Bombay High Court
Neetu Makhija vs Ulhasnagar Municipal Corporation ... on 3 April, 2025
Author: A. S. Gadkari
Bench: A. S. Gadkari
2025:BHC-AS:15548-DB
sns 17-aswp-18551-2024-J.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.18551 OF 2024
Mrs. Neetu Makhija ]
Indian Inhabitant, Age: 58 Years, ]
R/o-BK 241, Room No.1, Bewas Chowk, ]
Ulhasnagar 1 ] ...Petitioner.
V/s
1. Ulhasnagar Municipal Corporation, ]
Through, Municipal Commissioner, ]
Ulhasnagar, District Thane. ]
2. Mahagauri Builders & Developers ]
Through Mr. Manoj Panjwani ]
621 B Jhulelal Mandir Road, ]
Ulhasnagar 421 001. ]
3. The State of Maharashtra ]
Through Govt Pleader ]
High Court, Bombay ] ...Respondents.
WITH
INTERIM APPLICATION NO.3174 OF 2025
IN
WRIT PETITION NO. 18551 OF 2024
1. Rajni A Ramsinghani ]
Hindu Adult, Aged About 60 years, ]
Brk No. 214, Room No. 6 & 7m ]
Near Hill View, Bewas Chowk, ]
Ulhasnagar 421001, Dist. Thane. ]
2. Smt. Anita Madhav Khandare ]
Hindu Adult, Aged about 48 years, ]
R/at: Room No. 7, Barrack No. 214, ]
Ulhasnagar-1, District Thane. ]
Digitally signed
by SUMEDH
SUMEDH
NAMDEO
NAMDEO
SONAWANE
1/13
SONAWANE Date:
2025.04.04
12:46:36 +0530
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3. Smt. Priti Kalachand Gangwani ]
Hindu Adult, Aged about 52 years, ]
R/at: Room No. 7, Barrack No. 214, ]
Ulhasnagar-1, District Thane. ]
4. Smt. Pooja Pravin Patel ]
Hindu Adult, Aged about 47 years, ]
R/at: Room No. 7, Barrack No. 214, ]
Ulhasnagar-1, District Thane. ]
5. Smt. Mahesh Bodhwani ]
Hindu Adult, Aged about 41 years, ]
R/at: Room No. 7, Barrack No. 214, ]
Ulhasnagar-1, District Thane. ]
6. Smt. Kiran Anil Kumar Menda ]
Hindu Adult, Aged about 50 years, ]
R/at: Room No. 7, Barrack No. 214, ]
Ulhasnagar-1, District Thane. ] ...Applicants.
IN THE MATTER BETWEEN
Mrs. Neetu Makhija ]
Indian Inhabitant, Age: 58 Years, ]
R/o-BK 241, Room No.1, Bewas Chowk, ]
Ulhasnagar 1 ] ...Petitioner.
V/s
1. Ulhasnagar Municipal Corporation, ]
Through, Municipal Commissioner, ]
Ulhasnagar, District Thane. ]
2. Mahagauri Builders & Developers ]
Through Mr. Manoj Panjwani ]
621 B Jhulelal Mandir Road, ]
Ulhasnagar 421 001. ]
3. The State of Maharashtra ]
Through Govt Pleader ]
High Court, Bombay ] ...Respondents.
2/13
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Mr. A. S. Rao for Petitioner.
Mr. Monish Bhatia for the Applicants.
Mr. Suresh M. Kamble for Respondent No.1.
Ms. Minal Chandnani for Respondent No.2.
Ms. Rupali Shinde, A.G.P. for Respondent No.3-State.
CORAM : A. S. GADKARI AND
KAMAL KHATA, JJ.
RESERVED ON : 3rd March, 2025.
PRONOUNCED ON : 3rd April, 2025.
JUDGMENT (Per Kamal Khata, J.):
-
1) By this Petition under Article 226 of the Constitution of India,
the Petitioner seeks a direction to the Ulhasnagar Municipal Corporation
('UMC") to forthwith take action of demolition of the illegal and
unauthorized construction carried out by Respondent No.2 on the subject
property near the premises of the present Petitioner.
2) The Petitioner is a resident of BK No.214, Room No.1 at Bewas
Chowk, Ulhasnagar No.1. The barracks on the subject property were
consisting of six rooms out of which some rooms were demolished and new
construction is being carried out. The illegal construction has caused heavy
water leakage to her property. Despite addressing multiple communications
to UMC, no action has been taken against the developer-Respondent No. 2.
No permissions are obtained by the Respondent No.2 for construction of the
structure. Apparently, Respondent No.2 has also encroached on the
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adjoining property for construction. The Petitioner is undergoing mental
trauma on account of this menace and threats given by Respondent No.2.
However, despite complaint lodged against the Respondent No.2 on 28 th
August 2024 and follow-ups, no assistance from the Police Authorities was
received by the Petitioner or action taken against the Respondent No.2. The
UMC's response to Petitioner's RTI Application reveals that the structure
constructed is unauthorised. For lack of response from UMC coupled with
the acknowledgement that the structure is illegally being constructed, the
Petition was filed on 24th November 2024.
3) Mr. Rao, learned Advocate for the Petitioner draws our
attention to the photographs annexed and the letter addressed by the UMC
dated 24th September 2024 which clearly reveals that the construction
carried on next to the Petitioner's property is without any permissions. He
submits that the Respondent No.2 is politically influential and therefore the
State Authorities i.e., the UMC and the police are refusing to take action
against the illegal construction. Therefore, this Court must direct the UMC
to demolish the same.
4) Mr. Kamble for Respondent No.1-UMC relies on the Affidavit of
Alka Satish Pawar, the Assistant Commissioner, Ward Committee No.1 of
UMC. He explains the numerous steps taken upon receipt of the complaint
from the Petitioner. He stated that the concerned officer had visited the site
sns 17-aswp-18551-2024-J.doc
and thereafter issued a Notice dated 22nd August 2024 under Section 260 of
the Maharashtra Municipal Corporation Act, 1949 ('MMC Act') to
Respondent No.2. By the said Notice, the Respondent No.2 was called upon
to submit documents with regard to the construction within a period of
seven days. Since the Respondent No.2 failed to produce the documents,
another Notice dated 27th September 2024 under Section 267 and 478 of
the MMC Act was served on Respondent No.2 calling upon him to remove
the illegal construction within a period of seven days of the Notice. The
Respondent No.2 was put to Notice that the failure on his part to remove
the construction, would constrain the UMC to demolish the said
construction at their expense. On failure of the Respondent No.2 to remove
the unauthorized construction, the UMC had made an application for police
protection on 18th December 2024. By reply of Deputy Commissioner of
Police dated 27th December 2024 they expressed their inability to provide
police protection due to the forthcoming new year celebrations on 30 th and
31st December 2024. Therefore by another Application dated 9 th January
2025, the Deputy Commissioner of Police was requested to grant police
protection and was granted to initiate the action of demolition of this illegal
construction on 15th January 2025. When the officers reached site with
Police on 15th January, 2025 the Respondent No.2 informed the Officers of
the UMC that he had applied for regularization of the construction and
requested that the action of demolishing be stopped. Upon seeking
sns 17-aswp-18551-2024-J.doc
instructions from their building and town planning department they were
informed that on 7th January 2025 the UMC had received a proposal for
regularization of the said construction. In view of this Application the UMC
had refrained from the demolition.
5) Mr. Bhatia for the Applicants in Interim Application No.3174 of
2025 submits that, they are the owners of the barracks that were
demolished. He claims that there are six families that have been residing in
these barracks for several decades. They were also issued conveyance deed
under the Displaced Persons (Compensation and Rehabilitation) Act, 1954
and consequently have title in respect of the said land. He took us through
the averments in the Application regarding the history of Ulhasnagar
settlement and submitted that the documents to the application annexed at
Exhibit B were the copies of the Conveyance Deeds in their favor. That
pursuant to receipt of the Notice they had submitted their application for
regularization as responsible and law-abiding citizens. He submitted that all
necessary documents including the ownership details, tax receipts and other
documents as required by the UMC have been submitted and their
application is pending approval. He submits that, the structures were in a
dilapidated condition and therefore they started their repairs to the same.
He submits that despite being aware that the Applicants were owners of the
barracks the Petitioner had failed to join them as parties although they were
sns 17-aswp-18551-2024-J.doc
necessary parties and the demolition would have affected their rights. He
submits that, the action was taken by UMC without following the due
process of law and therefore they were constrained to file a suit before the
JMFC, Ulhasnagar seeking injunction. Since the Court only issued notice
and did not grant any ad interim reliefs, they preferred an appeal
challenging the Order dated 31 st January 2025. Upon hearing the
Appellants in Appeal, by its Order dated 6 th February 2025 the High Court
was pleased to grant an injunction only until the next date i.e. 7 th February
2025 and requested the Civil Court to dispose of the Application. Due to the
direction, upon hearing the Civil Court passed a status quo Order on 7 th
February 2025. He submits that in these circumstances the Applicants ought
to be heard in the Petition. In support of his contentions, he relies upon the
judgment of this Court in the case of Mr. Hardas Hazarimal Tharwani vs.
State of Maharashtra & Ors. in PIL No. 19 of 2013, decided on 27th March
2024, to submit that the High Court had directed the Authorities to decide
the Regularization Applications within a reasonable period. In these
circumstances he submits that the Petition be dismissed.
6) We have heard the counsels and perused the papers and
proceedings.
7) This Petition is yet another case where the owner is of a firm
belief that, he has a right to demolish and reconstruct his structure without
sns 17-aswp-18551-2024-J.doc
seeking requisite permissions from the concerned Authorities. This
contention has been emphatically rejected in a Petition converted into a
Suo-moto Petition and referenced as High Court on its Own Motion vs. the
state of Maharashtra through principal secretary & Ors. reported in 2024
SCC OnLine Bombay 918. This judgement was followed by us in a recent
judgment in the case of Hanuman Jayram Naik versus the State of
Maharashtra reported in 2025 BHC AS 8860-DB.
8) With a view to give an opportunity to the Applicants, we
inquired with Respondent No.2's Advocate if any Application was made for
the seeking permission from the UMC for construction. He fairly submitted
that presently he neither had any such instructions nor documents evincing
permissions applied for before construction. He stated that the 2 nd
Respondent had only applied for the regularization pursuant to the Notice
served by the UMC. He relied on paragraph No.15 of the Interim
Application in support of his submission.
9) This is not a case of an illiterate citizen as in the case of
Hanuman Jayram Naik (supra) who in the garb of being an illiterate
claimed immunity from the law. As we had observed in Hanuman Jayram
Naik's case, it was a widespread belief. This case vindicates our observation.
10) Moreover, after perusing the papers and proceedings more
particularly the Application of the Intervenor Applicants it is observed that
sns 17-aswp-18551-2024-J.doc
the Applicants have with a deliberate intent to overreach the Orders of the
Court more particularly, the Order dated 27 th January 2025 misinterpreted
the Order and have averred the following in their plaint that was filed in
the Civil Court on 29th January 2025. Paragraph No.10 of the plaint reads as
under:
"10. The Plaintiffs state that the Plaintiffs have also
approached the Hon'ble Bombay High Court by way of
Civil Writ Petition bearing No.18551 of 2024, filed
before the Hon'ble Bombay High Court inter alia seeking
protection of their legal rights. The Plaintiff states that
however, vide Order dated 27th January 2025, the said
Writ Petition came to be disposed off whilst keeping the
matter open for all parties, including the Plaintiffs, to
pursue their legal remedies. That ipso facto, this clearly
indicates that there is no bar on the Defendant from
hearing and deciding the regularization applications of
the Plaintiffs which is a vested right upon the Plaintiffs.
Hereto annexed and marked EXHIBIT 3 is a copy of the
said Order dated 27th January 2025."
11) A plain reading of the Order dated 27th January 2025 would
indicate that the Petition is not disposed of and was kept pending to be
taken up on 10th February 2025. However the Applicants 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
sns 17-aswp-18551-2024-J.doc
(No.1786 of 2025) suppressing the fact from the Single Judge of this Court
that the Division Bench of this court has refused to grant any reliefs to the
Applicants by its Order dated 27th January 2025.
12) 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 K. Ramadas Shenoy vs. The Chief Officers, Town
Municipal Council, Udipi And Others reported in (1974) 2 SCC 506. The
Supreme Court in the case of Rajendra Kumar Barjatya and Anr. vs. U.P.
Avas Evam Vikas Parishad and Others reported in 2024 SCC OnLine SC
3767 has reiterated the view.
13) The binding decisions would support our 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.
14) We are 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 to
are not well-versed with the relevant judgments. This is the reason the
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Courts are not assisted with the correct legal position leading to passing of
status quo orders and injunctions.
15) In this scenario, according to us, even Respondent No.2-the
developer who has undertaken construction for the Applicants herein is
equally responsible for constructing without obtaining necessary
permissions in accordance with law. A contention that he was merely given
a 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 citizens and all the citizens must voluntarily and necessarily
follow else there will be only anarchy.
16) We request 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 No.2 is
equally responsible in abetting and carrying out illegal activities of
construction without obtaining requisite permissions from the Authorities.
We are 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.
17) We find that there is serious lack of communication between
the different departments of the Municipal Corporations in this digital era.
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This cannot be tolerated and permitted. As observed in the present case, no
action was initiated by the UMC since 24 th September 2024 when they
themselves acknowledged that the subject structure was illegal. This
information could well have been shared with the concerned department to
initiate action. Even after filing of the Petition the UMC failed to initiate
action which is their bounden duty under the statute and do not require
orders from the Court for initiating the same. The delay in seeking police
protection till the end of second week of December 2024 also raises doubts.
Further, the entire action and efforts of the UMC Authorities and the Police
authorities to demolish the illegal structure on 15 th January was thwarted
when the 2nd Respondent claimed he had applied for regularization on 7 th
January 2025. Such application should have been immediately
communicated to all concerned departments. Similarly, it was a duty of the
concerned Officer to find out from the concerned department, whether such
a regularization Application was made before marching towards demolition
with the Police authorities on 15th January 2025.
18) Further, we find it quite astonishing that even police
authorities who are the eyes of the city administration did not point out
about the construction to the UMC though a duty is cast upon them under
the Sections 260, 261, 262, 264, 266, 267, 267A and 268 of the MMC Act.
The inordinate delay in taking appropriate action leads us to accept the
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common public belief that the concerned authorities themselves are
protecting these illegalities for the reasons best known to them only.
19) In these circumstances we hold that the mischievous conduct
of the Applicants cannot be permitted to be continued and illegalities to be
perpetuated. The Petition is accordingly allowed in term of prayer clauses
(a), (b), (c), (d), (e) and (f).
20) In view of the disposal of the Writ Petition, Interim Application
does not survive and same is accordingly disposed off.
(KAMAL KHATA, J.) (A.S. GADKARI, J.)
