Civil suits no longer a tool to protect illegal buildings

In the recent case of Prathamesh Tower Cooperative Housing Society Limited v Gorai Road (Borivali) Shree Ganesh Cooperative Housing Society Ltd And Ors, Bombay High Court held that when a civil suit is expressly barred under the Maharashtra Regional Town Planning Act, 1966 (MRTP Act), a civil suit cannot be instituted as a means to perpetuate the continuing wrong/act of retaining an unauthorized and illegal construction. Instead, the aggrieved can resort to the alternative remedy which is self-contained and available under the provisions of MRTP Act or can invoke writ jurisdiction.

Although the decision as to the finality of the acts of the planning/local authority under the provisions of the MRTP Act is not novel, the court shed light on the use of civil suits as a means to protect and prolong illegal structures, and on the dilatory and mala fide intent of the builders and illegal squatters, thus raising the vigilance of the civil courts.

Facts of the case

The respondents were doing unauthorized construction work on a compound wall, and although they did not seek permission from the planning authority – the Municipal Corporation of Greater Mumbai (MCGM) – as required by law, they had oddly sought police protection for the work.

[ihc-hide-content ihc_mb_type=”show” ihc_mb_who=”3″ ihc_mb_template=”2″ ]

The petitioner had brought this obvious illegality immediately to the notice of the MCGM. A statutory action was initiated under the MRTP Act and the respondents then instituted a civil suit on the grounds that the notice issued under section 53(1) was illegal, bad in law, extraneous, issued on irrelevant considerations and not enforceable in respect of the disputed compound wall.

The main issue before the City Civil Court was whether the suit was maintainable in view of section 149 of the MRTP Act, which provides for finality of orders, notices and directions of the state government, or any regional board, planning authority or development authority. The court decided that the suit was maintainable.

Order and rationale

Bombay High Court quashed and set aside the decision of the City Civil Court, concurring with the petitioner’s contentions about the tendency of builders in Mumbai to file a civil suit to get years of protection for unlawful construction through interim orders. The high court further granted the respondents liberty to apply for authorization for the works under section 44 of the MRTP Act within a month of its order.

A distinction was drawn between section 52 (which provides penalties for unauthorized development) and section 53 (which authorizes the authorities to direct removal of unauthorized development). The court was of the opinion that the legislature could not have intended that unauthorized or illegal construction work should be visited with mere penal consequences. It held that as the unauthorised and illegal development must also be removed, the legislative intent was to make section 53 exhaustive by providing for redressal of grievance under section 53(3) by way of application under section 44.

The court further held that as the local planning authority has the statutory responsibility to execute the final development plan without delay, the statutory provisions enable it to take prompt and effective steps to remove unauthorized development. Section 149 gives the authority’s notices and orders statutory finality and immunity from being challenged.

The act is self-contained to provide the remedies available when a notice is issued. Hence the section expressly and clearly excludes a civil suit, particularly one aimed at perpetuating unauthorized constructions.

Impact

The order specifically addressed every party involved in the process of construction and development. It said that the builder must understand that illegal construction cannot be protected by means of long-drawn-out litigation, even if police power is used to protect the said illegal construction. The civil court must be on guard against such attempts and cannot be used to protect or perpetuate construction that is illegal under the act. The MCGM, as a planning authority, has the statutory power and authority to issue notices and to pass orders to remove unauthorized development.

The order strengthens and validates the MCGM’s authority in light of the flurry of activity and interest taken by the MCGM after the Mumbra collapse, which resulted in the loss of 74 lives. It is noteworthy that only one-third of the 20,000 complaints that have been raised over the past year have been addressed.

In the wake of recent events, the MCGM has instituted a civic squad of 65 officials responsible for taking action against illegal constructions in the city. Such a step was covered under an amendment of the Mumbai Municipal Corporation Act, 1888.

While raising judicial vigilance to reduce dilatory tactics is seen as a welcome move, what the MCGM will do with its now affirmed powers and authority is yet to be seen.

[/ihc-hide-content]

Vivek Vashi is the mainstay of the litigation team at Bharucha & Partners, where Prakritee Yonzon is an associate.