No suit in a civil court to challenge the notices issued by the city civic body
The Bombay high court has ruled that a person, housing society or any other organisation cannot file a suit in a civil court challenging the notices issued by the city civic body to demolish an illegal structure. The court observed that the Maharashtra Regional Town Planning Act prohibits anyone from doing so.
The court was hearing an appeal of a Borivali-based housing society Prath-amesh Towers, which had moved the high court against its neighbouring housing society, Shree Ganesh society. The issue was that the Shree Ganesh society had built a wall surrounding its compound after taking permission of the local police station. However, Prathamesh Towers opposed this construction claiming that the wall barred its access to the main road. The city civic body then directed the society to demolish the unauthorised construction. However, the society filed a civil suit challenging the demolition order. Prathamesh Towers then approached the high court.
Advocate H. Shreepad Murthy, appearing for the Prathamesh Towers, argued that that this is a common tendency on part of builders in Mumbai. They construct unlawful structures and then file a civil suit, seeking protection against the demolition order “in the guise of interim orders”. This matter then continues for prolonged periods or even years due to huge pendency of civil suits in trial courts, he argued.
Mr Murthy then informed the court that Under section 149 of MRTP Act, no person can file a civil suit challenging the order of the civic body. He added that the offending party can only file an application seeking the regularisation of the unauthorised structure.
After hearing the arguments, Justice A.P. Bhangale set aside the order of the lower court staying the demolition order and directed the Shree Ganesh society to file an appeal for regularisation before the BMC within one month.
While passing the order, Justice Bhangale observed, “The builder must understand that illegal construction cannot be protected by means of a long, drawn-out litigation like an ordinary civil suit, even if police power is used to protect it while raising an illegal construction. It is well-known that a civil suit, once instituted in Mumbai, remains pending for years or indefinitely long period (due to pendency of cases).”
Jagdish K. Gianchandani