Bombay High Court
Zahid Hasan Patel And Ors vs The State Of Maharashtra And Ors on 27 August, 2024
Author: M.S. Sonak
Bench: M.S. Sonak
2024:BHC-AS:34305-DB 504-WP12120-24.DOC
VAI
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.12120 OF 2024
Zahid Hasan Patel & Ors. ...Petitioners
Versus
State of Maharashtra & Ors. ...Respondents
VASANT
ANANDRAO
IDHOL
Mr,Sandeep Mishra, with Mr.Prakash Mishra i/b Mr.Vijay Tiwari
ANANDRAO IDHOL Mr, A.A. Alaspurkar, AGP for the State - Respondents No.1.
21:58:08 +0530 Mr. Mandar Limaye, for the TMC - Respondent No.2.
CORAM: M.S. Sonak &
Kamal Khata, JJ
DATED: 27th August 2024
PC:-
1. Heard Mr Mishra for the Petitioners, Mr Alaspurkar learned
AGP for Respondent (State), and Mr Limaye for Respondent No.2
(TMC).
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2. This Petition challenges the order dated 14.1.2022 issued by
the TMC to demolish the unauthorised building under the name
and style of "Nisha Apartment."
3. Mr.Mishra, learned counsel for the Petitioners, submits that
the Petitioners are occupants of the apartments in the building,
and no notice was served upon them. He, therefore, submits that
the action of demolition violates the principles of natural justice.
He relies upon the judgment of the Supreme Court in the case of
Sharvan Developers Private Limited & Anr. vs. The Municipal
Corporation of Greater Mumbai & Ors. 2012 (7) ALL MR 92 in
support of his proposition.
4. Mr.Mishra submits that giving notice to the owner, builder,
or developer is not sufficient in such matters, and notices were
necessary to all the Petitioners before any action of demolition
could be taken or any demolition orders executed.
5. Mr Limaye, learned counsel for the TMC, submits that this
Petition is in continuation of the proceedings in Writ Petition
No.3891 of 2021, Contempt Petition No.298 of 2022 and various
interim applications in such proceedings to stall the demolition
drive, which is scheduled tomorrow, i.e. on 28.8.2024.
6. Mr Limaye pointed out that the building is wholly
unauthorised because it was constructed without any permission
from any authorities. He pointed out that while the construction
was ongoing, TMC issued stop-work orders. However, they defied
504-WP12120-24.DOC
the stop-work orders. The construction proceeded, and the builder
and developer apparently inducted third parties without any
authority of law. He pointed out that there are no permissions, and
consequently, there is no occupancy certificate.
7. Mr.Limaye pointed out that the proper show cause notices
were issued, and the order at Exhibit-I dated 14.1.2022 shows that
not only the owner/builder but some of the flat owners were also
heard through an advocate. He pointed out that the
owner/developer also applied for regularisation on behalf of
himself and the flat owners. This regularisation has also been
rejected. Accordingly, he submitted that the very institution of this
Petition is an abuse of the process, and this Petition must be
dismissed with exemplary costs.
8. The rival contentions now fall for our determination.
9. The Petitioners nowhere pleaded Nisha Apartment is an
authorised structure. In response to our query, Mr Mishra, the
learned counsel for the Petitioners, admitted that this building was
constructed without any permissions, and consequently, there is
no occupancy certificate. In any event, he was unable to produce
any permissions. There are no pleadings about any permissions. He
submitted that the only ground on which this Petition is filed is
what he terms a breach of principles of natural justice and due
process.
504-WP12120-24.DOC
10. The record shows that the building in question is wholly
unauthorised, as no permission was obtained from any authority.
Mr Limaye has submitted that stop-work notices were issued
when the construction was going on. Still, in defiance of such
stop-work notices, the construction proceeded, and even third-
party rights were sought to be created. Such third parties are now
petitioning this Court and complaining about the failure of natural
justice or due process.
11. The concept of natural justice and due process are not as
rigid as the learned counsel for the Petitioners would require us to
believe. Even due process of law was followed. The Petitioners
cannot benefit from wholly unauthorised or illegal constructions
and insist that some notice should be given to them to show cause.
The Petitioners have admitted before us that the constructions are
without any permission from any authorities and that they are
staying in the apartments without there being any occupancy
certificate.
12. The rampant problem of construction without building
permissions and their occupation without occupancy certificates
must be dealt with seriously. Construction without permissions
rarely or only seldom considers requirements like building
regulations, fire safety, hygiene, etc. If permissions are applied, the
builders/developers must follow the building rules and the fire
safety codes. Yet, suppose constructions of the present nature are
encouraged. In that case, the builders/developers and, finally, the
occupiers consider themselves not to be bound by any of such
legal requirements enacted for their safety and general protection.
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This is a matter of construction proceeded brazenly despite a stop
work order and complaints.
13. Under the above circumstances, the Petitioners cannot insist
upon an unnatural expansion of the principles of natural justice.
The Petitioners, who are shown scant regard for legal processes or
due process, cannot now, in the peculiar facts of this case, insist
upon due process. In any event, we are satisfied that the TMC, in
this case, has followed due process.
14. The Petitioners have placed on record a detailed speaking
order dated 14 January 2022, by which the TMC heard and dealt
with the objections of the owners/builders and some of the
apartment owners who appeared in the matter through an
advocate. This was followed by the application for regularisation,
which has also been considered and rejected. The owners/builders
have instituted an appeal challenging the rejection of
regularisation and parallelly instituted a civil suit. There are no
interim reliefs in any of these proceedings.
15. Writ Petition No.3891 of 2021 was instituted by the
complainants Ayub Ali Khanbande and others. Based on some
orders in such writ petition, the TMC initiated action. Even the
demolition order dated 14 January 2022 was made. However,
there was a delay in its implementation. Therefore, Ayub Ali
Khanbande instituted Contempt Petition No.298 of 2022 in this
Court. This Contempt Petition was disposed of by order dated 11
July 2024 after directing the TMC to execute its demolition order
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dated 14 January 2022 within four weeks unless prevented by any
legal impediment.
16. To stall the TMC's action, the owners/builders filed an
Interim Application in this Court by raising grounds similar to
those in this Petition. This Interim Application was dismissed by
order dated 09 August 2024. Since no compliance report was
filed, we were forced to make an order on 26 August 2024,
directing the TMC to report compliance.
17. Accordingly, the demolition is now scheduled for 28 August
2024. This petition was filed today and circulated for the
afternoon session. We find no merits whatsoever in the
contentions now raised. The decision relied upon by the learned
counsel for the Petitioners cannot be read de hors the facts in
which it was rendered. The gross facts of the present case coupled
with compliance of natural justice are sufficient to dismiss this
petition. In the absence of any case of legality, the demolition
order cannot be questioned by the Petitioners at this belated stage.
18. Mr. Limaye is right in contending that a series of
proceedings are being launched by the owner/developer and
occupants at different fora to somehow protect the wholly
unauthorised building, which was constructed in defiance of stop-
work notices. We are accordingly satisfied that this Petition must
be dismissed with exemplary costs.
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19. Accordingly, we dismiss this Petition with costs of
Rs.50,000/- (Rupees Fifty Thousand) payable by the Petitioners to
the TMC within two weeks from today.
20. This petition is dismissed with costs of Rs 50,000/-, which
the petitioners must pay to TMC within four weeks.
(Kamal Khata, J) (M.S. Sonak, J)
