Case Note & Summary
The Bombay High Court dealt with two cross writ petitions: Writ Petition No.655 of 2021 filed by Our Lady of Dolours School Trust against the Municipal Corporation of Greater Mumbai (MCGM) and others, and Writ Petition (L) No.4172 of 2023 filed by Ashunta Vivek Prabhu @ Monteiro against MCGM. The dispute pertained to a structure on Gaothan land in Mumbai. The Trust claimed that the construction was existing and sought protection from demolition, while the Corporation contended that the construction was illegal, without valid building permission, and in violation of the development plan. The court examined the facts and found that the construction was unauthorized. It held that under Section 351 of the Mumbai Municipal Corporation Act, 1888, the Corporation has the power to demolish illegal constructions. The court also noted that Gaothan land is not exempt from development plan regulations, and any construction must comply with the Maharashtra Regional and Town Planning Act, 1966. The court dismissed the Trust's petition and allowed the Corporation's petition, directing demolition of the illegal structure. It further held that no alternate accommodation is warranted for illegal constructions. The judgment emphasized that writ jurisdiction cannot be used to regularize illegalities.
Headnote
A) Municipal Law - Illegal Construction - Demolition - Section 351 of Mumbai Municipal Corporation Act, 1888 - The court considered whether construction on Gaothan land without valid building permission and in violation of the development plan is illegal. Held that such construction is illegal and liable for demolition, and the Corporation is empowered to demolish the same. (Paras 1-10) B) Property Law - Gaothan Land - Development Plan - Section 52A of Maharashtra Regional and Town Planning Act, 1966 - The court examined the status of Gaothan land and the requirement of building permission. Held that even on Gaothan land, construction must conform to the development plan and obtain necessary permissions; otherwise, it is unauthorized. (Paras 5-8) C) Constitutional Law - Writ Jurisdiction - Alternate Accommodation - The court considered whether the petitioner is entitled to alternate accommodation upon demolition. Held that no alternate accommodation is required for illegal construction, and the writ court cannot grant such relief. (Para 9)
Issue of Consideration
Whether the construction raised by the petitioner on Gaothan land without valid building permission and in violation of the development plan is illegal and liable for demolition, and whether the petitioner is entitled to alternate accommodation.
Final Decision
Writ Petition No.655 of 2021 filed by the Trust is dismissed. Writ Petition (L) No.4172 of 2023 filed by the Corporation is allowed. The Corporation is directed to demolish the illegal construction. No order as to costs.
Law Points
- Illegal construction
- demolition order
- Gaothan land
- development plan
- building permission
- Section 351 MMC Act
- 1888
- Section 52A MRTP Act
- 1966
- writ jurisdiction
- alternate accommodation
