HC orders demolition of 5 illegal buildings in Kalher

Considering the gross illegalities, the bench said the only remedy available to the flat owners to recover the damages was to sue the purported landowners, Sharad Madhavi and Shekhar Madhvi, and builder Chandrakant Kherade of Saidham Developers

MUMBAI: The Bombay high court on Thursday ordered the demolition of five illegal buildings that were partially constructed on government land in Kalher, near Bhiwandi. It also asked the purported landowners and the builder to jointly deposit ₹8 crore, which would be distributed to the people who bought flats in the ground-plus-three-storey buildings.

HC orders demolition of 5 illegal buildings in Kalher

The division bench of justice MS Sonak and justice Kamal Khata ruled out the possibility of regularising the illegal buildings. Considering the gross illegalities, the bench said the only remedy available to the flat owners to recover the damages was to sue the purported landowners, Sharad Madhavi and Shekhar Madhvi, and builder Chandrakant Kherade of Saidham Developers.

“There can be no question about regularising such gross illegalities,” the bench said, as it ordered the purported landowners and the builder to deposit ₹8 crore in two months. The money will be distributed pro-rata to the flat owners, who the bench said could prima facie be said to be the victims of the “grossly illegal and fraudulent acts.”

The order came on a petition filed by two locals, Sunil Madhavi and his brother Avinash Madhvi, in 2019, asking for the demolition of the five buildings. The petition claimed that the construction happened without the permission of the Mumbai Metropolitan Region Development Authority (MMRDA), which is the planning authority for Kasheli and Kalher villages. Therefore, the construction of the buildings wasn’t illegal, it said.

Their counsel, advocate Amit Gharte, pointed out that the buildings are erected majorly on government land, and the construction of over 40,000 square feet of built-up area was made under the guise of reconstructing an old house covering barely 200 sqft.

Advocate Gharte also pointed out that, after following due process of law, the tehsildar of Bhiwandi issued an order in December 2013 to demolish the illegal buildings, but the revenue authorities and the MMRDA did not take action. Meanwhile, the builder, Saidham Developers, had disposed of the 80 flats in the five buildings and created third-party rights, he added.

Kherade from Saidham Developers had opposed the petition, contending that the litigation was the result of vendetta, as there were civil disputes between the petitioners and the (purported) landowners. The builder further contended that he had obtained construction permission from the village panchayat in 2010. He also argued that the construction was perfectly legal and valid, as the amended Section 52 of the Maharashtra Village Panchayats Act, 1959 (what does the section say?), was not in force at the time, and the village panchayat was competent to grant construction permission. The unamended section 52 empowered the panchayat to approve construction plans.

The court, however, refused to accept the argument, observing that the trio had “illegally and brazenly constructed five buildings at Kalher to defraud purchasers and the government.” The bench said the permissions granted by Kasheli panchayat did not relate to the buildings, and the panchayat was not even authorised to issue such permissions after March 17, 2007, when MMRDA was appointed the planning authority for the area.

The court entrusted the task of recovering the ₹8 crore from the trio to the Thane district collector, who has also been asked to prepare a report with details of the homeowners in the five buildings and the amounts they paid to purchase their flats. Based on the report, the money will be distributed pro rata, it said.

The court also clarified that the flat buyers are free to file civil suits to claim damages and compensation from the builder.