Illegal Structures Cannot Be Regularized: Bombay High Court Orders Demolition of Unauthorized Construction in Cantonment Red Zone

Bombay High Court dismissed a writ petition filed by Lekha Ali Shaikh seeking to overturn the Cantonment Board's order for demolition of her unauthorized construction in a Red Zone area. The court, led by Justices Kamal Khata and M.S. Sonak, ruled that the petitioner had suppressed critical facts and failed to establish the legality of the structure. The court ordered the Cantonment Board to proceed with demolition and file a compliance report by November 22, 2024.

The petitioner, Lekha Ali Shaikh, owned land in Mamurdi, Pune, where she initially constructed a 750 sq. ft. building without obtaining the necessary approvals. Later, she applied for permission to make repairs and additional construction, claiming a deemed sanction due to the Cantonment Board's failure to respond to her application within the stipulated time. However, the Board rejected her application, citing the land’s classification as a Red Zone under the Works of Defence Act, 1903, prohibiting construction.

The petitioner filed a writ petition to challenge the Board's demolition order issued in January 2015.

The primary issue was whether the petitioner could claim deemed sanction under Section 238(6) of the Cantonments Act, 2006, despite constructing in a Red Zone where no building activity is permitted. The petitioner argued that the area was not declared a Red Zone when the original structure was built and that no action was taken by the authorities for years, implying tacit approval.

The court, however, found that the petitioner had failed to prove that the initial structure, constructed in 2009, was legal. Furthermore, the petitioner's claim for deemed sanction was rejected because she suppressed material facts, including her failure to pay required processing fees. The court ruled that payment of fees or the passage of time does not confer legality on unauthorized construction, particularly in restricted zones.

The court ruled that the petitioner's construction was illegal from the outset and could not be regularized. Justice Khata, delivering the judgment, emphasized that unauthorized structures cannot be legalized by applying for repairs or additional construction when the initial building itself lacked approval.

Citing Section 238 of the Cantonments Act, the court noted that deemed sanction cannot be invoked for construction in violation of public safety laws such as Red Zone regulations. The court also dismissed the petitioner's argument that the area might be removed from the Red Zone in the future, stating that construction cannot proceed based on speculative future events.

In a strongly worded judgment, the court condemned the growing culture of unauthorized construction, stating: "A law-abiding citizen wonders: if a lawbreaker like a ‘slumlord’ can construct illegal structures on public and private land without facing consequences, why shouldn’t a private landowner build without permission or approvals?"

The High Court dismissed the petition with costs of ₹1,00,000, ordering the Cantonment Board to demolish the illegal structure and file a compliance report by November 22, 2024. The court also directed the CEO of the Cantonment Board to explain why no action was taken for nine years after the original demolition order.

Date of Decision: September 27, 2024

Lekha Ali Shaikh vs. Chief Executive Officer