Bombay High Court
NIRMALA RUPCHANDRA GHATAWAT AND ORSversusCOLLECTOR OF PALGHAR AND ORS
- Decided
- Disposal
- Disposed Off
Holding
The order dated 3 February 2026 passed by the Tahsildar is valid, and the writ petition is dismissed.
Summary
The petitioners, a group of women, purchased a former Gram Panchayat house and, relying on a No‑Objection Certificate from the village panchayat, erected 54 tin sheds. The Tahsildar of Palghar issued a notice and an order on 3 February 2026 directing removal of the sheds, alleging lack of permission from the Planning Authority. The petitioners sought a temporary injunction, which was rejected by the trial court and the appeal was dismissed. They filed a writ petition under Article 227 challenging the Tahsildar’s jurisdiction, arguing that the delegation of powers from the Mumbai Metropolitan Region Development Authority (MMRDA) to the Collector and then to the Tahsildar was invalid. The High Court held that the delegation under Section 151(3) of the MRTP Act and the Collector’s power under Section 18(1)(iii) validly empowered the Tahsildar, and that the structures were unauthorized and could not be protected by equity. Consequently, the writ petition was dismissed.
Issues considered
- The Tahsildar’s authority to issue an order under Sections 52‑54 of the MRTP Act after delegation by the Collector and MMRDA.
- Whether the delegation of powers from the Special Planning Authority (MMRDA) to the Collector and subsequently to the Tahsildar is valid under Section 151 of the MRTP Act.
- Whether the petitioners are entitled to a temporary injunction to restrain demolition of unauthorized structures.
- Whether the writ jurisdiction under Article 227 can be invoked to set aside the Tahsildar’s order despite its procedural validity.
Legislation cited
- General Clauses Act, 1904 — s. 24, 25
- Maharashtra Regional and Town Planning Act, 1966 — s. 143, 149, 151, 18(1)(iii), 2(19), 40, 52, 53, 54
Subjects
- unauthorised construction
- MRTP Act
- delegation of powers
- temporary injunction
- writ petition
- Article 227
- planning authority
- special planning authority
- demolition
- Section 18
- Section 151
- Section 143
- Section 149
Judgment
WP-9692-2026.DOC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 9692 OF 2026
1. Smt. Nirmala Rupchandra Ghatawat
Age 59 years, Occ.: Household,
R/o. Flat No.101/102, Rooprajat
Vihar, in front of Govt. Hospital,
SAINATH
SANJAY Navapur Road, Boisar Taluka,
BODKHE District Palghar.
Digitally signed
by SAINATH
SANJAY BODKHE
Date: 2026.09.01
22:13:00 +0530
2. Smt. Manju Chandan Solanki
Age 57 years, Occ.: Household,
R/o. Roop Solanki Palace,
Bunglow No.1, Rooprajat,
Near CIDCO Colony, Tarapur Road,
Taluka, District Palghar.
3. Smt. Meena Gautam Solanki
Age 51 years, Occ. Household
R/o. Roop Solanki Palace,
Bunglor No.2, Rooprajat,
Near CIDCO Colony, Tarapur Road,
Taluka, District Palghar.
4. Smt. Reena Ajay Ghatawat
Age 41 years, Occ.: Household,
R/o. Flat No. 101/102, Rooprajat
Vihar, in front of Govt. Hospital,
Navapur Road, Boisar Taluka,
District Palghar.
5. Smt. Sangita Mahavir Solanki
Age 49 years, Occ.: Household,
R/o. Second Floor, Olampus Building
Tarapur Road, SBI Bank,
Khodaram Bagh, Boisar,
Taluka, District Palghar.
6. Smt. Heena Deepak Ghatawat
Age 35 years, Occ.: Household,
R/o. Flat No.101/102, Rooprajat
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Vihar, in front of Govt. Hospital,
Navapur Road, Boisar Taluka,
District Palghar.
Through Power of Attorney Holder
Shri. Ajay Roopchand Ghatawat
Age 41 years, Occ.: Business,
R/o. Room Nirmal, Bunglow No.4,
Pushkar Park, Near CIDCO Colony,
Tarapur Road, Taluka, District Palghar. ...Petitioners
Versus
1. Collector of Palghar
Collector office, Palghar,
Taluka District Palghar
2. Tahsildar of Palghar
Tahsildar office, Palghar,
Taluka, District Palghar.
3. Circle Officer of Boisar
Circle office, Boisar,
Taluka District Palghar
4. Mumbai Metropolitan Regional
Development Authority (MMRDA)
through Authorized Representative
having office at MMRDA, BKC,
Bandra Kurla Complex, E-Block,
Mumbai - 400051 …Respondents
_____________ _______ ____ _________
Mr. Girish Godbole, Senior Advocate, a/w Mr. Devashish
Godbole, Mr. Mayank Gandhi, Mr. Dipak Bobade, Mr.
Prithviraj Kharat, for the Petitioners.
Smt. Mamta S Srivastava, AGP for Respondent Nos. 1 – 3.
Mr. Akshay Shinde, for Respondent No.4 - MMRDA.
_____________________________________
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CORAM : N. J. JAMADAR, J.
RESERVED ON : 18th AUGUST 2026
PRONOUNCED ON : 01st SEPTEMBER 2026
JUDGMENT:
1. Rule. Rule made returnable forthwith, and, with the
consent of learned Counsel for the parties, heard finally.
2. By this petition under Article 227 of the Constitution of
India, the petitioners take exception to a judgment and order
dated 23rd July, 2026 passed by the learned District Judge-1,
Palghar in Miscellaneous Appeal No.09/2026 whereby the
appeal preferred by the petitioners - plaintiffs against an order
dated 10th June, 2026 in RCS No.10/2026 passed by the trial
Court thereby rejecting the application for temporary
injunction filed by the plaintiffs to restrain the defendants from
taking action pursuant to an order passed by the Tahsildar,
Palghar (D-2), came to be dismissed by affirming the said order
passed by the trial Court.
3. The background facts, leading to this petition, can be
summarized as under :-
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3.1 On 22nd June, 2023, under a registered sale deed, the
plaintiffs purchased old Gram Panchayat House Nos.460 to 462
situated on Gat No.100 at village Boisar (“suit property”).
3.2 On 07th October, 2024, the Village Panchayat, Boisar
issued a No Objection Certificate for erecting construction over
the suit property. Armed with the said NOC, the petitioners
erected tin sheds over the suit property.
3.3 On 17th July, 2025, the Tahsildar, Palghar (D-2) issued a
notice to the petitioners alleging that, without obtaining the
permission of the District Collector, Palghar, the petitioners
had unauthorizedly erected 54 sheds admeasuring 6 x 3.05 sq.
mtrs. each, and the petitioners were called to appear for
hearing before the Tahsildar on 24th July, 2025.
3.4 The petitioners filed a reply contending, inter alia, that,
the Gram Panchayat, Boisar had granted NOC on 27 th October,
2024, the development was carried out in conformity with the
building potential and the petitioners had already filed an
application on 21st August, 2025, before the District Collector,
Palghar, seeking regularization of the said development under
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Section 143 of the Maharashtra Regional and Town Planning
Act, 1966 (“MRTP Act, 1966”).
3.5 After hearing the parties, on 03rd February, 2026, the
Tahsildar passed an order directing the petitioners to remove
the unauthorized development in an area admeasuring 21.25
sq. mtrs. within seven days, lest, those unauthorized
structures would be demolished.
3.6 The petitioners instituted a suit before the Civil Judge,
Senior Division, Palghar seeking a declaration that, the said
order dated 03rd February, 2026 was a nullity and the
consequential relief of restraining the authorities from acting
on the said order dated 03rd February, 2026.
3.7 In the said suit, the plaintiffs took out an application for
temporary injunction. By an order dated 10 th June, 2026, the
learned Civil Judge, Palghar was persuaded to reject the
application observing inter alia that, prima facie, the
construction was carried out sans permission of the Planning
Authority, and the plaintiffs were provided an efficacious
opportunity of hearing and the order dated 03 rd February, 2026
was passed by the Defendant No.2 after following due process
of law.
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3.8 Being aggrieved, the petitioners preferred an appeal
before the District Court. By the impugned judgment and
order, the learned District Judge dismissed the appeal
founding no reason to interfere with the exercise of the
discretion by the trial Court as the structures erected by the
plaintiffs were completely unauthorized and illegal. It was
further observed that, in view of the bar contained in Section
149 of the MRTP Act, 1966, the suit assailing the order passed
thereunder, was not tenable. There was nothing to indicate
that, the order dated 03 rd February, 2026, was nullity as it was
passed in conformity with the provisions of the governing
statute and by observing fundamental principles of judicial
process.
3.9 Being further aggrieved, the plaintiffs have invoked the
writ jurisdiction of this Court.
4. I have heard Mr. Girish Godbole, the learned Senior
Advocate for the petitioners, Smt. Mamta Srivastava, the
learned AGP for Respondent Nos.1 to 3 – State and Mr. Akshay
Shinde, the learned Counsel for Respondent No.4 – MMRDA,
which came to be impleaded in this petition. With the
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assistance of learned Counsel for the parties, I have also
perused the material on record.
5. Mr. Godbole, the learned Senior Advocate for the
petitioners, would submit that, the Courts below have not
examined the core issue of the authority of Tahsildar, Palghar
(D-2) to initiate action under the provisions of MRTP Act, 1966.
The competence of Tahsildar, Palghar (D-2) to issue notice
alleging unauthorized development, hear the parties and
thereafter pass the order, by invoking the powers contained in
Sections 52, 53 and 54 of the MRTP Act, 1966, goes to the root
of the matter.
6. Amplifying this submission, Mr. Godbole submitted that,
the Courts have not applied their mind to the consequences
that ensued the notification dated 09th July, 2024 extending
the Mumbai Metropolitan Regions Area and appointment of the
Mumbai Metropolitan Region Development Authority
(“MMRDA”) as Special Planning Authority under Section 40(1)
of the MRTP Act, 1966. By the said notification the area
specified in Schedules - II, III and IV appended thereto,
including the lands situated at village Boisar, were notified as
MMR’s extended notified area and the MMRDA came to be
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appointed as the Special Planning Authority, withdrawing the
appointment of the City and Industrial Development
Corporation (“CIDCO”) as a Special Planning Authority for the
villages described in the Schedule-I appended thereto.
7. Though by a subsequent order dated 03rd January, 2025,
the MMRDA has delegated its powers as the Special Planning
Authority to the District Collector, yet, the Tahsildar, Palghar
(D-2) could not have exercised the powers delegated by the
District Collector vide order dated 31st March, 2022. Laying
emphasis on the provisions contained in Section 151 of the
MRTP Act, 1966 which provides for delegation of the power,
inter alia, by the State Government, any Regional Board,
Planning Authority, or the Development Authority, Mr. Godbole
would submit that, none of the provisions which permit the
delegation of powers could be lawfully invoked in the instant
case.
8. At any rate, the Authority to whom the State Government
or Regional Board, Development Authority or Planning
Authority has delegated the power, could not have further
delegated the said power to a subordinate authority. On this
count alone, Mr. Godbole would urge, the order dated 03 rd
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February, 2026, becomes null and void. The Courts below
were, thus, in error in rejecting the application for temporary
injunction when the challenge was to the jurisdictional
competence of the Tahsildar, Palghar (D-2) to pass the order
dated 03rd February, 2026.
9. Mr. Godbole fairly submitted that, the petitioners cannot
run away from the fact that structures have been erected
without obtaining permission of the Planning Authority and
even the application for regularization under Section 143 of the
MRTP Act, 1966, has been rejected. Nonetheless, since the
order dated 03rd February, 2026 passed by the Tahsildar,
Palghar (D-2) is sans legal authority, no action can be taken on
the basis of such order.
10. Smt. Srivastava, the learned AGP for Respondent Nos.1 to
3, forcefully countered the submissions on behalf of the
petitioners. Smt. Srivastava urged that, the central issue was of
unauthorized construction. Indisputably, the petitioners had
not obtained permission for erection of as many as 54
structures over the suit property. Thus, the petitioners do not
deserve any equitable relief, despite having brazenly erected the
structures sans permission of the Planning Authority.
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11. Smt. Srivastava, would urge that, the initial reliance on
the purported NOC granted by the Village Panchayat, Boisar is
of no assistance to the petitioners. The Village Panchayat,
Boisar is not a Planning Authority and, thus, on the basis of
NOC issued by the said panchayat, the construction could not
have been erected. To buttress this submission, Smt.
Srivastava placed reliance on a Division Bench judgment of
this Court in the case of Om Sai Builders and Developers Vs.
Assistant Controller (A.B.) Mumbai Metropolitan Region
Development Authority Sub-Regional Office & ors1.
12. Smt. Srivastava further submitted that, since the Courts
below have concurrently declined to exercise the discretion in
favour of the petitioners and the facts of the case are so gross
that the petitioners cannot claim any equity, this Court need
not interfere with the impugned orders.
13. Mr. Shinde, the learned Counsel for the Respondent No.4
– MMRDA also supported the impugned action. It was urged
that, there was neither a challenge to the Notification dated
09th July, 2024 nor to the delegation of power by the MMRDA,
vide letter dated 03rd January, 2025. Under the said delegation
1 WP/10429/2010 dt. 13/03/2012
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dated 03rd January, 2025, the District Collectors were
empowered to exercise the powers of the Planning Authority in
accordance with the prevailing operating procedure in the
matter of discharging the functions of the Planning Authority.
The District Collectors were empowered to exercise the powers
and perform the duties under MRTP Act, 1966 by following the
prevalent operating procedure at their level. Therefore, the
exercise of the power by the Tahsildar under the delegated
authority, cannot be questioned.
14. Mr. Godbole joined the issue by canvassing a submission
that, before the Special Planning Authority came to be
appointed the Collector could have exercised the powers of
Planning Authority and even delegated his powers to an Officer
not below the rank of Tahsildar under Section 18 of the MRTP
Act, 1966. However, after CIDCO and MMRDA were
successively appointed as the Planning Authorities, the
Collector could not have delegated the powers to the Tahsildar;
the former being a delegate of the Special Planning Authorities.
Therefore, the support sought to be drawn from the letter dated
03rd January, 2025 whereunder the powers of MMRDA were
delegated to the District Collector, cannot be countenanced.
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15. To start with, it is necessary to note that, the fact that
the petitioners have erected structures over the suit property
sans permission of any Planning Authority is rather
incontrovertible. Though initially an endeavor was made by the
plaintiffs before the Courts below that the Village Panchayat,
Boisar had granted the NOC, yet, the said case was not
pursued further. It is indubitable that, the Village Panchayat is
not a Planning Authority within the meaning of MRTP Act,
1966. It is also not in dispute that, an application preferred by
the petitioners before the District Collector under Section 143
of the MRTP Act, 1966, came to be rejected. The situation
which, thus, emerges is that, the structures erected by the
plaintiffs are completely unauthorized and illegal. The only
question that merits consideration is whether the petitioners
are entitled to protect the unauthorizedly erected structures on
the premise that, the order dated 03 rd February, 2026, passed
by the Tahsildar (D-2), is without any authority.
16. As the controversy revolves around the question as to
whether the impugned action was taken in pursuance of the
authority delegated by the Planning Authority, it may be
appropriate to note the definition of the various authorities
envisaged by MRTP Act, 1966.
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17. Under sub-section (19) of Section 2 of the MRTP Act,
1966, ‘Planning Authority’ means a local authority; and
includes, -
(a) Special Planning Authority constituted or
appointed or deemed to have been appointed under
section 40;
(b) in respect of the slum rehabilitation area
declared under section 3C of the Maharashtra
Slum Areas (Improvement, Clearance and
Redevelopment) Act, 1971, the Slum Rehabilitation
Authority appointed under section 3A of the said
Act;
18. Sub-section (8) of Section 2 defines ‘Development
Authority’ to mean a New Town Development Authority
constituted or declared under section 113. Under sub-section
(24) of Section 2, ‘Regional Board’ or ‘Board’ means the
Regional Planning Board constituted under Section 4 of the
MRTP Act, 1966. Sub-section (31) of Section 2 defines ‘Town
Planning Officer’ as the Officer appointed for the time being to
be the Town Planning Officer for all or any of the provisions of
that Act.
19. Section 40 of MRTP Act, 1966 empowers the State
Government to appoint a Special Planning Authority for
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developing the notified area. Under Section 160, the State
Government is empowered to dissolve the Special Planning
Authority or declare that the Planning Authority shall cease to
function as the Planning Authority in relation to specified area.
20. Since in the facts of this case, there is no challenge to the
power of the Planning Authority to invoke the powers under
Sections 52, 53 and 54 of the MRTP Act, 1966, it would be
superfluous to note the import of those provisions. It would be
appropriate to straightway notice the provisions contained in
Section 151 of the MRTP Act, 1966. It reads as under :
“151. Power to delegate
(1) The State Government may, by a notification in the
Official Gazette delegate any power exercisable by it
under this Act, or rules thereunder to any officer of the
State Government [in such case and subject to such
conditions, if any, as may be specified in such
notification] .
(2) The Director of Town Planning may, by an order in
writing, delegate any power exercisable by him under
this Act or rules thereunder to any officer subordinate to
him in such case and subject to such conditions, if any,
or may be specified therein.
(3) Any Regional Board, Planning Authority or
Development Authority may, by a resolution, direct that
any power exercisable by it under this Act, rules or
regulations thereunder (except the power to prepare any
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Regional plan, Development Plan, town planning scheme
or the plan of the New Town or to make regulations) may
also be exercised by any officer of the State Government
with the previous consent of the State Government, the
Regional Board, Planning Authority or local authority or
Development Authority as may be mentioned therein,
such cases and subject to such conditions, if any, as
may be specified therein.
(4) The Town Planning Officer of any Regional Board,
Planning Authority or Development Authority may, by
an order in writing, delegate any power exercisable by
him under this Act, or rules or regulations thereunder
to any officer of the Regional Board, Planning Authority
or local authority or Development Authority in such
cases and subject to such conditions, if any, as may be
specified therein.”
21. Sub-section (1) of Section 151 envisages the delegation by
the State Government of the powers exercisable by it under the
MRTP Act, 1966, to any Officer of the State Government. Sub-
section (3) of Section 151 enables the delegation of the power
exercisable by any Regional Board, Planning Authority or
Development Duthority to an Officer of the State Government,
albeit with the previous consent of the State Government,
subject to such conditions as may be specified therein. The
State Government and the Authorities referred to therein are
thus empowered to delegate the powers exercisable under the
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MRTP Act, 1966 by prescribing the contours of the delegated
authority. The term subject to such conditions appears to be
elastic enough to include in its fold the manner of exercise of
the delegated powers by the Officers of the State Government.
22. As a matter of fact, there is no dispute over the
appointment of CIDCO as a Special Planning Authority vide
Notification dated 4 March 2024. The Notification dated 9th
July, 2024, indicates that the State Government in exercise of
its powers under Section 160 of the MRTP Act, 1966 and all
enabling provisions : (i) withdrew the appointment of CIDCO as
Special Planning Authority for the villages described in
Schedule I appended to the said Notification, including Village
Boisar, (ii) notified the area specified in Schedule II, III and IV
appended thereto, as the Mumbai Metropolitan Region’s
Extended Notified Area and (iii) appointed MMRDA to be the
Special Planning Authority for the said notified area, excluding
the area of Planning Authority, Special Planning Authority and
Development Authority in the said notified area.
23. MMRDA, in turn, vide letter dated 3 January 2025,
delegated its power as the special planning authority in relation
to the MMR’s extended notified area to the District Collectors
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Palghar and Raigad in exercise of the powers under Section
151(3) of the MRTP Act, 1966.
24. In light of aforesaid nature of the enabling provision to
delegate the power exercisable under the MRTP Act, 1966, if
the letter dated 3 June 2025 delegating the powers of the
MMRDA as a Special Planning Authority in relation to MMR’s
extended notified area is considered, the sanction of the State
Government for the delegation of the authority becomes evident
from the said letter. It becomes abundantly clear that the
Collector was empowered to exercise the power in accordance
with the prevailing operating procedure. In a sense, delegation
of the authority to perform functions and discharge the duties
under the MRTP Act, 1966 in accordance with the prevailing
operating procedure resurrects the order passed by the
Collector delegating the power to the Tahsildar.
25. If the order passed by the Tahsildar is perused, the
Tahsildar has drawn support from the delegation of the
authority by the Collector vide order dated 31 March 2022.
Pertinently, this order pre-dates the appointment of CIDCO as
the special planning authority, which was pursuant to the
notification dated 4 March 2024, and the appointment of the
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MMRDA as the special planning authority.
26. The question whether a prior order or notification would
survive the appointment of the Special Planning Authority
subsequently, may warrant consideration. The provisions
contained in Section 18(1) (iii), especially the proviso appended
thereto, in the considered view of this Court, deserves to be
read in conjunction with the delegation of the power by the
Special Planning Authority to the Collector under the
provisions of Section 151(3) of the MRTP Act, 1966.
27. Section 18 of the MRTP Act, 1966, provides restrictions
on change of user of land or development thereof. Sub-section
(1) of Section 18 is relevant for the purpose of the
determination of the controversy at hand. It reads as under :
“18.Restriction on change of user of land or
development thereof (1) No person shall, on or after
the publication of the notice that the draft Regional
plan has been prepared or the draft Regional plan
has been approved, institute or change the user of
any land for any purpose other than agriculture or
carry out any development in respect of any land
without the Previous permission,-
(i) in case the land is situated in the limits of a
Municipal Corporation or a Municipal Council, or a
Nagar Panchayat or a Special Planning Authority or
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any other planning authority, of such Municipal
Corporation or Municipal Council, Nagar Panchayat
or Special Authority or other planning authority, as
the case may be, or
(ii) in case the land is situated in the gaothan,
within the meaning of clause (10) of section 2 of the
Maharashtra Land rEvenue Code, 1966, of the
village panchayat concerned, or
(iii) in case the land is situated in areas other than
those mentioned in clauses (i) and (ii) above, of the
Collector of the District :
Provided that, the Collector may delegate his powers
under this clause to an officer not below the rank of
Tahsildar.
Explanation. - For the removal of doubt, it is hereby
declared that, no such permission of the Collector
shall be required in the gaothan area of a revenue
village within the meaning of clause (10) of section 2
of the Maharashtra Land Revenue Code, 1966.”
28. Section 18 (1) (iii) proscribes the change of user of the
land or any development thereof without previous permission
of the Collector of the District, in case the land is situated in
areas other than those mentioned in clause (i) and (ii). The
proviso to clause (iii) empowers the Collector to delegate his
powers under the said clause to an officer not below the rank of
Tahsildar. The rationale of enabling the delegation of the power
of the Collector to Tahsildar in the matter of enforcement of the
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provisions of the MRTP Act, 1966 is required to be appreciated
in the light of the necessity of such delegation. It would be
impracticable to enforce the provisions of MRTP Act, 1966 in
letter and spirit, if a view is taken that every action envisaged
by the MRTP Act, 1966, must be taken by the Collector.
29. Under the principles of legislation, the continuation of re-
enacted notifications and orders passed under a repealed
enactment which are not inconsistent with the reenacted
provisions is the well recognized. The provisions contained in
Section 24 of the General Clauses Act, and Section 25 of the
Maharashtra General Clauses Act, 1904, recognize this
principle. Lest, the operation of the new legal regime would
come to a standstill for want of appointment, notification or
order under the new regime.
30. This analogy can be applied to a situation of the present
nature, where under Section 18 of the Act, 1966, the Collector
is specifically empowered to delegate his authority to Tahsildar
and the Special Planning Authority is also empowered to
delegate its power to the Collector, subject to such conditions
as may be prescribed. A direction for the exercise of the said
power in conformity with the prevalent operating procedure,
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would subsume in its fold the delegation of the powers by the
Collector to Tahsildar.
31. For the foregoing reasons, I am not persuaded to agree
with the submissions of Mr. Godbole that, in the facts of the
case, Tahsildar could not have exercised the powers under
Sections 52, 53 and 54 of the MRTP Act, 1966, as the delegate
of the District Collector, pursuant to the order dated 31 st
March, 2022.
32. Even if this Court were to take a view that, there can be a
duality of opinion on the aspect as to whether the order of the
District Collector dated 31st March, 2022 delegating the power
to the Tahsildar survives after the appointment of the Special
Planning Authority, and that may bear upon the validity of the
order passed by the Tahsildar dated 03 rd February, 2026, yet,
that, by itself, may not be a sufficient ground to exercise the
writ jurisdiction. This Court cannot be oblivious to the facts
which stare in the face and the stark reality of the situation.
Thus, merely questioning the validity of the order passed by the
Tahsildar on the premise of cessation of the delegated authority
would not furnish a justifiable ground to exercise the writ
jurisdiction. It would be incumbent upon the petitioners to
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demonstrate that, the issue of writ would ensure justice and
that justice lies on the side of the petitioners.
33. A profitable reference, in this context, can be made to a
Division Bench judgment of this Court in the case of State of
Bombay Vs. Morarji Cooverji2, wherein the aforesaid principle
was expounded as under :-
“41. But it is not sufficient that a party should
come to this Court and make out a case that a
particular requisition order is not valid. In order to
get that relief from the Court on a writ petition, not
only must he come with clean hands, not only must
he not suppress any material facts, not only must he
show the utmost good faith, but he must also satisfy
the Court that the making of the order will do
justice and that justice lies on his side. …….”
(emphasis supplied)
34. The supervisory jurisdiction under Article 227 of the
Constitution of India is essentially corrective in nature. This
Court may decline to interfere with the order, even if some legal
infirmity is noticed therein, if the justice of the case does not lie
in favour of the party assailing such order. If the final order
appears to be broadly in consonance with the dictate of justice,
2 1958 SCC OnLine Bom 188
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the writ Court may justifiably decline to exercise its
jurisdiction.
35. A useful reference, in this context, can be made to a
judgment of the Supreme Court in the case of Garment Craft
Vs. Prakash Chand Goel3, wherein the following observations
were made :-
“15. The High Court exercising supervisory jurisdiction
does not act as a court of first appeal to reappreciate,
reweigh the evidence or facts upon which the
determination under challenge is based. Supervisory
jurisdiction is not to correct every error of fact or even a
legal flaw when the final finding is justified or can be
supported. The High Court is not to substitute its own
decision on facts and conclusion, for that of the inferior
court or tribunal. The jurisdiction exercised is in the
nature of correctional jurisdiction to set right grave
dereliction of duty or flagrant abuse, violation of
fundamental principles of law or justice. The power
under Article 227 is exercised sparingly in appropriate
cases, like when there is no evidence at all to justify, or
the finding is so perverse that no reasonable person can
possibly come to such a conclusion that the court or
tribunal has come to. It is axiomatic that such
discretionary relief must be exercised to ensure there is
no miscarriage of justice.”
3 (2022) 4 SCC 181
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36. On the merits of the matter, the fact that the erection of
the structure was completely unauthorized, and even an
endeavor on the part of the petitioners to obtain an order of
regularization under Section 143 of the MRTP Act, 1966, has
not succeeded, renders the prayer for interim relief in the
nature of restraining the authorities from demolishing the
unauthorizedly erected structures singularly unsustainable. It
is not a case where the petitioners have obtained the
permission and carried out the development in excess of the
permission, marginally.
37. Smt. Srivastava, the learned AGP, was justified in
canvassing a submission that, there was brazen erection of as
many as 54 tin sheds which have been put to commercial use,
with impunity. The development carried out by the petitioner
was wholly illegal.
38. The unauthorized development cannot be tolerated by the
Courts as an act of judicial generosity. Nor can regularization
of the illegal constructions by the State and its instrumentality
be a policy of governance. The Supreme Court has repeatedly
emphasized that, the illegality in erecting structures throwing
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the Building Control Rules to the wind must be dealt with
sternly and with iron hands. The Courts ought not to show
misplaced sympathy.
39. A profitable reference, in this context, can be made to a
judgment of the Supreme Court in the case of Rajendra Kumar
Barjatya & anr. Vs. U. P. Avas Evam Vikas Parishad & ors. 4 The
observations in Paragraph Nos. 19 and 20 delineate the
approach to be adopted by the Courts in terse terms. They read
as under :-
“19. In a catena of decisions, this Court has
categorically held that illegally of unauthorized
construction cannot be perpetuated. If the
construction is made in contravention of the Acts /
Rules, it would be construed as illegal and
unauthorized construction, which has to be
necessarily demolished. It cannot be legitimized or
protected solely under the ruse of the passage of time
or citing inaction of the authorities or by taking
recourse to the excuse that substantial money has
been spent on the said construction. The following
decisions are of relevance and hence cited herein
below to drive home the point that unauthorized
constructions must be dealt with, with an iron hand
and not kid gloves.
…….
4 2024 SCC OnLine SC 3767
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20. In the ultimate analysis, we are of the opinion
that construction(s) put up in violation of or deviation
from the building plan approved by the local authority
and the constructions which are audaciously put up
without any building planning approval, cannot be
encouraged. Each and every construction must be
made scrupulously following and strictly adhering to
the Rules. In the event of any violation being brought
to the notice of the Courts, it has to be curtailed with
iron hands and any lenience afforded to them would
amount to showing misplaced sympathy. Delay in
directing rectification of illegalities, administrative
failure, regulatory inefficiency, cost of construction
and investment, negligence and laxity on the part of
the authorities concerned in performing their
obligation(s) under the Act, cannot be used as a shield
to defend action taken against the
illegal/unauthorized constructions.”
(emphasis supplied)
40. In the case of Kaniz Ahmed Vs. Sabuddin & ors. 5, after
referring to the directions issued in the case of Rajendra
Kumar Barjatya (supra), the Supreme Court again reminded
the Courts that they must adopt strict approach while dealing
with the illegal constructions and should not readily engage
themselves in judicial regularization of buildings erected
without requisite permission of the Competent Authority. The
5 2025 SCC OnLine SC 995
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observations in Paragraphs No. 6 and 7 are material and,
hence, extracted below :-
“6. The learned counsel appearing for the petitioner
would submit that her client be given one chance to
pray for regularisation of the unauthorised
construction. We do not find any merit in such
submission. A person who has no regards for the law
cannot be permitted to pray for regularisation after
putting up unauthorised construction of two floors.
This has something to do with the rule of law.
Unauthorised construction has to be demolished.
There is no way out. Judicial discretion would be
guided by expediency. Courts are not free from
statutory fetters. Justice is to be rendered in
accordance with law. We are at pains to observe that
the aforesaid aspect has not been kept in mind by
many State Governments while enacting
Regularisation of Unauthorized Development Act
based on payment of impact fees.
7. Thus, the Courts must adopt a strict approach
while dealing with cases of illegal construction and
should not readily engage themselves in judicial
regularisation of buildings erected without requisite
permissions of the competent authority. The need for
maintaining such a firm stance emanates not only
from inviolable duty cast upon the Courts to uphold
the rule of law, rather such judicial restraint gains
more force in order to facilitate the well-being of all
concerned. The law ought not to come to rescue of
those who flout its rigours as allowing the same
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might result in flourishing the culture of impunity.
Put otherwise, if the law were to protect the ones who
endeavour to disregard it, the same would lead to
undermine the deterrent effect of laws, which is the
cornerstone of a just and orderly society. [See : Ashok
Malhotra v. Municipal Corporation of Delhi, W.P. (c)
No. 10233 of 2024 (Delhi High Court)]”
(emphasis supplied)
41. On the aforesaid touchstone, if the facts of the case at
hand are appreciated, the Courts below cannot be said to have
committed any error in declining to grant equitable relief in
favour of the petitioners. Any other view, in the circumstances
of the case, would undermine the efficacy of rule of law.
42. Resultantly, the petition deserves to be dismissed. Hence,
the following order:-
::ORDER::
The Writ Petition stands dismissed.
Rule discharged.
No costs.
[N. J. JAMADAR, J.]
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At this stage, Mr. Godbole, the learned Senior Advocate
for the petitioners, sought continuation of the ad-interim relief
for a reasonable period.
In the light of the view this Court has been persuaded to
take and the peculiar facts of the case, the prayer for
continuation of ad-interim relief is wholly unjustifiable.
Thus, the oral application for continuation of ad-interim
relief stands rejected.
[N. J. JAMADAR, J.]
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