Unauthorized construction built without any initial planning permission or legal title remains fundamentally illegal and incurable. Statutory provisions for retention or regularization are strictly limited to technical irregularities in authorized constructions and cannot be invoked to validate total encroachments on public land.

Headnote:(A) Urban Development - Unauthorized construction - Planning laws - Retention/Regularization application under statute - Scope of jurisdiction - Whether an application can be filed for retention of structure built without any preliminary permission - Held, applications for retention are confined to irregularities where minor deviations from sanctioned plans occur, and cannot be used as a tool to cure total lack of permission or lack of proprietary rights over land. (Paras 19, 53, 87, 88)

(B) Illegal Construction - Incurability of illegality - Where structural development is undertaken without any foundational right to develop or initial permission, such acts constitute a fundamental illegality that is incurable under the premise of compounding or retention. (Paras 4, 89, 93)

(C) Public Trust - Environmental and planning jurisprudence - Construction on public land - Duty of authorities to protect public assets - The concept of sustainable and balanced development mandates that municipal authorities function as trustees of public resources, overriding individual claims arising from illicit activities. (Paras 72, 75, 99)

Facts of the case:
The litigation involves an unauthorized building structure on public land where the planning authority consistently marked the construction as entirely illegal. The developer carried out multiple re-constructions despite repeated demolitions. Occupants claimed possession of these units while asserting ignorance of the existing illegality. The court initiated proceedings under its inherent jurisdiction to address the unauthorized development after determining that the original petitioner lacked sufficient legal standing.

Findings of Court:
The Court determined that no statutory provision empowers the planning authority to regularize a building constructed without any initial planning permission or proprietary interest in the land. The Court further held that the interests of individual occupants cannot override the fundamental illegality of the construction and ordered the complete demolition of the structure.

Issues: Whether a structure built entirely without development permission or legal title over land can be regularized or retained under the relevant planning statutes, and whether the claim of innocent occupants warrants an exception to the demolition of illegal structures.

Ratio Decidendi: The Court concluded that the power to grant retention is restricted to correcting technical irregularities in otherwise authorized constructions and not for curing fundamental encroachments. Any development initiated without a vestige of legal title or initial planning approval represents an incurable illegality that cannot be sanitized by payment of fees.

Result: Petition disposed of with directions for evacuation and demolition of the unauthorized structure.

ORAL JUDGMENT (Per GS Patel J):-

1. The Petition began in the name of an individual, one Monish Chintaman Patil. He filed this Petition on 10th August 2022. He complained that on Gat No 316 of Village Ghansoli within the local limits of the Navi Mumbai Municipal Corporation (“NMMC”) and where the City and Industrial Development Corporation (“CIDCO”) is also an authority, there was a massive illegal construction being carried out by four persons of the Patil family, original Respondents Nos. 4 to 6.

2. The Petition was periodically heard without an effective order until August 2023. On 28th August 2023, this Division Bench noted the essence of the Petition and the issues that arose. We specifically observed that the original Petitioner, Monish, had no locus. He had no interest in Gat No 316. We have always been reluctant, except in a Public Interest Litigation (“PIL”) which requires a demonstration that the petitioner has no interest in the subject matter of the petition, to allow individuals to go around filing petitions regarding properties with which they have no direct concern. A PIL petitioner may certainly espouse such a cause; and indeed, the requirement is that the PIL petitioner should have no personal and direct interest in the subject matter of the petition. It was quite another thing for an individual petitioner to do so without filing a PIL.

3. But from what we were told even then it appeared that this was indeed serious because what the Petitioner was saying, despite his not having locus was actually true: that an entire building had come up with no permission whatsoever on CIDCO-owned land and with no disposal of that land in favour of the persons who had put up the construction.

4. This presented our Division Bench with a rather peculiar circumstance. There was no question of allowing the original Petitioner to continue. At the same time, we did not see how we could completely overlook the issue raised. Consequently, we passed the following order on 28th August 2023:

“1. This Petition discloses what appears to us to be a problem endemic to development in virtually all Municipal Corporation areas. The construction in question is, even according to the Planning Authority, the Navi Mumbai Municipal Corporation (“NMMC”), Respondent No. 2 represented by Mr Dande, entirely unauthorised and illegal. The plot itself on which the construction stands has been acquired for the City and Industrial Development Corporation of Maharashtra (“CIDCO”) from the Petitioner’s ancestors. That land was acquired by the State of Maharashtra and given to and vested in CIDCO.

2. The Petitioner has been complaining about the illegal construction for many years now but we do not see how in this Writ Petition the Petitioner has locus. The land, Survey No. 316 at Village Ghansoli, near Ganesh Apartments, Navi Mumbai is no longer the property of the Petitioner. There is some suggestion to the contrary in the Petition but we will let that pass. The Petitioner cannot demand, as an enforceable, legal or constitutional right in a private Writ Petition (not a PIL), the demolition of a structure on someone else’s land.

3. The Petition itself discloses a long history of litigation. We will highlight only a few facets in today’s order in view of the directions we propose to pass. The construction is of a ground and four floor structure by Respondents Nos. 4 to 7. The NMMC has demolished this construction in its early iterations at least four times. Respondents Nos. 4 to 7 then filed a Civil Suit in the Court of the Civil Judge ( Junior Division) at Vashi and obtained an ad- interim stay. The NMMC filed an appeal and that stay was vacated by the District Court. A Writ Petition filed by Respondents Nos. 4 to 7 before this Court then failed with the observation that there are no permissions whatsoever.

4. This tells us of the very peculiar situation with which we are confronted. On the one hand, it is clear to us that the Petitioner has no locus. But to

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2024 Supreme(Online)(Bom) 6951

Cases Referred (5)