Whether regularization or compounding of illegal development is possible?

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AT AURANGABAD.
WRIT PETITION No. 4045 OF 2005
Ahmednagar Municipal Corporation,

versus
1. The State of Maharashtra,



CORAM : B.P. DHARMADHIKARI &
RAVINDRA V. GHUGE, JJ.

Date of pronouncing the
judgment : 10th December 2013
JUDGMENT (Per B.P. Dharmadhikari, J.) :
Read original judgment here;click here

Citation;2014(3) MHLJ167 Bom

 The next question is whether the development in
contravention of DP can be regularized or condoned.
Pendency of EP 44 before the State Government is not in
dispute & there are no prayers for its expeditious disposal by
anybody. Time being spent prejudices general public as the
construction in blatant breach of law continues & may
encourage the others to follow the footsteps. It is bound to
help Respondent No. 5 as it/he has inducted the occupants,
obviously not free of charge. It has not brought on record
the agreements subject to which the occupants have been
introduced in the stadium or shopping plazas A & B. None of
the parties before us have also shown that much diligence &

have assisted & permitted Respondent 5 to continue to earn.
Even no directions to disclose the names of occupants or to
file the accounts periodically are obtained. Recent judgment
of Hon'ble Apex Court in Esha Ekta Apartments Cooperative
Housing Society vs. Municipal Corporation of
Mumbai (supra) clinches the law on regularization of such
developments & it lays down that an analysis of the
provisions of 1966 Act makes it clear that any person who
undertakes or carries out development or changes the use of
land without permission of the Planning Authority is liable
to be punished with imprisonment. At the same time, the
Planning Authority is empowered to require the owner to
restore the land to its original condition as it existed before
the development work was undertaken. The scheme of these
provisions does not mandate regularization of construction
made without obtaining the required permission or in
violation thereof. While rejecting the arguments of occupants
for leniency, Hon. Court also concluded that the flat buyers
had consciously occupied the flats illegally constructed by

the developers/builders. In this scenario, the only remedy
available to them was held to be to sue the lessee and the
developer/builder for return of the money and/or for
damages and they cannot seek a direction for regularization
of the illegal and unauthorised construction made by the
developers/builders. Here also it was duty of the occupants
to verify the sanctions & then only to buy or book. The
relevant records could have been inspected by them in the
office of Petitioner or Respondent Nos. 2 or 5. If assertions of
all the parties before this Court are correct, then none of the
occupants has paid either the occupation charges or taxes.
The deviation from the sanctioned plan while providing shop
blocks in peripheral wall of the structure of stadium itself
may call for a little different perspective. But two buildings A
& B of shopping plazas have come up at a place to be left
either open to sky or then for parking,fountain etc. Need of
huge parking space for a stadium with seating capacity of
40,000 spectators can not be overlooked & Respondents
have not pointed out any alternate arrangements made by

them for parking. They have increased the number of shop
blocks and by adding the shopping plazas, added to the
chaos. Obviously they have loaded public roads or lands in
vicinity with the burden of that parking. By placing reliance
upon CA 10151 of 2009, Shri Mantri, the learned Counsel
has urged that about 5285 Sq. Mtrs. of open space is
available for parking. However, said space is not shown to be
part of the project or development undertaken by the
Respondent 5. Respondents 2, 3 & 4 who must & ought to
have realized the problem also conveniently turned a
nelson's eye. Petitioner as also respective Respondents Nos. 1
to 4 by observing silence assisted the cause of Respondent
No. 5. It is difficult to accept submission of Adv. Mantri that
Respondent No. 5 is also not in position to recover any
amount from the occupants. If occupants are really not
paying anything, neither in law nor in equity, they deserve
any consideration. Here, the original reservations are on two
different sites and for two mutually exclusive purposes. Now,
the effort of Respondents No. 2 to 5 is to eliminate entire

reservation for Garden & to club both sites together for
supporting the development of stadium, sports complex &
shopping center. EP 44 is aimed at this purpose but then
State Government could not clear it till date. Hence, said
modification is not legally in existence today and can not
support the unauthorised illegal deviations of the
Respondents. Current user contrary to law also can not
continue. Commissioner of Municipal Corporation, Simla
vs. Prem Lata Sood & Others (supra) is the other leading
Apex Court judgment which shows that when the law is
breached & statutory restrictions are overlooked, there is no
question of deemed sanction. It also shows that a vested
right can not be taken away, because the amendment
proposal is in offing. Division Benches of this Court in
Ghanshyam Chandumal Harwani vs, State Of
Maharashtra (supra) & Vithal Ramchandra Devkhar vs.
State of Maharashtra (supra) again follow these principles
only. The expectations of wrongdoers that their leaders will
dilute law again & again must be nipped off in bud.

Politicians can not, on one hand take steps in larger public
interest & make laws to redress the mischief i.e. for proper
development of towns and then, on the other hand, kill that
legislation by misusing their positions. Acceptance of such a
course of conduct by Courts will legalise the backdoor
breaches & violations of DP & result in a sick democracy in
every sense. This is high time to note that neither the highest
politician nor the top bureaucrat is above law & must obey
it. Bureaucrats are bound to implement the law & policy.
They will be right & must be strong enough to refuse to tow
the line of such leaders & influential builders. If they lack
this courage, they are unfit to hold the responsible positions
which they occupy & in process, also disrespect the law of
the land. Such dereliction of the duties on their part can
never be countenanced & must be sternly dealt with. In
view of clinching precedents of the Hon'ble Apex Court on
the controversy, it is not necessary to deal with the
judgments of this Court. Inevitable conclusion is
regularization or compounding of the illegal development in

present matter is not possible. Hence, pendency of an appeal
u/S. 47 by Respondent no. 2 is of no consequence. It can
also be noted here that the appeal has been filed only to
prolong the life of & avoid action against the development
in dispute. None of the Respondents have seriously
prosecuted it. Pending arbitration proceedings also have got
no bearing on the controversy involved in this petition.
26. The land of final plot no. 194 i.e. reservation site
165/166 is public property. Petitioner Municipal Corporation
can not claim any exclusive right to deal with it or to earn
out of it. Legally, it can not claim any prejudice if the sites
are put to legitimate use. The vesting of stadium or sports
center or power to control it, whether with the Petitioner or
the Respondent No. 2, cannot in these facts be construed as
an unforeseen eventuality. Petitioner was aware that the site
is to be developed for stadiumsports
center and also agreed
to its development by Respondent 2. 

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