Case Note & Summary
The petitioners, proprietors of various shops, challenged an order rejecting their application for regularization of additional work carried out without permission and the consequent notices under Section 53(1) of the Maharashtra Regional and Town Planning Act, 1966 (MRTP Act) for removal of the unauthorized work. The Bombay High Court, consisting of Justices S.J. Vazifdar and A.R. Joshi, dismissed the petition. The court noted that the BMC had permitted the petitioners to use the first floor only as a data processing unit via a communication dated 25.4.2003, not for any other commercial purpose. The petitioners' reliance on internal noting of BMC officers was rejected as internal noting does not confer any right; only the final communication is binding. The court also noted that the petitioners had extended the front of the shop without permission. Consequently, the court upheld the rejection of regularization and the notices for removal, directing that the petitioners' use of the first floor be restricted to data processing only.
Headnote
A) Town Planning - Unauthorized Construction - Regularization - Section 53(1) MRTP Act - Petitioners carried out additional work without permission and sought regularization - BMC rejected application and issued notice for removal - Court held that internal noting of officers does not confer any right; only final communication to petitioners governs their rights - Petitioners cannot use first floor for any commercial purpose beyond data processing unit as per permission dated 25.4.2003 (Paras 3-5).
Issue of Consideration
Whether the petitioners are entitled to regularization of unauthorized construction and use of first floor for commercial purposes beyond the permission granted for data processing unit.
Final Decision
The petition is dismissed. The court upholds the rejection of regularization and the notices under Section 53(1) of MRTP Act. The petitioners' use of the first floor is restricted to data processing unit only as per the communication dated 25.4.2003.
Law Points
- Regularization of unauthorized construction
- Use of premises for commercial purposes
- Internal noting not binding
- Section 53(1) MRTP Act
Case Details
2012 LawText (BOM) (04) 19
WRIT PETITION (LODGING) NO.2928 OF 2011
S.J. Vazifdar, A.R. Joshi
Mr.Joqucim Reis, Senior Counsel with Mr.Yadunath Choudhary and Mr.Omkar Kulkarni i/b Ms.Reena Salunkhe for the Petitioners; Mr.J.S. Saluja, A.G.P. for the State – Respondent No.1; Mr.J.J. Xavier with Ms.Komal Punjabi for the B.M.C. - Respondent No.2
Manilal Bhimasi Shah, Rekhaben Harilal Shah, Kiran Bhimshi Shah, Amrutlal Bhimshi Shah
State of Maharashtra, Municipal Corporation of Greater Mumbai
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Writ petition challenging rejection of regularization application and notices under Section 53(1) of MRTP Act for removal of unauthorized construction.
Remedy Sought
Petitioners sought quashing of the order rejecting regularization and the notices for removal, and permission to use first floor for commercial purposes.
Filing Reason
Petitioners carried out additional work without permission and their application for regularization was rejected; BMC issued notices for removal.
Previous Decisions
BMC by communication dated 25.4.2003 permitted use of first floor as data processing unit only; rejection of regularization application.
Issues
Whether the petitioners are entitled to regularization of unauthorized construction?
Whether the petitioners can use the first floor for any commercial purpose beyond data processing unit?
Submissions/Arguments
Petitioners argued that internal noting of BMC officers indicated permission for commercial use, and that the first floor use was permitted.
Respondents contended that the permission was only for data processing unit and that the construction was unauthorized.
Ratio Decidendi
Internal noting of officers does not confer any right; only the final communication to the party governs their rights. Unauthorized construction cannot be regularized beyond the specific permission granted.
Judgment Excerpts
The petitioners have challenged an order rejecting their application for regularization of the additional work carried out by them admittedly without the permission of the concerned authorities.
The permission expressly restricts the petitioners' use of the premises as a 'data processing unit'.
This is an internal noting. What governs the petitioners' right is the final communication addressed to them.
Procedural History
Petitioners filed writ petition in Bombay High Court challenging rejection of regularization application and notices under Section 53(1) of MRTP Act. The court heard the matter and delivered judgment on 27th April 2012.
Acts & Sections
- Maharashtra Regional and Town Planning Act, 1966: 53(1)
- Mumbai Municipal Corporation Act, 1888:
