In a writ petition filed before the Bombay High Court seeking a direction to call the records as well as proceedings regarding the structure erected by the petitioners, and to quash a Common Public Notice dated 23-11-2022 issued by the Deputy Collector (Encroachment and Removal), Chembur, Mumbai, a Division Bench of Justice A.S. Gadkari and Justice Shyam C. Chandak noted that the petitioners had not obtained permission from a competent authority and refused to entertain the petition.
The Deputy Collector (Encroachment and Removal) issued the subject notice to call upon the persons responsible for the illegal construction on the subject land, owned by the State, to remove the illegally encroached structures.
The petitioners submitted that they had constructed their premises on the subject land prior to 1960, i.e., prior to the datum line, and therefore their structures were, inter alia, protected. It was also mentioned that in a suit filed by the petitioners against the Union of India, the Trial Court had granted them interim relief, meaning that the said structures could not be demolished.
The Court noted that no sanction or permission was granted to the petitioners by any competent authority for the said construction. It was stated that the Mumbai Municipal Corporation came into existence in 1888, and since then, a person residing within the MMC’s jurisdiction must obtain permission before erecting a structure.
Considering the petitioners’ contention that they had not been afforded an opportunity to be heard by the competent authority, the Court said that an opportunity was afforded by this Court, but, despite repeated requests, no document or authorisation permitting the construction of the structures was produced. Further, the Court found that after obtaining interim relief, the petitioners had not moved the suit before the Trial Court, and since they did not have lawful authorisation, there are no merits in the suit that is kept pending on the file of the Trial Court.
Thus, the Court refused to entertain the petition, noting that there was no sanction by any competent authority. While dismissing the petition, the Court said that empty sympathy, contrary to the Supreme Court’s ratio in Rajendra Kumar Barjatya & Anr. v. U.P. Avas Evam Vikas Parishad & Ors. 2024 SCC OnLine SC 3767 and Kaniz Ahmed v. Sabuddin & Ors. 2025 SCC OnLine SC 995 could not be shown to the petitioners.
Appearances:
For Petitioners – Mr. Vishal Kanade, Ms. Tanya, Mr. Pravin V. Kamble
For Respondents – Mr. D.P. Singh, Mr. Shreeram Redij, Mr. Mohit Jadhav (Addl. GP), Mr. Girish Godbole (Sr. Advocate), Mr. Jyoti Mhatre, Ms. Komal Punjabi
