Bombay High Court: In the present case, a petition under Article 226 of the Constitution was filed by the petitioners, who were the owners of piece and parcel of land bearing Survey No. 46 admeasuring 18,122 sq.m. situated in Birivade, Thane, within the jurisdiction of Respondent 1, praying to issue appropriate writ, order, or direction requiring Respondents 1 and 2 to initiate proceedings under Section 260 of the Maharashtra Municipal Corporation Act, 1949 read with Sections 52, 53, 54, and 55 of the Maharashtra Regional and Town Planning Act, 1966 against Respondent 3 and its Trustees- Respondents 4 to 9, for demolishing the unauthorized and illegal encroachment on portion of the said lands.
The Division Bench of A.S. Gadkari* and Kamal Khata, JJ., did not accept the contention that due to strong opposition from a mob which had gathered on 19-4-2025 at the site of an unauthorized construction of a mosque (‘the writ structure’), the remaining demolition work could not be completed. The Court thus directed Respondent 1 to undertake the remaining demolition work immediately after the holy month of Ramadan/Ramzan ends and shall complete it within a period of two weeks, i.e. by 14-4-2025.
Background
Pursuant to receiving the complaint of an unauthorized construction, site inspection of the said construction was carried out on 1-1-2025, which revealed construction of G+1 storey of a mosque admeasuring 60’x60’ including a prayer hall admeasuring 10’x20’. The occupants claimed that the construction was very old partaking to a period when area was within the limits of erstwhile Gram Panchayat but could not produce any permission for the construction and no permission for the said construction was available in the municipal record. Thereafter, a Notice dated 6-1-2025 was served and a hearing was held on 22-1-2025 before the Assistant Commissioner, Majiwada-Manpada Ward Committee. During the hearing no documents evincing permissions were produced, therefore, an Order dated 27-1-2025 was passed declaring the writ structure to be unauthorized and directions were issued to remove it.
By an Order dated 27-1-2025, Respondent 1 granted 15 days that expired on 10-2-2025. On 20-2-2025, this Court noted that in furtherance of the Order passed by the Assistant Commissioner on 27-1-2025, the demolition work of offending structure had already undertaken, and necessary compliance report would be filed on 4-3-2025. On 4-3-2025, the Court noted that partial demolition of the said structure was carried out and due to the resistance from the followers/devotees offering prayer at the writ structure, further demolition work could not take place.
Counsel for the respondents stated that the remaining construction would be demolished by Respondent 1 within four weeks on the conclusion of Ramadan month this year. It was submitted that Respondent 1 had initiated disciplinary action against the erring Officers/employees by issuing show cause notices and after receiving reply from them, further enquiry would be conducted.
Analysis, Law, and Decision
The Court noted that the entire structure which was not more than 3600 square feet could not be demolished within four working days, because on 19-2-2025, a large mob gathered at the writ structure and opposed the demolition and therefore the Officers of Respondent 1 could not complete the demolition.
The Court in its order dated 5-2-2025, observed that the Officers of Respondent 1 appeared to have been deliberately protecting the illegalities committed by Respondents 4 to 9 and since no reply was filed to the petition despite specific directions, the Court inferred that the Officers had no intention of taking legal action against the illegal structures and/or illegal constructions carried out by Respondents 4 to 9.
The Court relied on Rajendra Kumar Barjatya v. U.P. Avas Evam Vikas Parishad, 2024 SCC OnLine SC 3767 and opined that it could not be accepted that due to strong opposition from a mob which had gathered on 19-4-2025 at the site of writ structure, the remaining demolition work could not be completed. The Court opined that in a democratic State, a person/group of persons/Association could not be permitted to say that it would not follow the law of the land and would oppose it on any ground. Therefore, in such circumstances, it was the duty of the law enforcers to make such person/persons/Association to abide by the law of the land and it was also necessary for the law enforcers to imbibe in the minds of the citizens that the violation of law and/or opposition to implement the law by the State would not be countenanced and/or tolerated.
The Court stated that instead of four weeks as contended, only two weeks were sufficient to carry out the remaining demolition work as the structure had been demolished to a substantive extent. The Court thus directed Respondent 1 to undertake the remaining demolition work immediately after the holy month of Ramadan/Ramzan ends and shall complete it within a period of two weeks, i.e., by 14-4-2025. The Court further stated that neither Respondents 3 to 9 nor any other person should attempt to reconstruct the already demolished portion of the writ structure.
The matter would next be listed on 17-4-2025 for reporting compliance.
[New Shree Swami Samartha Borivade Housing Co. (P) Ltd. v. Municipal Corpn., Thane, Civil Writ Petition No. 6607 of 2024, decided on 10-3-2025]
*Judgment authored by: Justice A.S. Gadkari
Advocates who appeared in this case :
For the Petitioners: Kunal Dwarkadas a/w Nilesh Tated i/b Mahimtura & Co.
For the Respondents: Ram S. Apte, Senior Advocate a/w Mandar Limaye for Respondents 1 and 2; S.S. Patwardhan i/b Mrinal Shelar for Respondent 3; Siddharth A. Mehta a/w Harshada Shrikhande, Vaibhav, and Bhargavi Mundhe for Respondents 5 and 7.
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