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Synopsis

The Bombay High Court has strongly criticized the Thane Municipal Corporation (TMC) for its failure to promptly demolish an unauthorized mosque structure.

Expressing strong displeasure over the civic body’s inability to complete the demolition, attributing it to administrative inaction and resistance from a mob that obstructed the process, the court noted: “it is the settled position of law that, in a democratic State, a person / group of persons or an Association cannot be even permitted to say that, it will not follow the law of the land and will oppose it on any ground. In such circumstances, it is the duty of the law enforcers to make such person / persons / Association to abide by the law of the land. It is also necessary for the law enforcers to imbibe in the minds of the citizens that the violation of law and/or opposition to implement the law by the State will not be countenanced and/or tolerated.”

A Division bench comprising Justice A.S. Gadkari and Justice Kamal Khata, expressed dissatisfaction with the municipal authorities for their inaction despite multiple court directives and observed that officials appeared to be deliberately protecting illegal encroachments. The court ordered the completion of the demolition within two weeks after the holy month of Ramadan.

The petitioners, New Shree Swami Samartha Borivade Housing Company Private Limited and its representative, Satish Prabhakar Shetye, approached the court under Article 226 of the Constitution, seeking action against unauthorized construction on their land. The petitioners argued that the unauthorized mosque was built without any legal permissions and had encroached upon their property. It was also contended that the illegal construction was allowed to continue due to the inaction of municipal authorities, despite repeated complaints.

In response, TMC officials admitted that an unauthorized Ground+1 structure, including a prayer hall, had been constructed without permission. A notice under Section 260 of the Maharashtra Municipal Corporation Act, 1949, was issued on January 6, 2025, directing the removal of the structure. After a hearing on January 22, 2025, the Assistant Commissioner of TMC passed an order on January 27, 2025, declaring the construction illegal and mandating its demolition. Despite these directives, the demolition process faced delays. The corporation initially began demolishing the structure between February 15 and 18, 2025. However, further demolition was halted due to resistance from a large gathering at the site on February 19, 2025.

Rejecting the submission of the TMC that mob resistance prevented enforcement, the court emphasised that in a democratic society, no individual, group, or association can defy the law and that the municipal officers responsible for enforcement must ensure that violations are rectified without undue delay.

The court further questioned how such a large structure could have been built without the knowledge or intervention of municipal officers and warned that any negligence on their part would not be tolerated.

In accordance, the court directed the TMC to complete the demolition of the unauthorized structure within two weeks after Ramadan, by April 14, 2025. The court also ordered that no reconstruction of the already demolished portions should be allowed and directed senior municipal officers to remain vigilant.

The case is scheduled to be listed for compliance review on April 17, 2025.

 

Cause Title: New Shree Swami Samartha Borivade Housing Company Private Limited v Thane Municipal Corporation [WP6607 of 2024]

Appearance: Mr. Kunal Dwarkadas a/w. Mr. Nilesh Tated i/b. M/s. Mahimtura & Co. for Petitioners;  Mr. Ram S. Apte, Senior Advocate a/w. Mr. Mandar Limaye for Respondent Nos.1 & 2. Mr. S.S. Patwardhan i/b. Ms. Mrinal Shelar for Respondent No.3. Mr. Siddharth A. Mehta a/w. Ms. Harshada Shrikhande, Mr. Vaibhav & Ms. Bhargavi Mundhe for Respondent Nos.5 & 7. Officers :- (i) Ms. Smita Surve, Assistant Municipal Commissioner and (ii) Mr. Shankar Patole, Deputy Municipal Commissioner (Encroachment).