Civil suits no longer a tool to protect illegal buildings

By Vivek Vashi and Prakritee Yonzon, Bharucha & Partners
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In the recent case of Prathamesh Tower Cooperative Housing Society Limited v Gorai Road (Borivali) Shree Ganesh Cooperative Housing Society Ltd And Ors, Bombay High Court held that when a civil suit is expressly barred under the Maharashtra Regional Town Planning Act, 1966 (MRTP Act), a civil suit cannot be instituted as a means to perpetuate the continuing wrong/act of retaining an unauthorized and illegal construction. Instead, the aggrieved can resort to the alternative remedy which is self-contained and available under the provisions of MRTP Act or can invoke writ jurisdiction.

Although the decision as to the finality of the acts of the planning/local authority under the provisions of the MRTP Act is not novel, the court shed light on the use of civil suits as a means to protect and prolong illegal structures, and on the dilatory and mala fide intent of the builders and illegal squatters, thus raising the vigilance of the civil courts.

Facts of the case

The respondents were doing unauthorized construction work on a compound wall, and although they did not seek permission from the planning authority – the Municipal Corporation of Greater Mumbai (MCGM) – as required by law, they had oddly sought police protection for the work.

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Vivek Vashi is the mainstay of the litigation team at Bharucha & Partners, where Prakritee Yonzon is an associate.

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