Balaram Ambo Jadhav and Anr. Vs State of Maharashtra through Urban Development Dept. and Ors.

501-ASWP9255-19.DOC

Atul

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 9255 OF 2019

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Balaram Ambo Jadhav & Anr
Versus
State of Maharashtra, through Urban
Development Department & Ors

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...Petitioners

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...Respondents

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Mr RS Kadam, for the Petitioners.
Ms Reena Salunkhe, AGP, for Respondent No. 1- State.
Mr Sandeep Shinde, for Respondents Nos. 2 & 3.

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CORAM:S. C. DHARMADHIKARI &
G.S. PATEL, JJ
DATED:22nd August 2019

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PC:-

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1.The petitioner before us has challenged the proposed
demolition of a building/structure that is the subject matter of the
notices commencing from 12th September 2018 to 7th August 2019.

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2.In all these notices, copies of which have been annexed to the
petition, the petitioner who is styled as owner and equally a
director/manager of Moraya Shikshan Sanstha, accepts that the
construction made of a school building (Vishwas Vidyalaya New
English School) is wholly unauthorized and will have to be
proceeded against. He accepts that he holds no development or

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Page 1 of 4 22nd August 2019

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501-ASWP9255-19.DOC

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building permission. That such a construction is within the Kalyan
Dombivli Municipal Corporation limits is also conceded before us.
That such a construction can be proceeded against by invoking
Sections 260 and 267(1) of the Maharashtra Municipal Corporations
Act 1949 is also conceded.

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3.The notice has been issued calling upon the petitioner to
furnish inter alia the non-agricultural permission, the measurement
map, the title documents and pertinently copy of a development
permission in the form of a commencement certificate by this
Municipal Corporation together with the copies of the sanctioned
and approved plans, and finally a copy of completion certificate. It is
conceded before us that the petitioner possesses none of these
documents. Yet a school building has been constructed and made
operational. The educational institution has not bothered to comply
with the mandate of the Maharashtra Regional & Town Planning
Act 1966, the Maharashtra Municipal Corporations Act 1949, the
building regulations and bye-laws framed thereunder. That prior
development permission in the form of commencement certificate is
required cannot be disputed and that it is not granted is equally
undisputed.

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4.A commencement certificate refers to the plans for
construction and those plans have to be sanctioned prior to
commencement of construction activities. This is the mandate
flowing from the provisions of the above laws. This Petitioner
complies with no part of any law. He only relies on the reservation
or designation in the development plan for the subject period
reserving this plot for school. His petition projects that once there is

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Page 2 of 4 22nd August 2019

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501-ASWP9255-19.DOC

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such a reservation and designation, that dispenses with all building
permissions and regulations, and permits the construction of a
school building without prior development permission or sanctioned
and approved plans. This is an assertion impossible to accept. There
is no support for such a proposition or assertion in law. Once that is
also conceded, then, in the writ jurisdiction we cannot allow the
school building to stand and permit a post-facto approval of the
same. What is illegal from inception cannot be regularized by such
post-facto exercise. It would mean that the planning authorities sets
at naught the planning laws by allowing and tolerating such
activities. These are from inception illegal and unauthorized and
there is no question of regularizing them. It is settled law that an
illegality cannot be cured.1 An illegality is not an irregularity.

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5.We are not in agreement with Mr Kadam that the impugned
notices can be interfered with on the ground that even otherwise a
school building can be constructed on the subject plot on account of
reservation/ designation in the development plan. The application
for regularization cannot be allowed to be filed nor can it be allowed
to be considered. In our extraordinary, discretionary and equitable
jurisdiction under Article 226 of the Constitution of India, no writ
can be issued contrary to law or in subversion of the law.

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6.There is also no room for any plea based on equity here, or of
citing the so-called plight of students. It is the petitioner which has
put these students at risk, and it is the petitioner who will answer to
the students and their parents or legal guardians, including as to all

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1 See : K Ramdas Shenoy v Chief Offer, Town Munifipal Counfil, Udipi & Ors , AIR 1974 SC 2177.

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501-ASWP9255-19.DOC

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legal liability. Indeed, we cannot help wondering what principles or
values such an institution can possibly inculcate or impart to young,
receptive and impressionable minds if its entire existence is
predicated on a rank illegality, a flouting of the law and a brazen
subversion of the rule of law. If the so-called ‘education’ being
imparted is perfectly all right for anyone to do anything in total
disregard of the law, and that one can always get post-facto
legalisation, ratification or the blessings of some writ court, then it is
perhaps in the interest of all that the school be demolished without a
moment’s delay. This school is a monument to illegality, and to a
deliberate, wilful and conscious defiance and snubbing of law. Every
day it continues to stand perpetuates the offence. Under no
circumstances will we countenance this.

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7. The writ petition is without a shred of merit. It is dismissed.

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(S. C. DHARMADHIKARI, J)

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(G. S. PATEL, J)

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Page 4 of 4 22nd August 2019

Balaram Ambo Jadhav and Anr. v. State of Maharashtra through Urban Development Dept. and Ors.

Case brief

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Balaram Ambo Jadhav and Anr. v. State of Maharashtra through Urban Development Dept. and Ors.

Case brief

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What did the court decide?

What the court decided

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