The Bombay High Court dismissed a petition challenging the order of demolition of an unauthorized construction in a Red Zone area. The petitioner sought the regularization of her construction, but the Court upheld the Cantonment Board's decision to demolish the structure and imposed costs of Rs. 1,00,000 on the petitioner. The Court further directed the Board to complete the demolition and submit a compliance report.

1. Unauthorized Construction on Private Land (Paras 1-3):

The petitioner, Lekha Ali Shaikh, constructed an unauthorized structure on her private land without prior approval from the concerned authority. Initially a small structure, it was later expanded under the guise of repairs. The case highlights a common problem of unauthorized construction by landowners, undermining lawful governance.

2. Petition Filed Against Demolition (Paras 4-5):

The petitioner sought a writ of mandamus to quash the Cantonment Board's order dated 12 January 2015, which directed the demolition of her unauthorized construction in a Red Zone. The petitioner argued that her building could not be sanctioned due to the location being in a restricted area.

3. Petitioner's Claim to Ownership (Paras 6-7):

The petitioner claimed to have purchased the land in her minor son's name in 2009. She admitted constructing a 750 sq. ft structure with a tin roof, paying property taxes, but failed to mention whether she had sought permissions or obtained occupancy certificates.

4. Deemed Sanction Argument (Paras 8-13):

The petitioner argued that she applied for repairs and additional construction, submitting forms to the Cantonment Board in 2010. After receiving no response, she assumed deemed sanction under Section 238(6) of the Cantonments Act, 2006. However, her application was later rejected by the Board in 2013, citing unauthorized construction in the Red Zone.

5. Rejection of Petitioner's Arguments (Paras 14-17):

The Court dismissed the petitioner's argument of deemed sanction, ruling that the structure was illegal from the outset. The petitioner failed to show any valid permissions for the original structure, and her subsequent actions could not legalize it.

6. Suppression of Material Facts (Paras 18-19):

The Court found that the petitioner suppressed material facts, including a letter from the Board requiring her to pay processing fees, which she failed to do. This suppression of facts was a critical reason for dismissing the petition.

7. Illegal Construction in Red Zone (Paras 20-21):

The petitioner contended that the area was not a Red Zone when she first built the structure. However, the Court ruled that, since the area was declared a Red Zone, all construction was unauthorized and subject to demolition under the Works of Defence Act, 1903.

8. Court's Final Ruling (Paras 22-24):

The Court dismissed the petition with costs of Rs 100,000, instructing the Cantonment Board to file an affidavit explaining why no action was taken for nine years to demolish the unauthorized construction. The Board must submit a compliance report with photographs of the demolition by 22 November 2024.

Acts and Sections Discussed:

• Cantonments Act, 2006:
  • Section 238(6): Deemed sanction if the Board neglects or omits to respond within the stipulated time.
  • Section 248(1): Provisions related to unauthorized constructions and their removal.
  • Section 340: Procedures for appeal against orders.
• Works of Defence Act, 1903: The Red Zone restrictions under which no construction is allowed near defense installations.

Ratio Decidendi:

The Court held that the petitioner’s structure was illegal from its inception and could not be regularized through subsequent applications for repair or extension. The petitioner failed to establish any deemed sanction, and her suppression of key facts further weakened her case. Additionally, no construction is permitted in the Red Zone, making the structure liable for demolition. The Court emphasized the importance of compliance with the law, rejecting the argument that future changes in zoning laws could justify retaining the unauthorized structure.

Subjects:

Unauthorized Construction, Red Zone, Cantonment Laws
Illegal Construction, Red Zone Demolition, Cantonment Board, Property Law, Unauthorized Structures