 OF 2022
                          IN
      PUBLIC INTEREST LITIGATION NO.111 OF 2021

Hasrat Ali Hashim Ali Shaikh & Ors.     ...Applicants
        V/s.
Santosh Sudam Bhoir & Ors.              ...Respondents

                         WITH
       INTERIM APPLICATION (ST) NO.18463 OF 2022
                           IN
       PUBLIC INTEREST LITIGATION NO.111 OF 2021

Imran Supariwala & Anr.                 ...Applicants
        V/s.
Santosh Sudam Bhoir & Ors.              ...Respondents

                         WITH
       INTERIM APPLICATION (ST) NO.18132 OF 2022
                           IN
       PUBLIC INTEREST LITIGATION NO.111 OF 2021

Chandrakant Chipkar                     ...Applicant
        V/s.
Santosh Sudam Bhoir & Ors.              ...Respondents




                          Page 1 of 8
J.V.Salunke,PS
                                                   16-PIL.111.2021


                         WITH
       INTERIM APPLICATION (ST) NO.17171 OF 2022
                           IN
       PUBLIC INTEREST LITIGATION NO.111 OF 2021

Munawar Ali Shah                     ...Applicant
        V/s.
Santosh Sudam Bhoir & Ors.           ...Respondents

                         WITH
       INTERIM APPLICATION (ST) NO.17168 OF 2022
                           IN
       PUBLIC INTEREST LITIGATION NO.111 OF 2021

Shakir Ali                           ...Applicant
        V/s.
Santosh Sudam Bhoir & Ors.           ...Respondents

                         WITH
       INTERIM APPLICATION (ST) NO.17164 OF 2022
                           IN
       PUBLIC INTEREST LITIGATION NO.111 OF 2021

Shobhnath Yadav                      ...Applicant
        V/s.
Santosh Sudam Bhoir & Ors.           ...Respondents

                         WITH
       INTERIM APPLICATION (ST) NO.17112 OF 2022
                           IN
       PUBLIC INTEREST LITIGATION NO.111 OF 2021

Sharif Shah                          ...Applicant
        V/s.
Santosh Sudam Bhoir & Ors.           ...Respondents




                       Page 2 of 8
J.V.Salunke,PS
                                                   16-PIL.111.2021


                         WITH
       INTERIM APPLICATION (ST) NO.17111 OF 2022
                           IN
       PUBLIC INTEREST LITIGATION NO.111 OF 2021

Istikhar Ali                         ...Applicant
        V/s.
Santosh Sudam Bhoir & Ors.           ...Respondents

                         WITH
       INTERIM APPLICATION (ST) NO.17108 OF 2022
                           IN
       PUBLIC INTEREST LITIGATION NO.111 OF 2021

Mohammed Umar Khan                   ...Applicant
        V/s.
Santosh Sudam Bhoir & Ors.           ...Respondents

                         WITH
       INTERIM APPLICATION (ST) NO.17106 OF 2022
                           IN
       PUBLIC INTEREST LITIGATION NO.111 OF 2021

Mohd. Akram Mohd. Rayees Manihar ...Applicant
        V/s.
Santosh Sudam Bhoir & Ors.           ...Respondents

                         WITH
       INTERIM APPLICATION (ST) NO.17104 OF 2022
                           IN
       PUBLIC INTEREST LITIGATION NO.111 OF 2021

Mohammed Aftab Taher Ali Khan        ...Applicant
        V/s.
Santosh Sudam Bhoir & Ors.           ...Respondents




                       Page 3 of 8
J.V.Salunke,PS
                                                       16-PIL.111.2021


                         WITH
       INTERIM APPLICATION (ST) NO.17040 OF 2022
                           IN
       PUBLIC INTEREST LITIGATION NO.111 OF 2021

Faridsa Mansion Building, through
Tenant Farhan Supariwala               ...Applicant
        V/s.
Santosh Sudam Bhoir & Ors.             ...Respondents
                         WITH
        INTERIM APPLICATION NO. 18468 OF 2022
                          IN
      PUBLIC INTEREST LITIGATION NO. 111 OF 2021


Mr. Munawar Ali Shah                   .. Applicant
        Vs.
Santosh Sudam Bhoir & Ors.             .. Respondents
                         WITH
        INTERIM APPLICATION NO. 18475 OF 2022
                          IN
      PUBLIC INTEREST LITIGATION NO. 111 OF 2021


Mrs. Safiya Shamim Ahmed Shah          .. Applicant
        Vs.
Santosh Sudam Bhoir & Ors.             .. Respondents
                         WITH
        INTERIM APPLICATION NO. 18479 OF 2022
                          IN
      PUBLIC INTEREST LITIGATION NO. 111 OF 2021


Mr. Somnath Yadav                      .. Applicant
        Vs.
Santosh Sudam Bhoir & Ors.             .. Respondents




                         Page 4 of 8
J.V.Salunke,PS
                                                       16-PIL.111.2021


                         WITH
        INTERIM APPLICATION NO. 18476 OF 2022
                          IN
      PUBLIC INTEREST LITIGATION NO. 111 OF 2021

Mr. Ayyub Ibrahim Inamdar              .. Applicant
        Vs.
Santosh Sudam Bhoir & Ors.             .. Respondents
                         WITH
        INTERIM APPLICATION NO. 18473 OF 2022
                          IN
      PUBLIC INTEREST LITIGATION NO. 111 OF 2021

Mr. Wasiulla Shaikh                    .. Applicant
        Vs.
Santosh Sudam Bhoir & Ors.             .. Respondents
                         WITH
        INTERIM APPLICATION NO. 18471 OF 2022
                          IN
      PUBLIC INTEREST LITIGATION NO. 111 OF 2021

Mr. Rahul Ali                          .. Applicant
        Vs.
Santosh Sudam Bhoir & Ors.             .. Respondents
Ms. Neeta Karnik for petitioners.
Mr. P. P. Kakade, Government Pleader a/w Ms. R. A. Salunkhe,
AGP for State.
Mr. Ram S. Apte, Senior Advocate a/w Mr. Harshal P. Nahata
a/w Mr. N. R. Bubna for respondent nos.2 to 7.
Mr. Shameem Fayiz i/by Nedumpara & Nedumpara for
applicant in IAST/18462/2022 and IAST/18132/2022.
Mr. Suhas Oak a/w Mr. Vinod Utekar for applicant/intervener
in   IAST  Nos.17171/2022,    17168/2022,     17164/2022,
17112/2022,    17111/2022,    17108/2022,     17106/2022,
17104/2022, 17040/2022.
Mr. B. B. Tiwari i/by Mr. Azimudding Kazi and Mr. Rizwan Khan
for    applicant     in     IA/18468/2022,    IA/18475/2022,
IA/18479/2022,       IA/18476/2022,     IA/18473/2022     and
IA/18471/2022.


                         Page 5 of 8
J.V.Salunke,PS
                                                       16-PIL.111.2021



                        CORAM: DIPANKAR DATTA, CJ. &
                               ABHAY AHUJA, J.

                        DATE:     DECEMBER 5, 2022


P.C.:

1. Pursuant to the order dated 16th September 2022 passed by a coordinate Bench of this Court, an affidavit has been filed on behalf of the Thane Municipal Corporation (Corporation). It is averred in paragraph 4 thereof that 43 structures/buildings have been identified as unauthorized by the Corporation and that notices have been pasted on such 43 structures/buildings as required by the said order.

2. We, however, do not find the detailed particulars of such 43 structures/buildings. We would, therefore, require the Corporation to file an additional affidavit indicating the particulars of such 43 structures/buildings together with a statement as to whether the said 43 structures/buildings have been raised/constructed prior to 31st December 2015 or not. Let the affidavit be filed by 2nd January 2023.

3. Mr. Oak, learned advocate for some of occupants of the unauthorized constructions has invited our attention to certain civil appeals pending before the Supreme Court (Civil Appeal No. 5364-5369 of 2019). The State of Maharashtra, being the appellant before the Supreme Court, has taken exception to the judgment and order dated 2nd November 2018 of this Court in Public Interest Litigation No. 80 of 2013 as well as connected matters. Section 52A was introduced by way of an amendment in the Maharashtra Regional and Town Planning Act, 1966 (hereafter "the MRTP Act", for short) by an

J.V.Salunke,PS 16-PIL.111.2021

Amendment Act of 2017 enabling planning authorities to compound unauthorized developments if it were carried out on or before 31st December 2015. By the order under challenge before the Supreme Court, a coordinate Bench of this Court read down section 52A of the MRTP Act and passed, inter alia, the following order: -

"(I) We hold that section 52-A of the MRTP Act shall be read down to mean that non obstante clause in sub- section (1) of section 52-A does not enable the Planning Authorities or the State Government to compound unauthorized developments which are contrary to the provisions of the Development Plans/Regional Plans under the MRTP Act and the Development Control Regulations framed under the MRTP Act. Hence, by exercising the power under section 52A, unauthorized development which is contrary to the provisions of the Development Plans/Regional Plans under the MRTP Act and the Development Control Regulations framed under the MRTP Act shall not be declared as a compounded structure;

(II) Clauses (d) and (e) of Rule 4 (only to the extent to which the same permit compounding of structures contrary to provisions regarding zones) as well as Rules 5 and 7 of the Compounded Structure Rules are hereby struck down. The table appended to the Compounded Structure Rules in so far as columns 1 to 8 and 14 are concerned, is hereby struck down;

(III) We direct the State Government to issue a direction under section 154 of the MRTP Act to the Planning Authorities to grant a reasonable time to those who have been served with a notice under clause (a) of sub-section (1) of section 53 of the MRTP Act to enable them to apply under sub-section (3) of section 53;"

4. By an order dated 26th August 2019, the Supreme Court directed status quo regarding demolition to be maintained by the parties. Such order has been continued by a further order

J.V.Salunke,PS 16-PIL.111.2021

dated 14th October 2019. If indeed the civil appeals succeed and section 52A of the MRTP Act continues to be operative in the form in which it was introduced by the Amending Act, such of the unauthorized constructions forming subject matter of this PIL petition, raised before 31st December 2015, would be entitled to enjoy the protection extended by section 52A.

5. In such view of the matter and particularly having regard to pendency of the civil appeals before the Supreme Court, we do not propose to make any order for vacation of such unauthorized constructions by its occupants for the present. It would be prudent to await the order of the Supreme Court on the civil appeals referred to above.

6. At this stage, Ms. Karnik, learned advocate for the petitioners submits that the 9 (nine) constructions which were originally part of the PIL petition have been raised after 31 st December 2015. She seeks liberty to file an affidavit to bring on record relevant documentary evidence in this behalf. Let such affidavit of the petitioners be also filed by 2nd January 2023.

7. The parties shall be entitled to apprise the Court whether any further orders have been passed in the meanwhile on the civil appeals or not.

8. List the PIL petition along with the interim applications on 16th January 2023.

                         (ABHAY AHUJA, J.)                                (CHIEF JUSTICE)

          Digitally
          signed by
          PRAVIN
PRAVIN    DASHARATH
DASHARATH PANDIT
PANDIT    Date:
          2022.12.07
          11:42:56
          +0530





                       J.V.Salunke,PS