HC: Cannot use lawsuits to protect illegal constructions

Bombay High Court (HC) said in a recent order illegal constructions could not be protected using litigations and that civil courts should be “on guard” while entertaining such suits.

Written by NEERAD PANDHARIPANDE | Published:April 8, 2013 2:39 am

Bombay High Court (HC) said in a recent order illegal constructions could not be protected using litigations and that civil courts should be “on guard” while entertaining such suits.

It granted relief to Prathamesh Tower Cooperative Housing Society in Borivali whose access was blocked by a compound wall built by Gorai Road Shree Ganesh Housing Society. Petitioner Prathamesh Tower CHS claimed Gorai Road Shree Ganesh Housing Society built the wall without municipal corporation permission and received police protection for Rs 2,319.

When the petitioner brought this before the civic body,it issued a notice which was challenged by Gorai Road Shree Ganesh Housing Society in a civil court. The petitioner cited section 149 of Maharashtra Regional Town Planning (MRTP) Act to say the notice issued by the planning authority was final.

Justice A P Bhangale agreed. Calling the civil suit an attempt to buy time,he said,“The civil court must be on guard against such attempts. Discretion of the civil court cannot be used to protect or perpetuate the offending act of illegal construction.” Justice Bhangale noted Gorai Road Shree Ganesh Housing Society could have applied to the corporation for retention of the wall,but it did not.

The judge observed in an order passed on April 7: “The builder must understand illegal construction cannot be protected by a long-drawn-out litigation,even if police power is used to protect it. It is well known that civil suits remain pending for years.” HC said the civil court had erred in entertaining Gorai Road Shree Ganesh Housing Society suit. It also held the action by the municipal corporation against the wall could not be termed unconstitutional.

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