Bombay HC disapproves pleas seeking regularisation of illegal structures as fundamental right

In a noteworthy ruling, the Bombay High Court, on October 5, took a decisive step by lifting the stay on the demolition of a shop situated within the premises of a housing society in Jawahar Nagar, Goregaon (west). This decision highlighted a worrying trend where many people think they can easily make unauthorized constructions and then expect them to be legalized, blurring the lines between what's legal and illegal in planning law. Justices Gautam Patel and Kamal Khata expressed concerns that regularization is now viewed as a fundamental right. Many believe planning laws do not matter, and they can build unauthorized structures and seek regularization.
The owner of the shop, Prakash Aswani, had sought the High Court's intervention to challenge the BMC's demolition notice issued in November 2021. As an interim measure pending further hearings, the High Court had previously stayed the demolition until December 2021. In January 2023, Vallabha Krupa CHS informed the High Court that the shop obstructed the ongoing redevelopment of their building as it had been constructed in the passage leading to the building's entrance. Aswani's advocate, Hrushi Narvekar, admitted that there were no building permissions obtained for the shop. He explained that the shop was constructed prior to BMC's 1962 datum line, and Prakash Aswani's father took possession of it only in June 1995.
However, the judges clarified that this information did not bolster Aswani's case. Under municipal law, a structure must either be authorized or considered a 'tolerable' structure, proving its existence prior to a specific datum line. The judges dismissed claims that the shop had been in existence for a long time as legally inconsequential. Furthermore, the judges expressed their exasperation, noting that in nearly every case involving unauthorized constructions, the same defence was trotted out: applications for regularization or appeals against rejections under the Maharashtra Regional Town Planning Act.
BMC's advocate, Kunal Waghmare, confirmed that the structure had no official permissions and that applications for regularization had been rejected in both 2013 and 2022. The judges found it problematic that the situation had evolved to the point where the regularization of an unauthorized structure was treated as an unquestionable right. They asserted that this undermined the fundamental principles of planning law, blurring the line between an irregularity that could be regularized and an illegality that, by definition, cannot be rectified.
In conclusion, the High Court dismissed Aswani's petition and lifted the stay. The judges declined Narvekar's request to extend the stay for an additional four weeks, stating that the petitioner had already benefited from the stay order for an extended period.

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Bombay HC disapproves pleas seeking regularisation of illegal structures as fundamental right

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