Case Note & Summary
The Petitioner, an occupant of Flat No.801 on the 8th floor of Shivanjali Co-operative Housing Society building, challenged a notice dated 12th June 2018 issued by the BMC under Section 53 of the Maharashtra Regional and Town Planning Act, 1966 (MRTP Act) directing removal of unauthorized constructions from the 2nd to 8th floors. The building approvals were only for ground plus 1st floor, but the developer constructed up to the 8th floor without any occupancy certificate or fire clearance. The Petitioner argued that the notice was not served on individual occupants, that the final order went beyond the show cause notice dated 12th September 2017 which listed only six specific illegalities, and that the BMC's action transgressed an earlier order dated 7th June 2017 in Writ Petition No.56 of 2017 filed by the Society, which was limited to certain structures. The BMC contended that the construction was patently illegal, that notices were served on the owner/developer and society, that the show cause notice put the parties on notice of unauthorized construction, and that the prior order did not bar action on other illegalities. The Court dismissed the petition, holding that individual notice to each occupant is not mandatory for patently illegal constructions, that the final order did not breach natural justice as the parties responded on merits, and that the BMC was not precluded from acting on glaring illegalities discovered during inspection. The Court also noted that the developer's application for regularisation implied admission of illegality and had been rejected.
Headnote
A) Municipal Law - Demolition Notice - Section 53 MRTP Act - Natural Justice - Notice served on owner/developer and society, not on individual occupants - Held that where construction is patently illegal and without any approval, individual notice to each occupant is not mandatory; principles of natural justice are satisfied if affected parties have opportunity to be heard (Paras 5, 15, 18). B) Municipal Law - Show Cause Notice - Scope of Final Order - Section 53 MRTP Act - Show cause notice listed six specific illegalities, but final order directed removal of 2nd to 8th floors - Held that where the show cause notice put the party on notice of unauthorized construction, and the party responded on merits, the final order can cover all illegalities discovered during inspection; no breach of natural justice (Paras 6, 18). C) Municipal Law - Prior Court Orders - Effect on Subsequent Action - Section 53 MRTP Act - Prior writ petition restricted to specific illegalities - Held that BMC is not precluded from taking action on other glaring illegalities discovered during inspection; such action does not violate the prior order (Paras 7, 17). D) Municipal Law - Regularisation - Rejection of Application - Section 53 MRTP Act - Developer applied for regularisation of unauthorized floors - Held that such application implies admission of illegality; rejection of regularisation confirms that construction is unauthorized and liable to demolition (Paras 16, 24).
Issue of Consideration
Whether the impugned demolition notice under Section 53 of the MRTP Act is vitiated by breach of natural justice for non-service on individual occupants, whether the final order travels beyond the show cause notice, and whether the BMC's action transgresses the order in a prior writ petition.
Final Decision
Writ Petition dismissed. Rule discharged. No costs.
Law Points
- Principles of natural justice
- Scope of show cause notice
- Regularisation of unauthorized constructions
- Duty of municipal authorities to act on illegal constructions
- Effect of prior court orders on subsequent action
