Bombay High Court
Avinash Dominic Ghosal vs State Of Maharashtra And Ors on 20 June, 2025
Author: A. S. Gadkari
Bench: A. S. Gadkari
2025:BHC-AS:24551-DB
sns 25-aswp-16958-2024-J.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.16958 OF 2024
1. Avinash Dominic Ghosal ]
Aged: 48 years, Occu: Business, ]
An Adult, Indian Inhabitant, ]
Residing at: Chulne, Diwanman, ]
Tal. Vasai and Dist. Palghar. ] ...Petitioner.
V/s
1. State of Maharashtra, ]
Mantralaya, Mumbai. ]
2. The Commissioner, ]
Vasai Virar Municipal Corporation ]
Virar (West), Palghar - 401303, ]
Maharashtra. ]
3. Smt. Apolina Bastyav Miranda ]
Age: 65 years, Occu: Housewife, ]
R/at. Chulne, Diwanman, Vasai (West), ]
Taluka Vasai, District Palghar. ]
4. Roston Bastyav Miranda ]
Age: 40 years, Occu: Service, ]
R/at. Chulne, Diwanman, Vasai (West), ]
Taluka Vasai, District Palghar. ]
5. Mrs. Rumilda Sanket Gonsalves, ]
Age: 36 years, Occu: Service, ]
R/at. Above Aadhar Medical, ]
Manikpur Naka, Vasai (West), ]
Taluka Vasai, District Palghar. ]
6. Johna Ignatius D'Souza, ]
Age: 68 years, Occu: Housewife, ]
R/at. Chulne, Diwanman, Vasai (West), ]
Taluka Vasai, District Palghar. ]
Digitally
signed by
SUMEDH
SUMEDH NAMDEO
NAMDEO SONAWANE
SONAWANE Date: 1/18
2025.06.21
12:56:34
+0530
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7. Honey Ignatius D'Souza, ]
Age: 49 years, Occu: Service, ]
R/at. Chulne, Diwanman, Vasai (West), ]
Taluka Vasai, District Palghar. ]
8. Laila Johson Gonsalves, ]
Age: 47 years, Occu: Service, ]
R/at. Chauk Shejol, Chulne, ]
Vasai (West), Taluka Vasai, ]
District Palghar. ] ...Respondents.
Mr. Prafulla B. Shah i/by Adv. Kavyal P. Shah for the Petitioner.
Ms. S.S. Bhende, AGP for the Respondent No.1-State.
Mr. Swati Sagvekar for the Respondent No.2.
Mr. Anil D'Souza a/w. Adv. Elaine Fargose i/by Adv. Ernest Tuscano for
Respondent Nos.3 to 5.
Ms. Rumilda Gonsalves, Respondent No.5, present in person.
CORAM : A. S. GADKARI AND
KAMAL KHATA, JJ.
RESERVED ON : 17th April, 2025.
PRONOUNCED ON : 20th June, 2025.
JUDGMENT (Per Kamal Khata, J.):
–
1) Rule. Rule made returnable forthwith and the Petition is finally
heard with the consent of all the parties.
2) By this Petition under Article 226 of the Constitution of India
the Petitioner seeks the demolition of illegal and unauthorized construction
by Respondent Nos.3 to 5 on the writ property.
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bearing survey No.123, Hissa Nos.1 & 6, located at Mouje, Diwanman
admeasuring about 004.05 hectares (4 Gunthas) (“writ property”) based on
the registered Sale Deed dated 24th November, 1975. According to the
Petitioner, the Respondent Nos.3 to 5 unlawfully entered upon the writ
property and started construction on or about 12th February, 2024.
4) Pursuant to a complaint lodged by the Petitioner on 20 th
February 2024, Respondent No.2 issued a letter to Respondent No.5, calling
upon him to submit all relevant documents pertaining to the construction.
The letter cautioned that failure to furnish the said documents would
render the construction illegal and would result in initiation of proceedings
under Sections 52, 53, and 57 of the Maharashtra Regional and Town
Planning Act, 1966 (“MRTP Act”).
5) Respondent No.5 replied on 21 st February 2024, seeking
guidance on the possibility of regularizing the said construction. In
response, Respondent No.2, by communications dated 7 th March 2024 and
11th March 2024, unequivocally informed him that no permission had been
granted for any construction.
6) According to the Petitioner, Respondent No.2 stopped short at
merely issuing communications and failed to take any concrete steps as per
law, to prevent the ongoing unauthorized construction and encroachment.
Due to the inaction of Respondent No.2 against Respondent Nos.3 to 5, the
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Petitioner instituted Regular Civil Suit No. 119 of 2024 before the Civil
Court, Senior Division, Vasai, seeking an injunction. By an Order dated 2 nd
May 2024, the Civil Court granted an interim injunction restraining
Respondent Nos.3 to 5 from carrying out further construction on the subject
property.
7) However, on an Appeal from the said Order, the District Court
by its Order dated 24th June 2024, vacated the injunction but restrained
Respondent Nos.3 to 5 from creating any third-party rights in respect of the
property. The Petitioner’s Application seeking a stay on the effect and
operation of the said Order during the appeal period was rejected by the
Appellate Court by Order dated 25th June 2024.
8) Aggrieved by the said Order, the Petitioner filed Writ Petition
No.13292 of 2024, wherein the learned Single Judge of this Court issued
notices to Respondent Nos.3 to 8 on 4 th July 2024. The Writ Petition was,
however, dismissed by Order dated 8 th October 2024, as the Court observed
that the Petitioner’s rights would be protected and addressed through the
proceedings initiated by Respondent No.2 under the MRTP Act.
9) Despite issuance of a letter dated 16 th July 2024 and a legal
notice dated 4th October 2024 by the Petitioner to Respondent No.2 calling
upon it to take action against the illegal and unauthorized construction
carried out by Respondent Nos.3 to 5, no action was taken. Aggrieved by
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this inaction and in the absence of any cogent or justifiable reason for the
same, the Petitioner has been constrained to file the present Petition.
10) Mr. Prafulla Shah, learned Advocate representing the
Petitioner, submitted that, it is an undisputed fact that the construction
carried out by Respondent Nos.3 to 5’s on the writ property is illegal and
unauthorized. It is also an undisputed fact that Respondent No.2 has failed
to take any action against the Respondent Nos.3 to 5 and has wilfully
stopped from taking further action despite their own written
communications acknowledging that the construction carried out by
Respondent Nos.3 to 5 is wholly unauthorized. In the aforesaid
circumstances, he urges the Court to direct the Respondent No.2 to take
necessary action against Respondent Nos.3 to 5 and demolish the illegal
and unauthorized construction.
11) Ms. Swati Sagvekar, learned Advocate for Respondent No.2
relies upon two Affidavits filed by one Mr. Ajit Muthe, the Deputy Municipal
Commissioner dated 10th March, 2025 and the other is of Mr. Manoj Vasant
Vanmali, the Assistant Municipal Commissioner dated 2 nd April, 2025. She
highlights the fact that, pursuant to the complaint, the Corporation had
visited the premises and subsequently issued a notice dated 20 th February,
2024. In response to the said notice they had received an Application for
regularization of the structure. Based on that, she submitted that, the
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Corporation proposes to take action by following the due process of law
against the illegal and unauthorized structure. Referring to the second
Affidavit she submits that, pursuant to the Order dated 10 th March, 2025
the Officers of the Corporation visited the site to ensure that no further
work was being carried out pursuant to the Orders and the concerned
Officer took appropriate photographs to show that no further work was
being carried out. She submits that, if the Court directs the Corporation
would take necessary action against the Respondent Nos. 3 to 5.
12) Mr. Anil D’Souza, learned Advocate appearing for Respondent
Nos.3 to 5 strongly contended that, the Petitioner has not come to the Court
with clean hands. He asserted that, the Petitioner himself has carried out
unauthorized construction on his part of the plot. He urged the Court not to
ignore those facts, particularly when the Petitioner himself had flagrantly
violated the law exhibiting disregard and disrespect for the law. The learned
Advocate asserted that, the writ property is purchased by Respondent Nos.3
to 5’s father under a registered Sale Deed dated 13th May, 1999.
12.1) Mr. D’Souza asserted that, the law permits regularisation under
the provisions of Section 53(2) of the MRTP Act after notice is issued and
allows for seeking post facto permission upon submission of all necessary
documents. In support of his contention, he relied on the Supreme Court
decision in the case of Mahendra Baburao Mahadik & Ors. vs. Subhash
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Krishna Kanitkar & Ors. reported in (2005) 4 SCC 99, which, according to
him, considers the entire scheme under Chapter IV of the MRTP Act, 1966.
He submitted that, the local Authority is empowered to entertain an
Application for construction permission at two stages – either before
commencement of construction under Section 44 or post-construction upon
service of notice under Section 53 (2) of the MRTP Act, 1966. Relying on
paragraphs 36 and 43 of the Mahendra Mahadik judgement (supra), he
contended that, the Respondent Nos.3 to 5 were entitled to submit a post
facto application for regularization of their structure.
12.2) He further asserted that, Mahendra Mahadik‘s (supra)
judgment has been consistently followed in :
(i) Sudhir M. Khandwala vs. Municipal Corporation of Greater
Mumbai & Ors reported in 2010 (2) Mh.J.J. 759;
(ii) M/s. Abhishek Builders & Ors. vs. CIDCO reported in 2012 (5)
Mh.L.J. 413;
(iii) Rajiv Mohan Mishra vs. CIDCO reported in 2018 SCC OnLine
Bom 4132 ;
(iv) Kaalkaa Real Estate Pvt. Ltd. & Anr. vs. MCGM reported in
2022 SCC Online Bom 2536.
12.3) Mr. D’souza contended that, a cumulative reading of these
judgements clearly supports his argument that where the structure
constructed on privately owned property does not substantially exceed the
permissible limits, it can be regularized upon payment of penalty and
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charges as may be determined by the competent authority in accordance
with law. He further emphasized that the response of the Deputy Director of
Town Planning did not cite any violations warranting outright rejection of
the regularization Application. Accordingly, he argued that the Petition is
devoid of merit and ought to be dismissed.
13) We have heard all the learned Counsel for the parties and
perused entire record.
14) This is yet another case where a landowner chooses to first
construct and then seek to regularize the construction. We have dealt with a
similar issue in High Court on its Own Motion V/s. the State of Maharashtra
through Principal Secretary & Ors., reported in 2024 SCC OnLine Bom 918.
15) We find this type of cases routinely in our Court. We are
constrained to observe that this precise understanding, that the law permits
regularisation under the provisions of Section 53(2) of the MRTP Act, after
notice is issued and allows for seeking post facto permission upon
submission of all necessary documents, as contended by Mr. D’Souza, is
carried by the Local Authorities, Municipal Corporations and Competent
Authorities created under Statute for planned development. On this basis,
they stop at issuing notices under relevant provisions and do not take it to
its logical end, though the law prescribes.
15.1) But this is contrary to law – and is impermissible.
8/18
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sns 25-aswp-16958-2024-J.doc 16) We are constrained to take a judicial notice that that the local
authorities, competent Authorities and Municipal Corporations, routinely
refrain from taking consequential actions after issuing notices, such as
demolition and more importantly prosecution of the law violators. Such
inaction results in sequential repercussions such as creation of third-party
rights for which the State has no summary remedy. Recovery of money from
those builders/developers is only a distant dream and take decades for final
adjudication and execution.
16.1) On the other hand, the builder/developer alongwith the
responsible Officers and the Police though jointly and severally responsible
for these illegalities have, thus far, escaped any form of accountability or
punitive action. These inactions resulting in illegal acts by the guardians of
law and order incite social unrest and shake the social fabric.
16.2) Presently, we find no effective deterrent evolved by the State to
stem this rot. We have, in our city, an equal number of illegal structures.
Indirectly granting security to the violators is unacceptable. The dichotomy
of State is evident and we do not appreciate it.
17) The arguments of the Petitioner’s Advocate in the present case
have already been considered by this Court, in the case of High Court on its
Own Motion (supra). Though in that case the concerned person did not
have any right on the property the Court dealt with the proposition raised
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in the present case. The relevant paragraphs are reproduced herein for
ready reference:
“57. Mr. Anturkar puts his case at the broadest but let us
first deal with what he does not argue. It is not his case that
there need not be a vestige of entitlement to development.
That is why we set out the definition of a development
right. An encroacher is an encroacher, he submits, and we
think quite correctly. It is only if a person has some
semblance of a right to develop, that person is entitled to
apply for retention of the work. He hastens to add that this
does not mean that the applicant is necessarily entitled to
have that permission for retention granted. But he is
certainly entitled to apply for such a retention permission.
It is then for the Planning Authority to decide that application.
It may or may not be granted. But the making of the
application for retention cannot be forestalled by saying
that no development permission was applied for or obtained.
62. In other words, on Mr. Anturkar’s construct, if
something is put up with no permission at all, none even
having been sought, the noticee is entitled in law to apply for
‘retention’ or regularization — and until that application is
decided, this admittedly illegal construction must continue.
Or to put it even more dramatically : no one needs ever to
apply for a building or development permission. Anyone
(with some connection to the land or its development) can
simply start development. Never mind the provisions of
Sections 43 to 45. That wholly illegal development cannot
be touched until an application for regularisation is made10/18
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63. Courts everywhere are used to insidious — even
sinister — arguments being presented in apparently
attractive forms, but courts are just as capable of unravelling
these and discerning them for what they really are. Mr.
Anturkar’s arguments clearly amount to this : so long as the
person is not a trespasser, he need not apply for any
permission whatsoever. He can construct whatever he likes.
Because there is always available to him a recourse to Section
53(3) and indeed this is something of a waiting game
because this unilaterally driven builder does not even have
to apply at this stage. He has to await a municipal notice
from the Planning Authority under Section 53(1). Once he
receives it, even then all is not lost. He simply has to apply
for retention of that for which he sought no permission and
he will receive by operation of statute an automatic stay
until his application is decided.
85. Section 53, as amended, makes a clear differentiation
between types of violations. Violations under Section 52(1)(a)
and (c) are in one category and are segregated from those in
52(1)(b) and (d). That the ones in (a) and (c) are more
serious is clear because the notice for violations under
Section 52(1)(a) or (c) receives only a 24-hour notice. The
notice for a violation under Section 52(1)(b) or (d) gets a
month’s latitude.
87. There is another perspective, one that is possibly
dispositive. The amended Section 53 now makes a clear
distinction between an illegality and an irregularity. Section11/18
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sns 25-aswp-16958-2024-J.doc52(1)(a) and (c) cases — development with no permission
or where permission is revoked — are illegal. Hence the
shorter notice and immediate demolition. Section 52 (1)(b)
and (d) cases — where there is some permission, but it has
been contravened — are irregularities. Hence the longer
notice period and the opportunity to ‘comply’. There can be
no question of ‘compliance’ in a case of illegality.
90. Section 53(3) does not contemplate ex post facto
permission for an illegality. It contemplates the continuance,
retention or regularization of that which had some semblance
of a permission but where there is an anomaly — to wit, an
irregularity.
91. Section 53 does and cannot contemplate the curing of
an illegality. If it did, Section 53 would be liable to be struck
down inter alia on the ground of manifest arbitrariness.
94. There are two fundamental principles behind
development permissions. First, any development
presupposes some form of a right connected to the land
(which includes the right to develop). Without that, there
can be no permission because even if it was sought it would
be rejected. The Rules under the Maharashtra Development
Plans Rules, 1970 inter alia make it clear that amongst the
various requirements for the grant of planning permission are
the extracts of record of rights of Property Register Cards
and other material particulars. This is to be found in Rule 6.
But the requirements of Rule 6 are engrafted into Rule 10
which speaks of the procedure to be followed in retention.
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95. The second part is that retention on its own
presupposes that there is at least some minimal permission
sought and obtained. Retention cannot apply to a case where
no permission was ever sought. This approach would
completely negate the operation of Sections 43, 44, 45 and
other provisions of the MRTP Act. It would run contrary to
half a century’s jurisprudence in this country.
100. There are several decisions where the Supreme Court
has deprecated the habit of bypassing regulations and
building control norms : see : Shanti Sports Club v. Union of
India; Priyanka Estates International Private Limited v. State
of Assam.
101. In the context of Sections 54 to 56 of the MRTP Act, in
Esha Ekta Apartments Cooperative Housing Society Limited
v. Municipal Corporation of Greater Mumbai, the Supreme
Court held that these provisions do not mandate or
contemplate the regularisation of construction made without
obtaining the necessary permissions or in violation.
Paragraphs 45.5, 45.6 and 46 of the Esha Ekta judgment say:
“45.5 Section 54 empowers the Planning Authority
to stop unauthorized development. Section 55 enables the
Planning Authority to remove or discontinue unauthorized
temporary development summarily.
45.6 Section 56 empowers the Planning Authority to
take various steps in the interest of proper planning of
particular areas including the amenities contemplated by the
development plan. These steps include discontinuance of any13/18
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46. An analysis of the above reproduced provisions makes it
clear that any person who undertakes or carries out
development or changes the use of land without permission
of the Planning Authority is liable to be punished with
imprisonment. At the same time, the Planning Authority is
empowered to require the owner to restore the land to its
original condition as it existed before the development work
was undertaken. The scheme of these provisions do not
mandate regularization of construction made without
obtaining the required permission or in violation thereof.”
(Emphasis Supplied)
18) In our considered view, the learned counsel for the
Respondents has not only misread the applicable legal provisions but has
also fundamentally misinterpreted them. It is regrettable that, despite being
specifically referred to the binding precedent in High Court on its Own
Motion (Supra), the learned Advocate failed to distinguish the same and
instead persisted in relying upon judgments that are inapplicable. He
further insisted that this Court’s understanding was erroneous while his
submissions are and were only correct. Such conduct and approach, in our
opinion, merits strong disapproval and is wholly unbecoming of an Officer
of the Court.
14/18
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sns 25-aswp-16958-2024-J.doc 19) Notably, the judgment High Court on its Own Motion (Supra)
holds the field as of today. As such, it continues to bind this Court. We also
unequivocally and respectfully affirm the view expressed therein.
20) Perusal of entire record clearly reveals that, the construction
carried out by Respondent Nos.3 to 5 is wholly illegal although on property
purportedly owned by them. Such an irregularity is incurable as held by the
Supreme Court in the case of K. Ramdas Shenoy V/s. The Chief Officers,
Town Municipal Council, Udipi & Ors. reported in (1974) 2 SCC 506.
21) We are in complete disagreement with Mr. D’Souza’s
contentions that such blatant illegal construction can be regularized.
21.1) In recent pronouncements of the Supreme Court in the case of
Rajendra Kumar Barjatia & Anr. vs. U.P. Avas Evam Vikas Parishad & Ors.
reported in 2024 SCC OnLine SC 3767 and in the case of Kaniz Ahmed vs.
Sabuddin & Ors. reported in 2025 INSC 610, the Supreme Court has clearly
directed that as follows:
a) the constructions which are audaciously put up without any
building planning approval cannot be encouraged.
b) if any violation is brought to the Notice of the Courts, it
must be curtailed with iron hands and any leniency
afforded to them would amount to showing misplaced
sympathy.
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c) that laxity on the part of the Authorities concerned in
performing their obligations under the Act cannot be used
as a shield to defend action against the illegal/unauthorized
constructions.
d) the High Courts must adopt a strict approach while dealing
with the cases of illegal construction and should not readily
engage themselves in judicial regularization of buildings
erected without requisite permissions of the competent
Authority.
e) there is a need for maintaining a firm stance that emanates
not only from the inviolable duty cast upon the Courts to
uphold the rule of law, rather such judicial restraint gains
more force to facilitate the well-being of all concerned.
f) the law ought not to come to the rescue of those who flout
its rigors as allowing the same might result in flourishing
the culture of impunity.
21.2) In view of the the observations/directions of the Supreme
Court and the ratio laid down in the aforesaid two Judgments, we see no
reason to protect the illegalities.
22) In view of the above, we pass the following Order:
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a) Petition is allowed and Rule is made absolute in terms of
prayers (a), (b) & (c).
b) We direct the Respondent No.2 to implement its notice
dated 29th February 2025 by demolishing the illegal/
unauthorised construction and initiate prosecution against
all concerned Respondents under Section 52 of
the MRTP Act, 1966 within a period of three weeks from
the date of uploading of the present Order on the official
website of the High Court of Bombay.
c) We direct the Municipal Commissioner to take appropriate
action against all erring Officers responsible for not
preventing the erection of illegal construction by
Respondent Nos.3 to 5 and file a compliance report in this
Court within a period of six months from the date of
uploading of the present Order on the official website of the
High Court of Bombay.
23) Rule is made absolute in the above terms.
(KAMAL KHATA, J.) (A.S. GADKARI, J.)
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24) At this stage, learned Advocate appearing for the Respondent
Nos.3 to 5, i.e. the persons who have constructed the illegal structure, prays
that, the operation and implementation of the present judgment be deferred
for a period of 3 weeks to enable the said Respondents to test the
correctness of this judgment before the Hon’ble Apex Court.
24.1) The learned Advocate appearing for the Petitioner opposes the
said prayer.
25) However, taking into consideration the request of the learned
Advocate for the Respondent Nos.3 to 5, the operation and implementation
of the present Order is stayed for a period of 3 weeks from today.
26) It is made clear that, during the interregnum, the Respondent
Nos.3 to 5 shall not carry out or continue with any activity relating to the
illegal construction in any manner whatsoever.
27) We further expect that, during this period, the Commissioner of
Respondent-Corporation shall start and initiate necessary/appropriate
action beginning with his own Officers, so as to instill in them due regard
for the rule of law.
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