Bombay High Court
Pyaridevi Hariram vs The State Of Maharashtra, The Chief ... on 15 January, 2025
Author: A. S. Gadkari
Bench: A. S. Gadkari
2025:BHC-OS:550-DB
sbw 18-oswpl-962-2025-J.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO.962 OF 2025
1. Pyaridevi Hariram, 48 years
Adult, Indian Inhabitant
Occupation : Flourmill
Having address at B1, Shop no.6,
Sai Dham Apartment, Opp. Sini
Square Tower, Near Kasheli Toll Naka,
Bhiwandi Road, Thane West,
Thane - 421 302.
2. Ujwala Sanjay Dhotre, 50 years
Adult, Indian Inhabitant
Occupation : Housewife
Having address At A1, Shop no.004A,
Sai Dham Apartment, Opp. Sini
Square Tower, Near Kasheli Toll Naka,
Bhiwandi Road, Thane West,
Thane - 421 302.
3. Radheshyam Kamalaprasad Yadav,
aged 41 years, Adult, Indian Inhabitant,
Occupation:
Having address at B2, flat no.202,
Sai Dham Apartment, Opp. Sini
Square Tower, Near Kasheli Toll Naka,
Bhiwandi Road, Thane West,
Thane - 421 302.
4. Vidya Kaur Gurubaksh Singh Kalsi, 46 years
w/o Gurubaksh Singh Kalsi
Adult, Indian Inhabitant
Occupation : Housewife
Having address at A1, flat no.101,
Sai Dham Apartment, Opp. Sini
Square Tower, Near Kasheli Toll Naka,
ASHWINI H Bhiwandi Road, Thane West,
GAJAKOSH
Thane - 421 302.
Digitally signed by
ASHWINI
GAJAKOSH
Date: 2025.01.15
11:10:56 +0530
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5. Tirath Ramanand Sharma, 44 years
Adult, Indian Inhabitant,
Occupation: Carpenter
Having address at A1, flat no.202,
Sai Dham Apartment, Opp. Sini
Square Tower, Near Kasheli Toll Naka,
Bhiwandi Road, Thane West,
Thane - 421 302.
6. Venkateswara Rao Pallamsetti Chappidi,
aged 58 years
Adult, Indian Inhabitant,
Occupation: Worker in Workshop (Service)
Having address at A1, flat no.204,
Sai Dham Apartment, Opp. Sini
Square Tower, Near Kasheli Toll Naka,
Bhiwandi Road, Thane West,
Thane - 421 302.
7. Rammurat Laldhar Singh, 55 years
Adult, Indian Inhabitant,
Occupation: Worker in Workshop
Having address at A3, flat no.104,
Sai Dham Apartment, Opp. Sini
Square Tower, Near Kasheli Toll Naka,
Bhiwandi Road, Thane West,
Thane - 421 302.
8. Umashankar Mukhalalprasad Goud, 31 years
Adult, Indian Inhabitant,
Occupation: Service
Having address at A3, flat no.201,
Sai Dham Apartment, Opp. Sini
Square Tower, Near Kasheli Toll Naka,
Bhiwandi Road, Thane West,
Thane - 421 302.
9. Santosh Lahuru Yadav, 46 years
Adult, Indian Inhabitant,
Occupation: Worker
Having address at A1, flat no.103,
Sai Dham Apartment, Opp. Sini
Square Tower, Near Kasheli Toll Naka,
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Bhiwandi Road, Thane West,
Thane - 421 302. ...Petitioners
V/s.
1. The State of Maharashtra
represented by the Chief Secretary,
Mantralaya, Mumbai 400 032.
2. Mumbai Metropolitan Regional
Development Authority (MMRDA)
Having its office at Sub-Regional Office,
1st floor, Balkum, Fire Brigade Station
Building, Thane-Bhiwandi Road, Balkum,
Thane (W) 400 608.
3. The Collector of Thane, Thane.
The Tahsildar of Bhiwandi, Taluka -
Bhiwandi, District - Thane.
4. The Tahsildar of Bhiwandi, Taluka -
Bhiwandi, District - Thane.
5. The State of Maharashtra,
Through A.G.P. High Court,
Mumbai.
6. The Sarpanch of Grampanchayat
Kasheli Grampanchayat Office, Kasheli
Taluka -Bhiwandi, District- Thane.
7. The Sarpanch of Grampanchayat Kalher
Grampanchayat office, Kalher Taluka
Bhiwandi, District- Thane.
8. Shri Sharad Vasant Madhavi Age-Adult
Residing at House No.439,
Near Grampanchayat office, At Kashali Post -
Kalher, Taluka- Bhiwandi, District-Thane.
9. Shri Shekhar Vasant Madhavi Age-Adult
Residing at House No.439,
Near Grampanchayat office, At Kashali Post -
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Kalher, Taluka- Bhiwandi, District-Thane.
10. M/s. Saidham Developers
Through its Proprietor Shri Chandrakant
Mahadeo Kherade Age-Adult, Residing at
A-1, Flower Valley CHS Ltd., Eastern Expres
Highway, Runwal Nagar, Thane (West). ... Respondents
______________________________________
Mr. Mathew J. Nedumpara, a/w Ms. Hemali Merva, B.S. Munday and Mr.
Akhilesh Nair, i/by Nedumpara and Nedumpara for Petitioners.
Mrs. Usha Rahi, AGP for Respondent No.1-State.
_____________________________________________
CORAM : A. S. GADKARI AND
KAMAL KHATA, JJ.
RESERVED ON : 14th January 2025.
PRONOUNCED ON : 15th January 2025.
JUDGMENT (Per : Kamal Khata, J) :
-
1) The Petitioners are alleged owners/purchasers of apartments in
Saidham Apartments complex located at Kalher, Near Bhiwandi, Thane
District. They are aggrieved by the Judgment dated 25 th July, 2024 passed
by this Court in Writ Petition No.833 of 2019 and Notices dated 6 th January,
2025 issued by the Tahasildar Bhiwandi, directing parties to vacate their
respective flats. The said Order directed demolition of their apartments
holding that the construction was on Government land and regularization
of those buildings was not possible. In addition, the builder of these 5
buildings was directed to deposit Rs.8 crores as compensation for pro rata
distribution amongst the flat purchasers under the Orders of this Court. It
was also clarified that the compensation that would be distributed on pro
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rata basis to the flat purchasers would be in addition to the compensation
that the purchasers may claim against the builders before the Civil Courts.
The Notices dated 6th January, 2025 are issued by Tahasildar in furtherance
of the Judgment passed by this Court.
2) Mr. Nedumbara learned counsel for the Petitioners argued that
the Petitioners were not made parties and thus were not heard resulting in
gross violation of principles of natural justice. He argued that such a
judgment that was passed without conducting any survey of the properties
in question rendering it illegal. He further contended that the Petitioners
were entitled to regularise these constructions under Section 52A of the
Maharashtra Regional Town Planning Act ("MRTP Act"). He therefore
sought the reliefs prayed for in the Petition.
3) The prayers in the Petition are reproduced hereunder for ready
reference:
a) Declare Ext. A/judgement to have been rendered as
illegal for having been passed without hearing the
necessary parties;
b) Direct the respondents 1 to 4 to survey the properties
upon which the apartments of the petitioners and others,
have been constructed by the 10 th respondent, to
ascertain encroachment upon government land;
c) Direct respondents 1 to 4 to regularise the petitioners'
apartments and to grant occupancy/leasehold rights over
the alleged government lands over which their
apartments have been constructed;
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d) Restrain respondents 1 to 4, and their agents, from
interfering in any manner whatsoever, with the
enjoyment of the apartments owned by the petitioners
and others, until due process of law is followed in
respect of the disputed ownership rights over the
properties;
e) pass such further and other orders as the nature and
circumstances of the case may require."
Reasons and Conclusion:
4) We heard Mr. Nedumpara though most of the arguments advanced
were not relevant to the point involved in Petition. We also perused the
record. In our view, this Petition is yet another attempt to overreach the
Orders passed by this Court on 25 th July, 2024 since the SLP was dismissed
as not pressed on 28th December, 2024. This Court's Judgment dated 25th
July, 2024 accordingly attained finality.
5) Some flat owners had filed an Interim Application bearing No.
15861 of 2024 to interevene in the Developers Interim Application seeking
to modify the Judgment dated 25th July, 2024. By the said application the
said flat owners contended that they would be satisfied witih rehabilitation
instead of monetary compensation which was disposed off by this Court by
its Order dated 17th December, 2024. Paragraphs No.7 and 8 of the Order
dated 17th December, 2024 recorded as under:
"7. Prayers for deferring the demolition until the flat
purchasers are rehabilitated are nothing but a ploy
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to avoid complying with the directions in our
judgment and order. That is why the flat purchasers
are sought to be put forward, claiming such equities.
8. Though judgment and an order were made on 25
July 2024, considering the plight of the flat
purchasers, the time for making alternate
arrangements and carrying out demolitions was
granted until 1 February 2025. The SLP against the
judgment and order has already been dismissed."
5.1) Thus, the Interim Application in the disposed Writ Petition No.
833 of 2019 was dismissed.
6) This Petition now in the name of some other flat purchasers
challenges the notice dated 6th January, 2025 by the Respondent No.4-
Tahsildar for demolition of the building. We are unable to grant the
Petitioners any reliefs for the following reasons:
(i) The Petitioners claiming to be innocent third party
purchasers cannot possibly be protected because their rights flow
from an illegality. Their remedies if any, are against the
developers. This law is enumerated by this Court in Bombay
Environmental Action Group v/s. Mumbai Municipal Corporation
(Arihant Building) reported in 1994 SCC OnLine Bom. 512 and
West Coast Builders Pvt. Ltd. & Another v/s. The Collector of
Bombay & Others reported in 1994 SCC OnLine Bom. 54.
(ii) Moreover the argument of the purchasers innocently
taking possession and thus acquiring title offered by the
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developers is also repelled in the judgments of this Court in the
case of Priyanka Estates International reported in (2004) 1 SCC
663 and Esha Ekta Apartments reported in (2012) 4 SCC 8689.
(iii) Additionally, the Judgment dated 25 th July, 2024 has
extensively considered the law on illegal constructions and held
that, the illegal and unauthorised constructions deserve to be
demolished.
(iv) Recently the Hon'ble Supreme Court in the case of
Rajendra Kumar Barjatya and Another v/s. U.P. Avas Evam Vikas
Parishad and Others reported in 2024 SCC OnLine SC 3767
directed demolitions of all illegal structures. Paragraph No.20 is
reproduced herein below for ready reference:
"20. In the ultimate analysis, we are of the opinion that
construction(s) put up in violation of or deviation from
the building plan approved by the local authority and the
constructions which are audaciously put up without any
building planning approval, cannot be encouraged. Each
and every construction must be made scrupulously
following and strictly adhering to the Rules. In the event
of any violation being brought to the notice of the Courts,
it has to be curtailed with iron hands and any lenience
afforded to them would amount to showing misplaced
sympathy. Delay in directing rectification of illegalities,
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administrative failure, regulatory inefficiency, cost of
construction and investment, negligence and laxity on the
part of the authorities concerned in performing their
obligation(s) under the Act, cannot be used as a shield to
defend action taken against the illegal/unauthorized
constructions. That apart, the State Governments often
seek to enrich themselves through the process of
regularisation by condoning/ratifying the violations and
illegalities. The State is unmindful that this gain is
insignificant compared to the long-term damage it causes
to the orderly urban development and irreversible adverse
impact on the environment. Hence, regularization
schemes must be brought out only in exceptional
circumstances and as a onetime measure for residential
houses after a detailed survey and considering the nature
of land, fertility, usage, impact on the environment,
availability and distribution of resources, proximity to
water bodies/rivers and larger public interest.
Unauthorised constructions, apart from posing a threat to
the life of the occupants and the citizens living nearby,
also have an effect on resources like electricity, ground
water and access to roads, which are primarily designed to
be made available in orderly development and authorized
activities. Master plan or the zonal development cannot be
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just individual centric but also must be devised keeping in
mind the larger interest of the public and the
environment. Unless the administration is streamlined and
the persons entrusted with the implementation of the act
are held accountable for their failure in performing
statutory obligations, violations of this nature would go
unchecked and become more rampant. If the officials are
let scot-free, they will be emboldened and would continue
to turn a nelson's eye to all the illegalities resulting in
derailment of all planned projects and pollution,
disorderly traffic, security risks, etc."
[emphasis supplied]
7) We are bound by the Judgments of the Hon'ble Supreme Court. In
the present case, the judgment dated 25th July, 2024 has categorically held
that all the 5 buildings in the complex were illegal, unauthorizedly
constructed and thus directed to be demolished.
8) We reject the contention of the Petitioner's Advocate that the
concerned authorities must consider their regularisation application dated
14th January, 2025, i.e., made today. On examination of the application,
tendered after conclusion of the arguments, it reveals that the application is
not even filed with the concerned authority. In any event, even if filed, must
be rejected.
9) We strictly adhere to the principles of law firmly settled by the
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Supreme Court in its celebrated decision in the case of K. Ramdas Shenoy
V/s. The Chief officers, Town Municipal Council, Udipi reported in (1976) 1
SCC 24 that, illegality is incurable.
10) In view of the above, we find no merits in the Petition and dismiss
this Petition.
11) However, we hereby reiterate that the rights of the Petitioners to
claim compensation against the developers are kept open.
(KAMAL KHATA, J.) (A.S. GADKARI, J.)
